Danquirs Franklin’s actions before his death don’t matter.
All that matters is what the officer who shot him saw and knew when she pulled the trigger.
Charlotte-Mecklenburg Police Department and the City of Charlotte sought to distract from this unremarkable point when it released irrelevant video footage this week showing events before Franklin’s death in March 2019.
The applicable law is well-established and was aptly described, for example, in a Supreme Court decision, Graham v. Connor (1989), that arose out of a Charlotte cop’s overzealousness.
In Graham, Officer Connor saw a man, Dethorne Graham, hurriedly exit a store and get into a car, which drove off. As it turns out, Graham rushed to leave the store because he was a diabetic and feared he was having a reaction to insulin.
Graham wanted William Berry, the car’s driver, to bring him to another friend’s house to get some juice. (Graham had entered the store hoping to buy some orange juice, but there was a long line, so he thought his friend’s house was a better bet.)
Connor pulled over the two men. Graham passed out. Back-up arrived. The cops handcuffed the previously unconscious Graham and ignored efforts by Berry to explain the situation.
As Chief Justice William Rehnquist recounted in his opinion, “One of the officers rolled Graham over on the sidewalk and cuffed his hands tightly behind his back, ignoring Berry’s pleas to get him some sugar. Another officer said: ‘I’ve seen a lot of people with sugar diabetes that never acted like this. Ain’t nothing wrong with the M.F. but drunk. Lock the S.B. up.’”
The cops eventually released Graham when they confirmed nothing illegal had occurred inside the store.
Graham sued Connor for violating his constitutional rights, and the Supreme Court reversed lower courts’ dismissals of the lawsuit.
In doing so, Chief Justice William Rehnquist articulated the legal standard for assessing whether a police officer’s use of force is excessive under the Fourth Amendment. (A similar standard governs the use of force under state law.)
“The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight,” Rehnquist explained.
“As in other Fourth Amendment contexts, however, the ‘reasonableness’ inquiry in an excessive force case is an objective one: the question is whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them …” (emphasis added).
Put differently, assessing whether an officer used excessive force is an inquiry necessarily limited to looking at what the officer knew when she fired her weapon. The prohibition against using “20/20 vision” means that facts later uncovered, but at the time unknown to the officer, are irrelevant to the analysis.
Which bring us back to Danquirs Franklin.
At the same time the city released additional body-cam footage related to Franklin’s homicide by CMPD Officer Wende Kerl, it also published video footage documenting events inside the Burger King in whose parking lot Franklin was later shot. (Kerl’s own body-cam footage was previously released. None of the other body-cam footage released this week shows the shooting as clearly as Kerl’s.)
The restaurant’s footage was published, the city said in a press release, “to provide the community an opportunity to review all of the video associated with the incident and the moments that preceded the incident.”
This at first seems to make sense. Yes, let’s see everything.
But, in fact, releasing the Burger King footage only obscures the answer to the fundamental question: Was Kerl justified in killing Franklin?
To properly answer that question, as explained in Graham, we can look only to what Kerl knew and saw at the time she fired her gun. Anything that happened prior to the shooting and outside Kerl’s knowledge or presence cannot be considered.
With that in mind, her body-cam footage is the best evidence of what Kerl knew or saw when she killed Franklin — and, therefore, the best evidence on the question of whether her decision to kill was justified.
The roughly eleven-minute video opens with Kerl in her patrol car, driving to a Burger King on Beatties Ford Road in West Charlotte.
At the 1:10 mark, she parked her car and got out.
She drew her gun by 1:13.
Another officer, Larry Deal, also pointed his gun at Franklin, who was crouched and stationary between two cars in the parking lot. Deal was perhaps twenty feet from Franklin.
“Let me see your hands now!” Kerl yelled at 1:15 as she moved closer to Franklin.
Around 1:20, she told Deal, “I’m crossing. I’m crossing.” She then proceeded to walk between Deal and Franklin until she was a couple feet away from the right-rear fender of a maroon, four-door Honda, one of the two cars between which Franklin was located.
By 1:21, we see Franklin. He’s positioned like a catcher behind home plate, balanced on his tip-toes. Franklin faced into the Toyota’s open, front, passenger-side door, with Kerl to his left.
