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Local News
In Wake Of Franconia Shootings
Lawsuit Filed Against Town, Selectmen, Police Chief, A.G.
BY AMY ASH NIXON, Staff Writer
Wednesday September 19, 2007
NORTH HAVERHILL, N.H. -- A lawsuit was filed in Grafton County Superior Court this week by an operator of a law-related blog and Web site that has consistently fired attacks at the way the state has allegedly failed to investigate many details involved in the aftermath of the shooting death of Liko Kenney.
Chris King, of KingCast.net, has filed suit in Superior Court against Attorney General Kelly Ayotte over the state's mishandling, in his view, of what happened after the evening Kenney, 24, of Easton, killed Franconia Police officer Cpl. Bruce McKay in May of this year.
Also named in the suit are the town of Franconia's board of selectmen, its police chief and the town itself.
McKay, a veteran Franconia officer, had a few contentious run-ins with the 24-year-old Kenney, and there was a documented court and police trail detailing the troubled connection between the young man and the veteran police officer.
On May 11, a Friday evening, McKay attempted to stop Kenney for a routine traffic situation - speeding - and Kenney reportedly pulled over, shouted for a different police officer to respond because of his and McKay's stormy past, and he sped down the road.
Up the road, McKay and Kenney met again, and Kenney is seen in police video shooting at McKay as he backs away from Kenney's vehicle, after McKay had pepper sprayed him. A witness, Caleb Macaulay, was sitting in Kenney's car throughout the incident.
After Kenney shot McKay and attempted to flee the scene, running the officer over and pinning him beneath his vehicle, another pair of witnesses, Gregory Floyd of Easton and his son, by the same name, were observing the scene from their pickup. The elder Floyd approached the situation, picked up McKay's fallen gun and shot and killed Kenney, saying Kenney was attempting to reload his gun and would not put it down.
State Attorney General Kelly Ayotte, very soon after the double homicide in the small, usually peaceful town of Franconia, ruled that Gregory Floyd's shooting of Liko Kenney that night was justified.
Sparks have flown since, with allegations nearly daily on Christopher King's Web site and blog accusing the state of not conducting a thorough investigation, ignoring evidence, and closing the case before doing its job.
Such points are the crux of the lawsuit now filed in Grafton County Superior Court.
The suit was filed in court Thursday, with a return date of Nov. 6 issued and a hearing date set for Jan. 10, 2008, court documents show.
On Friday, the plaintiff filed a motion to seal certain attachments, already denied by the judge, according to the court file on the case in the clerk's office at Grafton County Superior Court on Tuesday.
Citing an Associated Press case vs. the State of New Hampshire in 2005, Presiding Justice Timothy J. Vaughan on Friday denied the petition to seal attachments.
The request to seal attachments was requested, King says in the court file, was made because some people he plans to use testimony from in the case have offered information in exhibits he wished to seal but "did so under fear of their safety from Gregory Floyd (who shot and killed Liko Kenney the night Kenney murdered Corporal McKay), and fear of untoward retaliation from their government, including the Franconia Police Department."
Deputy Attorney General Bud Fitch said from Concord on Tuesday the AG's office has yet to be served with Christopher King's lawsuit. So, he could not comment.
Carl Belz, chairman of Franconia's board of selectmen, said the police chief, named in the suit, would not be able to comment on the suit, but he said the board of selectmen, town clerk and police chief were all served with copies of the lawsuit on Monday.
The Suit Filed Against
AG Kelly Ayotte by KingCast.net
The order of notice issued by the state in the filing of the lawsuit says New Hampshire Attorney General Kelly Ayotte, the town of Franconia and Police Chief Mark Montminy must file a written appearance form with the clerk on or before Nov. 6 as part of the case.
By Dec. 6, those parties must also file a plea or answer to the charges in the suit. A hearing has been set in the case for Jan. 10 starting at 9 a.m. in Superior Court in North Haverhill. The hearing will be on the merits of the suit, with 15 minutes provided per party, court clerk Robert B. Muh wrote.
What KingCast.net is seeking through the suit is a motion for declaratory judgment and injunctive relief, the lawsuit shows.
The lawsuit, on page 2, opens with a table of contents featuring information on the parties involved, the relevant facts and background, what King refers to as "the unconstitutional Fox Hill Park Arrests of 2003 and Public Comment on Bruce McKay's demeanor," missing documents and cruiser transcript and much more.
One section refers, in King's words, to alleged "misrepresentations" by Ayotte and focuses on deadly force and pepper-spray policies of the police.
Other points focused on in the suit call into question the report by Gregory Floyd to state police investigators regarding his encounter with Liko Kenney and Caleb Macaulay in the moments before Kenney was shot and killed by Floyd.
Floyd is an ex-Marine and convicted felon who happened upon the grisly scene that night. King claims there was a second shot fired through Caleb Macaulay's window by Floyd, and there were misstatements by Floyd about what happened that night, which the state has failed to properly investigate in quickly clearing Floyd of any wrongdoing in the homicide of Liko Kenney.
