UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

ESTATE OF LIKO KENNEY PLAINTIFF

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CASE NO. 2010-CV-00181-PB

v.
TOW;-.J OF FRANCONIA BOARD OF ET AL DEFENDANTS

DECEMBER 14,2011

OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

Submitted by: Attorney Charles O'Leary Attorney Harold Burbank c/o Ballinson & O'Leary 25 Lowell Street Manchester. NH 03101 Ph. 603.644.4607

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TABLE OF CONTENTS
L INTRODUCTION A. Disputed Facts
B. Discovery is incomplete.

II. ARGUMENT
A. Standards
B. Defendants' Motion is based on disputed facts.

C. Plaintiff can assert and prove many theories of Section 1983 liability versus defendants on facts in this case D. Discovery is incomplete. III. CONCLUS]ON

TABLE OF AUTHORITIES
Pages 1. FRCP 56 ( c) ............................................................................................................. 4.5,9, 12 2. Monnell v. Dept. of Social Services, 436 US 658, 694 (1978) ................................. 11 3. Bielevicz v. Dubinion, 915 F.2d 845, 851 (3 rd eif. 1990) ........................................ 11 4. Beck v. City of Pittsburgh, 89 F.3rd 966, 971
(3Td.

Cir. 1996) ................................ 11

5. Berg v County of Allegheny, 219 F.3d 261,276 (3rd Cir. 2000) ............................. 11 6. Doe v Abington Friends School, 480 F.3rd 252, 257
(3Td

Cir. 2007) ...................... 12

TABLE OF EXHIBITS
1. Exhibit A, Affidavit of Brad Whipple .................................................................... attached 2. Exhibit B, Affidavit of Tom Nickels ....................................................................... attached 3. Exhibit C, Affidavit of Christopher King ................................................................ attached

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

L INTRODUCTION
A. Disputed Facts: Key facts on which defendants' motion rests are disputed. Defendants allege that Bruce MeKay was shot and killed by Liko Kenney when McKay attempted to stop Kenney for driving an unregistered vehicle. Defendants cite their Report of Attorney General, 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 medical examination 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 with defendant McKay's orders to stop. See Affidavit of investigator Tom Nickels, Exhibit B, paragraph 15, interview of Kenney passenger Caleb Macaulay, attached. Plaintiff contends Kenney asked McKay three times at stop #1 to call for a backup officer for the stop, out of fear of McKay, 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 thre requests of McKay for a back up officer, Kenney indicated to McKay that he would drive much less than a mile - not a mile as defendants contend, but probably a few hundred feet - dovm the road to his uncle's home, a place well kno\VTI to McKay, so Kenney could have his uncle witness McKay's stop. Kenney did not flee, but left stop #1 at low speed toward his uncle's house as he (1)

(2)

had indicated to McKay. Defendant McKay raced past him, turned his SUV cruiser around in the road, and put the cruiser nose directly opposite Kenney's car, causing Kenney to stop for the second time (stop #2). Kenney then backed up at low speed onto a farm propeny toward a front end loader. McKay followed. Kenney stopped his car again (stop #3). turned off his engine, 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 climb partly onto Kenney's car. Kenney and his passenger, Caleb Macaulay, were violently shaken in their seats despite wearing seat belts, in plain view of McKay. Id. Kenney motioned with his hands and yelled at McKay to stop. in plain view and hcaring of McKay, after the first violent ram, but McKay shook his head "no", and rammed Kenney's stopped, turned "off", braked car toward the loader bucket. Id. Defendants contend McKay then maced Kenney alone. Plaintiff contends 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 defendants contend, but to cause unnecessary pain and sutTering of Kenney and Macaulay, while seat belted to Kenney's rammed, stopped, turned "off', braked car. McKay then walked away from the car and unholstered his service revolver. Kenney was in extreme fear. He feared for his life and the life of his passenger, Macaulay. Kenney was partly blinded by mace. He fired a gun toward McKay. McKay walked in front of Kenney's car, and then went out of sight. Kenney put his car into first gear to drive away, could not see where he was going due to mace, and got stuck in 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's gun at Macaulay and told Macaulay to pick up Kenney's gun. Macaulay began to cry and refused. Floyd then bragged to Macaulay that Kenney was the 20 th 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 many complaints of abuse of power and threatening as defendant McKay and remain on a professional police force. See Affidavit of Brad Whipple, Exhibit A, all, and Affidavit of Tom Nickels, Exhibit B, all. Defendants dispute this fact. Plaintiffs dispute defendant Montminy's contention that Timothy Stephenson had no basis for his lawsuit versus defendant McKay. See Affidavit of Brad Whipple, Exhibit A, paragraph

