Kenney v. Floyd , 700 F.3d 604 ( 2012 )

United States Court of Appeals
For the First Circuit
No. 12-1631
DAVID T. KENNEY, Executor of the Estate of Liko Peter Kenney,
Plaintiff, Appellant,
v.
GREGORY WILLIS FLOYD; MARK R. MONTMINY, in his individual and
official capacities as Police Chief of Franconia, NH; MARK
TAYLOR, in his individual and official capacities as Police
Sergeant of Franconia, NH; NORMAN BRUCE MCKAY, in his official
capacity as Police Corporal of Franconia, NH, posthumously;
FRANCONIA, NEW HAMPSHIRE BOARD OF SELECTMEN,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Paul J. Barbadoro, U.S. District Judge]
Before
Lynch, Chief Judge,
Boudin, Circuit Judge,
and Woodlock, District Judge.*
Harold Burbank on brief for appellant.
Daniel J. Mullen and Ransmeier & Spellman P.C. on brief for
appellees.
November 30, 2012
*
of the District of Massachusetts, sitting by designation.
LYNCH, Chief Judge. In May of 2007, there were two
shooting deaths, one of a civilian, Liko Kenney, and one of a
police officer, Bruce McKay, following traffic stops in Franconia,
New Hampshire. Kenney shot Officer McKay four times and ran over
him twice with his car. Thereafter, a witness to the shooting,
Gregory Floyd, approached Kenney and asked him to drop his weapon.
When Kenney refused, Floyd shot and killed Kenney, fearing that
Kenney might shoot Floyd or his son, who had gone to McKay's
assistance.
In this civil rights action, under 42 U.S.C. § 1983,
David T. Kenney,1 the civilian victim's father and the executor of
his son's estate, sued Officer McKay, the town of Franconia, and
its police officials, as well as Floyd. Plaintiff appeals from a
district court order granting the town and police defendants'
motion for summary judgment as to all federal claims. Estate of
Kenney v. Floyd, 10-CV-181-PB, 2012 WL 642810 (D.N.H. Feb. 28,
2012). We affirm.
I.
On May 11, 2007, Franconia Police Corporal Bruce McKay
stopped a car driven by Liko Kenney, in which Caleb Macaulay was a
passenger, for having an expired vehicle registration. Kenney had
1
For clarity, we will refer to Liko Kenney as "Kenney" and to
David Kenney as "plaintiff."
-2-
been detained by Officer McKay once before on January 26, 2003.2
Plaintiff alleges that as a result of hard feelings after this 2003
incident, Kenney asked Officer McKay to call another police officer
to the scene of the May 2007 stop. When McKay allegedly denied his
request, Kenney drove off, without McKay's permission, towards a
nearby building owned by his family.
Officer McKay quickly went back to his cruiser to pursue
Kenney and accelerated past Kenney's car. Officer McKay then
turned his SUV-cruiser so that it faced and blocked Kenney's car.
Officer McKay then used his car to push Kenney's vehicle off to the
side of the road, successfully moving it into a driveway. McKay
got out of his cruiser and went to Kenney's stopped car and pepper
sprayed both Kenney and Macaulay. 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. Defendant Gregory Floyd and his son witnessed the shooting
and left their own vehicle to assist Officer McKay. Floyd picked
up McKay's service revolver and, in an apparent effort to protect
himself, his son, and Officer McKay, shot and killed Kenney.
The federal court complaint asserted that Officer McKay
violated Kenney's Fourth Amendment rights by seizing him without
probable cause and by employing excessive force during the second
2
While the original complaint covered both the 2003 and 2007
events, the claims about the 2003 events were dismissed on statute
of limitations grounds and that dismissal was not appealed.
-3-
stop. 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.
On November 15, 2011, defendants moved for summary
judgment, arguing that the undisputed material facts established
that no deprivation of Kenney's constitutional rights had occurred.
Defendants' motion for summary judgment was based on and supported
by a report from the Attorney General of New Hampshire concerning
the deaths and the incident. The report summarized and assessed,
inter alia, eye-witness accounts of the incident, video and audio
recordings from Officer McKay's vehicle and from Franconia police
dispatch, and forensic evidence collected at the scene. It
concluded on the basis of this material that Officer McKay had
reasonably used non-deadly physical force on Kenney, N.H. Rev.
Stat. Ann. § 627:5, I, that Kenney had unlawfully used deadly force
on Officer McKay, id. § 627:4, II, and that Gregory Floyd had acted
justifiably. Plaintiff did not object to consideration of the
report as evidence.
In opposition, plaintiff, on December 19, 2011, submitted
three affidavits. None of these affidavits were from witnesses to
the May 2007 traffic stops. 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
-4-
Officer McKay; and (3) Christopher King, a journalist who covered
New Hampshire civil rights cases. Each affidavit was replete with
hearsay statements that others had purportedly made to affiants.
