More Immunity For Killer Cops

Ruben Galindo’s hands were up when a police officer shot him.

Danquirs Franklin was putting his gun on the ground when a cop shot him.

Both men died, and now two federal judges have said the shootings were reasonable and constitutional and that the Charlotte-Mecklenburg Police Department and the City of Charlotte are not liable for the men’s deaths.

A comparison of the facts in the two cases — and the reasoning used by the judge in each — illustrates the impossible situation people face when staring down the barrel of a law enforcement officer’s gun — and the impunity and immunity cops too often enjoy when they pull the trigger.

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On the night of September 6, 2017, Ruben Galindo called 911 from his home in northeast Charlotte. He told the operator he wanted help and possessed a gun. “I want to turn myself in,” he said. Galindo, a Spanish-speaking Latino, also displayed delusional behavior, describing himself as “el dios Estrella,” or “star god.”

Galindo repeated that he needed help.

Officers were dispatched.

Then Galindo made a second call to 911.

The operator told him several times to leave his gun inside the house when officers arrived.

He said he had no bullets.

All of these details were relayed to the responding officers, who arrived at Galindo’s home shortly thereafter.

Officer David Guerra, along with several others, approached with their CMPD-issued patrol rifles.

When officers were about ten yards from Galindo’s door, he slowly exited.

Guerra yelled in Spanish, “Manos! Manos!” (“Hands! Hands!”)

In his left hand, Galindo held a gun.

The officers yelled, “Put it down! Drop the gun!”

Instead, Galindo slowly raised both his arms above shoulder level, including the one holding the gun, which was upside down in his grip — a position from which he could not fire it.

A mere six seconds after encountering Galindo, and while Galindo’s hands were in the air, Guerra fired a single shot, and Galindo crumpled to the ground, according to police body cam footage of the shooting. He later died.

None of the other officers on the scene fired their weapons.

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Danquirs Franklin stormed a Burger King on the west side of Charlotte on the morning of March 25, 2019. Someone called 911 to report he had gone behind the counter to fight an employee and had a gun.

CMPD Officers Wende Kerl and Larry Deal responded.

On their way to the scene, Kerl and Deal learned Franklin had exited the restaurant and was in the parking lot.

When Deal arrived, he got out and pointed his gun at Franklin, who was crouched on the balls of his feet, facing into an open passenger door of a maroon Honda and calmly interacting with the car’s occupant. Kerl arrived moments after Deal.

The officers yelled, “Let me see your hands!”

To get a better view, Kerl crossed betweern Deal and Franklin, whose hands were clasped in front of him.

Now the cops yelled, “Put the gun down!”

Around this time, a couple of people exited the Burger King and nonchalantly stood behind Franklin, who was Black. The cops shooed them away.

Deal and Kerl kept yelling, “Drop the gun! Drop it! Drop the weapon! I said drop it!” According to the federal court, police body cam footage captured them hollering this command twenty-two times.

Franklin made no furtive movements. He remained calm. “Impassive,” according to the federal judge.

Around this time, Franklin slowly reached into his jacket pocket. He then gingerly pulled out his hand, holding a small black pistol by the top of the barrel, not the hand grip. The muzzle pointed away from the officers.

Less then a second later, Kerl fired, hitting Franklin twice.

He “looked shocked and incredulous,” according to the court.

“You told me to,” Franklin muttered as he fell to the ground.

Approximately forty-three seconds had passed from the time Kerl entered the parking lot to the moment she shot Franklin, who died an hour later.

Deal didn’t fire his weapon.

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The Mecklenburg County District Attorney declined to prosecute either Guerra or Kerl, but the families of both men sued the city and the officers, alleging the cops used excessive force and wrongfully killed Galindo and Franklin. (In a rare move, the city’s Citizens Review Board, which reviews allegations of police wrongdoing, voted to condemn Kerl’s actions, but neither then-Police Chief Kerr Putney nor City Manager Marcus Jones agreed, bringing the case to a close as an internal, municipal matter.)

In separate lawsuits, the dead men’s families argued the officers’ decisions to shoot were objectively unreasonable in light of the circumstances each officer faced, with Galindo’s hands in the air and Franklin following officers’ orders.

