Update: Two weeks after Kim Carney filed a motion calling for the dismissal of the lawsuit against her, and four days after this article originally appeared, the lawsuit was dismissed with prejudice on Aug. 31, 2018 in a filing by the plaintiff’s attorney, Bonnie Berns. Berns had subpoenaed FlaglerLive records in the case. FlaglerLive declined to participate.
The victim of a rape in Flagler Beach in 2013 is suing Kim Carney, the Flagler Beach City Commissioner, for negligence and invasion of privacy, claiming that Carney, “acting individually, disseminated the identity of the victim by disclosing her name” by revealing it on Facebook and in an email to FlaglerLive.
In the email, Carney claimed the victim was lying and the rape consensual, and that the real victim was James McDevitt, though he pleaded guilty to the rape and is serving a 40-year sentence in state prison. His mother, Lisa McDevitt, the director of the Flagler Auditorium then and now, also acknowledged to the court at sentencing in 2015 that a grave crime had taken place as she asked for leniency. Carney serves on the auditorium board alongside McDevitt. She was advocating for McDevitt’s son as a result of that close relationship.
Carney, according to the lawsuit, “was seeking to have a story done by FlaglerLive.com which would identify the plaintiff, reveal and disparage her personal background and discredit the plaintiff’s story about the rape.” FlaglerLive did not pursue nor publish such a story.
According to the lawsuit, before McDevitt’s guilty plea, “Carney had fundraisers for James McDevitt and openly ridiculed” the victim, allegedly using Facebook to do so, “identifying her publicly by name and/or in such a way that members of the public knew who she was at a time when the plaintiff’s identity was supposed to be kept confidential.”
The lawsuit does not provide evidence of Carney’s dissemination of the victim’s name on Facebook except through “information and belief,” a legal term commonly associated with hearsay or secondhand information. Because of her name’s dissemination on Facebook, the victim alleges in the lawsuit, she was “contacted on Facebook and other electronic media as well as in the public by friends, family and members of the public” she did not know.
Florida law once made it a second-degree misdemeanor to publish the name of victims of sexual crimes. By allegedly violating that law, the suit charges, Carney caused the victim “severe damages.” But the U.S. Supreme Court and the Florida Supreme Court found the law unconstitutional. While officers of the court and government agencies are required to abide by confidentiality rules, media outlets overwhelmingly withhold names by policy, with rare exceptions–as when the victim chooses to reveal his or her identity. (The lawsuit against Carney, filed by Ormond Beach attorney Bonnie Berns, uses the victim’s full name.)
Filed last December in Flagler County Circuit Court, the initial complaint against Carney charged libel, and also listed her as a city commissioner and included the city of Flagler Beach as defendant. The claim against the city was dismissed without a hearing. The amended complaint, filed last month, dropped the claims against the city as well as the libel claim, citing negligence and invasion of privacy instead.
On Aug. 16, Carney filed a motion to dismiss the suit, claiming the law cited against Carney, still on Florida’s books (it was amended in 2008) is unconstitutional. Carney’s response, filed by Daytona Beach attorney Steven Garthe, states that Carney had, as a matter of law, no “duty of reasonable care” toward the victim of the rape. As for invading the privacy of the victim, Carney never invaded her “place” or intruded upon it. For an intrusion-based claim of invasion of privacy, her answer stated, quoting a Florida Supreme Court case, the “intrusion to which this refers is into a ‘place’ in which there is reasonable expectation of privacy.'”
Carney’s answer also argued that sending the rape victim’s name to FlaglerLive could not have constituted “publication” of the name since the name was never published, even when the email itself was published at one point: the victim’s name was redacted. (FlaglerLive reported on what it termed Carney’s “inappropriate” involvement in the matter after it became an issue at the Flagler Beach City Commission in the spring of 2015, one of whose commissioner felt compelled to apologize on behalf of the commission for comments Carney had made relative to the rape case.)
Carney’s answer does not appear to dispute that there were Facebook postings about the issue, including the name of the woman, but “publication of a name alone is not a basis for liability for publication of private facts.”
The response also quotes a Facebook posting from the victim, from April 2015–a month before the sentencing hearing, and around the time when Carney was alleged to have made Facebook postings about the issue–in which the victim reveals herself to have been the target of the attack and calls for help and support. “Plaintiff has no expectation of privacy that she was the victim of a sexual assault when she herself published it and explicitly requested public recognition and support,” Carney’s answer states (italics are in the original).
Berns, the plaintiff’s attorney subpoenaed Facebook’s legal department for Carney’s complete Facebook posts, a subpoena to which Carney objected, arguing that “all” of her Facebook posts cannot be relevant to the action at hand. Berns also subpoenaed FlaglerLive documents beyond those published, which FlaglerLive is declining to provide, as they are privileged under Florida law.