Lawsuit over alleged shared video of Bianca Devins' death dismissed, but estate can file again




  • In US
  • 2022-10-07 09:09:24Z
  • By Utica Observer-Dispatch

A federal judge has dismissed a lawsuit filed by the estate of Bianca Devins alleging the Oneida County District Attorney shared footage of the 17-year-old's murder with media outlets.

Devins was stabbed to death in July 2019 in Utica after returning from a concert in New York City with Brandon Clark, who later pleaded guilty to killing her and sharing video and photos of her death.

The lawsuit, filed in July 2021 in federal court by the Devins estate, alleged District Attorney Scott McNamara and his office shared video of Clark having sex with Devins before killing her with various media outlets, calling it "unconscionable dissemination of snuff and child pornography of a 17-year-old murder victim."

U.S. District Judge Glenn T. Suddaby for the Northern District of New York ruled Thursday, Sept. 29, in favor of a motion by the county to dismiss the complaint for lack of subject-matter jurisdiction and failure to state a claim.

Bianca Devins
Bianca Devins  

What the judge's ruling means

While the lawsuit has been dismissed, that doesn't mean the Devins estate can't file again. The reasons for dismissal were what attorney David Walsh, who represented McNamara and Oneida County, called "procedural dismissals."

In his decision, Suddaby noted the Devins estate failed to follow notice of claim requirements, waiting only 17 days to file the lawsuit after filing the notice of claim instead of the required 30 days. Other claims against McNamara and several unnamed individuals were dismissed for having already been filed against the county; another was dismissed due to the lack of allegations suggesting he was personally involved with sharing the footage, rather than members of his office.

But, Walsh noted, because all claims were dismissed without prejudice, the Devins estate could file again.

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"The way I read the decision is that, although you may have the ability to do that, the court is alerting the plaintiffs that an amendment of the claims would probably result in the same dismissal," he said.

A claim of negligence was also dismissed without prejudice to refiling in the New York State courts. Walsh said the decision found there may be the possibility of a claim against McNamara and several "John Does" as individuals. Nothing has been filed in state Supreme Court in relation to this so far, he said.

"The court alerted the plaintiff that they had the right to do that. But Scott McNamara cannot be sued in his official capacity," he said.

A woman wears a \"Justice for Bianca\" pin in the spectator area during the trial for Brandon Clark. Clark was sentenced to 25 years to life in state prison for the murder of Bianca Devins.
A woman wears a \"Justice for Bianca\" pin in the spectator area during the trial for Brandon Clark. Clark was sentenced to 25 years to life in state prison for the murder of Bianca Devins.  

However, Suddaby disagreed with the county's assertion McNamara's office had been complying with the state Freedom of Information Law when releasing the footage, noting "this argument ignores the fact that the distribution of child pornography is expressly outlawed."

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Devins' mother Kimberly Devins has spoken at length about the social media attention her daughter's death received, including harassment she and other family members faced. The lawsuit alleged she discovered the channel A&E, the CBS program 48 Hours and YouTube blogger Alissa Tallman, known as Antimone Layne, had received video and images of her daughter from McNamara's office.

Adam Massey, a partner at C.A. Goldberg, PLLC, who represented the Devins estate, said despite the dismissal, Suddaby "clearly conveyed the Court's disapproval of Oneida County's actions and arguments."

"Judge Suddaby flatly rejected Oneida's argument that they were immune from liability for disseminating child sexual abuse material (CSAM) because they sought to comply with New York's FOIL requirements," Massey said in a statement.

Massey added a dismissal of claims due to Devins being already dead was concerning because, he said, it could lead to grounds for dismissing cases such as ones involving revenge porn where the person depicted is dead.

H. Rose Schneider covers public safety, breaking and trending news for the Observer-Dispatch in Utica. Email Rose at hschneider@gannett.com.

This article originally appeared on Observer-Dispatch: Bianca Devins death: Judge dismisses lawsuit over alleged shared video

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