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. First, as to the
justification for the initial traffic stop, plaintiff failed to
provide any evidence that Kenney's vehicle registration had not
expired or that Officer McKay had no basis for a stop. See N.H.
Rev. Stat. Ann. § 261:40 (making it unlawful to drive with an
expired registration). Second, Officer McKay's use of non-deadly
force thereafter was reasonable in light of Kenney's decision to
flee from the initial traffic stop. The only evidence offered to
the contrary were statements by Caleb Macaulay, Kenney's passenger,
contained in the affidavit of Tom Nickels. The district court held
that these statements, as recounted in the Nickels affidavit, were
inadmissible hearsay, and so incapable of defeating a motion for
summary judgment. See, e.g., Dávila v. Corporación De Puerto Rico
Para La Difusión Pública, 498 F.3d 9, 17 (1st Cir. 2007); Garside
v. Osco Drug, Inc., 895 F.2d 46, 50 (1st Cir. 1990). The district
court also ruled that the claims for supervisory and municipal
liability necessarily failed, as both required plaintiff to show a
constitutional violation by Officer McKay. See, e.g., Haley v.
-5-
City of Boston, 657 F.3d 39, 51 (1st Cir. 2011); Seekamp v.
Michaud, 109 F.3d 802, 808 (1st Cir. 1997).
On March 27, 2012, plaintiff moved for reconsideration,
relying again on the contents of the three affidavits and
mentioning Fed. R. Civ. P. 59(e). On April 19, 2012, the district
court denied plaintiff's motion, explaining that:
[M]uch of the material that the plaintiff
relied on in opposition to the [defendants']
motion [for summary judgment] was not in a
form that would be admissible in evidence.
When I considered only the materials of
evidentiary quality, they were not sufficient
to withstand the defendants' summary judgment
challenge. The supplemental motion [for
reconsideration] presents no new evidence, and
argument, no matter how forcefully presented,
cannot substitute for evidence.
This timely appeal ensued.
II.
Summary judgment is appropriate where "there is no
genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law." Fed. R. Civ. P. 56(a). On
appeal, plaintiff argues that the district court committed error in
not considering portions of its evidence and in not allowing its
Fed. R. Civ. P. 59(e) motion. Defendants reply that, as to each
element of plaintiff's burden of proof, plaintiff's purported
"facts" are either immaterial or violate the evidentiary standards
for summary judgment.
-6-
We review the district court's grant of summary judgment
de novo, Ayala-Sepúlveda v. Municipality of San Germán, 671 F.3d
24, 30 (1st Cir. 2012), drawing all reasonable inferences in the
nonmovant's favor, Lockridge v. The Univ. Of Me. Sys., 597 F.3d
464, 468 (1st Cir. 2010). "As to issues on which the summary
judgment target bears the ultimate burden of proof, she cannot rely
on an absence of competent evidence, but must affirmatively point
to specific facts that demonstrate the existence of an authentic
dispute." McCarthy v. Nw. Airlines, Inc., 56 F.3d 313, 315 (1st
Cir. 1995).
Under the Fourth Amendment, the initial traffic stop must
have been supported by a reasonable suspicion that a traffic
violation occurred. 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). Reasonable suspicion is less than probable cause
and more than a hunch. United States v. De Jesús-Viera, 655 F.3d
52, 58 (1st Cir. 2011) cert. denied, 132 S. Ct. 1045 (2012); United
States v. Wright, 582 F.3d 199, 205 (1st Cir. 2009). It was
undisputed that the radio transmissions from Officer McKay's
cruiser establish that he called in to report a stop of Kenney,
acknowledged that Kenney had a passenger, and stated that the basis
for the stop was Kenney's expired vehicle registration. McKay also
asked for another police unit to respond to the scene. That unit
acknowledged the request for back up and started to respond.
-7-
Additionally, the Attorney General's report stated that the
registration on Kenney's car had expired.
Plaintiff failed to offer any evidence of a
constitutional violation as to the initial stop. As the district
court pointed out, plaintiff bore the burden of showing a violation
and neither argued nor provided evidence that Kenney's vehicle
registration was current at the time of the stop. Estate of
Kenney, 2012 WL 642810, at *2. It is also noteworthy that such
evidence, if it existed, would easily be available to plaintiff.
Nothing in the affidavits even purported to contradict this.
Plaintiff's evidence concerning Officer McKay's decision
to follow the fleeing Kenney and to conduct the second stop was
also deficient. Although there were numerous fact witnesses to the
second stop and the shootings, plaintiff did not submit affidavits
from any of them. Instead, plaintiff submitted the Nickels
affidavit, which contained statements made by Caleb Macaulay,
Kenney's passenger, to Nickels during a June 2007 interview. There
are a number of reasons why this evidence was insufficient to show
a violation of Kenney's Fourth Amendment rights.
Since the focus of plaintiff's appeal is on evidentiary
points, we start there. As the trial court properly concluded,
Macaulay's statements constitute inadmissible hearsay as they were
offered for the truth of their assertions. Fed. R. Civ. P.
