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NET, BY AND THROUGH CHRISTOPHER KING, J.D. 15 Beasom Street Nashua, New Hampshire 03064 603.438.8017m Plaintiff, ) v. ) NH ATTORNEY GENERAL KELLY AYOTTE 33 Capitol Street Concord, NH 03301 and TOWN OF FRANCONIA, P.O. Box 900 Franconia, New Hampshire 03580 and FRANCONIA POLICE CHIEF MARK MONTMINY, P.O. Box 900 Franconia, New Hampshire 03580 In his official and individual capacity, Defendants. ) ) ) ) ) ) ) ) ) ) EXPEDITED DOCKET REQUESTED ORAL ARGUMENT REQUESTED ) ) ) ) CASE NO.____________________ JUDGE:______________________
MOTION FOR DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF Now comes Plaintiff pro se, pursuant to RSA 91-A, the Freedom of Information Act, the First Amendment to the Unites States Constitution and any and all applicable decisional law, to posit this Motion for Declaratory Judgment and Injunctive Relief and to request Oral Argument given the intensely complicated and sensitive issues countenanced herein. Plaintiff apologizes for the length of this filing at nearly 40 pages but as the Court will see, full explication of these issues requires substantial time and space. Respectfully submitted, ________________________ Christopher King, J.D. Plaintiff pro se
I. Introduction. Plaintiff brings this Action for Declaratory Judgment, Injunctive Relief, costs and sanctions against several Defendants relative to a 11 May, 2007 double homicide case in Franconia, New Hamsphire involving Liko Kenney, Caleb Macaulay, Bruce McKay, Gregory P. Floyd and Gregory W. Floyd pursuant to New Hampshire Right-to-Know Statute, RSA 91-A, and any and all relevant case law as noted in Section IV, Law and Argument. At the outset Plaintiff brings the Court’s attention to two crucial pieces of documentation that will inform the entire proceedings. First is Attachment__, an Under Seal Affidavit pertaining to “Ms. B” that supplements her unanswered 13 page complaint ten years ago about the knife blade that Franconia Officer Bruce McKay unreasonably placed near her labia in a downward sawing motion. The second is Attachment__, an Under Seal Affidavit relating to “Citizen __”, which similarly enjoyed no response despite the fact that McKay allegedly was suspended as a result of his actions. These individuals have come forward now only because of the recent scrutiny of Bruce McKay’s actions as an officer of the Law pursuant to RSA 91-A and it is imperative that the integrity of that law be maintained for the future of New Hampshire. In discussing their complaints it has become obvious to this litigant that they would be more indignant if they had knowledge of the facts contained in the full set of evidentiary materials that the State refuses to host online, despite the fact that there is no clear legal basis for such refusal, given that the State has already waived privilege and given that the investigation has been terminated. Significantly, “Ms. B” notes 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."
There remain unsettled issues and concerns in this case that should prompt an expedited oral argument and docket and as noted in the Under Seal Affidavits. II. The Parties. Plaintiff has been a New Hampshire resident since 2002 who operates a law-related blog, or "blawg" and a video podcast site called KingCast.net, and has done so for the past two (2) years. While it is a personal-interest blawg a constant theme on that blawg is government accountability and First Amendment issues, beginning with his very first post which addressed the sneek’n’peek provisions of the Patriot Act, which has since been repealed. He has successfully litigated against NH AG Kelly Ayotte on prior occasion, he has served as an Ohio AAG for four (4) years.
Along with Nashua Alderman Fred Teeboom and others, he successfully lobbied to make the Nashua School Board radically change its First Amendment Policy earlier this year after he drafted a lawsuit and emailed it to the Board and Teeboom offered to fund the court costs. Attachment 1. Significantly, he has journeyed to Franconia four (4) times since 11May 2007 and has visited the offices of Senator Judd Gregg, Governor John Lynch and NH AG Kelly Ayotte where he asked everyone to accompany him on a fact-finding tour of Franconia to address the past and present issues with law enforcement in the area. No one has provided any substantive comment regarding the visits nor has there been any response to the letters that Plaintiff served. Attachment___. Defendant Kelly Ayotte is and was at all points in time the highest law enforcement officer of the State of New Hampshire. She has written Plaintiff extolling the virtues of RSA 91-A on prior occasion, earlier this year. Attachment ___. She was charged with the duty of conducting a full and thorough investigation of all the facts and issues in the 5/11 tragedy. She is further charged with the affirmative duty not to materially misrepresent any aspect of that investigation to another attorney, the media or the general public. She 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. She 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 email management program. Defendant Mark Montminy is and was at all relevant points in time the Chief of Police of Franconia, New Hampshire. He is being sued in his official and individual capacity for failing to release certain public records as shall be delineated in Section IV, Law and Argument. 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 Board is being sued for failing to turn over certain public records as shall be delineated in Section III, Facts and Relevant Background.
RELEVANT FACTS AND BACKGROUND The Unconstitutional Fox Hill Park Arrests of 2003 and Public Comment on Bruce McKay’s demeanor. In December 2002 and January of 2003 there were a series of Unconstitutional arrests at
the trailhead of Franconia’s Fox Hill Park. The arresting officers’ modus operandi each time was essentially similar, i.e. pull up and turn on the cruiser bar lights and/or blocking in the suspect’s vehicle with the cruiser before or without substantiating any probable cause. Pdf 99-101 and Attachment____ Public Defendant James T. Brooks, with whom the undersigned has spoken, verified that he did author a Motion to Suppress that was used in three (3) such cases, with successful results each time, over the objection of one Bruce McKay. Id. The cases of State v. Nathan Wright 03-CR-109 and State v. William Miller 03-CR-012, 013, 029 were summarily dismissed by Littleton Municipal Court Judge Peter Cyr finding Civil Rights violations, specifically an Unconstitutional search and seizure under the Fourth. Id. Liko Kenney’s case State v. Kenney 03-CR-197was dismissed by Officer Stephens before the Court ruled on it, but not before a ten (10) week delay in providing the arrest report to Attorney Brooks. Id. Despite that, and in spite of the fact that Liko told McKay: 20:48:00 "You don't have the right to keep me here without a good reason." Liko was taken down -- hard and at the direction of McKay -- who instructed the responding officers to cut their sirens for some reason. As the Affidavit of “Citizen __” attests, this was not the first time that Bruce Mckay overreacted near Fox Hill Park. Significantly, the driver and passengers in the Wright/Miller cases were smoking marijuana and sending dank, odiferous plumes into the night air as one’s olfactory senses would indicate on close up, whereas Mr. Kenney was not: He was merely resting in his mother’s car, and that is why the possession charges against him were nol-prossed before Judge Cyr could get to it because that would have been a horrible result for the town: A use of force on an Unconstitutional arrest. It bears noting at this time that eight (8) weeks have passed since KingCast requested any documentation supporting McKay contention that Fox Hill Parks was a “suspicious place,” and as we shall see in the Public Policy Section of this Motion, a local resident Jeffery Jesseman has
written Franconia Selectmen and Chief Montminy to demand an explanation because his property abuts Fox Hill Park, yet he was not given any notice of any alleged dangers lurking therein, nor was Affiant “Citizen ___”, Attachment___. Moreover, KingCast has not received the police report or use-of-force report from 2003 arrest of Liko Kenney and it appears that no one will ever see those reports. Plaintiff believes that constitutes a per se violation of RSA 91-A. What KingCast cameras DID see, however, in our tour of Franconia is this rather unflattering portrait of Bruce McKay: "I hate to say it, but McKay walked around here like he was King Shit of the neighborhood.... [effin'] with people he didn't like...... and Liko showed him he wasn't." and "I always figured he would find [Officer McKay] dead by the side of the road... and if it wasn’t Liko it would have been someone else." And as noted by the 15 August 2007 Concord Monitor, McKay terrorized a complaining party in the backseat of his squad car: “Without explaining what he was doing, McKay then used a knife to cut the cruiser's seat belt off, near the woman's abdomen. "I was TERRORIZED," the woman wrote in her complaint to Montminy.” She received absolutely no response and as such decided to write her Affidavit. Attachment__ B. Missing documents and cruiser transcript evaluation. A complete copy of the 2003 Fox Hill episode with a chain of custody intact from the Attorney General’s office to the undersigned litigant has been filed with the Court at Appendix____ and the Court will find any transcriptions posited in writing in this Motion to be accurate. While eight (8) weeks have transpired, it must also be noted that Franconia initially attempted to charge overtime for the request and has produced nothing to date. See Franconia correspondence file at Attachment___ In the meantime Plaintiff himself acquired the rulings noted above from Judge Cyr in Littleton District Court and notified Defendant Franconia that such discovery did not obviate their responsibility to produce any relevant documents. Those documents would presumably include the original complaint of “Citizen ___”