Further, King says in the suit, there is a misrepresentation that "Liko Kenney murdered Bruce McKay and that McKay Ônever even had his hand on his gun,'" which he disputes.
He says there is other "bias noted at the scene and in the so-called investigation," into the homicide of Liko Kenney that night on Route 116 near the Franconia-Easton town line.
Citing a source on page 3 of the lawsuit, King says two "crucial pieces of documentation that will inform the entire proceedings" are the testimony of two individuals who, for fear of their safety, did not want their names public.
Referring to "Ms. B," as the first witness, King references an unanswered 13-page complaint 10 years ago about the knife blade that Franconia officer Bruce McKay "unreasonably placed near her (private area) in a downward sawing motion." That happened, King states, when the officer allegedly cut her seatbelt off her while she was in his cruiser. He said the woman told him that if she "ever got stopped by McKay again I would call 911 and take my chances running to Littleton," after the alleged incident.
The woman was stopped and charged with DUI, later dismissed, and said McKay was abusive to her as she attempted, in heels and on a snowy night, to take his field sobriety test with difficulty because of her shoes and the weather.
In the followup to the three anonymous references in the suit which the court will not permit to be sealed, King says "Ms. B," shared with him that she "recommended McKay be sent to a certified psychologist for cognitive testing for communication and control issues ... this could cause serious problems for Officer McKay or Franconia," according to the suit.
In boldface following that statement by "Ms. B," King writes, "Obviously it did."
King said he finds it unbelievable that the AG's office would not review McKay's personnel file.
King, in the suit, says he has been a New Hampshire resident (he lives in Nashua) since 2002, and he operates "a law-related blog ... and a video podcast site called KingCast.net, and has done so for the past two years."
The blog, he said, has a constant theme, that being government accountability and First Amendment issues.
In the suit, King says that AG Ayotte is "being sued primarily for failing to provide the entire investigative files for public viewing online, after having materially misled at least one other attorney, the media and the general public and after waiving privilege by posting a summary of the investigation online."
Additionally, the suit says, AG Ayotte is "also being sued for several ancillary matters, the most significant of which is her evasive response to plaintiff's request for a copy of any and all emails in her office bearing the names Liko Kenney or Bruce McKay, which are readily retrievable through Microsoft Outlook or other similar e-mail management programs."
As for Police Chief Mark Montminy, King says in the suit that "he is being sued in his official and individual capacity for failing to release certain public records.
"Defendant Franconia, by and through its Board of Selectmen, is a duly-chartered entity subject to suit under RSA 91-A for failure to adhere to the letter and spirit of said statute," the suit says. "The Board is being sued for failing to turn over certain public records, chiefly Bruce McKay's personnel file."
Past Encounters Between
Kenney, McKay Cited in Suit
The suit details at length a 2003 encounter which saw Kenney arrested by McKay in Fox Hill Park. King says the case was dismissed, and that Littleton District Court Judge Peter Cyr at that time, found "Civil Rights violations, specifically an Unconstitutional search and seizure," by McKay "under the Fourth Amendment."
In that incident, as McKay was arresting Kenney, Kenney is alleged to have grabbed McKay in the groin area, according to documents on file at Littleton District Court. King said he has attempted to obtain police use of force reports regarding the 2003 arrest of Kenney by McKay "and it appears that no one will ever see those reports."
The suit highlights that fact that there are missing documents in the case, including a transcript evaluation.
King also says, in the suit, that Gregory Floyd's statements to investigators are not consistent with what witness Caleb Macaulay, who was Kenney's friend, and was in the car sitting beside Kenney when he was killed.
Additionally, King maintains that Ayotte "could have no way of conclusively knowing whether McKay touched his gun," the night that Kenney and McKay met in the final, deadly encounter for them both.
King's suit questions whether the town of Franconia failed to address a known problem with McKay.
In closing, King says he is seeking declatory judgments for all outstanding requests for information, compensatory damages for the cost of filing and materials and his time as an attorney having to bring a case as a result of the failed cooperation of government officials. He is also seeking public apologies from the town of Franconia's agents and from New Hampshire AG Kelly Ayotte for "their dereliction of duty," and a finding from Ayotte regarding several points she has cited in not pursuing any further query into Gregory Floyd's conduct in shooting Liko Kenney.
"This case involves one of the most compelling issues of our time," King concludes. "A double homicide involving a young man who would Ôgive you the shirt off his back,' according to Caleb Macaulay and two men twice his age and of questionable virtue."
Carl Belz, Franconia's board chair, said Tuesday the town has contacted their liability insurers, Primex, and sent copies of the lawsuits served on the town clerk, the board and the police chief.
"I glanced at it yesterday," he said of the suit filed by King. "I couldn't quite figure out what the hell this guy was trying to get out of this."
http://www.caledonianrecord.com/pages/local_news/story/5c1d5ec66