liko kenney v. franconia, bruce mckay, greg floyd et al. memorandum in opposition to summary...

8/3/2019 Liko Kenney v. Franconia, Bruce McKay, Greg Floyd et al. Memorandum in Opposition to Summary Judgment.

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UNITED STATES DISTRICT COURTFOR THE DISTRICT OF NEW HAMPSHIRE

ESTATE OF LIKO KENNEYPLAINTIFFv.

TOW;-.J OF FRANCONIA BOARD OFET ALDEFENDANTS

* CASE NO. 2010-CV-00181-PB*

*

* DECEMBER 14,2011

*

OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

Submitted by:Attorney Charles O'LearyAttorney Harold Burbankc/o Ballinson & O'Leary25 Lowell StreetManchester. NH 03101Ph. 603.644.4607


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TABLE OF CONTENTSL INTRODUCTION

A. Disputed FactsB. Discovery is incomplete.

II. ARGUMENTA. StandardsB. Defendants' Motion is based on disputed facts.C. Plaintiff can assert and prove many theories of Section 1983 liability versusdefendants on facts in this caseD. Discovery is incomplete.

III. CONCLUS]ONTABLE OF AUTHORITIES Pages

1. FRCP 56 ( c) .............................................................................................................4.5,9, 122. Monnell v. Dept.of Social Services, 436 US 658, 694 (1978) .................................113. Bielevicz v. Dubinion, 915 F.2d 845, 851 (3 rd eif. 1990) ........................................ 114. Beck v. City of Pittsburgh, 89 F.3rd 966, 971 (3Td. Cir. 1996) ................................ 115. Berg v County of Allegheny, 219 F.3d 261,276 (3rd Cir. 2000) ............................. 116. Doe v Abington Friends School, 480 F.3rd 252, 257 (3Td Cir. 2007) ..................... 12

TABLE OF EXHIBITS1. Exhibit A, Affidavit of Brad Whipple ................................................................... attached2. Exhibit B, Affidavit of Tom Nickels ...................................................................... attached3. Exhibit C, Affidavit ofChristopher King ............................................................... attached


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Plaintiff Estate hereby opposes defendant Montminy's, Taylor 's and TO'-VTI of Franconia"sNovember 15,2011 Motion for Summary Judgment. Key facts are presently in clear dispute, andthe discovery schedule, by agreement between the parties, was extended for cause and isincomplete.L INTRODUCTION

A. Disputed Facts: Key facts on which defendants' motion rests are disputed. Defendantsallege that Bruce MeKay was shot and killed by Liko Kenney when McKay attempted to stopKenney for driving an unregistered vehicle. Defendants cite their Report of AttorneyGeneral, Exhibit A, at p. 22. in support. That Report contains no direct evidence of defendants'assertions; no expired vehicle registration document, no notarized autopsy or other state medicalexamination report as to cause of death, no evidence that Kenney did not stop.

Plaintiff contends that Kenney stopped his vehicle three separate times to comply withdefendant McKay's orders to stop. See Affidavit of investigator Tom Nickels, Exhibit B,paragraph 15, interview of Kenney passenger Caleb Macaulay, attached. Plaintiff contendsKenney asked McKay three times at stop #1 to call for a backup officer for the stop, out of fear ofMcKay, based on a 2003 beating and sexual assault by McKay against Kenney. McKay refused.Id.Defendants allege that Kenney fled the scene. Plaintiff contends that after McKay refused threrequests ofMcKay for a back up officer, Kenney indicated to McKay that he would drive muchless than a mile - not a mile as defendants contend, but probably a few hundred feet - dovm theroad to his uncle's home, a place well kno\VTI to McKay, so Kenney could have his uncle witnessMcKay's stop. Kenney did not flee, but left stop #1 at low speed toward his uncle's house as he

