Deborah Franklin v. City of Charlotte

64 F.4th 519

• Court: Court of Appeals for the Fourth Circuit
• Decided: April 4, 2023
• Docket: 21-2402
• Status: Published

Opinion

USCA4 Appeal: 21-2402 Doc: 43 Filed: 04/04/2023 Pg: 1 of 32

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 21-2402

DEBORAH FRANKLIN, as Administrator of the Estate of Danquirs Franklin,

Plaintiff - Appellant,

v.

CITY OF CHARLOTTE; WENDE KERL,

Defendants - Appellees.

Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Graham C. Mullen, Senior District Judge. (3:20-cv-00330-GCM)

Argued: December 6, 2022 Decided: April 4, 2023

Before GREGORY, Chief Judge, WILKINSON, Circuit Judge, and John A. GIBNEY, Jr., Senior United States District Judge for the Eastern District of Virginia, sitting by designation.

Affirmed in part, vacated in part, and remanded by published opinion. Chief Judge Gregory wrote the opinion, in which Judge Wilkinson and Judge Gibney joined. Judge Wilkinson wrote a concurring opinion.

ARGUED: S. Luke Largess, TIN FULTON WALKER & OWEN, Charlotte, North Carolina, for Appellant. Lori R. Keeton, LAW OFFICES OF LORI KEETON, Charlotte, North Carolina; Roger A. McCalman, OFFICE OF THE CITY ATTORNEY, Charlotte, North Carolina, for Appellees. ON BRIEF: Clarence E. Matherson, Jr., OFFICE OF THE CITY ATTORNEY, Charlotte, North Carolina, for Appellee City of Charlotte USCA4 Appeal: 21-2402 Doc: 43 Filed: 04/04/2023 Pg: 2 of 32

GREGORY, Chief Judge:

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. 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.

In those circumstances, courts are duty-bound to engage in a searching examination of an

officer’s resort to deadly violence. Today, we deal with such a case.

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. 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. 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.

On behalf of his estate, Franklin’s mother (“Mrs. Franklin”) brought claims under

42 U.S.C. § 1983 and North Carolina law against Officer Kerl and the City of Charlotte

(“City”) in federal district court. The district court granted summary judgment for both

2 USCA4 Appeal: 21-2402 Doc: 43 Filed: 04/04/2023 Pg: 3 of 32

defendants after concluding that Officer Kerl was entitled to qualified immunity and the

City was not responsible for Officer Kerl’s conduct under federal or state law. Mrs.

Franklin appealed both aspects of the district court’s decision. Although we agree that the

City is not liable under § 1983 or North Carolina law for negligent training, we hold that

Officer Kerl acted unreasonably and is not entitled to qualified immunity. Accordingly,

we remand Mrs. Franklin’s federal claim against Officer Kerl, and her remaining state

claims against both defendants, for trial resolution.

I.

This case arises from the district court’s order granting summary judgment for

Officer Kerl and the City. In reviewing that decision, we “take the facts in the light most

favorable to [Mrs. Franklin] to determine the applicable questions of law and ignore any

contrary factual claims,” even if “a jury could well believe the evidence forecast by the

[Defendants].” Hensley ex rel. North Carolina v. Price, 876 F.3d 573, 579 (4th Cir. 2017).

A.

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.

3 USCA4 Appeal: 21-2402 Doc: 43 Filed: 04/04/2023 Pg: 4 of 32

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

1 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. 4 USCA4 Appeal: 21-2402 Doc: 43 Filed: 04/04/2023 Pg: 5 of 32

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

5 USCA4 Appeal: 21-2402 Doc: 43 Filed: 04/04/2023 Pg: 6 of 32

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.

B.

Shortly thereafter, CMPD conducted an internal investigation, interviewing the

officers and several witnesses at the scene. In their interviews, both officers Kerl and Deal

told investigators stories that contradicted the video evidence. For example, Officer Deal

recounted that he and Officer Kerl gave, and Franklin ignored, repeated commands to show

his hands and indicated that Franklin brandished a gun pointed in their direction. During

her interview, Officer Kerl told investigators that Franklin ignored her commands,

retrieved the gun and turned toward her just before she shot him.

In addition to the internal CMPD investigation, an independent Shooting Review

Board (“SRB”), comprised of senior members of the CMPD, investigated the incident.

When the SRB interviewed Officer Deal, he explained that he did not perceive a lethal

threat when he first arrived on the scene despite immediately drawing his service weapon.

At first, he “wanted to . . . assess it and . . . see what was going on.” J.A. 840. Officer Deal

said he was surprised when Officer Kerl crossed in front of him, which he admitted could

have “tactically put [them] in a disadvantage.” J.A. 843. He also acknowledged that

6 USCA4 Appeal: 21-2402 Doc: 43 Filed: 04/04/2023 Pg: 7 of 32

Officer Kerl’s chosen position “wouldn’t have necessarily been [his] approach,” J.A. 844,

and that “we both could have done a better job at [communicating],” J.A. 845.

