McKay was a 12-year veteran of the Franconia Police Department.The state attorney general's office says the incident began Friday night when McKay attempted to pull over Liko Kenney on Route 116. This material may not be published, broadcast, rewritten, or redistributed. Other residents say they found him intimidating as well. or anything. 803–804. Internet Explorer 11 is no longer supported. We affirm the grant of summary judgment. What happens if the president doesn't accept the election results? Kenney took off, leading McKay on a brief pursuit. Further, Macaulay's statements, offered more than one month after the May 2007 traffic stop, are too removed in time to qualify as a present sense impression, Fed.R.Evid. Boisvert replied "no," to which Floyd replied, "Because I wouldn't miss, either.". Floyd's criminal threat conviction carries a maximum of sentence 12 months in the Grafton County House of Corrections. None of these affidavits were from witnesses to the May 2007 traffic stops. 1769, 167 L.Ed.2d 686 (2007), and was entitled to employ “some degree of physical coercion ․ to effect [the second stop],” Graham, 490 U.S. at 396. The killings — McKay by Kenney, and Kenney by Gregory W. Floyd — have been described by some in town as vigilante justice. See United States v. Taveras, 380 F.3d 532, 537 (1st Cir.2004) (noting that permissible delay may be “a few hours” in “extreme circumstances”); see also United States v. Shoup, 476 F.3d 38, 42 (1st Cir.2007) (citing Taveras, 380 F.3d at 537) (same). Floyd picked up McKay's service revolver and, in an apparent effort to protect himself, his son, and Officer McKay, shot and killed Kenney. denied, ––– U.S. ––––, 132 S.Ct. Kenney took off, leading McKay on a brief pursuit.Investigators say when McKay stopped Kenney a second time a mile up the road, he used pepper spray to subdue him. Investigators say Floyd grabbed McKay's gun and ordered Kenney to drop his weapon. McKay was a 12-year veteran of the Franconia Police Department. Ann. Gainor, in his counter argument, said, "We have to look at the case in its totality. 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. I've never seen Liko really scared like that before," Macaulay said in a police interview. Postal Service faces delivery delays, U.S. battles coronavirus surge as states see record new cases, U.S. braces for possible Election Day violence and unrest, CBS News coverage of voting rights issues. There was an error processing your request. Live Updates: Trump holds last 2020 MAGA rally; Biden sweeps tiny N.H. town, Massive manhunt after Vienna terror attack leaves several dead, How Trump used COVID-19 to shut U.S. borders to migrant minors, Judge rejects attempt to block nearly 127,000 drive-thru votes in Texas, Florida voters may boost minimum wage boost to $15 an hour, On election eve, U.S. The supplemental motion [for reconsideration] presents no new evidence, and argument, no matter how forcefully presented, cannot substitute for evidence. 56(c)(4) plainly requires that affidavits used to oppose a motion for summary judgment “must ․ set out facts that would be admissible in evidence,” and “[i]t is black-letter law that hearsay evidence cannot be considered on summary judgment for the truth of the matter asserted,” Hannon v. Beard, 645 F.3d 45, 49 (1st Cir.2011) (quoting Dávila, 498 F.3d at 17) (internal quotation marks omitted); see also S.E.C. 801, or the defined exceptions to the hearsay rule, Fed.R.Evid. On the stand, both said that they saw Boisvert with a gun, the younger Floyd testifying that he saw a "bulge in her sweater" and Michelle Floyd testifying that she saw "bits and pieces of the butt.". at 1348, the district court concluded that Officer McKay's use of pepper spray here was reasonable. South Dakota attorney general "distracted" before deadly crash, Scientists capture two murder hornet queens after destroying nest, Police training used Hitler quotes, urged cadets to be "ruthless". Bruce McKay, went into a rage in Bystander Gregory Floyd … Kenney said he wanted to drive home to the family tennis camp in Easton, about three miles away on Route 116, where there would be witnesses. "We don't harass people. Bystander Greg Floyd then fatally shot Kenney with McKay’s gun. He drives the SUV into the coupe, bumping and pushing it into a gravel parking area backed by farm equipment and fields. v. Ficken, 546 F.3d 45, 53 (1st Cir.2008); Garside, 895 F.2d at 50. He did his job, he did it well, everybody was treated the same. You have