A 1989 Supreme Court case that arose from Charlotte, Graham v. Connor, held that a test of objective reasonableness under the Fourth Amendment functions as the standard by which claims of excessive force by police officers — including excessive force that leads to death — are to be assessed.

“As in other Fourth Amendment contexts … 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, without regard to their underlying intent or motivation,” the Court wrote.

Putting its thumb on the scales of justice in favor of law enforcement, the Court also observed, “The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation.”

As a practical matter, this “allowance” is liberally construed and functions to insulate officers from liability even in the face of egregious behavior on their part — like that which caused the deaths of Galindo and Franklin. It’s a rule of constitutional law that, as applied, privileges the right of state agents to kill over the right of their victims to live.

And it is from this perpetrator’s perspective that federal judges have now tossed the lawsuits brought by the families of Galindo and Franklin. (In both cases, the judges granted the city’s and officers’ motions for summary judgment. This means the judges found there existed no dispute of material fact and that, as a result, the judge in each case could simply apply the law and issue a decision in favor of one party or the other without the need for a trial. The families of both men are now appealing the trial judges’ decisions to the federal appellate court in Richmond, Virginia.)

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Judge Robert J. Conrad, Jr. disingenuously began his analysis of the legal claims before him in Galindo’s case by noting, “No citizen can fairly expect to draw a gun on police without risking tragic consequences. And no court can expect any human being to remain passive in the face of an active threat on his or her life.”

To assert that either of these observations applies to Galindo’s actions is profoundly mistaken: He did not “draw a gun” on police, but held a gun in his hand as he raised his arms in surrender, and, with his hands up, he posed no active threat to officers.

Conrad got around these inconvenient truths by tinkering with time and disregarding the chronology of events on the night police shot and killed Galindo.

He observed in his September 2021 opinion, “[I]t is hardly compliant to reach into a pocket and retrieve a gun — after repeatedly being told to leave the gun inside — while the police are asking you to show your hands.”

But Conrad ignored that Galindo brought out the gun before or, at the very latest, at the same time officers asked him to show his hands. And, perhaps most important, Conrad disregarded that between the time Galindo ignored this command — that is, if he ignored this command — and the time Guerra shot him, Galindo calmly and completely raised his hands above his head.

The judge sought to justify Guerra’s actions at the end of the encounter — killing Galindo — by resort to Galindo’s actions at its inception — failing to leave his gun inside — for by the time Guerra pulled the trigger, Galindo wasn’t “reach[ing] into a pocket and retriev[ing] a gun,” and his hands weren’t otherwise obscured in a way that could prompt a reasonable officer to conclude he was preparing, intending, or attempting to harm the officers.

Indeed, the judge all but ignored that Galindo, within seconds of the officers arriving, raised his hands above his head. Instead, Conrad fixated on Galindo’s possession of a gun, which he described as “the single most compelling fact” in the case, and he concluded Galindo’s actions “could hardly be more provocative.”

Not a thing Galindo did after bringing out his gun — including raising his hands in surrender — could undo that initial, “provocative” action, according to Conrad. Time cured nothing: Once Galindo brought his gun outside, and no matter what happened thereafter, the officers could constitutionally do as they pleased. (Also, contrary to Conrad’s assertion, it’s quite easy to imagine more provocative behavior: Galindo could have kept his hands concealed. Galindo could have run toward the officers. Galindo could have leveled the gun at officers. He did none of these things while calmly raising his hands.

The lesson from Conrad’s reasoning is that any failure at any time to follow an officer’s instructions — even if doing so to demonstrate you mean no harm to the officer, for what else could Galindo have been signaling by raising his hands in the air? — justifies your death at the hands of armed state agents.

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Danquirs Franklin found himself on the flip side of the situation in which Galindo found himself.

As recounted by Judge Graham C. Mullen in his November 2021 decision, in the moments before Kerl shot Franklin, she and Officer Deal told Franklin twenty-two times to drop his weapon.

It was only once Franklin began to do so that Kerl shot him, prompting Franklin to incredulously mutter before collapsing from his mortal wound, “You told me to.”

In his decision exonerating Kerl and the city, Mullen recounted remarks made to Deal by Captain Jim Wright, a CMPD member who served on the department’s Shooting Review Board that examined Franklin’s shooting.

Wright asked Deal, “In this case, [you] cannot see the weapon but there were commands given to drop the weapon … I believe a reasonable person would, if they began to comply, reach for the weapon and then drop the weapon. … Would you think that’s reasonable?”