Liko was taken to the ground by three (3) grown men with guns, and Bruce McKay indicates that there will be a civilian complaint, however the use-of-force report from that incident remains missing. See correspondence file between KingCast and Franconia town and legal officials. Attachment Id. Curiously, McKay claims that he told Liko Kenney his name as noted at pdf file page____. However Liko is heard asking his name and continues to address him as “this or that officer” after more law enforcement personnel appear so it would seem that McKay never did identify himself to Liko, which is part of the requested injunctive relief sought by this litigant. The following are almost 100% accurate transcripts of the 2003 cruiser video as provided to the Court which includes an interior discussion heretofore unseen by most of the Free World. 20:48:00 "You don't have the right to keep me here without a good reason." At 20:54:30: "I am requesting police assistance... You're torturing me... why are you harassing me? Can't you go arrest a drunk at a bar or something?" Approx 20:55:00 "Get back in your fucking car," says McKay..... "Maybe you need to go back to school......" "You're in a suspicious place at a suspicious time.” At 21:00:00 "Get on your knees." "What are you going to kill me?" "You're going into a cruiser." "Why, what have I done?" "I don't know." 21:04:01 - "You can't pull people off the street and put them in handcuffs and drive them around for no reason." [comports with Judge Cyr’s ruling]. 21:05:46 - "I was sitting in my car resting before driving home and now you've done this to me for no reason." [comports with Judge Cyr’s ruling]. 21:11:20"You're resisting arrest." "I'm resisting torture. You punched me in the face you hurt my injured neck you hurt both of my arms you hurt both of my legs all because I asked you a question." "You grabbed my testicles, correct?" "I grabbed your testicles, hell no."[McKay laughs, does not say 'yes you did.']" "You threw me to the ground and put your testicles in my face you fucking faggot." 21:15:00 - "Why am I in handcuffs?" "[Officer Cox or Ball] Because you resisted arrest." "Why was I being arrested, why?" "[Officer Cox or Ball] I don't understand what the original offense was." "That's because there is no original offense." [comports with Judge Cyr’s ruling]. 21:15:30 - "He punched me in the face and you and him both saw him punch me in the face and
you both are saying he didn't. I'm being beat up IN HANDCUFFS by 3 adult armed men who all have guns and I have NOTHING." 21:______ – “I am a mental health patient.” With all due respect the Court should realize that such is now the mind frame in which Liko Kenney spent the last four (4) years of his life: That of being subjected to an Unconstitutional beat down by Bruce McKay, a man with a gun and a badge and whose full personnel file the town of Franconia is assiduously trying to hide, in direct contravention to developing case law in New Hampshire and well-established Statutory and Decisional Case law in other Jurisdictions, as shall be noted in Section IV, Law and Argument, infra. C. NH AG Kelly Ayotte’s affirmative misrepresentations, Franconia Policy and the
2007 Arrest using deadly force and OC spray. i. The 15 May 2005 email from Defendant Ayotte to Attorney X. At the outset it is crucial to note the presence of a certain email that Attorney H.B. forwarded to Plaintiff in June, 2007. It appears in its annotated form at Attachment ___ and contains material misrepresentations and very questionable shading by Attorney Ayotte to Attorney H.B., himself a former Assistant Attorney General. This is crucial because Defendant Ayotte still has not provided the email and correspondence file between her office and Attorney X, which is now ripe for Declaratory Judgment. In her email, she represents: “First of all, there was no Court Order even mentioning that Corporal McKay could not stop Liko Kenney or had to seek other officers assistance.” That’s a very slippery statement because there was a Court Order from the 2003 plea/conviction that specifically Ordered Liko:
“No indirect or direct contact with Bruce McKay.”
So while that was a probationary sentence it certainly gave Liko the right to request another officer during his probation, and it is further underscored by the fact that many other people in Franconia were similarly afraid of Bruce McKay and either did or would have taken similar action. In a blawg response to a legitimately concerned poster who has been following this matter, the undersigned litigant wrote, on 18 August 2007 “You should have seen Sam Stephenson describe it to us in his interview.
Whrrrr...click! He made the sound so awesome when he described how his brother Tim would do it. And Ms. B told her daughter "Look, don't roll your window down, this guy is nuts." Liko rolled his window down and look what happened. A plume of mace to the face in violation of town policy. And Ms. B told me "if I had ever got stopped by McKay again I would call 911 and take my chances running to Littleton." That is crucial information because it is now a matter of public record (and she directly told this litigant) that she filed a 13-page complaint alleging that Bruce McKay brandished a large, penis-shaped knife near her privates without any reason, cutting her seatbelt off with it even though he never tried to use the clasp first. Furthermore, in her email to Attorney X, she represents that “the witness statements were all consistent in describing Mr. Floyd’s actions (including the passenger in Mr. Kenney’s car).” They are not. To wit: a) Floyd as having spoken with Liko or Caleb, as claimed in the curiously unsigned yet official report at p. 7:
"He told the driver to stop. He said to the driver "Stop." Put it down or you're gonna die;" and "Leave it alone you know you want to live." He told the driver whatever came into his mind..... Note: This reads just a bit like a Fairy Tale to the undersigned’s evaluation because it is:
Another Floyd Statement: Pp. 867-868 of the PDF file. A: "[T]his guy's trying to load and this guy's all mixed up or whatever so I kinda lean my elbow into his adam's apple and just shoot the other guy." Q: "So you actually put the gun inside the window I mean is the window open? A: "Oh yah the window was open." Q: "Now I just want to clarify were you actually touching the passenger?" A: "Yah... I was trying to stretch my hand in there and make sure [Caleb] stayed back." But that’s not what Caleb said:
Marshall: Caleb: Marshall: Caleb:
Was your window rolled down? No, my window was shattered, Sir. He shot through the window? Shot through the window.
But let's address the statements from Floyd himself and the other two witnesses -- which are definitely NOT consistent with that: First there is the notion at pdf 839-841 that a gun came flying out of Liko’s window when in fact no such thing ever happened, even though at pdf 843 Floyd (our Vietnam 3 tour hero) maintains that there was a second gun. This further does not comport with Defendant Ayotte’s statements at Official report pages 6-7 that McKay had his weapon drawn before he crossed 116. Next there is the clearly INWARD bullet through Liko's windshield "on bottom edge close to center." per pdf. 587 that was "recovered,” from inside the car. But the Official report does not address that fact other than as a narrative comment because that would ruin the entire notion that Floyd spoke before shooting. Here is what Gregory W. Floyd said: Page 20/1,000: "Did you say anything before you fired?" "No, I didn't"
Here is what Caleb Macaulay said: Page 11 of official report: " The man said nothing before he fired."
Here is what Junior Floyd said:
[91-A pdf page 745] "They had stopped in front of his arm the first time. They didn't actually hit the officer. Then they backed up to here and at that time my dad got out and tried to pull him to prevent him from running him over again" [KingCast says wait a minute: Run him over again??? There was absolutely nothing to keep Liko from running McKay over the first time -- but he didn't. Liko was just trying to get the hell out of there.] They backed up to here and the car went rushing forward and my dad shot at the driver and it hit him and made him stop. The front end of the car ended up over the officer's chest." The undersigned litigant does not see where there was any room for dialogue in this sequence.
The second shot through Caleb Macaulay's open or closed window.
Petitioner restates all previous allegations as incorporated herein and states further: Caleb: Page 672: "No, no, it was just - it was just pepper spray right away." Page 700: "When I saw that gun I went down like this and that's all I saw and if I did not do that I wouldn't be, I wouldn't be here today." Page 701: "He did, did he say anything?" "He said nothing. He started shooting." Of course later in the interview Caleb is picking glass shards out of his scalp. And of course, there is the video. Caleb's window is CLEARLY up, and the official report clearly notes at p. 26: "The passenger side widow was in the fully up position but the glass was in fragments." In fact the Court can clearly see Caleb's window up at 19:15:37 as the Tahoe ramming starts, and see that both of Liko's hands are in the air in a classic "Stop it, panic" gesture and Caleb's window is still clearly up as they roll out of view at 19:16:32.
P. 494/588: Further inspection of the door area discovered that the window was all the way up
when it had been broken. The New Hampshire public has a right-to-know and see this information that contradicts the Official Report. If the window is closed Floyd and Liko certainly were not having much of a conversation.
