On April 4, 2023, the Fourth Circuit Court of Appeals decided Franklin v. City of Charlotte[i], in which the court examined whether an officer was entitled to qualified immunity when she shot a person who was following commands to drop his weapon.  It is important to note that, at a motion for qualified immunity, the court must view the facts as the plaintiff alleges, unless there is clear evidence to the contrary, such as video.  The relevant facts of Franklin, viewed in a light most favorable to the plaintiff, are as follows:

Just after 9:00 a.m. on March 25, 2019, police dispatchers received two 911 calls reporting an unfolding incident at a Burger King in Charlotte, North Carolina. Both callers described a man, later identified as Danquirs Franklin, who was threatening patrons and staff with a firearm. Officers Kerl and Deal responded to the call. Before they arrived, Franklin exited the restaurant and crouched down next to the passenger side of a Honda sedan parked in the restaurant parking lot. Officer Kerl’s department-issued body camera captured the following events.

Officer Deal arrived first, parking his patrol cruiser at an angle behind the Honda’s left bumper. Officer Kerl angled her vehicle behind Officer Deal’s. Both officers exited their vehicles, weapons drawn. Immediately, each officer shouted, “Let me see your hands,” and “Let me see your hands, now!”—a total of four commands. Officer Deal stood behind the open driver-side door of his cruiser, pointing his firearm at Franklin. From her initial position behind her own cruiser, Officer Kerl could only see the driver side of the Honda. She could not see Franklin.

Officer Kerl moved to get a better view. Abandoning the cover of her cruiser, she ran in front of Officer Deal’s drawn weapon, telling him: “I’m crossing, I’m crossing.” She moved to the passenger side of the Honda, stopping in front of Franklin. She was now standing adjacent to the rear taillight on the passenger side of the Honda. Franklin was crouching directly in front of her, but facing the open passenger side of the Honda with his left shoulder in full view of the officers. He was on the balls of his feet, about one foot away from the Honda’s male passenger.1 Franklin’s hands appeared to be clasped together between his legs. Officer Deal moved up to cover Officer Kerl, advancing from his car door until he was behind the trunk of the Honda.

Once Officer Kerl established her new position, both officers changed their commands to variants of “Drop the gun!” As the officers issued commands, a woman in a Burger King uniform walked up to Franklin but behind the open Honda passenger-side door. The officers ceased their barrage of commands at Franklin only to yell at her to get back: “Ma’am, get out of the way!” After the restaurant employee complied, the officers resumed their shouting at Franklin: “Drop the gun!” “Drop it!” “Drop the weapon!” “I said drop it!” “Put it on the Ground!” Although neither officer remembers hearing it, the body camera audio picks up Franklin’s response: “I heard you the first time.” The officers continued to yell.

Throughout the encounter, Franklin’s demeanor appeared passive. For most of the video footage, Franklin’s head is obscured by Officer Kerl’s hands clasped around her service weapon. But, at times, the video shows Franklin move his head. When Officer Kerl assumed a position facing Franklin directly, his eyes were fixed upon the ground. When the Burger King employee approached, Franklin briefly turned his head in her direction before looking forward at the passenger of the Honda. Franklin also turned his head slightly in Officer Deal’s direction twice.

As the officers barked instructions to drop his weapon, Franklin’s body stayed still. Finally, without moving his head or legs, Franklin slowly reached into the right side of his jacket and retrieved a black handgun with his right hand. When Franklin’s gun was in Officer Kerl’s view, her body camera shows that it was not in a firing grip; Franklin held it by the top of the barrel slide with the grip-side closest to the officers and the muzzle pointed away from them. Immediately, Officer Kerl discharged her weapon twice, striking Franklin in the left arm and abdomen. As he slumped against the open car door, Franklin looked in the officers’ direction with a face of shock and uttered his final words: “You told me to.”

An ambulance took Franklin to the hospital, where he was officially pronounced dead less than an hour later. All told, forty-three seconds elapsed between Officer Kerl’s arrival on the scene and when she fatally shot Franklin. In that time, the officers had shouted twenty-six commands—variations of “let me see your hands” four times, and of “drop the weapon” twenty-two times in a row.[ii]

Franklin’s mother, as administrator of his estate, sued Officer Kerl for excessive force under the Fourth Amendment.  She also sued the city and filed claims under state law.  This article will only focus on the excessive force suit against the officer.

