UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

CHARLOTTE DIVISION

DEBORAH FRANKLIN, )
as Administrator of the Estate of )
DANQUIRS FRANKLIN, )
)
Plaintiff, )
)
v. )
)
CITY OF CHARLOTTE, )
WENDE KERL, individually and officially, )
)
Defendants. )
_________________________________________ )

COMPLAINT
(Jury-Trial Demanded)

The Plaintiff, complaining of the Defendants and seeking a jury trial, alleges and says:

PARTIES

1. Plaintiff Deborah Franklin is a citizen and resident of Mecklenburg County and

the duly appointed Administrator of the Estate of her deceased son, Danquirs “Duke”
Franklin, who was shot dead by Defendant Wende Kerl on March 25, 2019.

2. The decedent (hereinafter “Decedent” or “Franklin”), was 27 years old, the father
of three young children who lived with him, and a citizen and resident of Mecklenburg
County, North Carolina.

3. Defendant City of Charlotte is a municipal corporation organized by charter under

Chapter 160A of the North Carolina General Statutes. It maintains and operates pursuant
to its charter a unified city-county police force called the Charlotte-Mecklenburg Police
Department (“CMPD”). The City of Charlotte bears legal responsibility under state law
for acts and omissions CMPD police officers in the course of their employment. Further,
the City has expressly ratified the conduct of Defendant Kerl in this case.

4. By ordinance adopted by its elected Council pursuant to N.C.G.S. § 160A-485.5,

the City has waived its governmental immunity from the negligence of CMPD police

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officers pursuant to the State Tort Claims Act. That waiver applies to the wrongful death
claim and the claim for negligent training by the City. On that latter claim, the City has
expressly ratified the conduct of Kerl as conforming to its training of her.

5. The City is also sued under 42 U.S.C. § 1983 for the violation of Franklin’s
Fourth Amendment rights. The City is a “person” for purpose of § 1983 and a corporate
entity under state law. Its City Manager and Police Chief have expressly ratified the
shooting of Decedent by Kerl, subjecting the City to liability under § 1983. That
ratification was made under color of state law.

6. Upon information and belief, and at all relevant times to this action, the
Defendant Wende Kerl was an adult citizen and resident of Mecklenburg County and was
employed as a law enforcement officer with the CMPD. She is sued in her official
capacity under state law for negligence in the wrongful death of Decedent and the City
has waived governmental immunity as to that claim.

7. Alternatively, Kerl is sued in her individual capacity under state law for assault
and battery for shooting and killing Franklin. Her conduct exceeded the scope of her
lawful authority, was intentional and exhibited willful and wanton and reckless disregard
for Franklin’s rights and safety - killing him for following her instructions. Her conduct
pierced any claim to public officer immunity she might invoke as to this individual
capacity state law claim.

8. Kerl is also sued in her individual capacity under 42 U.S.C. § 1983 for using
unwarranted deadly force to kill Franklin, violating his Fourth Amendment right to be
free from unreasonable seizures. Kerl’s actions were taken under color of state law and
violated the federal constitution.

JURISDICTION & VENUE

9. The Court had jurisdiction over the federal claims under 42 U.S.C. § 1988 and 28
U.S.C. § 1331 and supplemental jurisdiction over the state law claims under 28 U.S.C. §
1331, as those claims arise under the same facts.

10. Venue is proper in this Court under 28 U.S.C. § 1391, as all parties reside, and the
shooting at issue occurred, in the Western District and in the Charlotte Division.

FACTS

11. Danquirs Franklin was born and raised in Mecklenburg County. He worked
steadily after graduating from high school and was raising three children at the time of
his death.

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12. Franklin and the mother of his children had met and began dating when she was
in middle school.

13. She became pregnant with their first child when she was a senior in high school.

14. They then had two more children and lived together as a family, with both parents
working. For a year or more prior to his death, the mother worked days and Franklin
worked nights so they could share childcare.

15. In the winter of early 2019, however, the mother revealed that she had fallen in
love with a co-worker at her job at the Burger King on Beatties Ford Road.

16. Franklin became so distraught over this change in their lives that he voluntarily
committed himself to the hospital for psychiatric care.

