DA Asks Judge to Dismiss Bianca Devins Civil Suit Against Him
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Prosecutor Asks Judge to Dismiss Lawsuit by Family of Teen Murdered on Video: She Has No Privacy Rights Because She’s Deceased

Two images show Bianca Devins and Brandon Clark, the man who admitted to killing her.

Bianca Devins and Brandon Clark.

A county prosecutor sued by the family of a teen murder victim denied accusations on Friday that he broke federal laws by allegedly providing copies of evidence — including video of the teen’s sex acts and subsequent murder — to certain documentary film crews who were looking into the case.

The teen, Bianca Devins, 17, died on July 14, 2019, at the hands of Brandon Clark in the Utica, N.Y. area after Clark and Devins attended a New York City concert.  Clark was reportedly outraged that Devins kissed another person at the event.  Clark recorded his crimes and posted pictures of Devins’ body online — evidence which prosecutors gathered and prepared to use against him.  Clark entered a guilty plea, then tried to walk it back; however, a judge ruled that the plea was final.  Clark is in prison on a 25-to-life sentence.

Devins’ family lashed out legally when they learned prosecutors had allegedly shared some of the video recordings that were at the center of the case.

“This is a case about the Oneida County District Attorney’s Office unconscionable dissemination of snuff and child pornography of a 17-year-old murder victim,” the lawsuit by Devins’ family alleged via court papers filed on July 15. “To the horror of Kimberly Devins, Bianca’s mother, two sets of documentary makers informed her the District Attorney’s office had given them the sex and murder videos.”

The Devins family argued that the DA and various other defendants broke several federal child pornography laws by disseminating the material.

Longtime Oneida County, N.Y. District Attorney Scott D. McNamara did not respond to questions posed by Law&Crime when the Devins family commenced the civil litigation, but his attorneys on Friday filed 48 pages of legal arguments, exhibits, and other such documents in defense of both McNamara, his office, the county, and unnamed John Doe employees — all of which were named defendants. The named plaintiff in the case is the Estate of Bianca Devins.

Oneida County, N.Y. District Attorney Scott McNamara appears on a local radio talk show on WIBX radio in 2015.

Oneida County, N.Y. District Attorney Scott D. McNamara appears on a local radio talk show on WIBX radio in 2015.  (Image via YouTube screengrab.)

The county defendants’ response motions argue generally that the case should be dismissed “for failure to state a claim upon which relief can be granted” under Federal Rule of Civil Procedure 12(b)(6) — a commonly used tactic in civil litigation which is sometimes (but not always) successful.

A sum total of eleven proffered reasons why the case should be dismissed are included in the defense motion to dismiss. Among them are claims that the Devins family lawsuit fails “to comply with conditions precedent to commencing an action against a municipality” under New York law.

“The district attorney’s office is an improper party,” another point argues.

“The individual capacity claim against DA McNamara lacks merit and should be dismissed,” the paperwork goes on to claim.

One key defense argument is that the Devins “estate lacks standing to bring claims” in violation of the aforementioned federal child pornography laws because “they did not accrue during the decedent’s lifetime.”

“The county did not violate [one of the federal laws],” the defense argued point blank.  Or, if it did, “any such violation . . . did not cause personal injuries to the alleged victim as she was deceased.”

In other words, the defense says that because McNamara apparently shared the material after Devins died, her estate has no case.  The defense later took pains to explain this point (legal citations are omitted in our retelling of the argument):

A decedent’s personal representative has the authority to bring causes of action that were viable at the time of the decedent’s death, not claims that arose after his or her death.

Here, the decedent was caused to pass away on July 14, 2019.  Per the complaint, Plaintiff alleged that on or about June 28 – 29, 2021, it learned the County disseminated “material that included the sex and murder videos” to a person in response to a FOIL [Freedom of Information Law] request.  There are no other allegations in the claiming the County disseminated the materials before the decedent’s death (and obviously, could not have possibly occurred).