Asked what he expected Franklin to do in response to the instructions to drop the

gun, Officer Deal conveyed that he wanted some communication that Franklin intended to

comply. He then agreed that if the gun was in Franklin’s waistband or jacket, it would be

reasonable for him to reach for the gun after the officers commanded him to drop it, but

Officer Deal wouldn’t expect the gun to be pointed at him when it came out. Officer Deal

told the SRB that he was surprised by Officer Kerl’s decision to shoot Franklin because he

would have handled things differently, but then, contradicting that statement, claimed that

“given the circumstances . . . [he] would have taken that shot.” J.A. 849. Officer Deal also

agreed that he had been trained to give different commands: He was taught to tell Franklin

“[t]o raise his hands and walk backwards towards [the officers] . . . . to get him closer to [the

officers], where there could be cover taken[.]” J.A. 853.

When questioned by the SRB, Officer Kerl stood by her choice to stake out a

vulnerable position and give the commands that she did. She recalled that Franklin had a

blank stare and did not communicate, which she felt would render alternative commands

useless. Like Officer Deal mentioned, and as she stated in her interview with CMPD

investigators, Officer Kerl said she expected Franklin to communicate his intention to

comply with her commands. Because she did not hear Franklin attempt any

communication, Officer Kerl stated that she felt his movement toward his jacket was a

threat. In her words: “I don’t know what he was going to do.” J.A. 864. “I can’t wait for

7 USCA4 Appeal: 21-2402 Doc: 43 Filed: 04/04/2023 Pg: 8 of 32

him to pull it all the way out to who’s it pointed at . . . . I had to worry about the people

that were around me.” J.A. 861.

In her mind, Officer Kerl had no opportunity for “any de-escalation.” J.A. 863. Nor

did it occur to her that Franklin’s actions were an attempt to comply with her commands

to drop his gun. According to Officer Kerl, “he shouldn’t be reaching for anything when

an officer is there” without first conveying his intentions. J.A. 869. Officer Kerl also

recalled the positioning of the gun differently than in her initial recollection to CMPD

investigators. Officer Kerl described to CMPD investigators that Franklin retrieved a gun

from his jacket with his left hand and turned it toward her and Officer Deal as if to shoot.

She told the SRB that she did not know if the gun was pointed in her direction because “all

[she] saw was the butt of the gun.” J.A. 870. Still, she stated that she perceived a threat given

the nature of the 911 call and the number of bystanders in the vicinity.

Ultimately, the SRB declared the shooting justified. As Chief of Police Johnny Jennings

testified by deposition, the SRB’s role is to assess if training and policies were followed.

The SRB concluded that Officer Kerl’s sole violation was the improper use of her bulletproof

vest. Even while finding the shooting justified and no other rules violated, the SRB required

Officer Kerl to be retrained in the police basics of keeping cover. Officer Kerl was also

removed from patrol following the SRB hearing.

Franklin’s family appealed the SRB’s decision to a Citizens Review Board

(“CRB”), a remedy made available by a City ordinance. The CRB found that the SRB and

police chief “clearly erred in finding the use of deadly force here was justified under

Department policy and applicable law.” J.A. 877. The CRB’s determination was based

8 USCA4 Appeal: 21-2402 Doc: 43 Filed: 04/04/2023 Pg: 9 of 32

mainly on the discrepancies between the video evidence and Officer Kerl’s stated

recollection to CMPD investigators. The CRB also noted that the situation had been de-

escalated significantly when the officers arrived, and nothing on the scene before Franklin

dropped the gun suggested that he endangered the officers or bystanders.

Under the CRB ordinance, the City Manager has the authority to resolve conflicting

conclusions between the SRB and CRB. The City Manager affirmed the SRB’s assertion

that the shooting was justified and consistent with the City’s use of force policy. Yet partly

in response to the Franklin shooting, the City added a “duty to intervene” to the CMPD

Rules of Conduct, which requires a CMPD officer to intervene when witnessing another

officer mishandle a citizen encounter. J.A. 512.

C.

Acting as the administrator of Franklin’s estate, Mrs. Franklin sued Officer Kerl and

the City in the United States District Court for the Western District of North Carolina, raising

two types of claims. First, she argued that, under 42 U.S.C. § 1983, Officer Kerl violated

Franklin’s Fourth Amendment right to be free from excessive force and the City was subject

to municipal liability for that violation because its policymakers found the shooting justified.

Second, Mrs. Franklin brought claims under state tort law alleging that Officer Kerl is liable

for assault and battery, that the City negligently trained Officer Kerl, and that both are liable

for the wrongful death of her son. Officer Kerl and the City moved for summary judgment,

while Mrs. Franklin cross-moved for partial summary judgment.

As to the Fourth Amendment claim, the district court first considered Officer Kerl’s

entitlement to qualified immunity. Concluding that Officer Kerl likely shot Franklin by

9 USCA4 Appeal: 21-2402 Doc: 43 Filed: 04/04/2023 Pg: 10 of 32

mistake, the court identified the relevant question as “whether Officer Kerl’s mistake in

shooting Franklin was reasonable.” J.A. 1138. To answer that question, the court

considered the officers’ knowledge that Franklin possessed a gun, Franklin’s general

unresponsiveness, and his detached demeanor. In view of those circumstances, the court

found reasonable Officer Kerl’s perception that Franklin’s decision to reach for the gun

posed an imminent lethal threat. For the same reasons, it determined Officer Kerl’s

decision to shoot Franklin was not excessive under the Fourth Amendment.

