This story has been updated to include a response received late Thursday from the Memphis Police Department.
Citing new evidence, attorneys for Alicia Franklin are asking a judge to reinstate her lawsuit against the city of Memphis.
The attorneys say in court pleadings filed Thursday that they believe the new evidence will show the Memphis Police Department “was intentionally avoiding arresting’’ Cleotha Henderson for Franklin’s rape and may in fact have been “protecting” him.
Franklin sued the city last fall contending Memphis police had failed to adequately investigate her 2021 rape. Though Henderson was charged with that crime nearly a year later, the earlier failure allowed him to avoid arrest until last September when he allegedly abducted and murdered preschool teacher Eliza Fletcher, Franklin claimed in her suit.
Circuit Court Judge Mary L. Wagner dismissed the suit last month on technical grounds, citing a recent Tennessee Supreme Court decision that appears to expand protections for government employees who are sued for their actions.
But a motion Franklin’s attorneys filed Thursday afternoon asks Wagner to reconsider her decision, citing new evidence that includes allegations by Henderson’s former live-in girlfriend.
Gwendolyn Brown says in an affidavit appended to the motion that MPD detectives visited her days after Franklin’s September 2021 rape. Though the detectives inspected her white Dodge Charger where Franklin allegedly was raped, they failed to do a thorough examination, Brown contends.
“Detectives did not dust it for fingerprints and they did not ask me for permission to look inside; as far I know they did not look inside of it,’’ Brown says in the three-page affidavit. “They just stood there next to it and looked at it.’’
Brown, 39, also contends that detective Shemeka Love told her Henderson was the “key suspect,’’ yet didn’t seem to be in any rush to arrest him.
“She asked me if Cleotha Henderson was going to be around when she came to talk with me. Detective Love explained that if Cleotha Henderson was present, she would have to arrest Cleotha Henderson because there were outstanding warrants for his arrest. I told her he was not there,’’ Brown says in the affidavit.
An MPD spokesman declined comment Thursday, citing the ongoing litigation.
Brown told the Institute for Public Service Reporting in a separate interview earlier this year that Love said “it would make her uncomfortable” if Henderson was present.
At the time, Henderson, a convicted kidnapper who had served 20 years in prison prior to his November 2020 release, was wanted for allegedly orchestrating a series of burglaries at a FedEx Freight facility in the summer of 2021.
Franklin’s attorneys say Brown’s affidavit, signed and notarized on March 28, raises troubling questions about whether MPD was neglecting the investigation or possibly even “protecting” Henderson.
“Based upon Brown’s affidavit, police actually took affirmative steps to avoid encountering him,’’ attorneys Gary K. Smith and Jeffrey S. Rosenblum say in the 22-page motion that also cites recent stories by the Institute for Public Service Reporting.
“… It appears the MPD was protecting Henderson from arrest and prosecution. It is unclear why that was occurring. Brown’s affidavit also demonstrates that although MPD referred to him as a ‘key suspect’ in Alicia Franklin’s rape, MPD went out of their way not to arrest him for nearly a year until he abducted and murdered another woman. Apparently, MPD could not ignore that.”
The motion includes a request to allow Franklin to file a new, amended complaint. The proposed 19-page amended complaint alleges at one point, “Based upon information and belief and information from Gwendolyn Brown, MPD was protecting Cleotha Henderson before and after the rape of Alicia Franklin.’’
Nov. 7, 2020: Cleotha Henderson is released from prison after serving 20 years for robbery and kidnapping.
Aug. 11, 2021: A Memphis Police Department detective swears out an affidavit of complaint charging Henderson with felony theft for the July 5 and July 17, 2021, burglaries at a FedEx Freight shipping facility where the convicted kidnapper worked as a security guard.
Sept. 21, 2021: Alicia Franklin is raped at the Lakes of Ridgeway apartment complex. Police investigate Henderson as the chief suspect. Police fail to arrest Henderson on the burglary warrant, which could have allowed officers to take him into custody and then question him about the rape.
April 26, 2022: Henderson is issued a misdemeanor citation for allegedly stealing merchandise from a DHL facility on Lamar.
June 27, 2022: Henderson is arrested for the FedEx burglaries and spends three days in jail. He is never questioned about the alleged rape.
July 25, 2022: The FedEx Freight and DHL charges are dismissed and expunged.
Sept. 2, 2022: Eliza Fletcher is abducted while running on Central Avenue and subsequently killed. Henderson is charged first with Fletcher’s death and later with Franklin’s 2021 rape after DNA results finally return from the state crime lab.
MPD spokesman Louis Brownlee said in an email Thursday evening, “As a standard practice, we do not comment on ongoing litigation.”
The Institute did not immediately receive an answer to an email sent to Mayor Jim Strickland’s office.
Attorneys for the city have argued in court that police had no duty to investigate Franklin’s rape to the extent that she wanted.
The dispute grew more complicated in February when the Tennessee Supreme Court ruled that the state’s Governmental Tort Liability Act or GTLA removes immunity “only for ordinary negligence”. Ironically, critics note, the decision retains immunity for more severe acts of gross negligence or recklessness.
In that case, known as Lawson vs. Hawkins County, the Supreme Court reversed a lower court decision that had found East Tennessee officials liable for the death of a motorist killed by a mudslide across a mountain highway.
“Unfortunately, for Ms. Franklin, the Tennessee Supreme Court in Lawson held that the GTLA does not remove immunity for claims of recklessness,’’ Wagner wrote in her decision, describing her situation as a “Catch 22”.
“…Consequently, based upon the law as it exists now, Ms. Franklin cannot apply the special duty exception for recklessness.”
The motion filed Thursday seeks permission to file an amended complaint to fully address the Supreme Court’s decision.
“The Plaintiff had to respond to a change in the law midstream,’’ the motion says.
It also says Franklin should be allowed to refile an amended complaint with new evidence not available when she first file suit last fall.
Franklin alleged in her suit that Henderson raped her at gunpoint on September 21, 2021, but that police failed to arrest him even after she gave officers his phone number, a description of his car and an address where the crime happened.
Henderson finally was indicted for Franklin’s rape in Criminal Court on Sept. 8, 2022 – days after Fletcher’s Sept. 2 murder – when DNA results came back from the state crime lab linking him to the 2021 sexual assault. But Franklin’s attorneys say in Thursday’s motion it “is telling” that Henderson was booked into the county jail for Franklin’s rape on Sept. 4, “before the DNA match came back.’’
“MPD had probable cause to arrest him for the rape of Alicia Franklin for an entire year and failed to do so until the abduction and murder of Eliza Fletcher,’’ the attorneys said.