17. Franklin was released from the hospital after a short period of treatment and told
the mother of his children that she could not remain in their home given her relationship
with her co-worker.

18. They reached an agreement that the children would stay in the home with
Franklin and the mother would come there in the evenings to watch the children while
Franklin worked. But she would have to leave when Franklin came home.

19. On the morning of March 25, 2019, Franklin learned from one of his children that
the mother’s new boyfriend had come to the house with her that prior evening and had
been in Franklin’s bed having sex with the mother.

20. Franklin was so upset over this information that, after getting his oldest child off
to school, he called Plaintiff, the grandmother of is children, to come get the other two
children because that he was going to the Burger King to deal with the boyfriend.
Plaintiff was on the bus, returning to the neighborhood after working early that morning
in her job cleaning buildings when Franklin called her.

21. Franklin also called James Barnett, who was the father figure in his life. Barnett
is married to Plaintiff’s cousin and they had raised three sons and had helped raise
Franklin, who was like a fourth son to him. Barnett also employed Plaintiff in his
business.

22. Franklin told Barnett that he had learned the boyfriend had been in his bed with
the mother of his children and that he was going to the Burger King to deal with him.
Barnett tried to persuade Plaintiff not to go to the Burger King.

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23. Franklin then walked to the Burger King with the other two children to confront
the man who had wrecked Franklin’s home-life and then had sex in Franklin’s bed with
the mother of his children.

24. Franklin had taken a pistol with him. When he got to the Burger King, he left his
two children in the lobby and, as shown on store security video, went into the restaurant’s
kitchen and chased after the boyfriend, who ran throughout the kitchen and then outside
to escape. Franklin chased him outside, pointed the gun at him but did not shoot.

25. While Franklin brandished the pistol at the the boyfriend he never fired any shots,
even when he had clear aim at the boyfriend.

26. After Franklin chased the boyfriend of the property, he went back into the store.

27. The mother tried to plead with him to calm down and he angrily pushed her to
ground.

28. Franklin put the gun away in his clothes. He went to the entrance doors of the
store and punched at the door glass with both of his hands, crying out in anger.

29. One or more employees at the store had called 911 to report that a man was in the
store with a gun, upset at one of the employees. A customer in the drive through line who
had seen a man with a gun chasing someone had also called 911.

30. Defendant Kerl and Officer Larry Deal worked out of the CMPD precinct in that
neighborhood. They got the call from a dispatcher and began to drive in separate
vehicles toward the Burger King. They did not activate emergency lights or sirens.

31. A Burger King employee had also called the store manager, Timothy Grier, who
was on his way to the store, his wife driving to drop him off for his shift.

32. Grier pulled up before the police arrived, and opened the front passenger door
where he was sitting. The parking space right next to the car was empty.

33. Grier knew Franklin from his coming often to the store to see the mother of his
children, frequently with one or more of their children.

34. When Franklin saw Grier pull up in his car, he rushed outside to talk to him,
gesturing with his arms and pointing back at the store, telling Grier in anguish that the
mother of his children had brought the co-worker to his house.

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35. Grier talked to Franklin and quickly calmed him, telling him to not make matters
worse. Franklin squatted down next to the car, close to Grier in the open door. Grier,
who is an ordained minister, invited Franklin to pray with him.

36. As they prayed, Franklin laid his head on Grier’s chest and started to cry. The
mother of his children and at least one other Burger King employee had followed
Franklin out of the store and then came and stood closer, watching the two men pray. No
one felt threatened in any manner.

37. As Deal led Kerl toward the Burger King, a CMPD spotter watching the area
through a surveillance camera in a tower nearby told them that the person with the gun
had walked out of the store and was next to a specific car in the parking lot.

38. Deal stopped his CMPD vehicle near the rear of Grier’s car, turning it at an angle.
He got out of his vehicle, stood behind his open car door and, pointing his gun but unable
to see the squatted Franklin well, yelled at Franklin twice to show his hands.

39. Kerl stopped her vehicle behind Deal’s and, far from where Franklin could see or
hear her, also yelled to Franklin to show his hands as she rushed towards Grier’s car.