Officer Kerl filed a motion for qualified immunity.  The district court granted the officer’s motion and held that Officer Kerl made a mistake in shooting Franklin, but it was a reasonable mistake.  In other words, the court held that Officer Kerl’s perception that Franklin’s decision to reach for the gun posed an imminent lethal threat was a reasonable perception, even if it was mistaken.  Franklin appealed the grant of qualified immunity to the Fourth Circuit Court of Appeals.

The issue upon which this article will focus is whether Officer Kerl is entitled to qualified immunity for shooting Franklin.  The court of appeals explained qualified immunity and stated

The doctrine of qualified immunity shields officers from civil liability so long as their conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231, 129 S. Ct. 808, 172 L. Ed. 2d 565 (2009). . . Under the well-known analysis of Saucier v. Katz, 533 U.S. 194, 121 S. Ct. 2151, 150 L. Ed. 2d 272 (2001), the Court must ask two questions: (1) “whether a constitutional violation occurred”; and (2) “whether the right violated was clearly established.” Henry, 652 F.3d at 531. The Court may exercise its discretion in determining which of the two prongs to analyze first. Pearson, 555 U.S. at 236.[iii]

I. Did the Officer Violate the Fourth Amendment?

The court then examined the first part of the qualified immunity analysis, particularly whether the officer violated the Fourth Amendment by using deadly force against Franklin.

The court of appeals first noted that all claims of excessive force must be analyzed under the objective reasonableness standard of the Fourth Amendment.  The lead Supreme Court case related to reasonable force is Graham v. Connor.[iv]  The court of appeals discussed Graham and stated

Three factors, established by the Supreme Court in Graham, govern this analysis: (1) “the severity of the crime”; (2) “whether the suspect poses an immediate threat to the safety of the officers or others”; and (3) “whether he is actively resisting arrest or attempting to evade arrest.” 490 U.S. at 396. When assessing these factors, the Court should focus on “the totality of the circumstances” based on the “information available to the [officer] immediately prior to and at the very moment [she] fired the fatal shots.Hensley, 876 F.3d at 582 (internal quotation marks omitted).[v]

Thus, the court will consider the three factors from Graham, focusing on the totality of the circumstances, based on what the officer knew immediately prior to and at the moment deadly force was used.

The court of appeals also specifically addressed deadly force and stated

In excessive force cases where an officer uses deadly force, the second Graham factor is particularly important. In these matters, the question comes down to whether the circumstances presented an immediate threat that justified the officer’s resort to lethal force as objectively reasonable, “without regard to [the officer’s] underlying intent or motivation.” Id. at 582 (cleaned up). In other words, the Fourth Amendment permits the use of deadly force when a police officer “has probable cause to believe that a suspect poses a threat of serious physical harm, either to the officer or to others.” Cooper, 735 F.3d at 159 (cleaned up). . .

In a handful of decisions, we have found lethal use of force justified when “the objective basis for the threat was real, [even if] the gun was not.” Id. By contrast, we have reached the opposite conclusion in cases where the gun “was real [but] the threat was not.” Id. [vi]

In other words, the court has found the use of deadly force reasonable in situations where a suspect did not have a weapon, but acted in threatening or defiant manner in such a way that it provided an officer with the reasonable belief that the person was armed and an imminent threat.  Conversely, the court has found the use of deadly force unreasonable when the person did have a gun but was not acting in a manner in which it was objectively reasonable for an officer to perceive a threat from the weapon.  The court further explained

When the Court has discerned an objective basis for lethal force, the case involved “a person in possession of, or suspected to be in possession of, a weapon” who does not “obey commands” and instead “makes some sort of furtive or other threatening movement with the weapon.” Knibbs, 30 F.4th at 225 (collecting cases). Such defiance “signal[s] to the officer that the suspect intends to use [the weapon] in a way that imminently threatens the safety of the officer or another person.” Id.[vii]