9.
Plaintiff disputes that defendant \I1cKay "had a very good record with Franconia Police Department until his death." See Affidavit of Brad Whipple, Exhibit A, all, Affidavit of Tom Nickels, Exhibit B, all, and Affidavit of Chris King, Exhibit C, all. Plaintiff disputes that defendant Montminy properly supervised defendant McKay. See Affidavit of Brad Whipple, Exhibit A, paragraphs 4,5,7,8, 1 LIS, 16, & 19. See Affidavit of Tom Nichols, Exhibit B, paragraphs 3, 4,5,6,8, & 13. See Affidavit of Chris King, Exhibit C, all. Plaintiff disputes defendants' assertion that defendant Mark Taylor had no reason to believe that McKay would violate citizens' rights. See Affidavit of Brad Whipple, Exhibit A, paragraphs 6,& 7.

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Plaintiff disputes that it cannot demonstrate violations of Liko Kenney's constitutional rights under Section 1983 as defendants contend. Plaintiff can show a pattern, beginning in 2003, and ending in 2007 with Liko Kenney's death, of substantial violence against Kenney's constitutional rights by defendants, particularly to his liberty interests. See plaintiff Exhibits A B, and C, alL Note in Exhibit C paragraph 8, Franconia's 2007 police pursuit policy precluding overtaking fleeing vehicles, ramming vehicles, pursuit of persons who may be apprehended later. Note paragraph 9 OC spray preclusions. Plaintiff contends defendant McKay violatcd all paragraph 8 and 9 Franconia police procedures regarding Kenney on May 11,2007. Plaintiff disputes defendants' contention that plaintiff cannot overcome Section 1983 hurdles. See ARGUMENT, infra. Plaintiff disputes defendants' contention that Kenney committed capital murder. Plaintiff contends that Section 1983 and other liability for Liko Kenney's murder lies against all defendants .. See Exhibit B, Affidavit of Tom Nickels, paragraph 15, and ARGUMENT, infra.

B. Discovery is incomplete: The Court ordered that discovery be completed by November 1,

2011. In summer, 2011, plaintiff s counsel responsible preparing and administering interrogatories was advised of serious illness precluding timely completion of discovery. Plaintiffs counsel phoned defendants' counsel and agreement was made accordingly to extend the discovery period. To date discovery has not been completed. Defendants are still in possession of facts material to their motion for summary judgment.

II. ARGUMENT

A. Standards
A court should not grant summary judgment unless the pleadings and supporting documents,

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when viewed in the light most favorable to the non-moving party, "show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law". FRCP 56( c). Defendants admit courts must exercise restraint where the non-movant must prove elusive concepts 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 of Attorney General, p. 25, at 2., Liko Kenney. A principal

defendant, Bruce McKay, is also deceased. Motives and intentions of the deceased cannot be examined directly, axiomatically making them "elusive", as indicated in defendants memorandum. However it is plainly unreasonable to describe plaintiffs evidence of factual dispute as conclusory allegations, improbable inferences, and unsupported speculation, as defendants argue. Plaintiff affiant Whipple was a regional police officer, rescue team member, and well known Franconia citizen before and after defendant McKay was hired. Whipple worked with McKay, and took complaints about McKay personally to McKay and other defendants. Whipple is willing 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 of potential witnesses in this case, many of whom are not included in his affidavit. His statements and conclusions in the case are based on first hand accounts made to him in his professional capacity. Nickels interviewee Caleb Macaulay was in Kenney's car and is the only direct witness to all that happened May 11,2007, before, during and after the killings.