It gets worse. Here is p. 42 of the Official Report:
"Floyd was unarmed at the time he witnessed Liko Kenney shoot Cpl. McKay and then strike Cpl. McKay with his vehicle." No he wasn't. What Defendant Ayotte said is entirely inconsistent with the contents of her own investigative files. Plaintiff explains, using Caleb at p. 682-687 and Gregory W. Floyd's own son at 91-A pdf page 745 as quoted elsewhere in this Motion. Caleb noted at p.682 “I saw him pick it up from his hand” (saw Floyd pick up McKay’s gun from his hand) and at p. 684 “He had picked up the gun, aimed it and Liko went like that….” KingCast submits that Floyd did more than aim it, he shot it, and that is the windshield bullet that the Official Report declines to address. Once Liko knew someone was shooting at him gosh only knows WHAT went through his mind in the last seconds before his death. A reasonable citizen of this State could find that Floyd took a bad situation and made it worse. See bullet hole in crime scene photo, Attachment___. “That guy I thought pretty much had the gun pointed at us before we even got on the road." RSA 91-A file p. 687
Then there is the matter of the Grafton Dispatch narrative at pp 382 and 391: “One bald man standing over officer with gun,” and “Bald-headed man with a pistol standing over the officer.”
That certainly is consistent with what Caleb said because it is likely that the witnesses saw this after Liko shot McKay and before they got pulled back and out from next to the gigantic front-loader that McKay has pushed them back next to with the 5,500lb Tahoe. Please see the McKay tyre tracks Attachment__ Again, given Floyd Jr’s comment that .: "They had stopped in front of his arm the first time. They didn't actually hit the officer…….. it is entirely probable that Floyd had gathered himself over McKay with his gun in hand, in direct contravention to what Defendant Ayotte claims at p. 42 of her Official Report. Defendant Ayotte cannot get away from that material inconsistency and that is all the more reason why the entire files have to be hosted online. d) The representation that Liko Kenney murdered Bruce Mckay.
This Court and the undersigned litigantare well aware of the statutory and decisional case law on what constitutes murder. Unfortunately for Defendant Ayotte, Liko Kenney’s state of mind, as witnessed by the passenger in his car who allegedly supports the State’s position was as follows: "Just to see the fear in his eyes, how scared, he was, he wanted nothing to do with this and it turned out so bad in both ways," said Caleb Macaulay, who was in the passenger seat when Liko Kenney's shot Cpl. McKay four times and then ran him over Friday night. "He was a great kid, he really was, we were just trying to get home. I've never seen him so scared in his life." The video may be viewed at: http://wbztv.com/local/local_story_134194214.html Clearly Liko Kenney, who telephoned three times for help at 6:05, 6:06 and 6:07, (Official Report p. 27) and who motioned for McKay to meet him at Tamarack (where McKay had no problem often driving by and high-beaming his parent’s house) was not of a mind to shoot McKay – until he got his car rammed back about 50 feet (the undersigned paced the area and that is about how far it was) and then OC Sprayed to the face without any comment or directive. That’s terrifying, and given the entire set of circumstances it belies any sort of claim that Liko murdered Bruce McKay. Manslaughter or excusable homicide is more likely. And frankly now that the undersigned litigant knows Caleb Macualay and the facts of this case and the facts about Bruce McKay over the years he cannot watch this video anymore
because it is too disturbing. Plaintiff has provided this Honorable Court an actual video copy of the events of 2007 with a chain of custody verified inasmuch as it can be after it reached the undersigned litigant at Appendix ____ In addition, there is a reduction and summary, using exact quotes and identifying page numbers, of the events of 11 May 2007 at Appendix ____ http://christopher-king.blogspot.com/2007/07/kingcast-says-hey-kelly-heres-your-hero.html There is a short version of the shooting time itself, at Appendix____ http://christopher-king.blogspot.com/2007/06/kingcast-presents-short-version-of-2007.html The most important thing for this Honorable Court to consider is that Defendant Ayotte intentionally misrepresented the material aspects of this case to the general public as noted in this Boston Globe story and as noted in the email to Attorney X at seen at Appendix____ http://christopher-king.blogspot.com/2007/07/kingcast-presents-res-ipsa-part-one-nh.html Let us keep in mind that in the course of the past several years, according to neighbor Connie McKenzie, as recounted in John Sedgwick’s August, 2007 Boston Magazine feature piece “Collision Course” Bruce McKay would drive his cruiser onto the Kenney property, fully a ¼ mile off the road and in another jurisdiction, to shine his high beams on the cabin in the evening, knowing that Liko was highly emotional and a mental health patient. The undersigned litigant in this Verified Complaint did discuss that with Ms. McKenzie after she telephoned him in May or early June. Attachment____ Let us keep in mind that Liko knew that McKay had scared Tim Stephenson away with the admonition that he would do whatever it takes to get him out of town. This is common knowledge in Franconia, and it is also common knowledge that the Franconia PD is still holding on to a bogus traffic charge that McKay tried to escalate to a Federal Case of sorts. They are doing that because they are trying to avoid liability for McKay’s personal vendettas. Let us further keep in mind that just prior to 11 May 2007 McKay traveled to a hearing in which he had no role whatsoever, and told Liko he was going to get him; this is common knowledge in Franconia. And Let us further keep in mind the use-of-deadly vehicular force guidelines for
Franconia and the use of Pepper spray guidelines reported thusly: "The department's pursuit policy, allows officers to bump a vehicle off the road, but only at low speeds when the officer has been trained and is in a situation that warrants the use of deadly force." Concord Monitor, _________[Attachment___] However Liko Kenney was already off the road when McKay rammed his little Toyota with the 5,500lb Police Tahoe. "The force policy also says officers should allow innocent bystanders to evacuate before using pepper spray and to reconsider if the target subject is emotionally desperate. When McKay sprayed Kenney, Kenney had a passenger in his car who was not under arrest. And McKay knew Kenney had a gun and had reacted emotionally desperate during their 2003 interaction." The policies also warn against using pepper spray on someone who feels trapped because the person may react with violence toward others or kill himself." Appendix___ The record reflects that McKay violated the standards on several counts as he knew Caleb was in the car and did not even once ask him to evacuate, he used pepper spray on someone who is clearly an emotional person who felt trapped because he was pushed 40-50 feet in total from the first “boom smash” as Caleb described it at p. 662: Marshall: "It wasn't like boom smash, he drove up." Caleb: "Well the first one was like a boom smash." e) Other bias noted at the scene:
At pdf page 908 Bruce McKay specifically requested Sgt. Wentworth, who at pdf 353 reveals that he had a good relationship with McKay while identifying Liko Kenney as a “dirtbag.” The mind boggles to contemplate how THAT arrest would have turned out. Next, Gregory Floyd claimed that he wasn’t trying to kill anyone and says that in avoiding “the pump” he was not trying to kill Liko Kenney by shooting him in the heart because he could have put two [bullets] in there as noted at pdf 846….. Yet and still he shot him through the neck and right in the head, when if he was reaching in the window and past Caleb while pushing Caleb back with his arm (as he claimed) then it would have been a simple procedure to shoot Liko in the leg or whatever to disable him. But that’s not what Gregory Floyd had in mind. Gregory Floyd was after all a 3-term Vietnam veteran (in his
own mind, that is) who was going to get himself another kill. Incredibly, at pdf 916 it is revealed that Floyd actually went home with a live round in his pocket. Plaintiff asserts that the message conveyed by this fact -- coupled with the fact that Floyd lied about his PCP conviction by calling it THC (pdf 852) – is that Floyd had carte blanche because he killed a cop-killer. The State does not handcuff him nor does it produce an inventory sheet of his car even though they know that he has previously had bogus registrations on it. See Robert Every search warrant affidavit. And they did conduct an inventory search as noted at pdf 549-550 but somehow didn’t feel the need to note what was in the vehicle. Many wonder if there was a scanner in the car. See Under Seal Affidavits. KingCast asks the Court to consider this in sum: Defendant Ayotte admitted to the undersigned litigant that she never conducted an inventory of Floyd’s truck and that she issued a decision on the merits before the autopsies were even conducted. See Attachment___. Defendant Ayotte’s own investigative files show that she knew McKay specifically requested Sergeant Wentworth referred to Liko Kenney as a “dirtbag” and admitted he was in a positive relationship with Bruce McKay but those facts are of no moment to her for some reason. If you are Liko Kenney (for that matter anyone else) at that moment and Wentworth shows up you can feel the vibe and after your car has been slammed and you’ve caught a face full of mace without directive or comment you’re thinking “Okay, which way are they going to kill me today?” And to compound this situation Connie McKenzie has publicly stated that no one even checked on Liko and that the authorities told her not to check on him. Instead she tried to save McKay’s life while noting that people in the town do not trust McKay and that even she feared him.