The court of appeals then discussed the Fourth Circuit case Anderson v. Russell,[viii] in which a citizen reported a man with a gun.  The responding officer observed a bulge in the suspect’s waistband area.  The officer ordered the suspect to raise his hands and suspect initially complied but then reached for his waistband area.  The officer shot the suspect, and it was discovered that the suspect was not armed.  The Fourth Circuit held that

[T]he officer’s “split-second decision to use deadly force against Anderson was reasonable in light of [the officer’s] well-founded, though mistaken, belief that Anderson was reaching for a handgun.” Id. at 132.[ix]

Therefore, the officer was entitled to qualified immunity.

In contrast, the court discussed Hensley v. Price,[x] in which police witnessed Hensley strike his daughter with a handgun and then walk off his porch toward the police, while still holding the gun.  The gun was pointed at the ground.  The police never told him to stop, drop the gun, or gave any warning.  Hensley did not make any overt threats toward the officers.  As Hensley walked towards them, the officers shot him.  The court held that the officers were not entitled to qualified immunity.

The court of appeals then set out to examine the facts of Franklin’s case in light of the legal principles and precedent discussed above.  The court focused on the issue of whether Officer Kerl’s mistaken belief of Franklin’s actions was reasonable.  The court reasoned as follows:

Despite receiving 911 accounts of a man terrorizing people at a fast-food restaurant, the officers arrived at a very different scene than the one described in those reports. Franklin was no longer inside the restaurant, nor was he aggressive or outwardly threatening when Officer Kerl approached him. He also made no attempt to resist the officers or flee the area. One restaurant employee felt comfortable enough to walk up to Franklin during the confrontation before the officers ordered her to step back. Watching the events unfold, one cannot help noticing that the intensity of the situation emanated not from Franklin, but from the volume and vigor of the officer’s commands.

Speaking of commands, the instructions the officers gave to Franklin to drop his weapon conflicted with their earlier orders and put Franklin in an awkward position. Although she first demanded to see Franklin’s hands, Officer Kerl could not even see Franklin when she issued that command. She had no way of knowing if Franklin attempted to comply with that initial command because, by the time she could see him, she and her partner had abandoned that instruction in favor of one ordering Franklin to drop his weapon. But they could not see a gun either—they apparently assumed he had one in his hands, which were obscured between his legs. Throughout the encounter, not much can be heard over the twenty-two orders to “drop the weapon.” A close listen reveals that Franklin responded at one point by telling the officers, “I heard you the first time.” Perhaps that response was not the acquiescence Officer Kerl was looking for, but the content of Franklin’s response does not seem to matter. The officers were so boisterous that neither recalled hearing him say anything at all. And ultimately, Franklin did comply. We know now that Franklin’s gun was concealed under his jacket, not in his hands. So, the only way for him to obey the officers’ commands to drop the gun was to reach into his jacket to retrieve it. When he did just that, Officer Kerl interpreted his movement as a threatening maneuver.

That interpretation would be unreasonable if a jury finds that it rested on Franklin’s “mere possession of a firearm.” See Cooper, 735 F.3d at 159. Just as we observed in Hensley, Franklin “never raised the gun toward the [officers] or made any overt threats toward them.” 876 F.3d at 578. Contrary to Officer Deal’s recollection that Franklin pointed the gun at the officers and Officer Kerl’s assertion that Franklin turned the gun toward them, the video footage shows Franklin facing toward the car and holding the gun in a non-firing grip, pointed away from everyone when Officer Kerl’s shots rang out. See Scott v. Harris, 550 U.S. 372, 380-81, 127 S. Ct. 1769, 167 L. Ed. 2d 686 (2007) (noting that when record evidence, including a videotape, “blatantly contradict[s]” one party’s version of the facts, the court may disregard that party’s account). Focusing only on the “information available to [Officer Kerl] ‘immediately prior to and at the very moment [she] fired the fatal shots,‘” Hensley, 876 F.3d at 582 (citation omitted)—and observing the facts in the light most favorable to Mrs. Franklin—there was nothing furtive or menacing about Franklin’s response to the officers’ commands.[xi]