40. Franklin lifted his head off of Grier’s chest and froze in his squatted position, his
hands still clasped from praying.

41. Contrary to common sense and common training, Kerl crossed in front of Deal
and stopped in a completely uncovered position just beyond the parking space between
Grier’s car and the other vehicle, pointing her gun at Franklin. Kerl was not wearing her
ballistic vest. All of these movements and her perspective and position can be seen from
her body camera and from the video from the CMPD tower camera.

42. Reflexively, Deal moved up to the rear of Grier’s vehicle and pointed his gun at
Franklin in an effort to provide some cover to the fully exposed Kerl. On information
and belief, he was shocked at Kerl’s actions and how she escalated the situation.

43. Once they could fully see Franklin, however, neither officer asked or ordered him
to show his hands again.

44. Instead, Kerl and Deal repeatedly and loudly ordered Franklin to “drop the
weapon” - doing so more than 20 times in less than 30 seconds.

45. The weapon was inside Franklin’s clothing. Franklin appeared dazed and
uncertain as to how to respond. He looked over towards Kerl and back at Grier. He said
at one point, I heard you the first time.

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46. As they shouted these orders, Grier’s wife quickly exited the car, but the two
Burger King employees actually moved closer to Franklin; the mother of his children
walked right up to the edge of the open car door and stood close behind him to try to talk
to him. The two employees had no fear of Franklin. The officers had to order the mother
of his children to move away. Both employees went back inside the store and watched.

47. Grier quietly urged Franklin not to do anything “stupid”. He then watched as
Franklin slowly unclasped his hands, which the officers could now see were empty, as
shown on the video, and slowly reached into his clothing to retrieve the pistol, as ordered.

48. Kerl’s video shows Franklin slowly brought the gun out of his clothing, holding
the top of the gun by his thumb and forefinger, with the barrel pointed toward him and the
handgrip coming into view first.

49. Kerl now yelled “gun” as Franklin moved the gun away from him and from Kerl
toward his right knee and then towards the ground, trying to put the gun down as ordered.

50. Kerl then shot Franklin twice as he was putting the gun down. The video shows
the smoke come from the barrel of her gun as Franklin’s hand was past his knee and
moving toward the ground.

51. Franklin slumped against the open car door and looked at Kerl with an expression
of shock and bewilderment on his face and said, you told me to - his last words.

52. On information and belief, Deal was shocked that Kerl had shot Franklin and had
not felt threatened by Franklin’s obedient, slow movement of the gun.

53. The video also shows the shock on Grier’s face after Franklin was shot. And the
mother of his children can be heard screaming shrilly in the background.

54. Neither officer attempted any first aid to stop Franklin’s bleeding, focusing only
on retrieving the gun. Franklin lay unattended at least eight minutes before any first aid
was attempted by paramedics. He died at the scene.

55. When Plaintiff arrived from the bus to gather her grandchildren she found lots of
police and her son in a body bag.

56. In the next days, in response to public questions about the shooting, the CMPD
Chief stated that he wished he had heard different commands from the two officers.

57. The District Attorney, based on information provided to him by CMPD and
expressly declining to consider whether Kerl had violated police procedures, decided in
September 2019 not to charge Kerl.

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58. After days of media coverage of his decision, the District Attorney announced that
all future reviews of the use of deadly force by CMPD would be conducted for his office
by the State Bureau of Investigation, and not by CMPD.

59. Shortly thereafter, the CMPD sent Plaintiff a letter stating that its internal affairs
review had found the shooting justified, based on the District Attorney’s decision.

60. Plaintiff appealed the CMPD decision to the City’s Citizen Review Board
(“CRB”), a body organized pursuant to a City ordinance to review use of force by CMPD
officers. The CRB voted unanimously that the shooting was not justified and
recommended that the Chief change his finding.

61. The Chief declined to change his decision, and the City Manager, the final
policymaker for the use of deadly force by CMPD officers, upheld the Chief’s decision,
finding that Kerl’s actions were consistent with CMPD training and justified because the
District Attorney had not charged her with a crime.

