Attorneys seek to overturn dismissal in Alicia Franklin rape lawsuit
An attorney for Alicia Franklin, a woman who said she was raped by Cleotha Abston-Henderson a year before Eliza Fletcher was abducted and killed, introduced new evidence in the form of an affidavit from Abston-Henderson’s girlfriend at the time of Franklin’s rape Thursday afternoon.
The new evidence came as one of the attorneys, Gary Smith, is attempting to have Shelby County Circuit Court Judge Mary L. Wagner overturn her decision to grant the City of Memphis’ motion to dismiss a civil case brought by Franklin that alleges the Memphis Police Department did not conduct a thorough investigation into her rape.
At the hearing, Smith said Abston-Henderson’s girlfriend, Gwendolyn Brown, spoke with a detective about Abston-Henderson. Brown said in her affidavit that she identified Abston-Henderson, confirmed that MPD already had his phone number and that the detective told Brown her boyfriend was a “key suspect.”
Smith said this interaction, along with warrants that were active before Franklin’s rape, insinuate that MPD was protecting Abston-Henderson. He could not, however, solidly indicate why they would do that and said that could be learned through discovery.
“It appears that the police department, for whatever reason, was protecting [Abston-]Henderson, rather than trying to arrest him and get him off the streets,” Smith told reporters after the hearing. “Our argument that there will be another day to find out why they were apparently protecting him is answered by the discovery process. Was he an informant?…Was he a friend of someone in the police department?…We don’t know.”
Why it was dismissed
The City of Memphis filed the motion to dismiss in December of last year, citing four arguments that included one saying the city “did not owe a duty to Ms. Franklin to investigate her rape,” according to court documents.
The city said in its motion that the officers did their job properly and that imposing a general duty to investigate would allow courts to infringe upon Memphis police’s constitutional right “to direct the use of limited police resources.”
The court disagreed with this argument as well as the city’s argument that Franklin could not establish causation for her physical and emotional suffering and an argument that stated police work is discretionary.
The fourth opinion, another one of Franklin’s attorneys Jeffrey Rosenblum said in March, provided the largest reason for the judge granting the motion to dismiss the case. The court said Tennessee’s Public Duty Doctrine, which was recently enhanced by the Tennessee Supreme Court, provides protections for government employees being sued for their actions or inactions.
Smith argued Thursday that the court should reverse its ruling to dismiss the case because Franklin’s situation falls under two of the three special duty exceptions. If one of those three exceptions is met, the Public Duty Doctrine does not provide immunity.
Those exceptions fall under additional steps being taken by the agency, in this case, the police, and a reliance on the police to thoroughly investigate the case from the plaintiff, in this case, Franklin.
According to Smith, both of those are met because a rape kit was taken and Franklin repeatedly called for updates on her investigation. When the City of Memphis’ attorney pushed back on rape kits not being an additional step in an investigation, Smith fired back with a reference to a separate case he is involved in dealing with a rape kit backlog with MPD.
“Among the new findings and evidence not available previously when this case was considered was a finding in a related proceeding,” Smith and Rosenblum wrote in the motion to overturn the dismissal. “In Doe v. City of Memphis, Shelby County Circuit Court Judge Gina Higgins found that in addition to the city not having immunity for claims based upon untested and unprocessed rape kits, a victim’s submission to a rape kit established a special relationship between the victim and the city.”
That ruling from Higgins came the same day Wagner ruled to dismiss Franklin’s case.
Attorneys for the City of Memphis did not speak with reporters after Thursday’s hearing.
‘We’ve given her a reason to rethink’
Franklin said she was raped by Abston-Henderson in September 2021, and filed the original lawsuit nearly a year after the assault, which happened about two weeks after the body of Eliza Fletcher was found.
Fletcher was reported missing Sept. 2, 2022, which triggered a citywide manhunt for the missing jogger. Abston-Henderson was connected to the abduction site after police said DNA evidence on a pair of slides, which had been sent to the Tennessee Bureau of Investigation, was tested and matched Henderson’s.
Days after he was arrested in connection to the Fletcher case, he was indicted for Franklin’s 2021 abduction and rape.
More court news:2 former Memphis police officers in Tyre Nichols case ask to be tried separately
Franklin said in her suit that she provided police with Abston-Henderson’s contact information, social media and name, but he was never arrested for the rape. A rape kit was taken and sent to TBI for testing but did not return until after Abston-Henderson was arrested in connection to the Fletcher case.
Wagner, in her closing remarks, said she has “several layers of complex issues” to sift through prior to making her decision, but did not give a timeline for the ruling.
Smith, however, said he believes she will rule quickly, though he acknowledged the difficulty in having a court overturn its own opinion.
“If you looked at it on the larger scale, most of the time the courts will not reverse themselves,” Smith said. “But there’s certainly precedent for it and they will do it if the circumstances are right. We believe that we have given Judge Wagner a sufficient basis to change her ruling…and she didn’t just pull that [original ruling] out of thin air. She had rationale behind it. Hopefully, we’ve given her a reason to rethink that.”
Lucas Finton is a criminal justice reporter with The Commercial Appeal. He can be reached at Lucas.Finton@commercialappeal.com and followed on Twitter @LucasFinton.
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