The City of Memphis is asking a judge to dismiss rape victim Alicia Franklin’s lawsuit, contending Memphis police had no duty to investigate her case to the extent she believes was needed.
Lawyers for the city also pushed back on Franklin’s claim that the failure to arrest and jail accused rapist Cleotha Henderson, (who also goes by Cleotha Abston) in September 2021 led to the death of jogger Eliza Fletcher a year later, calling the allegation “immaterial, impertinent and scandalous.”
Prosecutors have charged Henderson, 39, with both Franklin’s rape and Fletcher’s murder, though the rape charge came only after Fletcher’s body was found behind an abandoned home Sept. 4. That’s because Franklin’s rape kit sat untested for nearly a year at a Tennessee Bureau of Investigation crime lab after the Memphis Police Department failed to request expedited DNA testing.
Franklin’s suit, filed in September, accuses MPD of negligence and seeks an unspecified amount of compensation for pain and suffering.
Now, in a motion filed Dec. 6, the city is asking Circuit Court Judge Mary L. Wagner to dismiss Franklin’s suit or, alternatively, to strike references to Fletcher’s murder and delays in testing rape kits from the record.
“…The City moves in the alternative to strike certain immaterial, impertinent and scandalous allegations — including references to Eliza Fletcher and untested rape kits — from Plaintiff’s Amended Complaint,’’ says a 25-page pleading by attorney Jonathan P. Lakey, a member of the Burch, Porter & Johnson law firm representing the city.
“These issues are wholly unrelated to the investigation of Plaintiff’s report, and therefore, bear no relation to her claim for relief. Because these allegations serve no purpose beyond sensationalizing tragedy and confusing the pertinent issues, to the prejudice of the City, they should be stricken from the Amended Complaint.’’
Reached by phone, Franklin’s attorney said the city’s position is untenable.
“It would be scandalous to suggest there is no connection between the rape of Alicia Franklin and the ultimate murder of Eliza Fletcher,” Gary K. Smith said. “The connection is obvious.”
Revelations earlier this fall about MPD’s handling of Fletcher and Franklin cases and the delays in testing Franklin’s rape kit stirred wide cries for reform, leading to legislative hearings and promises by Gov. Bill Lee and other state officials to raise low salaries and fill staffing shortages that have triggered delays in DNA test results 11 months or longer.
Franklin sued the City of Memphis in the days following Fletcher’s Sept. 2 abduction and murder, alleging negligence by MPD in investigating her Sept. 21, 2021, rape behind a vacant Hickory Hill apartment next door to where Henderson lived.
“They didn’t care,’’ Franklin, 22 told the Institute for Public Service Reporting and The Daily Memphian in a September interview.
Her suit contends police failed to search for fingerprints at the crime scene and botched other leads after she’d given officers Henderson’s phone number and a description of the car he drove. The suit contends detectives showed her a photo lineup that included an older picture of Henderson, who also uses the last name Abston.
According to her suit, Franklin identified Henderson “as the one who looked most like her assailant despite being shown an old photo. Ms. Franklin overheard the police say something to the effect of ‘maybe we need to show her a newer picture — this photo is ten (10) to twelve (12) years old.’’’
According to the suit, officers told her they would obtain and show her a newer photo but never did even though the Tennessee Department of Correction had more recent photos in connection with a 20-year prison sentence Henderson served for a 2000 kidnapping. He was released in November 2020.
“Despite the MPD knowing Abston’s full name and having access to his extensive criminal record, the MPD failed to obtain an up-to-date photograph from the Tennessee Department of Correction or from another source. Moreover, the MPD failed to bring Abston in for questioning,’’ the suit says.
In its motion to dismiss, the city argues that MPD has limited resources and must exercise discretion in deciding how aggressively to pursue an investigation.
“Although there is no dispute that MPD investigated Plaintiff’s report, Plaintiff pleads that MPD had a duty to investigate her rape in accordance with an undefined ‘reasonable officer’ standard. In doing so, Plaintiff outlines a scheme that would have compelled MPD to perform a myriad of actions she believes MPD should have performed, but that it did not.
“…To impose such a duty would subject the City to potential liability whenever a complaining victim is dissatisfied with a police investigation. It would further allow courts to infringe upon the state and its subparts’ constitutionally guaranteed discretion to direct the use of limited police resources, vitiating the sovereignty from which a discretionary immunity is derived.’’
Responding by phone, Smith, Franklin’s attorney, told a reporter: “The citizens in this city with its crime problem surely will draw little comfort for the police department to say there’s no duty to do a thorough investigation of serious crimes.’’