Because it found no constitutional violation, the district court rejected Mrs. Franklin’s

argument that the City Manager’s decision not to overturn the SRB’s finding of a justified

shooting constituted a “ratification” of an unconstitutional action. J.A. 1142. Additionally,

even had it found Officer Kerl’s actions unconstitutional, it determined that “the City

Manager’s post-facto approval of an internal shooting investigation cannot possibly have

caused the constitutional violation.” J.A. 1143.

As to the state tort claims for wrongful death against the defendants and assault and

battery against Officer Kerl, the district court held that “[b]ecause Officer Kerl’s use of

deadly force was reasonable . . . it also complied with state law.” J.A. 1144. The court

then analyzed the negligent training claim under North Carolina’s negligent hiring and

supervision standard, finding no evidence of “inherent unfitness or previous specific acts

of negligence” or “evidence that the City of Charlotte had any actual or constructive notice”

of Officer Kerl’s incompetence. J.A. 1145.

10 USCA4 Appeal: 21-2402 Doc: 43 Filed: 04/04/2023 Pg: 11 of 32

Accordingly, the district court denied Mrs. Franklin’s motion for partial summary

judgment and granted Officer Kerl and the City’s motion for summary judgment,

dismissing the case. Mrs. Franklin appealed that decision.

II.

On appeal, Mrs. Franklin asks this Court to reverse every aspect of the district

court’s grant of summary judgment for the defendants. First, Mrs. Franklin maintains that

Officer Kerl is not entitled to qualified immunity because, while Franklin possessed a gun,

Officer Kerl’s belief that he posed an imminent threat was unreasonable under the

circumstances. Next, Mrs. Franklin posits that the City Manager did not need to cause

Officer Kerl’s conduct for the City to be liable for her actions. Finally, Mrs. Franklin

contends that the district court misapplied North Carolina law when it granted summary

judgment for Officer Kerl and the City on her state-law claims.

This Court reviews de novo district court decisions on motions for summary

judgment, qualified immunity, and state public official immunity. Henry v. Purnell, 652

F.3d 524, 531 (4th Cir. 2011) (en banc); Adams v. Ferguson, 884 F.3d 219, 226 (4th Cir.

2018); Hensley, 876 F.3d at 579. Summary judgment is appropriate only “if the movant

shows that there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). In our review, we must draw “all

reasonable inferences” from those facts in Mrs. Franklin’s favor. Henry, 652 F.3d at 531.

11 USCA4 Appeal: 21-2402 Doc: 43 Filed: 04/04/2023 Pg: 12 of 32

Likewise, in considering a defendant’s entitlement to qualified immunity, we view

the facts in the light most favorable to Mrs. Franklin. “[W]e may not credit defendant’s

evidence, weigh the evidence, or resolve factual disputes in the defendant[’s] favor.”

Hensley, 876 F.3d at 579. For example, we may not take as true the officers’ assertions

that Franklin pointed his gun at them.

Finally, “to the extent this appeal requires us to decide questions of North Carolina

law,” we must “predict how the Supreme Court of North Carolina would rule on that issue.”

Knibbs v. Momphard, 30 F.4th 200, 213 (4th Cir. 2022) (citing Rhodes v. E.I. du Pont de

Nemours & Co., 636 F.3d 88, 96 (4th Cir. 2011) (internal quotation marks omitted)). We

“respond conservatively when asked to discern governing principles of state law” and must

“avoid interpreting that law in a manner that has not been approved by the Supreme Court

of North Carolina.” Id. (internal quotation marks omitted).

III.

We begin our discussion with the district court’s extension of qualified immunity to

Officer Kerl. Section 1983 “creates a cause of action against any person who, acting under

color of state law, abridges a right arising under the Constitution or laws of the United

States.” Cooper v. Sheehan, 735 F.3d 153, 158 (4th Cir. 2013). In defense against a § 1983

claim, Officer Kerl is “entitled to invoke qualified immunity, which is . . . immunity from

suit itself.” Id.

12 USCA4 Appeal: 21-2402 Doc: 43 Filed: 04/04/2023 Pg: 13 of 32

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

(2009). It protects “all but the plainly incompetent or those who knowingly violate the

law.” District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018) (quoting Malley v. Briggs,

475 U.S. 335, 341 (1986)). Under the well-known analysis of Saucier v. Katz, 533 U.S. 194

(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.

1.

Starting with the first prong of Saucier, we agree with Mrs. Franklin that Officer Kerl

may have violated the Fourth Amendment. “[A]ll claims that law enforcement officers

have used excessive force—deadly or not—in the course of an arrest, investigatory stop,

or other ‘seizure’ of a free citizen should be analyzed under the Fourth Amendment and its

‘reasonableness’ standard.” Vathekan v. Prince George’s Cnty., 154 F.3d 173, 178 (4th

Cir. 1998) (quoting Graham v. Connor, 490 U.S. 386, 395 (1989) (internal quotation marks

omitted)). 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

13 USCA4 Appeal: 21-2402 Doc: 43 Filed: 04/04/2023 Pg: 14 of 32

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).

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).

Distilling general guiding principles from Fourth Circuit excessive force precedent

is well-nigh impossible. There is nothing generic about the scenarios that lead a police

officer to shoot another person. Still, we have drawn some lines. 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.

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.