FIRST CAUSE OF ACTION

(Fourth Amendment – 42 U.S.C. § 1983 - Defendant Kerl)

62. Plaintiff incorporates by reference all prior allegations.

63. The use of deadly force by Defendant Kerl was unreasonable and excessive under
the circumstances detailed above - including her failure to follow settled principals for
remaining safe in such a situation and then shooting Franklin because he was obeying her
repeated commands to put down his pistol - and thus violated Decedent’s Fourth
Amendment right not to be subject to unreasonable seizures, including the application of
excessive force.

64. Defendant Kerl was at all times acting under color of state law for purpose of 42
U.S.C. §1983. She is sued in her individual capacity on this claim

65. Plaintiff seeks and is entitled to all available compensatory damages for the
Decedent’s loss of life, the loss of financial and emotional support for his child, the pain
and suffering he experienced in his needless death, and all other losses compensable
under N.C.G.S. § 28A-18-2(b).

66. Plaintiff seeks punitive damages for the willful and wanton and reckless conduct
of Defendant Kerl.

67. Plaintiff also seeks her costs in this action, including reasonable attorneys’ fees,
under 42 U.S.C. § 1988.

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 SECOND CAUSE OF ACTION
(Fourth Amendment – 42 U.S.C. § 1983 - Defendant City of Charlotte)

68. Plaintiff incorporates by reference all prior allegations.

69. Under the City Charter and ordinances, the City Manager is the final policymaker
for assessing the use of deadly force, to the extent he has not delegated such decisions to
the Chief of Police. Both the City Manager and Chief of Police fully ratified the actions
of Defendant Kerl in killing Franklin and her reasons for killing him. Thus, the City is
also liable to Plaintiff for the violation of Franklin’s Fourth Amendment rights.

70. The City’s final policymakers at all times acted under color of state law for
purposes of 42 U.S.C. § 1983. The claim against the City is the same as and redundant to
an official capacity claim against Kerl.

71. Plaintiff seeks and is entitled to all available compensatory damages for the
Decedent’s loss of life, the loss of financial and emotional support for his child, the pain
and suffering he experienced in his needless death, and all other losses compensable
under N.C.G.S. § 28A-18-2(b).

72. Plaintiff does not seek punitive damages from the City, as they are not available
under § 1983.

73. Plaintiff seeks the costs of this action, including reasonable attorneys’ fees, under
42 U.S.C. § 1988.

THIRD CAUSE OF ACTION

(Wrongful Death – the City and Kerl in her official capacity)

74. Plaintiff incorporates by reference all prior allegations.

75. The actions of Defendant Kerl in shooting and killing Decedent breached the duty
of care owed to Decedent by a reasonable officer in the circumstances and thus were
negligent.

76. Defendant Kerl was negligent in failing to take cover at the scene, in crossing in
front of an officer whose weapon was drawn and standing fully exposed to a person she
suspected of holding a handgun and escalating an situation that had fully de-escalated; in
failing to communicate effectively with Franklin, not hearing his response that
acknowledged her commands, and in not issuing commands commonly used to safely
detain an armed person and secure a weapon, such as in a felony vehicle stop; and then
shooting and killing Franklin because he was following the errant commands she gave.

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She panicked when she saw the handle of the gun emerge from his clothing, and shot him
as he held the gun with only his thumb and forefinger, the barrel pointed toward him as
he was putting the gun to the ground. Kerl failed utterly to recognize that Franklin was
doing exactly what she ordered him to do when she shot him dead, and then she failed to
attempt any life saving measures.

77. To the extent the City claims that Franklin was contributorily negligent, he clearly
was in a position of peril from which he could not escape when shot. Defendant Kerl had
the last clear chance to avoid Decedent’s death.

78. Plaintiff, in her capacity as Administrator of the Estate, seeks and is entitled to
recover all damages for wrongful death allowed by N.C.G.S. § 28A-18-2(b), including
punitive damages for willful and wanton conduct of Defendant Kerl under N.C.G.S. §
28A-18-2(b)(5).

79. Defendant Kerl is sued in her official capacity on this negligence claim for
wrongful death. She was acting as an agent of the City of Charlotte which is liable for
her official conduct as respondeat superior.