Deal said he would.

Mullen then quoted a colloquy between Kerl and Sergeant William Ratchford, another member of CMPD who sat on the Shooting Review Board:

RATCHFORD: If I’m a suspect with a weapon … and if I have it in my pants, down in my pants, and I get the command from the officer, “put the weapon down,” or “drop your weapon,” I have to take some action to do that. The physical action … if I am going to obey the command of the officer, is to get the gun as the officer has commanded me to do to put it down. What was your expectation, when [you] asked the suspect to put the gun down?

KERL: To give me some type of — he shouldn’t be reaching for anything when an officer is there — you should give them some type of either non-verbal … or verbal … “Hey, okay, I got it in my jacket,” um, “I’m going to put my hands up,” “I’m going to go in and get the gun.” Something to tell me what you’re doing. I had no idea what that man was doing, at that time.

RATCHFORD: Okay. So, you say you shouldn’t reach for anything.

KERL: No.

RATCHFORD: But … if you’re telling me to reach for it, I’m doing exactly what you’re asking me to do. And now you said that I shouldn’t be reaching for it. Which is it?

KERL: (Long sigh and pause) Shouldn’t be reaching for it. You need to show me some kind of communication. … I don’t have but a split second to make a decision on what you’re doing. I understand, you’re saying I said … Drop the weapon. But I thought the weapon was originally in between his hands.

Kerl, in other words, wanted Franklin to engage in the kind of non-verbal communication performed by Galindo when he raised his hands. But Franklin didn’t, so Kerl killed him.

Whereas Galindo, in an effort at non-verbal communication intended to assure officers he meant no harm, was shot because he failed to follow every instruction hollered at him, Franklin was shot for following instructions from officers, but doing so in a way that failed to provide officers with sufficient, unsolicited assurance he didn’t intend to harm them.

Galindo failed to comply when he should have, while Franklin complied when he shouldn’t have.

In the end, Mullen ruled that despite his compliance with officers’ orders, Franklin “gave no indication that he was complying with police commands until after he was shot.” (Compliance itself apparently doesn’t count as evidence of compliance.) Furthermore, Mullen noted, “Franklin’s lack of eye contact, detached demeanor, and general non-responsiveness” made it reasonable for Kerl to conclude he was not complying. (Of course, if Franklin had been agitated or excited, that surely would have counted against him, too.)

The lesson from Mullen’s decision is that even if someone is following an officer’s orders, that officer can still reasonably shoot to kill.

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Magic words aren’t supposed to animate the law. It is the substance of people’s actions, not the labels placed on those actions, that ought to govern legal liability.

But not, it seems, when cops kill.

The current practice employed by CMPD whenever one of its officers shoots someone is to immediately release a statement asserting the officer fired his weapon because he “perceived a lethal threat.” Oftentimes this conclusory statement is devoid of meaningful detail, and for good reason: It’s not the factual details, but the legal conclusion that most interests law enforcement.

That’s because under the standard articulated by the Supreme Court in Graham, if an officer perceives a lethal threat, then using deadly force is justified. To be sure, the law theoretically requires the officer’s perception to be reasonable, but as a practical matter, the fact of the perception is itself often sufficient evidence of the perception’s reasonableness.

To help others reach the conclusion CMPD wants them to reach — that an officer’s use of force was justified — the department begins the post-shooting narrative by quickly and publicly stating not the facts that might have justified an officer’s use of force, but the conclusion that CMPD wants everyone to accept: there existed a perceived lethal threat and deadly force was appropriate.

It’s then left for district attorneys to make charging decisions, and for judges to enter opinions and orders, consistent with the interpretation of events that CMPD has already publicized.

The cases of Galindo and Franklin make clear this dynamic:

Galindo failed to follow orders yelled at him as he non-verbally communicated that he posed no threat to officers. So Guerra shot him.

Franklin followed the orders screamed at him, but failed to offer verbal or non-verbal assurance to officers that he meant them no harm. So Kerl shot him.

One man had his hands up, and the other followed orders, but it didn’t matter: The spell had been cast, the magic words uttered — “perceived a lethal threat.” And for now, two of our federal judges have endorsed the self-serving narrative begun by the very cops accused of wrongdoing.