Smiles and tears of joy gave way to disappointment Wednesday for victims of sexual assault as judges issued separate decisions in two high-profile lawsuits alleging Memphis police were negligent when investigating rape cases.
The first decision came in a moment of courtroom drama as Circuit Court Judge Gina Higgins announced from the bench that she would not dismiss a now nine-year-old suit accusing the Memphis Police Department of dereliction for failing to test thousands of rape kits over the course of decades.
Higgins, in turn, granted a plaintiff’s motion to certify the lawsuit as a class-action suit, a decision that potentially exposes the city to a much-larger payment for damages should the plaintiffs prevail.
“It’s bittersweet,’’ said Debby Dalhoff, one of several rape survivors who witnessed the ruling from the gallery before gathering in the hallway amid tears, hugs and expressions of joy.
“We fought for this for a long time,’’ said Dalhoff, 67, who was raped in 1985 in a still-unsolved home invasion. “And, you know, I can be up here with all these women who’ve been through the same thing that I have. And I see some smiles on some faces for the first time. Some happiness and some smiles.”
Those smiles faded later Wednesday as word circulated that a judge had dismissed a separate lawsuit accusing MPD of failing to properly investigate a 2021 rape allegedly committed by Cleotha Henderson, the accused murderer of Eliza Fletcher. The suit filed by Alicia Franklin contends Fletcher would never have been abducted last fall and would still be alive if MPD had properly investigated the 2021 rape and arrested Henderson then.
In dismissing the suit, Circuit Court Judge Mary L. Wagner said in a 21-page decision that the dismissal doesn’t hinge on the merit or insufficiency of Franklin’s claims but rather on a “Catch-22’’ created by a Tennessee Supreme Court decision last month that appears to expand protections for government employees sued for their actions.
“Certainly, the factual allegations in (Franklin’s) Complaint are sufficient to permit a finding that the officers consciously disregarded a substantial and unjustifiable risk of such a nature that its disregard constitutes a gross deviation from the standard of care. They are both concerning, and if left unexplained, disappointing,’’ Wagner wrote.
Franklin alleges in her suit that Henderson raped her at gunpoint in September 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.
An independent investigation by the Institute for Public Service Reporting found police made several missteps. Among them, officers didn’t pick up Henderson for questioning on an outstanding warrant for allegedly orchestrating burglaries at a FedEx Freight shipping facility while working there as a security guard in the summer of 2021, weeks before Franklin’s rape. Police failed to question Henderson again in June 2022 – three months before Fletcher’s murder – when he finally was arrested on the FedEx Freight warrant and spent three days in the Shelby County Jail. Those charges were later dismissed and the court records expunged.
Henderson finally was charged with Franklin’s rape in Criminal Court on Sept. 8, 2022 – days after Fletcher’s murder – when DNA results came back from the state crime lab linking him to the 2021 sexual assault.
Wagner based part of her decision to dismiss on grounds that Franklin’s attorneys failed to allege any negligence in the handling of the arrest warrant in their written complaint against the city.
“At oral argument, Counsel for Ms. Franklin mentioned allegations regarding pending arrest warrants in existence at the time of Ms. Franklin’s rape that had not be acted on by MPD,’’ Wagner wrote in her decision. “Such allegations are not (in) the Complaint. Therefore, the Court finds that Ms. Franklin fails to state a claim for any negligent or reckless conduct causing her rape. Therefore, this portion of her Complaint fails to state a claim and must be dismissed.”
Wagner emphasized in her decision that she wasn’t judging MPD’s actions at this time.
“To be clear though, nothing in this ruling should be taken as agreement or disagreement with the actions or inactions of MPD. That is not the role of the Court when addressing a motion to dismiss,’’ the judge wrote.
Instead, she pointed to a Feb. 16 Supreme Court decision that says Tennessee’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. “…Consequently, based upon the law as it exists now, Ms. Franklin cannot apply the special duty exception for recklessness.”
Franklin’s attorney, Gary K. Smith, said he hasn’t had a chance yet “to review the entirety’’ of Judge Wagner’s “very lengthy opinion,’’ but will consider options to appeal or file a motion to reconsider “very quickly”.
The lead attorney representing the city, Jonathan P. Lakey, offered a similar assessment when asked about Judge Higgins’s ruling the rape kit lawsuit.
“We obviously respect the court and (the) analysis and decision that she’s made,’’ Lakey said as he left court. “And obviously … from the city’s perspective, we’re going to look at it and review it and look at our options and then we’ll have a further comment.’’
Higgins’s decision opens the city, potentially, to a much greater payment should the plaintiffs prevail. The city has argued that any award should be limited to a single, $700,000 judgment. But the plaintiffs have argued that each victim should receive as much as $300,000. With thousands of victims, the city’s liability could run into millions of dollars.
Judge Higgins is expected to rule at a later date on capping any monetary award.
Her rulings Wednesday included lifting limitations on discovery, which means the plaintiffs now will be able to subpoena numbers of internal MPD records to explore their claims.
Smith, who also represents plaintiffs in the rape kit suit, said the developments possibly could lead to negotiations for a settlement.
“We are certainly amenable to that discussion,” Smith said. “The city controls that decision since they control the checkbook. Hopefully, these rulings today will move the city toward trying to find a reasonable resolution of the case.”
Regardless of what happens, rape survivor Dalhoff said the day on the whole was a good one.
“We don’t know what their actual liability is going to be for the city as far as taking care of the victims. So, there’s still some more to come. But this is this is a win, definitely a win, for us,’’ Dalhoff said before embracing fellow survivor Celia Reynolds.
“Whatever they decide that they’re going to do, I’m still going to fight until the end,’’ Reynolds said. “That’s all I can do is just fight.”