The Austin Chronicle

https://www.austinchronicle.com/daily/news/2020-08-11/plaintiffs-appeal-dismissal-of-sexual-assault-survivors-lawsuit/

Plaintiffs Appeal Dismissal of Sexual Assault Survivors’ Lawsuit

By Sarah Marloff, August 11, 2020, 12:00pm, Newsdesk

Six months after U.S. District Judge Lee Yeakel dismissed the sexual assault class action case brought against local law enforcement, the eight survivor-plaintiffs have filed their appeal in the 5th U.S. Circuit Court of Appeals.

Their opening brief, submitted Friday, August 7, says the question at hand is whether city and county officials can be held accountable for violating women rape survivors’ constitutional rights in federal court, when the criminal justice system they control manages to resolve fewer than 1% of reported sexual assaults against women.

Arguing Yeakel’s court “incorrectly abdicated its ability” to hold those officials accountable, the survivor-plaintiffs have asked the 5CA to reverse the dismissal and rule that the federal court is not only “empowered to hear their claims,” but “must, in fact, hear them.” The defendants in the suit remain Travis County District Attorney Margaret Moore and her predecessor Rosemary Lehmberg; Austin Police Chief Brian Manley and his predecessor Art Acevedo; and the city and county.

The suit was originally filed by three women in June 2018 and argues that systemic failures within the Travis County criminal justice system led to gender-based inequitable treatment of all women rape survivors, thus violating their Fourth, Fifth, and Fourteenth Amendment rights. It was amended that August with five additional plaintiffs (including Emily Borchardt, who later separately sued Moore and First Assistant D.A. Mindy Montford for allegedly lying about Borchardt’s rape to third parties).

The appeal offers a brief explainer of the case’s origins as a “complex class action” with multiple defendants and constitutional claims and “extensive factual allegations,” as well as the doctrines of prosecutorial immunity and “Burford abstention”. The latter, invoked by Yeakel, allows a federal court to choose not to hear any case that is properly before it (such as claims that arise under the U.S. Constitution and federal laws, as in the survivors’ suit) in order to not interfere with state issues. The plaintiffs have requested oral arguments to help the 5CA resolve what they see as four areas in which Yeakel’s court erred in dismissing the case: the Burford claim, the county’s prosecutorial immunity, several plaintiffs’ lack of standing, and Yeakel’s dismissal of portions of the case with prejudice -- meaning, if his ruling stands, they cannot be refiled in federal court.

Yeakel dismissed the case in February, saying that many of the suit’s claims were more appropriate to be filed in state court. He did agree that the D.A.’s office enjoyed “absolute” prosecutorial immunity, and rejected with prejudice those issues where, in his view, the plaintiffs failed to state a claim “for which relief may be granted.” But for many of the other claims advanced in the class action, Yeakel opted for abstention to, he said, avoid conflict and “intrusion” into public policy efforts, such as reforms to sexual assault investigations and prosecutions adopted by the Legislature in 2019, as well as the ongoing third-party audit of APD’s sexual assault response ordered by City Council in 2019.

The survivors disagree, arguing in their appeal that the district court had no authority to “abdicate its jurisdictional mandates here” and “sidestepped its responsibility to address the merits of the Survivors’ claims. … It is difficult to envision how the Survivors’ lawsuit would interfere with the new legislation in any way.” Both the state’s and city’s actions cited by Yeakel hope to improve future outcomes; the lawsuit asks for “retrospective relief” from past “unlawful conduct.”

As for prosecutorial immunity, the appeal argues Yeakel erred in applying this doctrine, since the survivors’ suit complaint is not about how any specific case was prosecuted, but that the “discriminatory beliefs about women and sexual assault” dictated the D.A.’s treatment of survivors -- and ultimately led to the lack of action that’s central to their claims: “None of the Survivors takes issue with how a particular prosecution occurred because no prosecution actually occurred.”

Attorney Jenny Ecklund, who represents the survivors, told the Chronicle they “are looking forward to establishing that they have a right to redress in the federal courts. While they remain optimistic about the legislative changes and studies to be done by City Council, those successes do not change the fact that city and county leaders cannot discriminate against sexual assault survivors simply because they are women, on the basis of negative stereotypes and biases that have no place in law enforcement.”

In the months between Yeakel's dismissal and the plaintiffs' appeal, Moore lost her reelection bid in a landslide in the July primary run-off against challenger Jose Garza, who if he prevails as expected in November against GOP nominee Martin Harry, has agreed to work toward making amends with survivors.

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