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had indicated to McKay. Defendant McKay raced past him, turned his SUV cruiser aroundin the road, and put the cruiser nose directly opposite Kenney's car, causing Kenney to stop forthe second time (stop #2). Kenney then backed up at low speed onto a farm propeny toward afront end loader. McKay followed. Kenney stopped his car again (stop #3). turned off hisengine, and tried to apply the parking brake, with McKay able to see and hear these actions. ld.McKay then violently rammed Kenney's car at least three times, causing the cruiser to climbpartly onto Kenney's car. Kenney and his passenger, Caleb Macaulay, were violently shaken intheir seats despite wearing seat belts, in plain view of McKay. Id. Kenney motioned with hishands and yelled at McKay to stop. in plain view and hcaring ofMcKay, after the first violentram, but McKay shook his head "no", and rammed Kenney's stopped, turned "off", braked cartoward the loader bucket. Id. Defendants contend McKay then maced Kenney alone. Plaintiffcontends McKay maced Kenney and his innocent passenger, Caleb Macaulay, at some length,through Kenney's driver's side window, not to prevent Kenney from leaving as defendantscontend, but to cause unnecessary pain and sutTering of Kenney and Macaulay, while seat beltedto Kenney's rammed, stopped, turned "off', braked car. McKay then walked away from the carand unholstered his service revolver. Kenney was in extreme fear. He feared for his life and thelife ofhis passenger, Macaulay. Kenney was partly blinded by mace. He fired a gun towardMcKay. McKay walked in front of Kenney's car, and then went out of sight. Kenney puthis car into first gear to drive away, could not see where he was going due to mace, and got stuckin grass near an embankment. He did not intend to hit McKay as defendants contend. Id.

Defendant Floyd came on the scene and took McKay's gun from McKay's hand. Id.


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Floyd then fired many shots into Kenney's vehicle, killing Kenney, and terrorizing Macaulay,who narrowly escaped death by this shooting. Macaulay had never been in more fear.He opened the car door and fell to the ground. Floyd stood over him pointing McKay'sgun at Macaulay and told Macaulay to pick up Kenney's gun. Macaulay began to cry andrefused. Floyd then bragged to Macaulay that Kenney was the 20th person Floyd had killed.and that Floyd could avoid prosecution because Floyd was on medication. Id.

Plaintiff asserts that is extraordinarily unusual for a police officer to receive as manycomplaints of abuse of power and threatening as defendant McKay and remain on a professionalpolice force. See Affidavit ofBrad Whipple, Exhibit A, all, and Affidavit ofTom Nickels,Exhibit B, all. Defendants dispute this fact.

Plaintiffs dispute defendant Montminy's contention that Timothy Stephenson had no basisfor his lawsuit versus defendant McKay. See Affidavit ofBrad Whipple, Exhibit A, paragraph9.

Plaintiff disputes that defendant \I1cKay "had a very good record with Franconia PoliceDepartment until his death." See Affidavit ofBrad Whipple, Exhibit A, all, Affidavit ofTom Nickels, Exhibit B, all, and Affidavit ofChris King, Exhibit C, all.

Plaintiff disputes that defendant Montminy properly supervised defendant McKay. SeeAffidavit ofBrad Whipple, Exhibit A, paragraphs 4,5,7,8, 1LIS, 16, & 19. See Affidavit ofTom Nichols, Exhibit B, paragraphs 3, 4,5,6,8, & 13. See Affidavit ofChris King, Exhibit C,all.

Plaintiff disputes defendants' assertion that defendant Mark Taylor had no reason to believethat McKay would violate citizens' rights. See Affidavit ofBrad Whipple, Exhibit A, paragraphs6,& 7.


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when viewed in the light most favorable to the non-moving party, "show that there is no genuineissue as to any material fact, and that the moving party is entitled to judgment as a matter oflaw". FRCP 56( c).

Defendants admit courts must exercise restraint where the non-movant must prove elusiveconcepts such as motive or intent. Defendant's Memorandum of Law, p. 8. Plaintiff is an estate.Defendants have shown that Liko Kenney was murdered by defendant Floyd. Defendants'Exhibit A, Document 31 Report ofAttorney General, p. 25, at 2., Liko Kenney. A principaldefendant, Bruce McKay, is also deceased. Motives and intentions of the deceased cannot beexamined directly, axiomatically making them "elusive", as indicated in defendantsmemorandum. However it is plainly unreasonable to describe plaintiffs evidenceof factual dispute as conclusory allegations, improbable inferences, and unsupportedspeculation, as defendants argue.

Plaintiff affiant Whipple was a regional police officer, rescue team member, and well knownFranconia citizen before and after defendant McKay was hired. Whipple worked with McKay,and took complaints about McKay personally to McKay and other defendants. Whipple iswilling to testifY to all he said in his affidavit in court. Affiant Nickels is a professional New

Hampshire licensed investigator and former police officer. He interviewed scores ofpotentialwitnesses in this case, many of whom are not included in his affidavit. His statementsand conclusions in the case are based on first hand accounts made to him in his professionalcapacity. Nickels interviewee Caleb Macaulay was in Kenney's car and is the only direct witnessto all that happened May 11,2007, before, during and after the killings.