permission to edit this article. The only evidence offered to the contrary were statements by Caleb Macaulay, Kenney's passenger, contained in the affidavit of Tom Nickels. Within minutes of the Friday stop, both were dead, dividing this town's 924 residents between those who see McKay as a fallen hero and those who considered him a bully with a badge. John Lynch ordered all flags be lowered to half staff. "It's a tragic situation — two men lost and two families devastated," said Steve Heath, owner of the Franconia Village Store. On February 28, 2011, 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. Authorities quickly ruled the killing justified. He said the driver was shooting the gun above the car's roof at one point, reminding him of a gangster movie. 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. Michelle Floyd testified that her husband has a heart condition and diabetes. But he got 15 days in jail, time served, when McKay asked for leniency, according to St. Hilaire. Put it down or you're going to die," then fired when Kenney ignored him. Cyr referred the case to a pre-sentence investigation. Chairman Paul White, who is married to Kenney's cousin, moved to keep them away in protest. Partly cloudy early with increasing clouds overnight. McKay got out of his cruiser and went to Kenney's stopped car and pepper sprayed both Kenney and Macaulay. A passing motorist trying to protect McKay picked up the gun and killed the driver moments later, but that shooting was not captured on tape. § 627:4, II, and that Gregory Floyd had acted justifiably. Caleb Macaulay's statements in the Nickels affidavit, even if they were presented in an admissible form, would not alter our analysis. Hart said he was impressed when McKay responded to a complaint he once made about a noisy wedding reception. Bruce McKay on May 11, 2007, after McKay pulled over his car and pepper-sprayed him. The attorney general also said Floyd was justified in shooting Kenney as he tried to protect McKay. On the night of May 11, 2007, Floyd, a former Marine, witnessed Liko Kenney, 24, shoot Franconia police Cpl. Copyright © 2020, Thomson Reuters. The Caledonian-Record reported that Kenney, who now lives mostly in Hawaii, could not be reached for comment. 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. The younger Floyd, during his testimony, said Boisvert was trying to "provoke my father into having a heart attack.". Whether Officer McKay stared at Kenney as they passed has nothing to do with anything. One man, Timothy Stephenson, sued McKay in 2005, alleging that he used his prosecutor's role to settle scores. Christie, citing the State of New Hampshire vs. Fuller (2001), also argued that Floyd's statement - "Do you want me to pull a gun on you?" Maccaulay said he was blinded by the pepper spray and didn't see Kenney pull the gun, but heard the shots. The Rule 59(e) motion was too little and too late. Macaulay said he did not hear Floyd speak before shooting. High 33F. Charles West of the New Hampshire State Police on the night of the shootings, Gregory Floyd Sr., 49, who was the passer-by who came upon the scene, took Cpl. And the younger Floyd did not respond. Don't knowingly lie about anyone There is gunfire ... and that was it, that was the whole thing," he said. Officer McKay was not required to give up the chase after Kenney fled, see Scott v. Harris, 550 U.S. 372, 385, 127 S.Ct. Gregory Floyd, a passing motorist and ex-Marine who saw it all, grabbed McKay's gun and shot Kenney to death when he refused to put his gun down. United States v. Chaney, 584 F.3d 20, 24 (1st Cir.2009); see also United States v. Chaney, 647 F.3d 401, 408 (1st Cir.2011). A Franconia police officer was shot and killed during a routine motor vehicle stop on Friday.The state attorney general's office says Cpl. Court rejects lawsuit from father of Liko Kenney, Man says officer violated son's rights before shooting. As of Saturday afternoon, Miller did not return any calls to comment about the incident. Begin typing to search, use arrow keys to navigate, use enter to select. Perhaps the biggest hole in the defense's case was pointed out by Gainor. There is ample support for the district court's conclusion, see, e.g., Jackson v. City of Bremerton, 268 F.3d 646, 652–53 (9th Cir.2001); Wagner v. Bay City, Texas, 227 F.3d 316, 324 (5th Cir.2000), and we agree. 1865, 104 L.Ed.2d 443 (1989). Notifications from this discussion will be disabled.

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