14 USCA4 Appeal: 21-2402 Doc: 43 Filed: 04/04/2023 Pg: 15 of 32

For instance, in Anderson v. Russell, we concluded that a Maryland police officer was

justified in using deadly force when Anderson lowered his hands toward what the officer

perceived to be a gun, defying the officer’s verbal commands to keep his hands raised. 247 F.3d

125, 128–29, 130–32 (4th Cir. 2001). This Court found that the officer reasonably perceived

that Anderson was armed based on a citizen’s report that was later corroborated by the officer’s

own observation of a bulge near Anderson’s waistband. Id. at 130. At first, Anderson complied

with instructions to raise his hands, but the officer then saw him reaching toward the bulge,

which prompted the officer to shoot him. Id. We held that the 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.

On the other hand, “an officer does not possess the unfettered authority to shoot a

member of the public simply because that person is carrying a weapon.” Cooper, 735 F.3d

at 159. As Hensley v. Price illustrates, there needs to be something more. Hensley involved

a domestic disturbance during which the police witnessed Hensley strike his daughter with

a gun. See Hensley v. Shuttles, 167 F. Supp. 3d 753, 759 (W.D.N.C. 2016). The summary

judgment evidence showed that Hensley held the gun in his hand as he walked off his porch

toward police deputies. Hensley, 876 F.3d at 578. The gun was pointed down at the ground

when the deputies shot Hensley, and he “never raised the gun toward the Deputies or made

any overt threats toward them.” Id. Nor did the deputies order him to stop, drop the gun, or

“issue[] any type of warning” before shooting him. Id. Under those circumstances, we held

that the deputies were not protected by qualified immunity. Id. at 586.

15 USCA4 Appeal: 21-2402 Doc: 43 Filed: 04/04/2023 Pg: 16 of 32

In this case, the district court observed that in “hindsight, it seems likely that

Officer Kerl made a mistake in shooting Danquirs Franklin” because he “appeared to be

complying with the CMPD officers’ orders to ‘drop the gun’ when he took the weapon out

of his jacket pocket.” J.A. 1138. But the question is whether her mistake was reasonable.

Relying on the 911 reports that Franklin was armed, as well as his detached demeanor in

the face of police instructions, the district court thought it was. In view of the body camera

footage depicting the encounter, we cannot agree. A reasonable jury may not either.

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

16 USCA4 Appeal: 21-2402 Doc: 43 Filed: 04/04/2023 Pg: 17 of 32

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 (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.

17 USCA4 Appeal: 21-2402 Doc: 43 Filed: 04/04/2023 Pg: 18 of 32

In her defense, Officer Kerl urges us to look beyond the seconds before she pulled the

trigger and consider Franklin’s general unresponsiveness to numerous commands. She

emphasizes that Franklin’s hands were hidden and he never showed them (despite the initial

commands to do so). When Franklin moved unexpectedly toward his jacket rather than dropping

the gun, which Officer Kerl believed was in his hands, Officer Kerl says she felt threatened.

Of course, our cases support Officer Kerl’s position that if Franklin defied clear

commands, then his actions may have provoked deadly force. In Slattery v. Rizzo, we

concluded that a Virginia police officer was justified in using deadly force when a suspect

in the passenger seat of a stopped car did not raise his hands and instead turned his body

toward the officer, in violation of the officer’s commands to raise his hands. 939 F.2d 213,

214–17 (4th Cir. 1991). Similarly, we held in Elliott v. Leavitt that an officer’s use of

deadly force was reasonable when a handcuffed suspect continued to point a handgun at

the officer despite being ordered to drop his weapon. 99 F.3d 640, 642–43 (4th Cir. 1996).

And in Hensley the officers acted unreasonably in part because they did not bother issuing

any directives at all before shooting. 876 F.3d at 585.

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

18 USCA4 Appeal: 21-2402 Doc: 43 Filed: 04/04/2023 Pg: 19 of 32

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.

We do know that Franklin did eventually drop the gun. When Franklin complied

the only way he could—by taking the firearm out of his jacket to set it on the ground—it

surprised Officer Kerl because she baldly assumed the weapon had to be in Franklin’s

hands from the start. But as Officer Kerl admits, she could not see Franklin’s hands from

her vantagepoint. It was unreasonable under these circumstances to assume that Franklin

must be holding a weapon in his hands without leaving any daylight for the possibility that

he was not. Acting on her unreasonable assumption, Officer Kerl’s demand for Franklin

to drop his weapon overlooked that possibility. Such a flawed view would make any

movement or further handling of the weapon appear noncompliant and threatening. Yet,

because it was elsewhere on Franklin’s person, a foreseeable consequence of Officer Kerl’s

commands to drop the weapon is that he needed to retrieve it first before dropping it. A

reasonable officer should understand the common-sense ramifications of her orders. See

Williams v. Strickland, 917 F.3d 763, 770 (4th Cir. 2019) (“[W]e need not—and should

not—assume that government officials are incapable of . . . exercising common sense.”).