80. The Defendant City of Charlotte, pursuant to N.C.G.S. § 160A-485.5, has adopted
an ordinance waiving its governmental immunity from claims of negligence byt its
employees to the same extent that sovereign immunity is waived under the State Tort
Claims Act for claims of negligence against state employees. If Kerl were a state
employee, her negligence would be actionable under the State Tort Claims Act. Thus, her
negligence is actionable here. The waiver is limited to $1 million in damages.

81. Plaintiff, in her capacity as Administrator of the Estate, seeks and is entitled to
recover all damages for wrongful death allowed by N.C.G.S. § 28A-18-2(b), including
punitive damages for willful and wanton conduct of Defendant Kerl under N.C.G.S. §
28A-18-2(b)(5). That provision applies to municipalities.

82. Plaintiff also seek the recoverable costs of this action.

FOURTH CAUSE OF ACTION

(Negligent Training - City of Charlotte)

83. All prior allegations are incorporated by reference.

84. The City has a duty to maintain the training and readiness of its CMPD officers to
reasonably respond to situations like the one in this case.

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85. The City Manager and Chief have declared that Kerl’s training was adequate and
she acted in conformity with it. The failure to keep Kerl trained in the proper procedures
for responding to an incident such as this was manifest in her negligent actions.

86. Kerl was negligent in all the ways described in paragraph 76 and would not have
acted in the manner she did if properly and regularly trained in the many years since basic
training.

87. This negligent training proximately caused the death of Decedent.

88. The Defendant City, pursuant to N.C.G.S. § 160A-485.5, has adopted an

ordinance waiving its governmental immunity from the negligence of its employees to
the same extent that sovereign immunity is waived under the State Tort Claims Act as to
the negligence of state employees. The negligence of its police department in mantling
Kerl’s training is actionable here because of that waiver of immunity to the limits of the
State Tort Claims Act.

89. Plaintiff, in her capacity as Administrator of the Estate, seeks and is entitled to
recover all damages, compensatory and punitive, for wrongful death caused by the
negligent training, as allowed under N.C.G.S. § 28A-18-2(b)

FIFTH CAUSE OF ACTION

(Assault and Battery)

90. All prior paragraphs are incorporated by reference.

91. In the alternative, the unjustified actions of Kerl in intentionally shooting and
killing Decedent without legal justification constitutes assault and battery.

92. The shooting caused Decedent’s wrongful death.

93. Defendant Kerl is sued in her individual capacity on this claim. Her unjustified
actions displayed willful and wanton disregard of Decedent’s rights and well-being and
exceeded the scope of her lawful authority, thereby piercing any entitlement to public
officer immunity.

94. Plaintiff, in her capacity as Administrator of the Estate, seeks and is entitled to
recover all damages for wrongful death allowed by N.C.G.S. § 28A-18-2(b)

95. She also seeks punitive damages for the willful and wanton conduct of Defendant
Kerl under N.C.G.S. § 28A-18-2(b)(5).

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 JURY DEMAND

96. Plaintiff requests that all matters be tried before a jury.

PRAYER FOR RELIEF

WHEREFORE, upon the trial of this matter, Plaintiff prays that the Court enter judgment
in his favor and against Defendants, jointly and severally, as follows:

1. An award to Plaintiff as administrator of the Estateof all damages, compensatory

and punitive, from the City and officer Kerl officially, allowed by statute for
wrongful death under state law;

2. An award to Plaintiff as administrator of the Estate of all damages, compensatory

and punitive, from officer Kerl individually, and from the City, for the violation of
the Fourth Amendment,;

3. Interest at the state statutory rate on each of the Judgments for Plaintiff as
administrator and for herself;

4. The costs and expenses in this action as allowed by statute, including reasonable
attorneys; fees under 42 U.S.C. § 1988; and

5. Such further relief as the Court deems just and necessary.

This the 11th day of June, 2020.

/s/ S. Luke Largess,

S. Luke Largess
N.C. Bar No. 17486
Tin Fulton Walker & Owen, PLLC
Phone: (704) 338-1220
Facsimile: (704) 338-1312
[email protected]
Attorneys for Plaintiff

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