City of Memphis to appeal ruling in lawsuit involving 12,000 untested rape kits

The City of Memphis' attorneys plan to appeal Shelby County Circuit Court Judge Gina Higgins' March ruling that a group of plaintiffs suing the city for not testing over 12,000 rape kits can file the suit as a class action, citing a separate judge's ruling in the Alicia Franklin rape investigation case.

Higgins ruled the plaintiffs could file as a class the same day a separate judge, Shelby County Circuit Court Judge Mary Wagner, dismissed Franklin's case. Franklin, in her lawsuit, alleged the Memphis Police Department did not adequately investigate. Both cases were filed against the City of Memphis.

In the city's request for an interlocutory appeal of Higgins' class action ruling, attorneys said they wanted to review two parts of the ruling. The first is whether "the court's ruling that this case falls under an exception to public duty doctrine immunity because the city assumed a special and affirmative duty to the plaintiff by virtue of the sexual assault kit" was proper.

Attorneys for the city also requested that, should they be permitted to appeal the case, the rape kit case is put on pause while the appeal is underway.

The first question attorneys for the City of Memphis posed ties the rape kit case — which has been active since August 2014 — to Franklin's dismissed case beyond Janet Doe, the primary plaintiff in the rape kit case, and Franklin being represented by Gary Smith.

Wagner has twice ruled against Franklin, who first sued the City of Memphis in September 2022. The first ruling against Franklin came after the Tennessee Supreme Court strengthened Tennessee's Public Duty Doctrine of the Governmental Tort Liability Act during the course of litigating the Franklin case. The doctrine offers protections for government employees being sued for their actions or inactions.

Wagner ruled against Franklin a second time after Smith filed an amended complaint with new information. That was also dismissed, with the judge saying Smith cited the supreme court's decision in his own filings and that he did not request time to create a defense for the bolstered law.

In the request for an appeal, the City of Memphis' attorneys argued that the two judges' separate rulings conflict with one another.

"...This court's ruling that the public duty doctrine immunity does not apply is directly contrary to an order entered just months ago, in another division of this same court, holding that the public duty doctrine does apply," the request for an appeal read. "These conflicting orders by different divisions in the same circuit court illustrate 'the need to develop for a uniform body of law' on this issue, providing further grounds for interlocutory review."

Daniel Lofton, another attorney for the plaintiffs in the rape kit case, said this is an example of the city's attorneys trying to get another judge to rule on the case and to stall providing notice to anyone who could potentially become part of the class action lawsuit.

"The city has nothing new to argue of any substance," Lofton said. "It simply wants to try to get another judge's opinion. The rules require them to provide us with the information related to all of the affected victims, and this is an attempt by the City of Memphis to delay the process of providing notice to the victims whose rights are being affected."

Franklin sued the city following the arrest of Cleotha Abston-Henderson. Franklin said she was raped by Abston-Henderson a year before his arrest in connection to the abduction and killing of Memphis school teacher Eliza Fletcher.

Abston-Henderson, shortly after being arrested and charged with Fletcher's murder, was separately charged with raping Franklin.

More: Shelby County DA drops '30 to 40' cases worked by officers charged in Tyre Nichols beating

Franklin said she reported her rape after it happened, gave MPD Abston-Henderson's name and submitted to having a rape kit taken. That rape kit, according to the Tennessee Bureau of Investigation, was not sent with a rush designation and was filed in a category for kits with unknown assailants.

In the Fletcher case, Shelby County District Attorney Steve Mulroy said his office was seeking the death penalty against Abston-Henderson.

"You often see heinous, atrocious and cruel aggravating factors found in cases in which torture was involved," Mulroy told press after the July 6 announcement. "We are alleging that applies in this case."

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.

This article originally appeared on Memphis Commercial Appeal: City of Memphis to appeal ruling in untested rape kit lawsuit