On Route 116: On 11 May 2007 one of Liko’s cars was past its grace period for inspection/registration,
so Bruce McKay pulled him over. On information and belief, these two men were not to have any contact unless absolutely necessary. As such, Liko requested another officer, and Bruce McKay, who knew that Liko was a mental health patient from their 2003 encounter, called for another officer but DID NOT inform Liko that he would do so and DID NOT inform Liko why he was pulling him over. He only told Liko that he did not have that option. Over the course of the past several years, McKay would pull his cruiser deep into the
Kenney property to shine his lights on the family house. The neighbor who tried to revive McKay from her lawn said she could “set her clock by it.” Alas, that house is set off from the road approximately a quarter-mile and Liko lived in Easton and not Franconia (where McKay was employed).1 Liko telephoned a family member 3 times but did not reach anyone, so according to Caleb Macaulay he left for Tamarack Tennis Camp, just down the road, which his family owns and where he lived, to get some witnesses. He was not driving fast and was wearing his seatbelt, as he was when he died a few moments later. Please review the taped interview of witness Susan Thompson at Appendix ___ "The grey car was not going fast. I thought [McKay] was trying to get around it [for something else]. He made several movements (her daughter called it a "10-point turn" in her interview) to come nose to nose now facing north.... [McKay] pushed him and kept pushing him down (into the gravel area) dirt flew back the police car pushed him so strongly and just kept pushing and pushing and pushing until the grey car was beyond my view." Significantly, at pdf 908 it is revealed that McKay does not answer his radio for some undisclosed reason -- well before he is shot. At another point someone notes that there was something different or unusual about his voice that day. The undersigned litigant will locate that passage for Oral Argument. iii. In the McKenzie cut-away lot. Caleb and Liko petitioned Gregory W. Floyd to stay around as witnesses and Caleb said that he thought he had made eye contact but Floyd did nothing at the time. Pdf page____ As we know, McKay then used his Tahoe, a 5,550lb tool of deadly force, to bash Liko’s little Toyota back. Please see the side view and rear view pictures showing part of the ruts from McKay spinning his tyres as he pushed the young men back out of view near the front-end loader. Careful viewing reveals Liko with both hands raised to his head, palms out in a gesture commonly recognized as being scared and confused. When being questioned Caleb Macaulay makes it clear that it was a substantial slam for a vehicular registration issue at p. 662 “BOOM SMASH” as noted. Next McKay alighted from his vehicle and without saying a single word or issuing any command or directive, emptied a can of OC Spray into Liko’s face and front passenger compartment. Liko’s head does not move the entire time and he appears to be in shock.
Of course jurisdictional vagaries had little impact on Bruce McKay who never met a jurisdiction he didn’t like. Lisbon Chief Tavernier told him to quit policing his jurisdiction and for him to quit listening to their frequency.
What happens next is crucial because even the official report indicates at pp 6-7 that McKay cleared leather – i.e. drew his gun – before he crossed the street. That begs the question of whether McKay had walked off stage and immediately went for his gun. He was an avid photographer and well aware of his camera, and he was not shot in the back, but rather on his side as documented by numerous witnesses. “The officer had his gun out of his holster and was holding it in his right hand as he crossed the road.” That is what the official report says so it must be true. Meanwhile, a reporting officer noted that Liko’s whole face was discoloured because of the sheer amount of pepper spray, a fact that NH AG Kelly Ayotte’s apparently unsigned official report as the autopsy fails to disclose. See RSA 91-A p. 455. Officer Blanchard says "he had a brown complexion all over (emphasis added) his face and part of his neck." Significantly, as noted above, Connie McKenzie – a certified nurse – was directed not to give any medical attention to Liko Kenney, and Sergeant Wentworth that night referred to Liko as a “Dirt Bag” as noted at Pdf p____, which set the tone for this anti-Liko, pro-police faux investigation. *********** This is where the bullet in Liko’s windshield becomes of paramount importance, especially because NH AG Kelly Ayotte’s official report fails to address that bullet in ANY substantive detail, nor does it substantively address the two bullets that Gregory Floyd shot that ended up in a toolbox and through the window of the Mckenzie home as noted at pp. 26-27. It should be noted that Ms. McKenzie, who has telephoned the undersigned litigant, was quoted in an ABC News story that even she was scared of McKay as follows: “People didn't trust Bruce McKay and they didn't like him. Heck I was afraid of him. You know when a police officer gets shot, it's a big deal. I understand that, but I want people to know that we loved that boy Liko. He was our native son. I don't want him to go down as just a cop killer. He was full of life and articulate and funny." Floyd undoubtedly rained the first shot down on Liko’s windshield as the effects of the pepper spray begin to take hold as Liko pulled out of the lot. See bullet holes at Attachment ___. Again, as previously-noted, at that point, according to Gregory P. Floyd, Liko DID NOT
strike the fallen McKay with his car, but rather stopped and backed up, then began driving forward, probably to get to Tamarack WITHOUT running McKay over. Here is EXACTLY what Gregory P. Floyd said at 91-A pdf page 745] "They had stopped in front of his arm the first time. They didn't actually hit the officer. Then they backed up to here and at that time my dad got out and tried to pull him to prevent him from running him over again" [KingCast says wait a minute: Run him over again??? There was absolutely nothing to keep Liko from running McKay over the first time -- but he didn't. Liko was just trying to get out of there.] They backed up to here and the car went rushing forward and my dad shot at the driver and it hit him and made him stop. The front end of the car ended up over the officer's chest." His comments were supported by Caleb Macaulay, as will be noted over the next two pages. In fact, the ONLY person who claimed that Liko ran over McKay before a shot was fired at his car is Gregory W. Floyd, but as far as his credibility, let’s start with his impossible tours of duty in Viet Nam, his criminal background for PCP sales/production (which he calls “THC” in his interview pdf p.____ and his attempted assault of an officer by kneeing him in the groin. Investigative files at pdf____ It should be noted that Floyd told Sam Stephenson that he had done three (3) tours of Vietnam, which is impossible at 49 years of age. Sam Stephenson’s audio interview, and two others, were not provided until the undersigned litigant issued the Ethics Complaint seen at Attachment___.2 And Charles Herbert informed the undersigned litigant that when he was interviewed he felt that the State was unreasonably leading and unfair in its questions to him about Liko Kenney.
Next we come to the shots fired through the Caleb Macaulay’s allegedly open passenger window and the discussion that Floyd claimed to have had with Liko as he "He told the driver to stop. He said to the driver "Stop." Put it down or you're gonna die;" and "Leave it alone you know you want to live." He told the driver whatever came into his mind....
As an aside, in June, 2007 Sam Stephenson, in person, told the undersigned litigant all about McKay hassling his brother Tim Stephenson with all matter of charges on which Tim prevailed, and of course Tim Stephenson sued Mckay after McKay allegedly told him he would do “whatever it takes” to get him out of town, while caressing his service pistol.
With all due respect, that reads like a Fairy Tale because it is: Again, First of all, Floyd likely said nothing before firing the first shot through the windshield, and if he did how would Liko have heard it? Second, that window was closed when Floyd shot through it because we know that even the official report notes that the “passenger side window was in the fully up position but the glass was in fragments.” Official report at p. 26. We also know that the window was clearly up when the car left our view at _____ of the video and we know that Liko did not get any shots off after he shot McKay and there has never been any contention that Liko shot the window from the inside out. This Court may clearly see Caleb's window up at 19:15:37 as the Tahoe ramming starts, you then see both of Liko's hands in the air in a classic panic gesture and Caleb's window is still clearly up as they roll out of view at 19:16:32. Appendix ___. Lastly, we know at p. 684 of the pdf. Files that Caleb Macaulay is picking glass shards off the nape of his neck and scalp so obviously Floyd shot through the window, which entirely compromises his credibility. Caleb was very clear that neither McKay nor Floyd said ANYTHING prior to emptying pepper spray or bullets toward Liko at p. 11 of the Official Report: “The man said nothing before he fired.” Last but definitely not least (and perhaps most significantly, Floyd tells us at p.20 of another of the pdf. Files that he didn’t say a word before shooting. Sgt. West: Greg Floyd: All right, so and did you say anything to, before you fired? No I didn’t.