At 1:23, Kerl told Franklin, “Sir, put the gun down.”
Then a female restaurant employee casually walked from the door of the Burger King to the front of the Honda. By 1:28, the employee stood next to Franklin.
“He’s got a gun. He’s got a gun,” Kerl said. “Drop the gun!”
Around 1:35, Kerl and Deal directed the restaurant employee to get away from Franklin. She returned to the restaurant.
“Drop it! I said drop it!” Kerl and Deal yelled several times until roughly 1:53, when, as instructed, Franklin began to place the weapon on the ground. While doing so with his right hand, he held the gun by the barrel, not the grip, and pointed it away from Kerl.
As Franklin put the gun on the ground, Kerl fired twice and struck him. He at no time brandished the weapon or pointed it at the officers and made neither sudden nor furtive movements. He complied.
Before crumpling into unconsciousness and death, Franklin said, “You told me to … .”
A mere 43 seconds passed from the time Kerl pulled into the parking lot until she shot Franklin.
It’s this period of time we must review when asking whether the homicide was justified.
In less than a minute of interaction with Kerl, Franklin attempted to comply with her instructions and at no time engaged in any actions that can be objectively described as threatening to the officers. Another person — the Burger King employee who strolled up to the car door and was standing over Franklin’s shoulder until officers told her to leave — obviously didn’t feel threatened. Nor did the other officer, Deal, who didn’t fire his weapon.
The city tacitly acknowledged Franklin didn’t do anything to provoke Kerl’s lethal response: In announcing the release of the video footage this week, the city wrote, “Both Officers gave several commands to Mr. Franklin to drop the gun. A short time later, Officer Kerl perceived an imminent, deadly threat and subsequently fired her department issued firearm two times, striking Mr. Franklin.”
The city couldn’t describe any specific actions, movements, or behaviors Franklin undertook to justify his killing — what, exactly, he did to pose an imminent, deadly threat — because there weren’t any. The city also dishonestly omitted the most important detail from its description of events: Franklin was placing the gun on the ground, as instructed, when Kerl killed him.
Though CMPD and the Mecklenburg County District Attorney concluded the killing was justified — despite a rare (and meaningless) rebuke to the contrary from the Citizens Review Board — the evidence of justification is meager, if not non-existent.
So CMPD and the city needed something more to continue selling their story to the public.
They found it in the Burger King’s closed-circuit video footage. (Tellingly, while the city’s press release stated it was releasing officers’ body-cam footage pursuant to a superior court judge’s order, CMPD voluntarily released the restaurant’s footage, no doubt because the department thought doing so served its interests.)
The restaurant’s footage is violent: Franklin storms in with a gun and goes into the kitchen, chasing out an employee while pointing the gun at him. Later, he jumps on top of the counter and appears to yell and scream. Franklin assaults a few people.
This is seemingly compelling stuff — but Kerl didn’t see any of it, so none of it can be properly considered when asking if she justifiably killed Franklin. It’s just spin.
And local media largely bought it.
WBTV’s online story prominently featured the restaurant footage. Likewise over at WCNC and WSOC and WCCB and Fox 46.
The Charlotte Observer resisted CMPD’s efforts at manipulation. The Observer’s headline read, “New video: Chaos then calm before fatal police shooting at Charlotte Burger King,” and the story pointed out that Kerl had no personal knowledge of Franklin’s behavior inside the Burger King before killing him and that by the time cops arrived on the scene, Franklin was no longer engaging in such behavior.
Release of the footage also aided CMPD’s ongoing legal fight with Franklin’s family. (Franklin’s mother sued Kerl and the city.)
Kerl’s attorney, Lori Keeton, disingenuously told the Observer that Franklin’s behavior inside the Burger King showed “why Officer Kerl was forced to use deadly force for the first time in her then 25-year career,” an attempt to taint the jury pool that may ultimately decide whether Kerl and the city will be held civilly liable for the homicide.
Danquirs Franklin can get no rest:
The police killed him.
The district attorney said he deserved it.
And now the city seeks to smear him so the public will see him not as a man, but a wild animal who deserved to be put down.
Charlotte Citizen 