How Franklin handled the firearm once it was in plain sight matters too. Had

Officer Kerl given Franklin a chance to surrender his weapon, she would have noticed what

her body camera footage clearly shows: Franklin carefully pulled the firearm out of his

jacket, pointed it at no one, and held it with just one hand from the top of the barrel. In

other words, Franklin would have had to reposition his grip to become a threat—likely by

using his free hand to shift the weapon into a firing position. Viewing the non-threatening

19 USCA4 Appeal: 21-2402 Doc: 43 Filed: 04/04/2023 Pg: 20 of 32

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. See, e.g., Est. of Jones v. City of

Martinsburg, W. Va., 961 F.3d 661, 669 (4th Cir. 2020) (concluding that a man who carried

a knife up his sleeve was not a threat because he was physically unable “to wield [the knife]

given his position on the ground”).

A reasonable jury could conclude that Franklin did not pose an imminent threat to

the officers or anyone else. Under those circumstances, we conclude that Officer Kerl

violated the Fourth Amendment.

2.

As to Saucier’s second prong, we have little trouble concluding that Franklin’s Fourth

Amendment right was clearly established by our precedents when Officer Kerl violated it. In

conducting the clearly established analysis, we first examine “cases of controlling authority in

[this] jurisdiction,” Amaechi v. West, 237 F.3d 356, 363 (4th Cir. 2001) (quoting Wilson v.

Layne, 526 U.S. 603, 617 (1999))—that is, “decisions of the Supreme Court, this court of

appeals, and the highest court of the state in which the case arose,” Owens ex rel. Owens v.

Lott, 372 F.3d 267, 279 (4th Cir. 2004) (citation omitted). The Supreme Court has “repeatedly

told courts not to define clearly established law at too high a level of generality.” City of

Tahlequah v. Bond, 142 S. Ct. 9, 11 (2021). Instead, the “rule’s contours must be so well

defined that it is ‘clear to a reasonable officer that his conduct was unlawful in the situation he

confronted.’” Wesby, 138 S. Ct. at 590 (quoting Saucier, 533 U.S. at 202).

“Such specificity is especially important in the Fourth Amendment context,” where it is

“sometimes difficult for an officer to determine how the relevant legal doctrine, here excessive

20 USCA4 Appeal: 21-2402 Doc: 43 Filed: 04/04/2023 Pg: 21 of 32

force, will apply to the factual situation the officer confronts.” Mullenix v. Luna, 577 U.S. 7, 12

(2015) (per curiam) (citation omitted). “Precedent involving similar facts can help move a case

beyond the otherwise hazy border between excessive and acceptable force and thereby provide

an officer notice that a specific use of force is unlawful.” Kisela v. Hughes, 138 S. Ct. 1148,

1153 (2018) (per curiam) (internal quotation marks and citation omitted).

That said, defendants can violate clearly established law under even “novel factual

circumstances.” Williamson v. Stirling, 912 F.3d 154, 187 (4th Cir. 2018) (citation omitted).

Thus, our “clearly established” analysis “must consider not only ‘specifically adjudicated

rights,’ but also ‘those manifestly included within more general applications of the core

constitutional principles invoked.’” Booker v. S.C. Dep’t of Corr., 855 F.3d 533, 538 (4th

Cir. 2017) (quoting Wall v. Wade, 741 F.3d 492, 502–03 (4th Cir. 2014)). “[A]lthough we

must avoid ambushing government officials with liability for good-faith mistakes made at

the unsettled peripheries of the law,” we expect police officers to exercise reason. Williams,

917 F.3d at 770. “In some cases, government officials can be expected to know that if X is

illegal, then Y is also illegal, despite factual differences between the two.” Id.

When Officer Kerl shot and killed Franklin in 2019, it was well established in this

Circuit that carrying a weapon, without more, does not justify an officer’s choice to shoot.

Cooper, 735 F.3d at 159. In Cooper, we emphasized that “deadly force may only be used

by a police officer when, based on a reasonable assessment, the officer or another person is

threatened with the weapon.” Id. Applying that rule in Hensley, we held that police officers

who shot a man moments after witnessing him assault his daughter with a firearm still may

not have been justified because the man was no longer threatening anyone by the time the

21 USCA4 Appeal: 21-2402 Doc: 43 Filed: 04/04/2023 Pg: 22 of 32

officers pulled the trigger. 876 F.3d at 578, 584. As outlined thus far, a jury similarly could

find that Officer Kerl killed Franklin because she was threatened by his mere possession of

a gun in public. In which case, Officer Kerl violated clearly established law.

The factual nuances of this case are not so divorced from Fourth Circuit precedent

as to blindside police in Officer Kerl’s position. Although Cooper and Hensley were shot

on their own property and Officer Kerl killed Franklin in a Burger King parking lot, we see

little reason why that distinction should make a difference. North Carolina allows its

residents to carry firearms with a valid permit. See generally N.C. Gen. Stat. §§ 14-415.10

to 14-415.23. And while Officer Kerl may have had cause to believe Franklin used or

possessed his firearm unlawfully, the officers witnessed an unlawful use in Hensley, 167

F. Supp. 3d at 759. To be sure, the officers gave no commands in Hensley while officers

Kerl and Deal issued over twenty as Franklin stood still. Yet those (inconsistent)

commands were ineffectual because the officers could not see his hands at all and Franklin

could not comply without handling his weapon. And in any event, “[n]on-cooperation with

law enforcement has never given officers carte blanche to use deadly force against a

suspect.” Est. of Jones, 961 F.3d 670–71.

* * *

In sum, the district court erred in holding that Officer Kerl’s mistake in shooting

Franklin was reasonable. Therefore, she is not entitled to qualified immunity on Mrs. Franklin’s

§ 1983 claim against her.

