Federal Appeals Court rejects qualified immunity in Charlotte police shooting | Eastern North Carolina Now

    Publisher's Note: This post appears here courtesy of the Carolina Journal. The author of this post is CJ Staff.

    The 4th U.S. Circuit Court of Appeals has rejected a Charlotte police officer's claim of qualified immunity in a lawsuit challenging her fatal shooting of Danquirs Franklin in 2019.

    The unanimous decision reverses trial Judge Graham Mullen, who had ruled in favor of Officer Wende Kerl and the city. The case will head back to a trial court, where Franklin's mother can continue to pursue her wrongful death lawsuit and other claims.

    "The Constitution tolerates the use of deadly force by police officers only when necessary to thwart an imminent threat to life, which requires the officer to reasonably perceive danger," wrote Appeals Court Chief Judge Roger Gregory. "The dividing line between reasonable and unreasonable justifications for claiming a human life, though notoriously elusive, must be meticulously sketched and jealously preserved."

    "When an officer issues a clear command to an armed suspect to do one thing and that person does another, we seldom question the officer's use of force. But when the officer's abstruse commands require the suspect to divine their meaning, the law cannot be so forgiving," Gregory added. "In those circumstances, courts are duty-bound to engage in a searching examination of an officer's resort to deadly violence."

    "When Charlotte-Mecklenburg Police Department ("CMPD") officers Wende Kerl and Larry Deal responded to a disturbance at a Charlotte fast-food restaurant, Officer Kerl expected to confront a gun-wielding man threatening the public," Gregory explained. "Instead, she encountered Danquirs Franklin, crouching quietly and disturbing no one. Even before Officer Kerl could see Franklin, she barked orders to see his hands."

    "Once Franklin was in her line of vision, Officer Kerl could see neither his hands nor a firearm," the chief judge wrote. "Even so, for forty-three seconds the officers shouted unremittent commands to drop a weapon no one could see. As Franklin retrieved a firearm from inside his jacket and it fell to the ground, Officer Kerl shot Franklin twice. In a blink, Franklin was dead."

    Appellate judges agreed Kerl "acted unreasonably," Gregory wrote.

    "It is not lost on us that we issue this decision from the calm of a courthouse," he explained. "In making our decision, we have had the opportunity to replay the unfortunate events of that March 2019 morning. Unlike us, Officer Kerl could not press pause or rewind before determining whether Franklin posed an imminent threat."

    "Still, we remain resolute that qualified immunity is not appropriate for the disposition of this case," Gregory wrote. "The officers rushed headlong onto a scene that had subsided, established no dialogue, and shouted at Franklin loudly enough that they did not hear him try to communicate back. In their zeal to disarm Franklin, it hardly occurred to the officers that their commands defied reality. As a result, Franklin faced a catch 22: obey and risk death or disobey and risk death. These facts entitle a jury of community members to decide whether Officer Kerl shot Franklin unlawfully."

    Appeals Court Judge Harvie Wilkinson and U.S. District Judge John Gibney joined Gregory's opinion. Wilkinson wrote separately to defend the use of "qualified immunity" in other cases.

    "The understandable grief and outrage that has greeted unjustified police shootings and chokings has unfortunately been accompanied by a less understandable desire to impair the foundations of effective police work, most notably that of Qualified Immunity," Wilkinson wrote. "Voices beyond number have urged the elimination of this doctrine. I write briefly to say it would be wrong to draw from this case a forecast of Qualified Immunity's demise."

    "The immunity to be afforded is only qualified," Wilkinson explained. "Given the gravity of a police shooting, affording absolute immunity would be unthinkable. By the same token, the deprivation of even Qualified Immunity would be equally indefensible and deny officers the benefit of a discretionary call where their own lives may be on the line. Thus Qualified Immunity, far from being 'pro-police,' represents nothing more than a tenable compromise."

    Franklin's mother had asked the 4th Circuit to reverse every aspect of the trial court's decision favoring Kerl and the city. Tuesday's ruling upheld part of the lower court ruling favoring Charlotte.