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ofconstitutional interests of liberty, due process and equal protection of the laws guaranteed by

the state and federal constitutions, actionable under Section 1983. The facts supporting suchclaims did not arise in 2003 as defendants contend, but as late as 2007, when Kenney'svehicle was unlawfully rammed when he was stopped for the third time as ordered by McKay.See Exhibit C, Atlidavit ofChris King, paragraph 8. Any facts alleged by plaintiff arising from2003 confrontations between Kenney and McKay serve only to give context to, not a basis for,Section 1983 claims arising in 2007.

C. Plaintiff can assert and prove many theories of Section 1983 liability versusdefendants on facts in this case.

There is no doubt that all defendants seeking summary judgment were state actors when LikoKenney died, and that all allegations against these defendants leading to Kenney's death arose bydefendants' state actions under color of state law. Defendants McKay, Montminy and Taylorwere Franconia, New Hampshire police officers. Defendants Montminy and Taylor hadsupervisory authority over defendant McKay. Defendant selectboard had clear duties underits O\\,TI policies and law to supervise and review the perfonnance of its police force. McKay,Taylor, Montminy and the selectboard, jointly and severally, for years, knew McKay waswas abusing his power, but jointly and severally did not stop it resulting in McKay's predationofKenney and ultimately Kenney's death. See Plaintiffs Exhibits A, B & C, all.

Defendant McKay used his authority to terrorize Liko Kenney for years, especially since2003, when McKay attacked Kenney in a Franconia park without probable cause, beatingKenney, who had never been arrested or charged before, unconscious, after sexually assaultinghim. See court file for video disc submitted by plaintiff of the January, 2003 assault on Kenney


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by McKay and others. See also plaintiff's Exhibit B, Affidavit ofTom Nickels, paragraph 15.Kenney thereafter lived in terror ofMcKay. Id, paragraphs 12 and 15. Kenney tried to avoid

McKay, but McKay "had other ideas" according to people who knew McKay. Kenney knew this,and felt "haunted" by McKay every time Kenney tried to drive home down Easton Road, where'Y1:cKay routinely patrolled. Many Franconia citizens, and defendant Taylor, have testified thatMcKay "had it out" for Kenney. Id, paragraph 12; Plaintiff Exhibit A, paragraph 6. McKaywanted to show Kenney "who was boss" and Kenney knew it. Plaintiff Exhibit 13, paragraph 12.On these facts plaintiff can show defendant McKay clearly violated Kenney's rights secured bythe constitution and laws of the United States, and that such deprivation was clearlycommitted by persons acting under color of state law. West v. Atkins. 487 US 658 (1978).

To prevail against a municipality under Section 1983, plaintiff must show that a municipalitycaused the violation. This was the case. See Plaintiff Exhibit B, Affidavit ofNickels, interviewof Franconia First Selectman Carl Belz, paragraphs 2, 3 & 9. Belz stated to Nickels thatdefendant Franconia selectboard chose to ignore Franconia policy in effect since 2005 to doperformance reviews of the Franconia Police Department, though the board reviewed all othertown departments. This failure to implement Franconia policy caused defendantsselectboard, McKay and Montminy and Taylor to act in ways to violate Kenney's constitutional

rights.Defendants argue that the Section 1983 test for municipal liability is two prong: 1) whether

harm was caused by constitutional violation and 2) whether the town is responsible for it.Plaintiff can easily meet these tests. The predatory nature and excessive force of defendantMcKay's conduct toward Kenney and others in Franconia went completely unreviewed by the


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reasonable of McKay to race past Kenney, turn, and charge toward Kenney, causing Kenney tostop. Indeed it was specifically illegal under 2007 Franconia police procedure. Exhibit C,Affidavit of Chris King, paragraph 8. It was not lawful or reasonable to OC spray Kenney orpassenger Macaulay, both in seat belts, in McKay's stopped turned "off', and braked and pennedin vehicle. rd, paragraph 9. McKay did not make a split second decision to spray Kenney andMacaulay as defendants said, but sprayed them in a way calculated to cause and in fact causedthem extreme fear and physical harm. Kenney posed no risk to anyone at this time. Defendants'assertions that McKay's pursuit and "low speed" maneuvers in which he "attempted" tocomer Kenney in his vehicle are especially inaccurate and troubling. Plaintiff has shown byaffidavit of victim Macaulay's testimony to investigator Nickels that McKay raced past Kenney,confronted Kenney's car nose to nose (stop #2) with McKay's large SUV cruiser, and causedKenney to back away from McKay, shut off his car (stop #3), set the parking brake, and preventKenney's rear escape because an earth moving machine blocked that route. It was only thenthat McKay rammed Kenney's car multiple times with life threatening force, exited the cruiser,sprayed the entrapped Kenney and Macaulay, and after spraying them, unholstered his firearm.On the facts of the ramming by McKay, and McKay's unholstering of his weapon, McKaythreatened Kenney with deadly force. Plaintiff hereby denies and disputes that deadly force was

not used against Kenney. Exhibit B, Nichols Affidavit, testimony of passenger Macaulay,paragraph 15.