22 USCA4 Appeal: 21-2402 Doc: 43 Filed: 04/04/2023 Pg: 23 of 32

Next, we deal with Mrs. Franklin’s § 1983 claim against the City for ratifying

Officer Kerl’s Fourth Amendment violation. Section 1983 holds liable “[e]very person

who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . .,

subjects, or causes to be subjected, any citizen . . . to the deprivation of any rights,

privileges, or immunities secured by the Constitution and laws.” 42 U.S.C. § 1983.

Municipalities are “persons” within the meaning of § 1983. Monell v. Dep’t of Soc. Servs.

of N.Y.C., 436 U.S. 658, 690 (1978); see also City of St. Louis v. Praprotnik, 485 U.S. 112,

121 (1988). Thus, if “a policy statement, ordinance, regulation, or decision officially

adopted and promulgated” by a municipality’s officers directly caused a constitutional

violation, then the municipal body may be sued directly. Monell, 436 U.S. at 690–91.

However, a municipality may not be held liable under the doctrine of respondeat superior;

the constitutional violation must be brought about by a municipality’s “lawmakers or by

those whose edicts or acts may fairly be said to represent official policy.” Id. at 694.

Though establishing a § 1983 claim against a municipality is difficult, we have

recognized four ways a plaintiff may accomplish that task:

(1) through an express policy, such as a written ordinance or regulation; (2) through the decisions of a person with final policymaking authority; (3) through an omission, such as a failure to properly train officers, that “manifest[s] deliberate indifference to the rights of citizens”; or (4) through a practice that is so “persistent and widespread” as to constitute a “custom or usage with the force of law.”

Lytle v. Doyle, 326 F.3d 463, 471 (4th Cir. 2003) (citing Carter v. Morris, 164 F.3d 215,

218 (4th Cir. 1999)). No matter which of these paths a plaintiff takes, the “official policy”

23 USCA4 Appeal: 21-2402 Doc: 43 Filed: 04/04/2023 Pg: 24 of 32

itself must “inflict[]” the alleged injury for the municipality to be liable under § 1983.

Monell, 436 U.S. at 694.

Under Mrs. Franklin’s theory, the City Manager’s “conscious, deliberate choice to

approve of the shooting [as] justified under the City’s policy on use of deadly force . . .

subjects the City to liability.” Opening Br. at 44. She maintains that the district court erred

by imposing a causation requirement because the Supreme Court, in Praprotnik, “expressly

modified Monell to allow for liability by ratification by a final policymaker of the act and

the basis for it.” Id. at 41.

However, Praprotnik did no such thing. Praprotnik involved a St. Louis city

employee who was transferred from one city department to another by agreement of the

directors of the departments, and then was eventually laid off by the director of the second

department. 485 U.S. at 115–16. The employee brought a § 1983 suit against the city,

alleging that the city took these actions in retaliation for his successful appeal of an earlier

suspension, in violation of his First Amendment rights. Id. at 116. A plurality of the

Supreme Court held that a municipality can be held liable for a single constitutional

violation by a subordinate when an individual with policymaking authority approves the

subordinate’s action. Id. at 127.

Applying that test to the facts, the plurality determined that the employee failed to

demonstrate that any of the directors possessed the final policymaking authority necessary

for municipal liability. Id. at 128–29. And its conclusion that the directors were not

policymakers ended the case and mooted any discussion of causation. Nothing in that

decision suggests that it abandoned the requirement that a municipal policy caused the

24 USCA4 Appeal: 21-2402 Doc: 43 Filed: 04/04/2023 Pg: 25 of 32

alleged constitutional injury. Indeed, Praprotnik acknowledged that a municipality cannot

properly be held liable unless the “injury was inflicted by [its] ‘lawmakers or by those

whose edicts or acts may fairly be said to represent official policy.’” Id. at 121–22 (quoting

Monell, 436 U.S. at 694); see also id. (“[W]e have held that an unjustified shooting by a

police officer cannot, without more, be thought to result from official policy.” (citing City

of Oklahoma City v. Tuttle, 471 U.S. 808, 821 (1985))).

Here, the parties do not dispute that the City Manager was the final decisionmaker in

the review of use of force complaints against CMPD officers under the City’s ordinance. Nor

is it disputed that the City Manager exercised that authority and declared that Officer Kerl

acted in conformity with CMPD’s use-of-force policy and applicable law in killing Franklin.

But there is a key distinction between this case and those in which a city policymaker may be

liable for ratifying an action. A city employee who suffers an adverse employment action that

is later ratified by a city policymaker may trace his or her injury back to that ratification.

Repealing the ratification potentially could restore the employee back to the pre-injury status

quo. But unlike in Praprotnik, Franklin’s death is not traceable to a subordinate’s decision

that may be approved as final by a city policymaker. Rather, as the district court concluded,

“the City Manager’s post-facto approval of an internal shooting investigation cannot possibly

have caused the constitutional violation.” J.A. 1143. Reversing the City Manager’s decision

cannot undo what is done. Therefore, we affirm the district court’s holding that the City is not

liable under § 1983 for Officer Kerl’s shooting of Franklin.