Only much later in his statement does Floyd claim that he spoke with Liko prior to shooting. That is significant because Caleb noted at p.682 “I saw him pick it up from his hand” (saw Floyd pick up McKay’s gun from his hand) and at p. 684 “He had picked up the gun, aimed it and Liko went like that….”3
Of course the larger issue is that if Floyd picked up McKay’s gun from his hand, then perhaps McKay had it out already or was reaching for it when Liko began shooting. That is entirely possible because as noted elsewhere in this Motion 911 witnesses saw Floyd standing over McKay with a gun in his hands, so he had no time to get over to McKay and unholster that gun in that time span to have it ready and trained on Liko and Caleb before they even crossed the road. So if Liko sees McKay reaching for his gun after the production with the Tahoe and the OC Spray a reasonable argument can be made that he shot in selfdefense and the so-called murder of Bruce McKay becomes justifiable homicide to protect one’s self from a
KingCast submits that Floyd did more than aim it, he shot it, and that is the windshield bullet that the Official Report declines to address. Once Liko knew someone was shooting at him gosh only knows WHAT went through his mind in the last seconds before his death. Floyd took a bad situation and made it worse. “That guy I thought pretty much had the gun pointed at us before we even got on the road." RSA 91-A file p. 687 And lastly, Floyd was still pointing the gun at Caleb long after Caleb had alighted from the car and was known not to be armed or dangerous and this is important because the government has redacted that portion of a relevant document, whereas other WAV files from the same pages were NOT redacted. To quote: “He’s still standing, he has a, has the pistol in his hand pointing it at someone….” Attachment___ Firefighter Stan Sherburn saw it as well, and mentioned Floyd was “running around with a gun” at pdf p. 981. Id. Interestingly, Floyd told Caleb to pick up Liko’s gun, which would have undoubtedly resulted in Floyd shooting Caleb, so he wisely declined to do so as Floyd threatened to “blow his fucking face off.” [citation to record] Caleb said "...and then he's like give me the gun and he kept saying like hand me the gun and I, I kept saying. I'm not gonna touch that gun cause you're gonna shoot me....." and "he had both guns and he was aiming ‘em at me and that's the, pretty much the end and then uh EMTs came....
And we must not forget that there are unexplained bullet holes from McKay's gun and shot by Floyd in the McKenzie window and toolbox, as noted at pp. 26-27 of the Official Report. Floyd claims that he was shooting in the air but in all actuality he was probably shooting around in the fashion of a crazed man and “laughing” and saying “yeah I shot him real good” as Caleb noted. This Court, but more importantly the citizens of the State of New Hampshire who enjoy the Right-to-Know these sorts of things, could find that Floyd’s activities constitute murder or criminal menacing, especially given Floyd’s mysteriously dismissed charges for threatening a
rogue cop. Just ask Mrs. B.
meter reader (not to mention the allegations seen in the Under Seal Affidavits) and then his negotiated plea to avoid jail time after he kneed a police officer in the groin. And what did he say about the police and the meter reader? "If that pussy comes back or if I see him again I'll kill him..... I know you wear vests so I would have put it right between your eyes. I was sitting right on my ruger..... (then to his son) look at the fucking pigs, aren't they big men?" And what did Chief Robert Every say about Floyd that Defendant Ayotte doesn’t want online? "All of us have made mistakes in our lives; in Mr. Floyd's case the behavior extends beyond a mistake; there is a pattern, a pattern of past violence, paranoid behavior and excessive anger. While no one can predict the future, I feel Mr. Floyd is capable of showing up at Lafayette Elementary School or at a neighbor's house with an automatic weapon and that the danger to the public safety far outweighs the minimal intrusion a check of his premises for automatic weapons would represent." In the search, they did not find automatic weapons but they did uncover a small arsenal as noted at Attachment____. Every also discovered that he had unlawful registration of his pickup truck, as it was registered regular and handicapped. By his lightning-fast movements of 5/11 to get ready to shoot Liko – from the front, at the windshield -- it is hard to consider him too disabled, however.
iv. Overview and summation. The preceding paragraphs use the credible, yet hidden statements from the State’s own files to reach a dramatically different conclusion than that reached by NH AG Kelly Ayotte. It is entirely possible that Liko Kenney was just trying to get home and when he heard that bullet rain into the windscreen, he went into panic mode, lost control of his car, struck McKay and started trying to unjam his weapon -- if indeed he ever tried to do that before Floyd shot him. Remember, we cannot exactly trust the word of Mr. Floyd, but we do know that his first story was that he
DID NOT say anything to Liko. Why wouldn’t NH AG Kelly Ayotte take the most contemporaneous version of Floyd’s statement as truth, instead of what he said later when he’s had time to think more about covering his tracks, especially because what he said at first is corroborated by Caleb and the forensic evidence, i.e. an inward bullet hole and the shattered glass of Caleb’s window? Could Floyd’s actions have muddied the waters and possibly constituted murder? Reckless endangerment of Caleb Macaulay? Criminal menacing? Of course it’s possible, but by omitting all of the facts this Motion has just set forth, NH AG Kelly Ayotte neatly avoids addressing that possibility, which is a shame considering not only Floyd’s history with weapons, but his current behaviour which includes “laughing” and saying “I shot him real good,” and at p. 456 he boasts about killing Liko: “I’m fine. That was the 43rd person I’ve killed, I’m fine. Attorney Ayotte admits that she conducted no inquiry into truth or legality or illegality these 43 kills. Attachment__. Said Caleb: "He was laughing and stuff." The guy was very, very it was almost like crazed.... page 697 "and he kept, like, 'Oh I shot him good and stuff like that....'" Floyd is clearly a Man with Issues, and for NH AG Kelly Ayotte to give him a total pass on all possible criminal charges in one day and prior to any autopsies (see Attachment ___) is repulsive to our notions of Fair Play and substantial Justice, particularly in light of the material facts that her official report handily excludes. She didn’t even test Floyd for drugs and he is a convicted PCP dealer.
As such, and as shall be developed in the Law and Argument Section, she must be compelled to place the entire set of media materials online because only offering the public to come in and view them violates the letter and spirit of RSA 91-A. See correspondence with John P. at Atttachment ___.4
It should be noted that the State failed to produce all of the emails between them and John P., because they left out the one from 7 July in which he wrote: Date: Sat, 7 Jul 2007 11:57:01 -0400 From: "John D. **********"
LAW and ARGUMENT
Decisional and Statutory Law on Each Request. A. Bruce McKay's personnel file in all of its component parts, i.e. performance reviews and
annual evaluations/citizen complaints and responses/personnel matters that may reflect on his capacity to perform as a peace officer. This includes psychological examinations, profiles and opinions. New Hampshire NH Right-to-Know experts point out that this law is unsettled in New Hampshire, and therefore Plaintiff provides a proscriptive model that could be used at Appendix ___.
Defendant by and through Selectman Administrative Assistant Sally Small wrote on 3 July 2007: “The documents you are requesting are exempt from disclosure pursuant to RSA 91-A. The documents in Corporal McKay’s files are all personnel related and fall into the category of personnel records. Therefore, the records will not be disclosed to you because of the reasons I have just mentioned.” . The requested documents in this case that Plaintiff wishes to make public are primarily any documents that reflect complaints against McKay, compliments, disciplinary actions (vis a vis the absence thereof), any physical, mental or emotional issues that may affect his ability to To: firstname.lastname@example.org Subject: 5/11 FRANCONIA - RIGHT TO KNOW CC: email@example.com, firstname.lastname@example.org, email@example.com, firstname.lastname@example.org THE BELOW HAS BEEN SENT TO YOUR OFFICE THREE TIMES SINCE JUNE 29th AND AS OF YET I HAVE RECEIVED NO RESPONSE....
The undersigned litigant knows this because John bcc’d him on it, it is in his files already but of course as a matter of Law that in no way obviates NH AG Kelly Ayotte’s duty to provide me a copy of it, and it was simple to find using Microsoft Outlook or ANY contemporary email system by using a simple word search. Now this is key because the law and argument section will address the request for any and all emails bearing the names Liko Kenney or Bruce McKay. If we cannot trust the AG’s to give us the emails between John P. and their office, how can we trust that they will do the right thing with the other emails. Plaintiff will be requesting the data recovery company of his choice to review the hard drives given their abhorrent track record in this instance. The Franconia Collective will also approach for a United States Congressional investigation and International support using this very Motion.
perform the functions of a police officer, and any other acts or concerns that might cast doubt on his ability to successfully function as a police officer. The general trend is toward more, not less disclosure and the particular facts of this case militate in favor of full disclosure, which according to ___ is done on a case-by-case basis. Plaintiff’s analysis begins with the obvious presumption in favor of disclosure of public records from Union Leader v. City of Nashua [citation] “To advance the purposes of the Right-to-Know Law, we construe provisions favoring disclosure broadly and exemptions narrowly. See, e.g., Fenniman, 136 N.H. at 626, 620 A.2d at 1040; Herron v. Northwood, 111 N.H. 324, 326, 282 A.2d 661, 663 (1971). The balancing test in this case between the public’s Right-to-Know and the nature of the requested document or material and its relationship to the basic purpose of the Right-to-Know Law. In this case the purpose of the Right-to-Know law is to determine whether a man paid with taxpayer monies who carriers a gun and who wears a badge was a dangerous instrumentality, and if so, whether the town of Franconia knew about it and what steps they took or failed to take to address it. At the outset, as noted by a Concord Monitor editorial in favor of production of the 2007 video, Bruce McKay is dead, so it becomes difficult to imagine his privacy rights being violated, but Plaintiff does not place reliance on that fact alone. It is far more germane to know, for example, that he allegedly misused a knife with a handcuffed woman in the back of his squad car, and that we have no record of punishment for that. It is far more germane to see that he violated policy on use of force and OC Spray and that even his peers have warned him and notified Chief Montminy of his hostile tendencies. As such, there should be virtually NOTHING in his file that should not be subject to public review excepting medical information about his daughter or things of that nature, which Plaintiff in most assuredly not seeking.