56(c)(4) plainly requires that affidavits used to oppose a motion
-8-
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. v. Ficken, 546 F.3d 45, 53 (1st Cir.
2008); Garside, 895 F.2d at 50.
Plaintiff gets no traction from his argument that
Macaulay's statements fall within the common law exception to the
hearsay rule for "res gestae." Categories of evidence that were
once excepted as "res gestae" are now incorporated in either the
definition of hearsay itself, Fed. R. Evid. 801, or the defined
exceptions to the hearsay rule, Fed. R. Evid. 803-804. See 30C
Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 7043 (2d ed. 1987). 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. 803(1). 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).
Independently, Caleb Macaulay's inadmissible statements
were also immaterial to whether Officer McKay's use of force during
-9-
the second stop was unlawful. "To establish a Fourth Amendment
violation based on excessive force, a plaintiff must show that the
defendant officer employed force that was unreasonable under the
circumstances." Jennings v. Jones, 499 F.3d 2, 11 (1st Cir. 2007).
Courts assess the reasonableness of a particular use of force "from
the perspective of a reasonable officer on the scene, rather than
with the 20/20 vision of hindsight," and must account "for the fact
that police officers are often forced to make split-second
judgments -- in circumstances that are tense, uncertain, and
rapidly evolving -- about the amount of force that is necessary in
a particular situation." Graham v. Connor, 490 U.S. 386, 396-97
(1989).
The second stop ensued after Kenney unlawfully fled from
the initial stop. See, e.g., N.H. Rev. Stat. Ann. § 265:4, I(c)
(making it unlawful to fail to stop a vehicle when signaled by an
officer); id. § 642:2 (making it unlawful to interfere with an
officer attempting to effect an arrest or detention). Officer
McKay was not required to give up the chase after Kenney fled, see
Scott v. Harris, 550 U.S. 372, 385 (2007), and was entitled to
employ "some degree of physical coercion . . . to effect [the
second stop]," Graham, 490 U.S. at 396. Faced with an
uncooperative motorist, who posed a continued risk of flight,
Officer McKay's decisions to push Kenney's vehicle out of the
roadway and then, once Kenney's car was stopped, to pepper spray
-10-
Kenney, were reasonable under these circumstances. Officer McKay
nudged Kenney's vehicle away from an active two-lane highway, which
enhanced his own safety and reduced the likelihood of continued
flight or injury to others on the roadway. Plaintiff did not
proffer any evidence that the force Officer McKay exerted on
Kenney's car threatened the safety of Kenney or his passenger.
Estate of Kenney, 2012 WL 642810, at *4.
As to McKay's use of pepper spray, the district court
explained that, "[u]nlike in cases where the use of pepper spray
was held to constitute excessive force, Kenney was not a peaceful,
compliant, and secured suspect who could pose no threat to the
officer seeking to detain him." Id. Relying on the Eleventh
Circuit's opinion in Vinyard v. Wilson, 311 F.3d 1340 (11th Cir.
2002), which noted that "[c]ourts have consistently concluded that
using pepper spray is reasonable . . . where the plaintiff was
either resisting arrest or refusing police requests," id. at 1348,
the district court concluded that Officer McKay's use of pepper
spray here was reasonable. 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.
Caleb Macaulay's statements in the Nickels affidavit,
even if they were presented in an admissible form, would not alter
our analysis. Whether Officer McKay stared at Kenney as they
-11-
passed has nothing to do with anything. And whether McKay, after
the second stop, rushed to Kenney's car and doused Kenney with
pepper spray does not come close to rendering McKay's use of force
unreasonable.
Much of plaintiff's evidence is an immaterial attempt to
show bad blood between Officer McKay and Kenney, in support of an
argument that the initial stop was motivated by McKay's bad faith.
For similar reasons, even if they were admissible, plaintiff's
attempts--disputed by defendants--to tarnish McKay's competence as
a police officer are not material. These efforts miscomprehend the
Fourth Amendment issues, which turn on the facts and objective
reasonableness, not on questions of underlying motive. The Supreme
Court made clear in Graham that "[a]n officer's evil intentions
will not make a Fourth Amendment violation out of an objectively
reasonable use of force." 490 U.S. at 397. We do not remotely
suggest that the evidence even shows such evil intentions.3
Since plaintiff's case against Officer McKay fails and
there was no municipal policy at issue, the claims against the town
and McKay's supervisors also fail. See Haley, 657 F.3d at 51(municipal liability); Seekamp, 109 F.3d at 808 (supervisory
liability). The Rule 59(e) motion was too little and too late.
3
The 2003 incident, amply described in the Attorney General's
report, was not relevant to the objective reasonableness of the
2007 events on which the Section 1983 claims in this case rest.
-12-
III.
We affirm the grant of summary judgment. Costs are
awarded to defendants.
-13-