25 USCA4 Appeal: 21-2402 Doc: 43 Filed: 04/04/2023 Pg: 26 of 32

Finally, we turn to Mrs. Franklin’s three state-law causes of action for wrongful death,

assault and battery, and negligent training. The district court granted summary judgment in

favor of the defendants on all three claims. For the following reasons, we vacate that judgment

as to wrongful death and assault and battery; we affirm the negligent training claim.

The wrongful death statute in North Carolina provides a remedy to the personal

representative of a decedent’s estate when the decedent would have otherwise been entitled

to damages caused by the defendant’s “wrongful act, neglect[,] or default.” N.C. Gen. Stat.

§ 28A-18-2(a). The use of excessive force is a wrongful act that can trigger the statute.

See Knibbs, 30 F.4th at 227. Similarly, a “civil action for damages for assault and battery

is available at common law against anyone who, for the accomplishment of a legitimate

purpose . . . uses force which is excessive under the given circumstances.” Thomas v.

Sellers, 542 S.E.2d 283, 287 (N.C. Ct. App. 2001) (citation omitted).

North Carolina has “codif[ied] and clarif[ied] those situations in which a police officer

may use deadly force without fear of incurring criminal or civil liability.” State v. Irick, 231

S.E.2d 833, 846 (N.C. 1977). An officer is justified in using deadly force if it is “reasonably

necessary . . . [t]o defend himself or a third person from what he reasonably believes to be the

use or imminent use of deadly physical force.” N.C. Gen. Stat. § 15A-401(d)(2).

Here, defendants can be held liable under North Carolina law for Franklin’s

wrongful death because a jury may determine that Officer Kerl did not act reasonably under

the Fourth Amendment. Given that North Carolina law and federal law are coextensive on

26 USCA4 Appeal: 21-2402 Doc: 43 Filed: 04/04/2023 Pg: 27 of 32

the issue of reasonableness in this context, see Sigman v. Town of Chapel Hill, 161 F.3d

782, 788–89 (4th Cir. 1998), a jury may likewise determine that Officer Kerl did not act

reasonably under state law. 2 See N.C. Gen. Stat. § 15A-401(d)(1)–(2).

For the same reason, Officer Kerl may be liable in her individual capacity for assault

and battery. 3 The district court’s judgment on those claims is vacated and remanded.

2 The defendants argue that Franklin was contributorily negligent, relying on two cases involving plaintiffs who failed to obey lawful commands. See London v. Hamilton, No. CA 3:95-CV-347-MCK, 1996 WL 942865, at *9 (W.D.N.C. Nov. 27, 1996) (“[B]ecause a reasonable person would have obeyed the officers’ lawful commands and would not have pointed a gun at the officers, London’s contributory negligence bars any recovery”); Hinton v. City of Raleigh, 264 S.E.2d 777, 779 ( N.C. Ct. App. 1980) (holding that a robbery suspect who was shot by police was contributorily negligent as a matter of law by participating in the robbery, refusing to surrender when so ordered, and crouching and pointing toward officers). If a jury views Franklin as compliant under the circumstances, he cannot have been contributorily negligent. Alas, that is for the jury, and not us, to decide. 3 Even if a police officer acting under the color of state law violates North Carolina’s use-of-deadly-force statute, that officer may still receive public official immunity from a wrongful death suit brought against her in her individual capacity. See Mills v. Duke Univ., 759 S.E.2d 341, 344 (N.C. Ct. App. 2014). But, because “[a] public officer sued in his official capacity operates against the public entity itself,” suing a public officer in her official capacity “is simply another way of suing the public entity of which the officer is an agent.” Thompson v. Town of Dallas, 543 S.E.2d 901, 904 (N.C. Ct. App. 2001) (internal citation and quotations omitted). Thus, if a municipality has waived its governmental immunity, then public official immunity does not apply. The City has waived governmental immunity. See N.C. Gen. Stat. § 160A-485.5; J.A. 589 (“As authorized by G.S. 160A-485.5, the city [of Charlotte] has waived sovereign immunity from civil liability in tort.”). And because Officer Kerl is being sued for wrongful death in her official capacity, she is not protected by immunity.

Moreover, immunity does not bar Mrs. Franklin’s assault and battery claim against Officer Kerl in her individual capacity because a reasonable jury could conclude that Officer Kerl “acted outside of and beyond the scope of [her] duties.” Clayton v. Branson, 570 S.E.2d 253, 256 (N.C. Ct. App. 2002) (citation omitted). Therefore, neither defendant is entitled to immunity for either claim. 27 USCA4 Appeal: 21-2402 Doc: 43 Filed: 04/04/2023 Pg: 28 of 32

The district court rejected Mrs. Franklin’s negligent training claim because she

failed to show evidence of “inherent unfitness or previous specific acts of negligence” or

that the City “had any actual or constructive notice of any unfitness or incompetence by

Officer Kerl.” J.A. 1145 (citation omitted). The problem, Mrs. Franklin argues, is that the

district court relied on the wrong case law. She contends that the district court “cited

erroneously to negligent supervision standards in granting summary judgment to

Defendants.” Opening Br. at 47. The City counters that Mrs. Franklin fails to offer “any

precedent setting forth a different legal standard,” and claims that “North Carolina courts

routinely intertwine the phrases training, hiring, retention, or supervision.” Resp. Br. at

49. A careful study of North Carolina precedents supports Mrs. Franklin’s argument.

To reject Mrs. Franklin’s claim, the district court cited a four-part test the Middle

District of North Carolina has used to evaluate negligent training and supervision claims

under North Carolina law. Under that test, a plaintiff must establish:

(1) the specific negligent act on which the action is founded; (2) incompetence, by inherent unfitness or previous specific acts of negligence from which incompetency may be inferred; (3) either actual notice to the [employer] of such unfitness or bad habits, or constructive notice, by showing that the [employer] could have known the facts had he used ordinary care in oversight and supervision; and (4) that the injury complained of resulted from the incompetency proved.