Lastly, when the Union Leader Court held that the requested materials must be produced, the person claiming the privacy interest was a public citizen, unlike Bruce McKay. Bruce McKay was a public police officer, and there is no privacy interest in a police officer’s public performance. Moving on to NH Civil Liberties Union v. City of Manchester [citation] the court granted access to photographs of private citizens who were photographed by police but not arrested. We find a tripartite test employed in that case that when applied to this case will prompt a similar result in release of the materials.
First, we evaluate whether there is a privacy interest at stake that would be invaded by disclosure. Nashua, 141 N.H. at 477. If there is not, the Right-to-Know Law mandates disclosure. Id. Again, it is questionable whether Bruce McKay’s privacy interest still obtains, but Plaintiff will not of course rest his hat on that theory. Next, we assess the public’s interest in disclosure. Id. at 476-77. While an individual’s motives in seeking disclosure are irrelevant, in the privacy context, disclosure of the requested information should serve the purpose of informing the public about the conduct and activities of their government. Id. at 477. The stated purpose in this case is clearly consonant with that objective, again primarily to determine whether a man paid with taxpayer monies who carriers a gun and who wears a badge was a dangerous instrumentality, and if so, whether the town of Franconia knew about it and what steps they took or failed to take to address it. Finally, we balance the public interest in disclosure against the government interest in nondisclosure and the individual’s privacy interest in nondisclosure. Id. at 476. "When the exemption is claimed on the ground that disclosure would constitute an invasion of privacy, we examine the nature of the requested document . . . and its relationship to the basic purpose of the Right-to-Know Law." Id. The party resisting disclosure bears a heavy burden to shift the balance toward nondisclosure. N.H. Housing Fin. Auth., 142 N.H. at 554. In this case the balancing contest clearly favors disclosure. Plaintiff is not seeking to publish any intimate detail of Bruce McKay’s personal life unless it implicates some element of criminality or substantially aberrant behavior. As such, the entire file must be available for inspection, whether be he alive or not.
The documents that they have produced fall well short of that, and the Defendant did not initially offer Plaintiff a Vaughan index. See correspondence file at Attachment____. The simple fact is, media is entitled to full access subject to reasonable restrictions on publication. In fact, That is far different than having the government tell us "you can come down here and pick up what we decide to give you," which is the sort of approach contemplated by a Vaughn index. But in a case like this, given the history of serious allegations and complaints of misconduct, the media should be entitled to more than that. Turning to State v. Theodosopoulos [citation], we find New Hampshire Courts moving
toward greater, rather than less, disclosure. While the issue not directly on point some of the movement in this case may inform the Court’s judgment. In Theodosopoulos the Court was addressing the availability of a police officer’s file in a case where the officer is a material witness. The Defendant in that case had been involved in an automobile collision with an officer and sought “all information, documentation or disciplinary memoranda which would serve as exculpatory evidence either where the information relates to (Officer) Defina’s credibility or his use of police vehicles.” The Attorney General’s office lost a Supreme Court challenge over a Hooksett Court ruling that compelled production of a police officer’s personnel file. The Supreme Court held that the lower Court did not err in providing substantial portions of the file instead of using an incamera inspection because the Defendant is entitled to ALL exculpatory evidence, and that’s what was requested. In this case, Plaintiff is analogously moving for exculpatory evidence for Liko Kenney, who repeatedly voiced his concerns that he was scared of Bruce McKay as were many other people in the community. The public has a Right-to-Know anything and everything that is in McKay’s file that in any way implicates lack of fitness. In essence, the exculpatory file in this case goes beyond the set of things that concern operation of a motor vehicle and extends to the set of things that govern the operation of his badge. It should be noted that in Ohio, Federal Judge George C. Smith, himself a former City Prosecutor, issued a ruling in Kallstrom v. City of Columbus II [citation] that addressed the media seeking files including home addresses, summaries of investigations of officers' backgrounds, reports of any assaults in which the officers were involved, reports of any motor vehicle accident in which the officer and an official city vehicle were involved, any disciplinary charges, and answers to personal history questions. His Honor held that "The full disclosure of these personnel files is necessary to enable the press to do its job.” Nowadays disclosure is AUTOMATIC under its Sunshine Act, because as Mentor Union President Tim Baker said: "All of my members are good cops, so we have no problem opening up the Sunshine Law and letting it shine in." --- and Wickliffe's Chief James Fox said "But when you sign up for this job, in a position of public trust, that's part of the deal," Fox said, "You must accept the fact that your work-related life is a matter of public record." KingCast submits that the residents of the Live Free or Die State should have no less protection
against the government than those of the fine State like Ohio. The potentially adverse law of Manns v. City of Charleston[citation] is readily distinguished because that request was overly broad as it requested “all information,” rather than “all records,” as noted in the concurring opinion of Judge Starcher. Appendix__. Similarly, should Defendant raise ACLU v. Whitman [citation] this Court should grant them no quarter because again, the Plaintiff’s request was overly broad because his position was that there was NEVER any protection under a privacy exception. While Plaintiff’s action might have been successful in Ohio or Florida, this Court need not address that issue here because the sought remedy provides protections by having the State identify the documents it TRULY believes are exempt and then visiting the issue to the Court. This way a Plaintiff has the ability to make arguments to the court after having actually viewed the documents in question and knowing what is contained therein and how such information might be relevant to this case. B. Plaintiff seeks Declaratory Judgment that the 150+ responses that have or will be sent to
the Franconia Selectmen are public records and that the failure to allow inspection and delivery to Plaintiff would stand in violation of the letter and spirit of RSA 91-A. See Brian D. Lamy v. NH PUCO [citation]. This is a simple matter. In Lamy the Plaintiff successfully sought copies of complaints against a public utility company, complete with names and addresses. Plaintiff in this instance seeks only the substance of the complaints and has granted express authority for redactions. As such KingCast is entitled to immediate production and Declaratory Judgment. See correspondence file between Plaintiff and Town of Franconia at Attachment___.
Plaintiff seeks Declaratory Judgment that Franconia Chief Montminy's initial response to Plaintiff served Defendant Montminy an RSA 91-A request on 2 July that identified
KingCast on the Fox Hill "suspicious" issue violated the letter and spirit of RSA 91-A. McKay’s admonition to Liko Kenney that “you are in a suspicious place at a suspicious time” and asked for a copy of any and all police reports that show Fox Hill to be a nucleus of suspicious activity. This Motion will be filed on or about 30 August 2007 and Defendant has provided no documentation, which is not in and of itself a violation, but Defendant Montminy’s response does constitute such a violation, as this was the totality of his response on 3 July 2007:
Dear Mr. King; “I am in receipt of your request for records concerning Fox Hill Park for the past 10 years and/or longer. This will take some time and will involve overtime cost to have an officer research this request. If you would like to proceed with this, please let me know if you are willing to cover the expenses.” Thank you, Chief Mark Montminy There is no timeframe whatsoever and there is an explicit threat to charge overtime. Both of these raise red flags because the law reads, in pertinent part: If a public body is unable to make a record immediately available for inspection, it has five business days to either: (a) make the record available; (b) deny the request in writing, giving the reasons; (c) give written acknowledgment of the request and a statement of the time needed to grant or deny the request. In point of fact there was no compliance with the Rule until counsel for Defendant responded on 11 July, claiming that if Plaintiff had paid for overtime the documents could be expedited. Whatever the case, it has now been 7 or 8 weeks and still nothing except for the Court records that Plaintiff HIMSELF obtained from Judge Cyr finding Constitutional violations as noted at the outset of this Motion. As such, Defendant has violated the letter and spirit of RSA 91-A and Declaratory Judgment must issue. D. Plaintiff seeks Declaratory Judgment that the missing use-of-force report and police
report from 2003 constitute a Right-to-Know violation. This is a non-delegable duty and there is no excuse for a document of this magnitude not to be maintained. Counsel for Defendant informed Plaintiff on 8 August that he basically had no idea where the documents were and that is a complete and utter violation of RSA 91-A and Declaratory Judgment must issue. E. Plaintiff seeks Declaratory Judgment that a police officer's failure to state his or her
name, badge number and jurisdiction on request (excepting truly exigent circumstances) violates RSA 91-A. Curiously, McKay claims that he told Liko Kenney his name as noted at pdf file page____. However Liko is heard asking his name and continues to address him as “this or that officer” after more law enforcement personnel appear so it would seem that McKay never did identify himself to Liko, McKay never did tell Liko his name, but he DID say Approx 20:55:00 "Get back in your fucking car," says McKay..... "Maybe you need to go back to school......" "You're in a suspicious place at a suspicious time.” ********
As such, Plaintiff respectfully asks that this Court find that it is a violation of RSA 91-A for an officer not to provide his or her 1. Name 2. Badge Number 3. Jurisdiction When asked by a suspect or anyone unless truly exigent circumstances would make it impractical.
