Kenney v. Floyd
700 F.3d 604
1st Cir.2012Background
- May 2007 Franconia, NH, two deaths: Liko Kenney shot Officer McKay after a traffic stop; Floyd witnesses and later shoots to protect others.
- Kenney’s father sues under 42 U.S.C. § 1983 against Officer McKay, Franconia town, and officials, plus Floyd.
- District court granted summary judgment for town/officers based on NH AG report deeming McKay’s force reasonable and Floyd justified.
- Plaintiff opposed with affidavits from Nickels, Whipple, and King; district court found them inadmissible hearsay.
- On appeal, plaintiff challenges evidentiary handling and Rule 59(e) denial; court reviews de novo for summary judgment.
- Court affirms summary judgment for defendants; no Fourth Amendment violation established; no municipal or supervisory liability established.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether summary judgment was proper on Fourth Amendment claims | Kenney argues evidence shows unconstitutional stop/force | Defendants contend no genuine issue; AG report supported reasonableness | Yes; no constitutional violation shown; summary judgment affirmed. |
| Admissibility of Nickels affidavit and hearsay statements | Nickels affidavits contain Macaulay statements; probative value claimed | Hearsay; not admissible under Rule 56(c)(4) | Hearsay excluded; could not defeat summary judgment. |
| Impact of alleged res gestae/present sense impressions | Macauley's statements should be res gestae admissible | Statements not admissible res gestae; too remote in time | Inadmissible; did not affect outcome. |
| Reasonableness of Officer McKay’s use of pepper spray and pursuit | Use of force excessive or not reasonable under totality | Use of pepper spray reasonable given evading suspect; pursuit allowed | Use of force reasonable; no Fourth Amendment violation. |
| Municipal and supervisory liability | City and supervisors liable for failure to act | No underlying constitutional violation by McKay; no liability | No municipal or supervisory liability; judgment affirmed. |
Key Cases Cited
- Graham v. Connor, 490 U.S. 386 (1989) (reasonableness of force from objective perspective)
- Scott v. Harris, 550 U.S. 372 (2007) (high-speed pursuit reasonable as needed to stop threat)
- Dávila v. Corporación De Puerto Rico Para La Difusión Pública, 498 F.3d 9 (1st Cir. 2007) (hearsay cannot defeat summary judgment)
- Garside v. Osco Drug, Inc., 895 F.2d 46 (1st Cir. 1990) (hearsay and admissibility standards for affidavits)
- Hannon v. Beard, 645 F.3d 45 (1st Cir. 2011) (hearsay rule and admissible evidence on summary judgment)
- S.E.C. v. Ficken, 546 F.3d 45 (1st Cir. 2008) (evidentiary standards for admissible evidence)
- Haley v. City of Boston, 657 F.3d 39 (1st Cir. 2011) (municipal/supervisory liability require underlying violation)
- Seekamp v. Michaud, 109 F.3d 802 (1st Cir. 1997) (supervisory liability standards)
- United States v. De Jesús-Viera, 655 F.3d 52 (1st Cir. 2011) (Fourth Amendment stops and reasonable suspicion analyzed)
- United States v. Chaney, 584 F.3d 20 (1st Cir. 2009) (reasonable suspicion standard for initial stop)
- United States v. Chaney, 647 F.3d 401 (1st Cir. 2011) (reaffirmation of stop/stop-continue decision doctrine)
- United States v. Wright, 582 F.3d 199 (1st Cir. 2009) (context on reasonable use of force)