Plaintiff can succeed in Section 1983 claims against defendant board if plaintiff showsby a preponderance of evidence that Kenney was deprived of a federal right by the board'spolicy or custom. Policy or custom includes inadequate training, supervision, employee


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screening, or failure to adopt a needed policy. Plaintiff has shown these facts infra. Plaintiffasserts that defendant board was deliberately indifferent to facts that violations of Kenney' sliberty interests were highly predictable in the case of defendant McKay, based on years ofcommunity complaints against McKay, and complaints from Liko Kenney to at least one court.For municipalities, "it is when execution of a government policy or custom, whether made by itslawmakers or by whose edicts or acts may be fairly represent official policy, inflicts the injurythat the government as an entity is responsible under Section 1983." Monell v. Department ofSocial Services, 436 US 658, 694 (1978). Plaintiff has made sufficient allegations of factsinfra to support the theory. See also Bielevicz v Dubinion, 915 F 2d 845, 851 (3 rd Cif. 1990):"plaintiffs must simply establish a municipal custom coupled with causation thatpolicymakers were aware of similar unlawful conduct in the past, but failed to take precautionsagainst future violations, and that this failure, at least in part (emphasis added) led to theirinjury."

Plaintiff asserts Section 1983 liability lies against defendant board where plaintiff provesan absence of an official policy when such absence causes a constitutional tort. Beck v Citv ofPittsburgh, 89 F 3d 966, 971 (3 rd Cif. 1996). Plaintiff has asserted facts herein supporting thistheory.

Plaintiff asserts Section 1983 liability lies where plaintiff proves by a preponderance ofevidence that defendant board failed to properly train or supervise defendants McKay, Montminyand Taylor, and that such failure proximately caused violations of Kenney's federal rights,because defendant boards's deliberate indifference led directly to Kenney's rights deprivation.Plaintiff has asserted facts herein supporting this theory. Such liability arises where


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"constitutional tort is caused by an official policy of inadequate training, supervision orinvestigation, or bv a failure to adopt a needed policv (emphasis added): ' Berg v County ofAllegheny, 219 F.3d 261, 276 (3rd Cir. 2000).

D. Discovery is incomplete.It is customary in New Hampshire to permit an extension of discovery where parties agree to

an extension for cause. At mid summer 2011 plaintiffs attorney responsible for filinginterrogatories with defendants was noticed of a serious health condition requiring extensivetests and surgery. The condition caused the attorney to suspend practice of law for some time.He resumed practice in October, 2011, but was precluded from completing the discoveryschedule by a freak major snow storm that knocked out power region-wide for a week. Theattorney called opposing counsel who agreed to accept interrogatories up to November 18, 2011.That schedule was met but the agreed time for responses has not passed, thus discovery isincomplete. Summary judgment is inappropriate where in these circumstances. See Doe v .Abington Friends School, 480 F.3d 252, 257 (3 rd Cir. 2007), noting that if discovery isincomplete in any way material to a pending summary judgment motion, a cow1 is justified innot granting the motion, particularly when relevant facts are under the control of the movingparty.III. CONCLUSION

Plaintiff has shoVvTI buy its submissions that genuine issues of material fact exist as to whetherdefendants violated Liko Kenney's federally protected rights actionable under Section 1983.Summary judgment for defendants is thus inappropriate under FRCP 56( c).

Summary judgment is also inappropriate where as here the discovery process is incomplete


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due to an agreed extension of that process by the parties. Material, relevant facts to defendants'summary judgment motion are still within the defendants' control.

Defendants' Motion for Summary Judgment therefore must be denied.

Respectfully submitted,Estate of Liko KenneyPlaintiffBy the Estate's AttorneysAttorney Charles O'LearyAttorney Harold Burbankc/o Ballinson & O'Leary25 Lowell StreetManchester, NH 03101Ph. 603.644.4607

Charles O'LearyBallinson & 0 'Leary25 Lovell StreetManchester, NH 03101Ph. 603.644.4607

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CERTIFICATE OF SERVICEI hereby certify that copy of the foregoing was forwarded to all record counsel by ECF and USMail to Gregory Floyd, New Hampshire State Prison, PO Box 14, Concord, NH 03301.

\),...- ts--llLeary

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liko kenney v. franconia, bruce mckay, greg floyd et al. memorandum in opposition to summary...

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