Attorneys for Memphis move to dismiss Alicia Franklin lawsuit

The city of Memphis would like to see the lawsuit filed by a Memphis woman who was raped last year tossed, asserting the Memphis Police Department does not have a general duty to investigate under Tennessee law.

Private attorneys representing the city in a suit brought by Alicia Franklin filed a motion to dismiss the suit last week. Their motion claims 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."

In a nutshell, the city is arguing MPD did its job, something that Franklin's lawsuit disputes.

"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," Memphis asserts. "In doing so, Plaintiff outlines a scheme that would have compelled MPD to perform a myriad of (sic) actions she believed MPD should have performed, but that it did not."

The city also argued that if Franklin's claim were to succeed, it would open the city up to similar claims.

"To impose such a duty would subject the city to potential liability whenever a complaining victim is dissatisfied with a police investigation," the city said in its filing.

Memphis is being represented by Burch, Porter & Johnson PLLC.

Franklin filed suit after Fletcher's death

Franklin, a young mother and worker, was sexually assaulted on Sept. 21, 2021. Her suspected attacker is also the suspect in the September kidnapping and killing of mother and preschool teacher Eliza Fletcher.

The lawsuit against the city, filed in September after Fletcher was found dead, presupposes Fletcher would still be alive if the suspect in both women's cases, Cleotha Abston, had police taken Franklin's own case seriously.

After Franklin was attacked, her attorney said in September, police failed to adequately investigate Abston as a suspect. Franklin provided police with Abston's first and last name, his phone number, and information about his dating profile he used to lure Franklin into the Lakes at Ridgeway apartment complex where the assault occurred.

Police also did not collect evidence from the crime, such as fingerprints, according to the lawsuit.

Franklin agreed to undergo a rape kit after her assault, and a spokesperson for the Tennessee Bureau of Investigation, the entity that oversees rape kit processing, confirmed the agency received the sexual assault kit September 23, 2021.

The evidence was placed in a "queue of unknown assailant kits, as no request was made for TBI analysis to be expedited, and no suspect information or DNA standard was included in the submission."

When Franklin was asked to look at a photo lineup of suspects, she saw a photo of Cleotha Abston, but the picture appeared dated; she wasn't sure it was him. She asked police for a more recent photo of Abston, and was told by investigators they would obtain one. That didn't happen, the lawsuit said.

Abston was arrested and charged with the rape of both women, and the killing of Fletcher, in early September, after the DNA samples from Fletcher's case returned with a positive ID for Abston.

Further delay expected in Janet Doe vs. City of Memphis

The handling of Franklin's case, combined with her lawsuit, comes as Shelby County Circuit Judge Gina Higgins is considering the latest motions filed in Janet Doe v City of Memphis — colloquially known as the rape kit lawsuit.

Filed more than eight years ago, the city is being sued for the mishandling of more than 12,000 rape kits gathered from victims that went untested, or in some instances, were outright discarded.

In October, Higgins heard the final motions from the plaintiffs and city attorneys before deciding whether Janet Doe v Memphis could proceed as a class action suit.

That deliberation has been paused temporarily, in response to new evidence submitted by the plaintiffs in late November that countered a key portion of the city's defense.

The city's attorneys argued that Memphis police did not have access to state crime labs until 2002. Even then, they argued, there was no standardized process for submitted rape kits to these labs.

The late November filings from the plaintiffs contend the Tennessee Bureau of Investigation began collecting a DNA database in the early 1990s. The motions include the testimony of Joe Minor, who served as a DNA analysist for the Tennessee Bureau of Investigation from 1993-2011.

In the court documents, Minor said the Memphis Police Department had access to a lab to test rape kids starting in 1993.

Gary Smith, an attorney for the plaintiffs, said the city has until Jan. 15 to respond to the motions, which also call for sanctions against the City of Memphis.

The two parties are expected to meet with Higgins in early February 2023.

Micaela Watts is a reporter for The Commercial Appeal covering issues tied to access and equity. She can be reached at micaela.watts@commercialappeal.com.

This article originally appeared on Memphis Commercial Appeal: Memphis wants to dismiss Alicia Franklin lawsuit Eliza Fletcher case