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To be fair and true to FRCP 56( c), the court should be even more restrained in granting summary judgment where principal case parties cannot be examined directly due to death. Restraint is also justly required in this case because of the quality of plaintiffs affidavits, the reliable nature of the witnesses that plaintiff s affidavits show plaintiff can present to a jury, and because facts material to defendants' motion are still in their possession because discovery is incomplete. B. Defendants' Motion is based on disputed facts. Defendants' motion is based primarily on the following disputed facts: 1. That defendant McKay was not a threat to the community and specifically not to Liko Kenney. Rather, the facts show that McKay had, at least since 2003, a long running feud with Kenney, based on an arrest of Kenney by McKay and at least one physical altercation between them. Many citizens, including peer public safety officers, had filed complaints, or expressed fears and concerns about defendant McKay. See Exhibit A, Affidavit of former Franconia police officer Brad Whipple, Exhibit B, Affidavit of investigator Tom Nickels, Exhibit C, Affidavit of investigator Chris King, and the video disc of the 2003 Kenney-McKay altercation, submitted by plaintiff to the court after the complaint was tiled. 2. That Kenney's constitutional rights were not violated, so any Seetion 1983 claim must fail. There is compelling evidence of a pattern of complaints against defendant McKay by people in and out of law enforcement and public safety that defendant McKay was hostile, exceeding his authority, threatening. abusive and disrespeetful of the public he was hired to protect. There

is also a compelling pattern by supervisory Franconia defendants of their awareness of and failure to negate this pattern. This pattern supports a theory of illegal neglecting of support

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of constitutional 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 such claims did not arise in 2003 as defendants contend, but as late as 2007, when Kenney's vehicle was unlawfully rammed when he was stopped for the third time as ordered by McKay. See Exhibit C, Atlidavit of Chris King, paragraph 8. Any facts alleged by plaintiff arising from 2003 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 versus defendants on facts in this case.

There is no doubt that all defendants seeking summary judgment were state actors when Liko Kenney died, and that all allegations against these defendants leading to Kenney's death arose by defendants' state actions under color of state law. Defendants McKay, Montminy and Taylor were Franconia, New Hampshire police officers. Defendants Montminy and Taylor had supervisory authority over defendant McKay. Defendant selectboard had clear duties under its 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 was was abusing his power, but jointly and severally did not stop it resulting in McKay's predation of Kenney and ultimately Kenney's death. See Plaintiffs Exhibits A, B & C, all. Defendant McKay used his authority to terrorize Liko Kenney for years, especially since 2003, when McKay attacked Kenney in a Franconia park without probable cause, beating Kenney, who had never been arrested or charged before, unconscious, after sexually assaulting him. 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 of Tom Nickels, paragraph 15. Kenney thereafter lived in terror of McKay. 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 that McKay "had it out" for Kenney. Id, paragraph 12; Plaintiff Exhibit A, paragraph 6. McKay wanted 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 by the constitution and laws of the United States, and that such deprivation was clearly committed 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 municipality caused the violation. This was the case. See Plaintiff Exhibit B, Affidavit of Nickels, interview of Franconia First Selectman Carl Belz, paragraphs 2, 3 & 9. Belz stated to Nickels that defendant Franconia selectboard chose to ignore Franconia policy in effect since 2005 to do performance reviews of the Franconia Police Department, though the board reviewed all other town departments. This failure to implement Franconia policy caused defendants selectboard, 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 defendant

McKay's conduct toward Kenney and others in Franconia went completely unreviewed by the