The fact that the alleged dissemination did not occur until after the decedent’s death is fatal to Plaintiff’s claim because the decedent was not “aggrieved” by any alleged violation of 18 U.S.C. § 2252A [a federal child pornography law] during her lifetime. Given that she did not have a viable claim for violation of 18 U.S.C. § 2252A at the time of her death, her estate is unable to press on with causes of action for violation that statute (and 18 U.S.C. § 2255 [another federal child pornography law] following her death.

Later on, the defense argued that the county government itself could not be sued for violating federal child pornography laws due to a technical reading of the statute:

18 U.S.C. §§ 2252(A)(a) provides that “[a]ny person who . . . ” violates the statute will be punished in accordance with its provisions. The term “person” is not defined in the statute itself . . . [t]hus, it is necessary to explore elsewhere within the law to determine exactly what is meant by the term “person” and whether it should include a municipality such as the County. In the County’s view, the term “person” is limited to precisely that – persons.

The defense also argues that the child pornography laws in question “do not apply to municipalities” and because the DA and the county as a whole were required to comply with New York State open records laws when asked to provide the material.

The judge overseeing the matter, Glenn T. Suddaby of the Northern District of New York, explicitly asked that he be briefed on whether federal child pornography laws superseded New York State’s own child pornography laws.  Federal law defines a “minor” for the purposes of child pornography as any “person under the age of eighteen years;” New York law draws the line as someone “less than seventeen years of age.”

The defense team pointed the judge back to New York’s open records laws — which they say indicate that the material (no matter how offensive) either had to be or could have been turned over when requested pursuant to FOIL requests:

[A]bsent from [federal child pornography law] is any language requiring that government agencies withhold records that amount to “child pornography” from FOIL requests or else risk criminal or civil liability. A thorough search of relevant case law on this point has not yielded any guidance, either. Accordingly, to the extent Plaintiff claims the County violated [the federal laws] through the dissemination of “child pornography” pursuant to a FOIL request, such allegations lack merit and should be dismissed.

The defense went on to note that New York’s open records laws allow (but do not require) the authorities to turn over violent images (as opposed to images that are allegedly pornographic) pursuant to a FOIL request.  And the defense laid out that any privacy rights Bianca Devins enjoyed while she was alive “do[] not extend beyond the life of the victim” (the bold type and underlined font appear in the original).

The defense also argued that the doctrine of qualified immunity protected the various defendants.  Arguments for punitive damages should be dismissed because the various defendants were acting “in their official capacities” under New York’s open records law when they disseminated the material, the defense claimed.

Elsewhere, the defense said that the judge lacks subject matter jurisdiction over several of the plaintiff’s claims.

The matter is currently scheduled for a hearing in U.S. District Court in Syracuse, N.Y., on Aug. 24.

Law&Crime’s coverage of the estate’s original lawsuit is here.  The entire defense motion to dismiss is below.

[image of Bianca Devins via Family; image of Brandon Clark via an Oneida Co Jail mugshot]

[Editor’s note:  this piece has been updated.  It originally and erroneously said the Devins videos at issue in this case portrayed a rape.  Though the prosecutor’s motion to dismiss analogized the situation to another case which granted a newspaper access to court files involving an alleged rape, the prosecutor’s attorneys only described the Devins videos at issue here as involving “sex and murder” — not rape and murder — while citing the complaint which commenced the case.  The original complaint by the Devins estate indicates Devins had been “raped” and “sexually assaulted” by someone else who posted videos of the occurrence or occurrences online, but that was an earlier and separate matter.  The original complaint in this case states that “Clark set up a camera on the dashboard of his SUV and had sex with Bianca.”  Then, in “an apparent act of premeditation,” that document says Clark subsequently “stabbed Bianca to death.”]

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Aaron Keller holds a juris doctor degree from the University of New Hampshire School of Law and a broadcast journalism degree from Syracuse University.  He is a former anchor and executive producer for the Law&Crime Network and is now a Senior Editor for the Law&Crime website. DISCLAIMER:  This website is for general informational purposes only.  You should not rely on it for legal advice.  Reading this site or interacting with the author via this site does not create an attorney-client relationship.  This website is not a substitute for the advice of an attorney.  Speak to a competent lawyer in your jurisdiction for legal advice and representation relevant to your situation.