Plaintiff seeks Declaratory Judgment that the Defendant Ayotte is required to post the rest
of its investigative files online because of the substantial and material conflicts it presents that are not represented in its official file. As noted in Section II, Attorney Ayotte actually represented to Attorney X, with the initials H.B. that The witness statements were all consistent in describing Mr. Floyd's actions (including the passenger of Mr. Kenney's car). That is a blatant falsity. As Appendix __ shows, there are materially-conflicting statements about whether Liko struck McKay with the Toyota before Floyd shot at him. Floyd’s son and Caleb both say that he did not, but Floyd, who claimed that PCP was the same as THC and that he did three (3) tours of Vietnam (he’s 49 years of age) also claimed that Liko hit McKay twice but that that “tough son of a bitch got back up.” He also said he had killed 43 people and the AG’s office has known of his violent propensities yet admitted that they have no documentation that this claim was either valid, or that these kills were in any way conducted pursuant to official government business. Nor did they even conduct an inventory of Floyd’s vehicle. As to Liko running over McKay, his own son said something entirely different:
"They had stopped in front of his arm the first time. They didn't actually hit the officer. Then they backed up to here and at that time my dad got out…. They backed up to here and the car went rushing forward and my dad shot at the driver and it hit him and made him stop. The front end of the car ended up over the officer's chest." That proves that, contrary to the position of the State, Floyd did not say anything to Liko before he shot the windshield. Remember however that the State does not even reference the windshield bullet that may have caused Liko to panic and try to reload his gun, run over McKay or try to engage in any matter of life-protective activities as he tried to drive home, 800 feet away, with a face full of OC Spray.
Pp. 867-868 of the PDF file. Q: "Now I just want to clarify were you actually touching the passenger?" A: "Yah... I was trying to stretch my hand in there and make sure [Caleb] stayed back." Q: "So you actually put the gun inside the window I mean is the window open? A: "Oh yah the window was open." Page 20/1,000: "Did you say anything before you fired?" "No, I didn't" Page 11 of official report: " The man said nothing before he fired." Caleb, Page 700: "When I saw that gun I went down like this and that's all I saw and if I did not do that I wouldn't be, I wouldn't be here today." Caleb, Page 701: "He did, did he say anything?" "He said nothing. He started shooting." Of course later in the interview Caleb is picking glass shards out of his scalp. That proves that Floyd did not have any conversation with Liko about putting a gun down before Floyd rained down shots to the interior of Liko’s car. Why the misrepresentation? Lastly, remember that Attorney Ayotte’s email to Attorney X also notes that Gregory Floyd had no idea whether Bruce McKay was dead or alive, which may have bearing on whether he could or should have used deadly force instead of retreating. Only allowing someone to come to the office to review such files after placing the conflicting report online violates the letter and spirit of RSA 91-A. See generally Hawkins v. NH DHHS, which held that "cost is not a factor in determining whether the information is a public record." Also that trial court correctly ruled that HHS was not required to create a new document. However, to the extent that the plaintiff requests the Medicaid claims compiled in their original form, we remand for further proceedings. The investigative files are not a new document. They exist already and it costs virtually nothing to put them online with the selected materials that the State has put on line. The undersigned litigant has placed them online for free an it took all of 8 minutes to do once he knew where to host it. Also, there is no argument of privilege because that has been waived by
producing the summary, pursuant to Unincorporated Operating Div. of Ind. Newspapers, Inc. v. Trustees of Indiana University, 787 N.E.2d 893 (Ind. App. 4 Cir. 2003). In that case, Attorneys for the school, functioning as Trustees, conducted an investigation of basketball coach Bobby Knight. They subsequently issued a report, but it was a summary that did not contain all of the investigative files. The Court held that the files must be produced and that any attorney privilege was void under the principles of waiver because they produced the summary. The same result obtains herein, and particularly because there is no ongoing investigation and because even if there was a privilege Plaintiff as a resident of New Hampshire is the client and he and virtually anyone who lives in Franconia waives privilege even if it existed. G. Plaintiff seeks Declaratory Judgment that Defendant Ayotte’s failure to provide the email
chain and correspondence between her office and Attorney X violates RSA 91-A. Plaintiff requested the full chain initially on ___, and Defendant stated that she was not aware of the identity of Attorney X. Plaintiff noted in a letter sent on ___ that she should obviously know who Attorney X is, and that it was indeed H.B., but to date no response has issued. Declaratory Judgment for Plaintiff must obtain. H. Plaintiff seeks Declaratory Judgment that Defendant Ayotte’s failure to provide a 7 July
2007 email from John P., addressing substantive Right-to-Know issues, violates RSA 91-A. This complaint is verified and Plaintiff asserts that his letter to Defendant is clear that Defendant failed to provide this damaging email, which Mr. P. sent directly to the undersigned litigant. Delaratory Judgment for Plaintiff must obtain. I. Plaintiff seeks Declaratory Judgment that the failure to provide copies of any and all
correspondence with elected officials violates RSA 91-A. Defendant Ayotte said she will take 3045 days to decide if the State will provide the correspondence between any elected officials and the AG's office regarding this tragedy. Plaintiff notified the State that we would be in Court well before such time period elapsed and Defendant then offered to produce correspondence between any PAST elected officials when Plaintiff requested any correspondence with past and PRESENT elected officials. Declaratory Judgment for Plaintiff must obtain. J. Plaintiff seeks Declaratory Judgment that the emails to and from the AG's office containing
the names "Liko Kenney" or "Bruce McKay" be provided (1) under the principles of waiver and
(2) because the case is closed and (3) because the Attorney-Client privilege is between NH AG Ayotte and KingCast, or any other citizen of the State of New Hampshire. As such, KingCast waives privilege and wants the emails. And the New Hampshire School Boards Association has stated that government should: "Treat all electronic communications as potentially subject to RSA 91-A. Do not put anything in an e-mail you would not want to read in the paper." Attachment__ Another State agency has noted that “Sending an email is not happenstance and therefore may be considered public information.” Attachment___ Moreover, The Attorney General’s own publication on Right-to-Know at Section III C “Access to information stored on computers” leaves this issue up to the Court, while noting that Hawkins dicta supports disclosure: In dicta, the Court states that RSA 91-A does require that public records be maintained in a manner that makes them available to the public and cost is not prohibitive in this instance. See generally Hawkins, v. NH DHHS,147 N.H. at 379. And of course at Fn. 9, the AG’s office notes that even work papers are not automatically exempt from disclosure because the Court is charged with balancing the competing interests between disclosure and nondisclosure. Goode v. New Hampshire Office of the Legislative Budget Assistant, 148 N.H. 551 (2002). In sum, RSA 91-A provides that if the state has the documents it shall provide them immediately unless they are "unable." If a public body or agency is unable to make a public record available for immediate inspection and copying, it shall, within 5 business days of request, make such record available, deny the request in writing with reasons, or furnish written acknowledgment of the receipt of the request and a statement of the time reasonably necessary to determine whether the request shall be granted or denied. The State waiting 30-60 days to tell Plaintiff anything further smacks of dilatory watertreading and Plaintiff is entitled to Declaratory Judgment as a matter of law. UPDATE: Defendant did promise to provide the emails but not in the fashion dictated by law, which requires the opportunity to come in to view the materials without purchasing them. Please see the proposed Joint Stipulation in this regard at Appendix ____. K. Declaratory Judgment that NH AAG Jeffery Strelzin intentionally or recklessly
misrepresented the facts about why various taped interviews were not initially provided, which prompted the Ethics Complaint which immediately liberated them. Here are the facts: Attorney Strelzin, with the implicit support of Attorney Ayotte under respondeat superior and other legal principles of agency, made the affirmative misrepresentation that the reason there were only six
(6) audio CDs is because, "Some interviews were not audio recorded and are memorialized in report form, which is why the number of actual interviews exceeds the number of audio CDs available." Plaintiff responded thusly: Indeed. What or who determined which witnesses were audio recorded? I'll be checking to see whose interviews appear somewhat buried in the 1,000 page report," Plaintiff was fully aware that there were more audiotaped interviews because of his news network in Franconia. Once we received the new recordings we were able to hear Sam Stephenson tell the investigators that Gregory Floyd told him that he did 3 tours of Vietnam, which destroys Floyd’s credibility. Plaintiff had already interviewed Sam Stephenson and knew the State was not being honest about the presence of his taped recording. Similarly, Plaintiff knows Chuck Herbert and knows that he believes the State’s questioning was unfair and unduly leading against Liko Kenney. As such, Declaratory Judgment must issue that the State willfully or incompetently misrepresented the Truth to Plaintiff, thus violating the letter and spirit of RSA 91-A. L. Defendant Ayotte’s response to the 11 August 2007 query from the undersigned litigant is
