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David T. Kenney, Executor of the Estate of Liko Peter Kenney v. Gregory Willis Floyd; Mark R. Montminy

November 30, 2012

DAVID T. KENNEY, EXECUTOR OF THE ESTATE OF LIKO PETER KENNEY, PLAINTIFF, APPELLANT,
v.
GREGORY WILLIS FLOYD; MARK R. MONTMINY, IN HIS INDIVIDUAL AND OFFICIAL CAPACITIES AS POLICE CHIEF OF FRANCONIA, NH; MARK TAYLOR, IN HIS INDIVIDUAL AND OFFICIAL CAPACITIES AS POLICE SERGEANT OF FRANCONIA, NH; NORMAN BRUCE MCKAY, IN HIS OFFICIAL CAPACITY AS POLICE CORPORAL OF FRANCONIA, NH, POSTHUMOUSLY; FRANCONIA, NEW HAMPSHIRE BOARD OF SELECTMEN, DEFENDANTS, APPELLEES.



APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE [Hon. Paul J. Barbadoro, U.S. District Judge]

The opinion of the court was delivered by: Lynch, Chief Judge.

Before Lynch, Chief Judge, Boudin, Circuit Judge, and Woodlock, District Judge.*fn1

In May of 2007, there were two shooting deaths, one of a civilian, Liko Kenney, and one of a police officer, Bruce McKay, following traffic stops in Franconia, New Hampshire. Kenney shot Officer McKay four times and ran over him twice with his car. Thereafter, a witness to the shooting, Gregory Floyd, approached Kenney and asked him to drop his weapon. When Kenney refused, Floyd shot and killed Kenney, fearing that Kenney might shoot Floyd or his son, who had gone to McKay's assistance.

In this civil rights action, under 42 U.S.C. § 1983, David T. Kenney,*fn2 the civilian victim's father and the executor of his son's estate, sued Officer McKay, the town of Franconia, and its police officials, as well as Floyd. Plaintiff appeals from a district court order granting the town and police defendants' motion for summary judgment as to all federal claims. Estate of Kenney v. Floyd, 10-CV-181-PB, 2012 WL 642810 (D.N.H. Feb. 28, 2012). We affirm.

I.

On May 11, 2007, Franconia Police Corporal Bruce McKay stopped a car driven by Liko Kenney, in which Caleb Macaulay was a passenger, for having an expired vehicle registration. Kenney had been detained by Officer McKay once before on January 26, 2003.*fn3 Plaintiff alleges that as a result of hard feelings after this 2003 incident, Kenney asked Officer McKay to call another police officer to the scene of the May 2007 stop. When McKay allegedly denied his request, Kenney drove off, without McKay's permission, towards a nearby building owned by his family.

Officer McKay quickly went back to his cruiser to pursue Kenney and accelerated past Kenney's car. Officer McKay then turned his SUV-cruiser so that it faced and blocked Kenney's car. Officer McKay then used his car to push Kenney's vehicle off to the side of the road, successfully moving it into a driveway. McKay got out of his cruiser and went to Kenney's stopped car and pepper sprayed both Kenney and Macaulay. As McKay turned back to his cruiser, Kenney drew a .45 caliber handgun and shot Officer McKay multiple times, mortally wounding him, and then drove his car over McKay. Defendant Gregory Floyd and his son witnessed the shooting and left their own vehicle to assist Officer McKay. Floyd picked up McKay's service revolver and, in an apparent effort to protect himself, his son, and Officer McKay, shot and killed Kenney.

The federal court complaint asserted that Officer McKay violated Kenney's Fourth Amendment rights by seizing him without probable cause and by employing excessive force during the second stop. The complaint also alleged that Officer McKay's supervisors and the Town of Franconia violated Kenney's Fourth Amendment rights because they were aware of Officer McKay's "proclivity for using excessive force" and failed to take appropriate remedial action.

On November 15, 2011, defendants moved for summary judgment, arguing that the undisputed material facts established that no deprivation of Kenney's constitutional rights had occurred. Defendants' motion for summary judgment was based on and supported by a report from the Attorney General of New Hampshire concerning the deaths and the incident. The report summarized and assessed, inter alia, eye-witness accounts of the incident, video and audio recordings from Officer McKay's vehicle and from Franconia police dispatch, and forensic evidence collected at the scene. It concluded on the basis of this material that Officer McKay had reasonably used non-deadly physical force on Kenney, N.H. Rev. Stat. Ann. § 627:5, I, that Kenney had unlawfully used deadly force on Officer McKay, id. § 627:4, II, and that Gregory Floyd had acted justifiably. Plaintiff did not object to consideration of the report as evidence.

In opposition, plaintiff, on December 19, 2011, submitted three affidavits. None of these affidavits were from witnesses to the May 2007 traffic stops. Rather, they were affidavits from (1) Tom Nickels, a private investigator hired by the Kenney family; (2) Bradford Whipple, a retired police officer who had worked with Officer McKay; and (3) Christopher King, a journalist who covered New Hampshire civil rights cases. Each affidavit was replete with hearsay statements that others had purportedly made to affiants.

On February 28, 2012, the district court granted defendants' motion for summary judgment, concluding that plaintiff lacked sufficient evidence to prove any violation of Kenney's Fourth Amendment rights had occurred. First, as to the justification for the initial traffic stop, plaintiff failed to provide any evidence that Kenney's vehicle registration had not expired or that Officer McKay had no basis for a stop. See N.H. Rev. Stat. Ann. § 261:40 (making it unlawful to drive with an expired registration). Second, Officer McKay's use of non-deadly force thereafter was reasonable in light of Kenney's decision to flee from the initial traffic stop. The only evidence offered to the contrary were statements by Caleb Macaulay, Kenney's passenger, contained in the affidavit of Tom Nickels. The district court held that these statements, as recounted in the Nickels affidavit, were inadmissible hearsay, and so incapable of defeating a motion for summary judgment. See, e.g., Davila v. Corporacion De Puerto Rico Para La Difusion Publica, 498 F.3d 9, 17 (1st Cir. 2007); Garside v. Osco Drug, Inc., 895 F.2d 46, 50 (1st Cir. 1990). The district court also ruled that the claims for supervisory and municipal liability necessarily failed, as both required plaintiff to show a constitutional violation by Officer McKay. See, e.g., Haley v. City of Boston, 657 F.3d 39, 51 (1st Cir. 2011); Seekamp v. Michaud, 109 F.3d 802, 808 (1st Cir. 1997).

On March 27, 2012, plaintiff moved for reconsideration, relying again on the contents of the three affidavits and mentioning Fed. R. Civ. P. 59(e). On April 19, 2012, the district court denied plaintiff's motion, explaining that:

[M]uch of the material that the plaintiff relied on in opposition to the [defendants'] motion [for summary judgment] was not in a form that would be admissible in evidence. When I considered only the materials of evidentiary quality, they were not sufficient to withstand the defendants' summary judgment challenge. The supplemental motion [for reconsideration] presents no ...


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