Sauers v. Winston-Salem/Forsyth Cnty. Bd. of Educ., 179 F. Supp. 3d 544, 556 (M.D.N.C.

2016). Sauers was a federal case in which a dyslexic high school student sued the school

board, alleging in part that the board negligently trained and supervised teachers who

bullied him. The Sauers court held that the plaintiff failed to state a negligent training and

28 USCA4 Appeal: 21-2402 Doc: 43 Filed: 04/04/2023 Pg: 29 of 32

supervision claim because “[t]here are no facts that would suggest that the School Board

knew of a need to implement a particular training policy, or of the unsuitability of any of

the employees at issue here.” Id. at 557.

Rather than rely on Saurers, Mrs. Franklin argues that the district court should have

followed North Carolina decisions that “recognize claims of negligent training based on

the general elements of negligence.” Reply Br. at 23. Even were a North Carolina court

to premise the City’s liability for negligent training on general negligence principles, we

remain unconvinced that Mrs. Franklin has adduced enough evidence to support a genuine

issue of fact on this claim. Mrs. Franklin argues that Officer Kerl was negligent by using

excessive force after giving Franklin improper commands and abandoning her cover. See

J.A. 998 (use-of-force expert concluding that the officers’ “poor tactical communications

were contrary to generally accepted police practices and contributed to the shooting”). But

the only record evidence she can muster in support of her claim that Officer Kerl’s actions

were proximately caused by her training is the City Manager’s summary finding that the

shooting was justified. Lacking other evidence of what training Officer Kerl received, the City

Manager’s statement does not create a genuine issue of material fact justifying reversal.

Therefore, we affirm the district court’s decision.

IV.

It is not lost on us that we issue this decision from the calm of a courthouse. 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

29 USCA4 Appeal: 21-2402 Doc: 43 Filed: 04/04/2023 Pg: 30 of 32

whether Franklin posed an imminent threat. Still, we remain resolute that qualified immunity

is not appropriate for the disposition of this case. 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.

For the reasons we have stated, the district court’s decisions granting summary

judgment for the City on Franklin’s § 1983 and negligent training claims are affirmed. The

decisions granting summary judgment for Officer Kerl on the § 1983 and assault and battery

claims and granting both defendants summary judgment on the wrongful death claim are

vacated, and the case is remanded for further proceedings.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED

30 USCA4 Appeal: 21-2402 Doc: 43 Filed: 04/04/2023 Pg: 31 of 32

WILKINSON, Circuit Judge, concurring:

I am pleased to concur in Chief Judge Gregory’s fine opinion. I see nothing to dispel

the impression that the police officers in this case were proceeding in good faith to

discharge their duties. The test, however, is not one of subjective good faith but rather of

objective reasonableness, and the confluence of the multiple factors the Chief Judge details

warrants sending this case to a jury. In particular, the substantial evidence as to Franklin’s

passive demeanor throughout could lead a jury to conclude that his shooting was

objectively disproportionate to any threat he posed.

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. 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. 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.

The judicial process and law enforcement organizations have such different

dynamics. The judicial process, thankfully, is deliberative. The law enforcement function

is, often necessarily, reactive. The chance to deliberate, though essential, brings with it a

31 USCA4 Appeal: 21-2402 Doc: 43 Filed: 04/04/2023 Pg: 32 of 32

temptation to second-guess. Qualified Immunity places a brake upon the judgment that

days and hours may impose upon minutes and seconds, thus assuring that the different

rhythms of the chambers and the street may be fruitfully reconciled.

The touchstone of the Fourth Amendment is, of course, one of “reasonableness.”

And reasonableness in turn presupposes a variety of perspectives. One person’s reason may

be another’s rashness. Qualified Immunity accommodates the fact that different eyes can

see reason in different ways, thus preserving the anomaly that reasonable mistakes are not

invariably actionable ones. See Saucier v. Katz, 533 U.S. 194, 205–07 (2001).

The slogan “law and order” emerged as a response to the apparent disorder of the

1960s. Many came to view the catchy phrase as repressive, and truth be known, “order and

opportunity” or “ordered liberty,” see Screws v. United States, 325 U.S. 91, 95 (1945),

would have been a fairer, if less politically effective, way to go. “Order” should, however,

be a part of any formulation, because it is the gateway to the environment that upcoming

generations will need to make the most of their lives. Qualified Immunity recognizes the

indispensable nature of effective police work in preserving the order that removes the

regimes of predation that would otherwise plague a community. While I support the denial

of Qualified Immunity in the particular circumstances of this very close case, the demise

of this important doctrine would be an incalculable social loss, one which the varied

stakeholders in this wonderfully diverse country would come to regret.