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defendant selectboard. See Plaintiff Exhibit B, Affidavit of Nichols, paragraphs 3, 9 & 10, where Chair Belz admitted that defendant board failed to implement its own review policy for the police department, failed to fully investigate citizen complaints against Franconia police, and failed to supervise defendants Montminy, Taylor and McKay as required by Franconia law. Belz further admitted that had defendant selectboard done its duty under law Franconia law the deaths of McKay and Kenney might have been avoided. Both tests for Section 1983 damages versus defendant selectboard are thus satisfied. Contrary to the policy and clear language of FRCP 56 ( c), defendants motion seeks to obfuscate its groundless basis for summary judgment by, in a light most favorable to defendants, tedious application of disputed facts and defendants' view of allegedly applicable law. This is not proper summary judgment analysis, where the primary question is whether the movant can show that substantial facts are not in dispute. Plaintiff has shown that such facts are plainly in dispute.
It is specious for defendants to argue as they do over the law of traffic stops when those

arguments are based on false and disputed allegations of facts. The instant issue is what are the facts. Plaintiff asserts that defendants will not admit to them. For example defendants offered no verifiable proof that Kenney's car was or was not registered. Defendants offered no verifiable proof of reasonable suspicion to stop Kenney. Defendants stated that McKay "observed" Kenney driving unregistered, but offered no video or other evidence of the assertion. Defendants said that Kenney fled McKay after stop # 1, where in fact Kenney told McKay where Kenney \vas going, mere feet down Easton Road to his uncle's home, a place well known to McKay, and then Kenney slowly proceeded to do so out of justifiable fear of McKay. It was not lawful or

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reasonable of McKay to race past Kenney, turn, and charge toward Kenney, causing Kenney to stop. 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 or passenger Macaulay, both in seat belts, in McKay's stopped turned "off', and braked and penned in vehicle. rd, paragraph 9. McKay did not make a split second decision to spray Kenney and Macaulay as defendants said, but sprayed them in a way calculated to cause and in fact caused them 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" to comer Kenney in his vehicle are especially inaccurate and troubling. Plaintiff has shown by affidavit 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 caused Kenney to back away from McKay, shut off his car (stop #3), set the parking brake, and prevent Kenney's rear escape because an earth moving machine blocked that route. It was only then that 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, McKay threatened 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 shows by a preponderance of evidence that Kenney was deprived of a federal right by the board's policy 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. Plaintiff asserts that defendant board was deliberately indifferent to facts that violations of Kenney' s liberty interests were highly predictable in the case of defendant McKay, based on years of community 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 its lawmakers or by whose edicts or acts may be fairly represent official policy, inflicts the injury that the government as an entity is responsible under Section 1983." Monell v. Department of Social Services, 436 US 658, 694 (1978). Plaintiff has made sufficient allegations of facts infra 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 that

policymakers were aware of similar unlawful conduct in the past, but failed to take precautions against future violations, and that this failure, at least in part (emphasis added) led to their injury." Plaintiff asserts Section 1983 liability lies against defendant board where plaintiff proves an absence of an official policy when such absence causes a constitutional tort. Beck v Citv of Pittsburgh, 89 F .3d 966, 971 (3 rd Cif. 1996). Plaintiff has asserted facts herein supporting this theory. Plaintiff asserts Section 1983 liability lies where plaintiff proves by a preponderance of evidence that defendant board failed to properly train or supervise defendants McKay, Montminy and 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 or investigation, or bv a failure to adopt a needed policv (emphasis added):' Berg v County of Allegheny, 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 filing interrogatories with defendants was noticed of a serious health condition requiring extensive tests 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 discovery schedule by a freak major snow storm that knocked out power region-wide for a week. The attorney 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 is incomplete. 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 is incomplete in any way material to a pending summary judgment motion, a cow1 is justified in not granting the motion, particularly when relevant facts are under the control of the moving party.
III. CONCLUSION

Plaintiff has shoVvTI buy its submissions that genuine issues of material fact exist as to whether defendants 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 Kenney Plaintiff By the Estate's Attorneys Attorney Charles O'Leary Attorney Harold Burbank c/o Ballinson & O'Leary 25 Lowell Street Manchester, NH 03101 Ph. 603.644.4607

l sl
Charles O'Leary Ballinson & 0' Leary 25 Lovell Street Manchester, NH 03101 Ph. 603.644.4607

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

\),...- ts--ll
Leary

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