incomplete. Plaintiff wrote: Please identify by bates stamp or any other reasonable identifying system, each and every document from my media kit that you obtained AFTER 22 May, 2007 when I requested that you provide a copy of the 2007 cruiser video. This is a lawful request pursuant to Hawkins v. NHDHHS [citation] because it does not require Defendant Ayotte to compile data into a format specifically requested by a person seeking information under the statute. No, instead it simply asks when the State obtained that data that it already has provided. Defendant instructed Plaintiff to check the documents for that but not each document is clearly noted and the government has an affirmative duty to inform the public of when it receives its documents. M. Defendant Ayotte charges $10.00 per each audiotaped CD while offering absolutely no
explanation for such price to the public, as noted by John P. in his RSA 91-A correspondence. Plaintiff seeks Declaratory Judgment that the price of the taped interviews, at $10.00 per copy, is excessive and violates the letter and spirit of RSA 91-A because it costs virtually nothing to burn
a copy of a CD/DVD with existing State resources and bulk CDs cost about $.50 a piece. As such, the Court should compel $9.00 per CD refunds to any and all media who paid the $10.00 cost of admission to this Vaudeville act. N. Plaintiff seeks Declaratory Judgment that the failure of Defendant Montminy to issue a
response to the Complaint of Ms. B constitutes a violation of RSA 91-A. O. Plaintiff seeks Declaratory Judgment that the failure of Defendant Montminy to issue a
response to the Complaint of Ms. B constitutes a violation of RSA 91-A. P. Plaintiff and Franconia resident Jeffery Jesseman both seek a response to his letters to
Franconia selectmen, as noted by Mr. Jesseman's Affidavit at Attachment___. Q. Plaintiff notes that there is muffled sound in the 2007 video as Bruce McKay drives
South on Route 116 and there are other sound problems and sporadic sound throughout the video. Through his experience with audio-visual media Plaintiff knows that when you can hear anything you can bump up the levels to hear everything. Plaintiff also knows that in the 2003 video in the middle of winter one can hear everything just perfectly fine. As such, Plaintiff requests that the government provide the original VHS dash tape for immediate inspection to be conducted by a duly licensed, professional, bonded Information Technology or audiovisual expert of Plaintiff’s choice. It is the ultimate Right-to-Know and to hear every possible thing that may be heard through sound enhancement and to know that the tape exists in its original form without any alterations, particularly in light of the lies and deceptions already noted in this case.
Public Policy Arguments. Appendix___ Plaintiff is aware that police personnel are expected to testify in another proceeding in a manner supportive of Plaintiff’s position in this case that the government was aware of a dangerous instrumentality in Bruce McKay yet negligently hired, retained and supervised him. There has been, and will continue to be substantial media coverage of this tragic event from several angles or perspectives. Just yesterday Plaintiff ran into the 20/20 crew, with whom he has spoken on prior occasion. They were setting up directly in front of Tamarack Tennis Camp and looking for Caleb Macaulay.
There is a feature story in the August issue of Boston Magazine. There is a letter from a life-long resident who wrote an editorial to the Franconia Selectmen that was published in the Littleton Courier and a follow-up letter that notes he has received no response to his first letter. The Concord Monitor demanded the cruiser video and on 15 August published the fact that a woman called Bruce McKay a “terrorist” after he brandished a knife near her pelvic area during a “routine traffic stop.” See Concord Monitor stories and see affidavit of Ms. B, as taken by the undersigned litigant at Attachment___. There are now two more affidavits with regard to Bruce McKay’s actions concerning another complaint that received no response but which allegedly resulted in disciplinary action. There are 150+ responses from the Franconia Recovery and Reconciliation Committee whose spokesperson has actually gone on record in the Concord Monitor as stating that she does not believe it is important to review Bruce McKay’s background or personnel files. There is a Concord Monitor Editorial of 17 August 2007 “McKay file sheds light on why officer died.” The level of public interest in this case mirrors the substantial nature of the underlying issues involving Constitutional Freedoms and Right-to-Know Law. It is incumbent of this Honorable Court to bring life to these concerns by issuing appropriate decisions in this case involving intersection of RSA 91-A and the First Amendment Right to seek redress and to publicly petition our government. According to the New Hampshire Attorney General's own website:
In 1976, the people of New Hampshire amended Part 1, article 8 of our Constitution, reinforcing the existence of a right of access to public meetings and records, by adding the following two sentences: Government, therefore, should be open, accessible, accountable and responsive. To that end, the public's right of access to governmental proceedings and records shall not be unreasonably restricted. Finally every person interested in government should understand the ease with which they may go to the Superior Court to seek enforcement of their rights under the Right-to-Know Law. This guide and the copy of RSA Chapter 91-A provided in the Appendix offers a firm foundation of understanding for this fundamental aspect of New Hampshire's democracy. My Office will continue to promote the public's understanding of the Right-toKnow Law and compliance with the Right-to-Know Law by public officials. Very truly yours.......
Noted Civil Rights Attorney Terry H. Gilbert said of Plaintiff: "There are few more
noble causes that a lawyer can pursue.....lawyers must be on the frontline of that struggle to give meaning and dimension to the First Amendment to generate ideas regardless of their implications. To silence opposition seems to be the modus operandi of the state in order to consolidate its power over its citizens, particularly after 9/11...... I know Christopher King embodies the spirit of those who came before us who have sacrificed greatly for this cause. He has experienced all kinds of injustice in his young career, and his message needs illuminated to people as example of what can happen for speaking out in today's society, even as a lawyer."
Liko Kenney has suffered for exercising his First and Fourth Amendment Rights. Plaintiff has suffered for exercising his First Amendment Rights, and many citizens of Franconia suffered for falling into the path of Bruce McKay, and that is why we are here today: The blood of Liko Kenney and Bruce McKay may wash over the souls of the Franconia Selectmen and NH AG Kelly Ayotte but this Court has the option to help us move forward to a new and brighter day.
Model policy “Defendant shall be ordered to provide a copy of Bruce McKay's entire personnel file for
review and inspection by KingCast and any and all other members of the media. Plaintiff will identify the documents he wants to reproduce to the general public. If there are documents that Defendant believes are actually protected by privacy concerns they will mark such documents and the parties will visit the matter on the Court, which will maintain jurisdiction. Should Plaintiff in the interim (or subsequently if the Court sustains the objection) post any information that came exclusively from those sequestered documents, it shall be criminal contempt of the Court. The documents need not leave custody of counsel for the State, and any medical issues pertaining to family members that are linked only by way of genetics, or that clearly have no relation to the officer’s ability to function shall not be sought for publication.”
VI. 1. 2. 3.
Conclusion and Prayer for Relief. Plaintiff seeks Declaratory Judgment on each and every claim from A-Q.. Plaintiff seeks Injunctive Relief ordering that Defendants respond to all outstanding requests for information, including the complaints from Ms. B. and Citizen__. Plaintiff seeks a full measure of compensatory damages for the cost of filing and materials and cost of his time as a law clerk at a reasonable hourly rate and for materials and filing fees. Plaintiff seeks a reasonable assessment of punitive damages for Defendants’ willful initial arrogance and continued and pointed intransigence. Plaintiff seeks a public apology from Franconia Defendants for their dereliction of duty. Plaintiff seeks a public apology from NH AG Kelly Ayotte for her dereliction of duty. Plaintiff seeks any and all other relief as this Court may deem appropriate, and asks the Court to assume continuing jurisdiction until all issues are completely resolved. Plaintiff has continually apprised Defendants of his intentions in this matter and has
4. 5. 6. 7.
provided courtesy copies of this Motion in its current and last iterations so there is no surprise or confusion regarding these issues. This case involves one of the most compelling issues of our Time: A double homicide involving a young man who would “give you the shirt off his back” according to Caleb Macaulay (pdf ___) and two men twice his age and of questionable virtue: a police officer with a documented history of malfeasance and a PCP convict who threatened a meter reader with death (a criminal threat case mysteriously dismissed when Bruce McKay might have been the prosecutor) who lied about his actions and who laughed and said “I shot him real good.” Both men did other heinous things as enumerated in the Under Seal Affidavits and quite frankly people in Franconia and the Easton Valley are terrified of Gregory Floyd but have received no help from their government. As such, Plaintiff hereby requests an expedited docket and hearing schedule as the public trust hangs in the balance. Respectfully submitted, _________________________ Christopher King, J.D. Plaintiff pro se
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