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.
Josh Davis says
What a horrible, awful tragedy for all parties. Prayers for peace for all involved.
BMW says
Are we to be surprised a Flagler Beach Commissioner would act in ways that violate the rights of woman? Honestly, we have to wake up and take the Commission elections more seriously. We have a playboy charged with physical aggression toward a woman and now one allegedly trying to defame a rape victim in a situation where the man plead guilty. Is this what “we want to keep Flagler Beach rustic” means? If so, we as a community need to wake up!
Concerned Citizen says
She will get away with it.
If a fellow commissioner can allegedly beat up his girlfriend and only catch a misdemeanor then why should Carney have any worries?
In Flagler Beach if you serve in an elected position you are above the law
Thank you FL for doing the right thing in this matter.
Anonymous says
Carney’s arrogance will cost her, literally.
Disgusted says
What a horrendous and horrible thing Carney did, attempting to turn everyone against the female victim of a sex crime. I suppose her and another Commissioner who “allegedly” beat on a woman are members of the same club. I want both of them out of my town NOW.
Lazaruis says
Carney did a terrible injustice to this woman .
I hope that he pays the price for it .
Where is his sympathy for this woman ?
I thought these type of allegations were in the past .
mark101 says
Carney needs to be fired from her position and she also needs to pay deary for her stupid mistake. Hopefully the courts will do the right thing but this is Flagler County where the guilty roam free.
palmcoaster says
I never liked Carney and back then when she was taking sides in this sexual attack. I thought was very improper as per her commissioner investiture. She is one of those Chamber of Commerce and other clique geared local organizations were some of its members believe it gives them the right to get away with anything that the rest of us won’t. I do not believe individuals like Carney should be representing Flagler Beach residents in their city! Shameful. Also for individuals like this one in the local Chamber of Commerce is that lost more than half its membership since 15 years ago!.
ken says
Terrible!
Fredrick says
@Disgusted I agree.. We should just call Carney “Little Hillery”.
oldtimer says
In politics, you get what you settle for
Dave says
This Carney woman is a disgrace not just to women but to any upstanding citizen. She not only defends a rapist but talks down publicly about the rape victim? This Carney person has no right to be an elected official in Flagler County or anywhere. Honestly wouldn’t even have her wash dishes at the green roof in. She is below that.
Anonymous says
Time to go bye bye Ms Carney…..
sam says
Kudos to Flagler Live for sharing this information with our community. For far too long there have been individuals occupying positions of which they are unworthy. The Flagler Beach City Commission should not have to contend with a stain on its reputation due to Carney’s lack of professional integrity; surely, we have other dignified individuals available to replace her.
The City Commission should not only be holding their board members to a higher standard, but enforcing it; and therefore, vote to remove Carney effective immediately. In support, and in light of, the recent “me-too” movement this behavior should not be tolerated. The same holds true for the Flagler Auditorium Board! Here again is a group of individuals who for years have been nothing but “yes men” which, of course, is just the way McDevitt and Carney want it – no one speaks up or challenges them year after year.
Carney believes anything McDevitt says without question and visa-versa. Carney’s arrogant and self-righteous attitude is repeatedly characterized by her indignation that she is totally correct and morally superior despite her unfounded certainty. It is common knowledge among FPCHS students, and auditorium staff, that McDevitt is a bully and thus, fear crossing her due to retaliation. Sadly, for the few who boldly filed a complaint nothing was done because after all, HR is not going to believe a student over a longtime Director; who by the way got her position solely due to her questionable relationship with the former school superintendent and not by any qualified education.
I hope attorney Berns is able to get to the bottom of all this tangled mess and her case is a triumphant success. Furthermore, even if our complacent community choses to continually ignore these matters it is time the school board, auditorium board, and city commission take action! It’s way overdue!
sam says
Agreed!
sam says
Kudos to Flagler Live for sharing this information with our community. For far too long there have been individuals occupying positions of which they are unworthy. The Flagler Beach City Commission should not have to contend with a stain on its reputation due to Carney’s lack of professional integrity; surely, we have other dignified individuals available to replace her.
The City Commission should not only be holding their board members to a higher standard, but enforcing it; and therefore, vote to remove Carney effective immediately. In support, and in light of, the recent “me-too” movement this behavior should not be tolerated. The same holds true for the Flagler Auditorium Board! Here again is a group of individuals who for years have been nothing but “yes men” which, of course, is just the way McDevitt and Carney want it – no one speaks up or challenges them year after year. Carney believes anything McDevitt says without question and visa-versa. Carney’s arrogant and self-righteous attitude is repeatedly characterized by her indignation that she is totally correct and morally superior despite her unfounded certainty.
I hope attorney Berns is able to get to the bottom of all this tangled mess and her case is a triumphant success. Furthermore, even if our complacent community chooses to continually ignore these matters it is time the school board, auditorium board, and city commission take action! It’s way overdue!
Alrighty Then says
Time for the victim to contact Governor Scott to remove her from office. She took an oath to uphold the laws of Florida. Bonnie Berns is going to “burn” her.
Hugh Janus says
Did that other guy with the 7-11 get in trouble recently too? What is wrong with our society?
107 says
Kim Carney—-Too big for her britches. Using her public position for the personal gain of others. A Florida Ethics complaint should be filed and Ms Carney should be prosecutedand removed from office. Carney and McDevitt should be removed from the auditorium board. Shame on you Kim.
Concerned resident says
Seems like a bully using her power to belittle others. Just like Trump!
trailer bob says
Best thing for this woman is to step down from her commission position. Totally immature and selfish.
Dave says
Between the the Flagler woman beating official, and this rape victim blaming monster the youth of Flagler really have good role models. NOT! Clean up your act Flagler the children are watching.