Officer Kerl argued that Franklin’s general unresponsiveness to numerous commands should be considered in this case.  She emphasized that Franklin never complied with the initial commands to show his hands, and she assumed the gun was in his hands, which were hidden between his legs.  Officer Kerl said that when Franklin reached toward his jacket rather than dropping the gun, which she believed was in his hands already, she felt threatened.  The court, in response to her argument, replied

The difficulty with Officer Kerl’s argument, however, is that her commands simply were too ambiguous to transform Franklin’s hesitation into recalcitrance. Police officers are trained to give various commands to achieve specific results precisely because one misjudgment could endanger the officers or the public. Here, after demanding to see Franklin’s hands, the officers then pivoted to an inconsistent instruction, ordering him to drop his gun. Concededly, Franklin hesitated through twenty-some-odd commands as if “contemplating something.” J.A. 172. Perhaps he was deciding how to drop a gun he was not holding—or maybe he was just frightened by the torrent of shouting and gun-pointing. Regrettably, we will never know because Franklin is not here to explain himself.[xii]

The court of appeals also focused on the manner in which Franklin held the gun when he removed it from his jacket to drop it.  The court observed that Officer Kerl’s body camera video showed that Franklin held the gun by the top of the barrel, not the grip in a firing position, and he did not point the gun at anyone.  The court observed that he would have had to use his other hand to reposition the gun in order to fire it.  The court then stated

Viewing the non-threatening way Franklin handled the weapon once he retrieved it, a jury may conclude that this was not a menacing act, but mere compliance with orders.[xiii]

The court then held that, based on the facts discussed, a reasonable jury could conclude that Franklin did not pose an imminent threat to the officers or anyone else and, under those circumstances, the court concluded the officer violated the Fourth Amendment.

Therefore the plaintiff satisfied the first prong of the test to defeat qualified immunity.

II. Was the Law Clearly Established?

The court then examined the second part of the test to defeat qualified immunity, particularly whether the law was clearly established such that another reasonable officer in the same situation would have know he or she was violating the Fourth Amendment.

The court of appeals, noting the precedent discussed earlier in the case, stated

[W]e have little trouble concluding that Franklin’s Fourth Amendment right was clearly established by our precedents when Officer Kerl violated it.[xiv]

Therefore, the court of appeals held that the plaintiff satisfied the second prong of the test to defeat qualified immunity.

As such, the officer is not entitled to qualified immunity, which means liability in the case must be decided by a jury.

Practice Pointers:

  • Officers should avoid telling a suspect to “drop a weapon” when the suspect must reach for the weapon in order to drop it. If the suspect’s hands are not visible, it is best to order the suspect to show his hands, while the officer is in a position of cover.
  • It is best if one officer provides commands, while others focus on observing the suspect and providing cover.

Note:  Court holdings can vary significantly between jurisdictions.  As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases.  This article is not intended to constitute legal advice on a specific case.



Another CMPD officer monitoring cameras in a Real-Time Crime Center showed Franklin exit the Burger King and advised officers Kerl and Officer Deal of Franklin’s position as they were en route. The Burger King general manager, Timothy Grier, was sitting no more than a foot away from Franklin in the passenger seat of the car calming him down as he crouched to face Grier. Grier reported that, as police arrived, Franklin clasped his hands to pray with him. Grier did not see a gun in Franklin’s hands.

[i] No. 21-2402 (4th Cir. Decided April 4, 2023)

[ii] Id. at 4-7

[iii] Id. at 16-17 (emphasis added)

[iv] 490 U.S. 386 (1989)

[v] Franklin at 17 (emphasis added)

[vi] Id. at 17-18 (emphasis added)

[vii] Id. at 18-19 (emphasis added)

[viii] 247 F.3d 125 (4th Cir. 2001)

[ix] Id. at 19

[x] see Hensley v. Suttles, 167 F.Supp 3d 753 (W.D.N.C. 2016)

[xi] Id. at 21-23

[xii] Id. at 24-25

[xiii] Id. at 26

[xiv] Id. at 27

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