Motion for Liko 3.0

8/14/2019 Motion for Liko 3.0

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IN THE SUPERIOR COURT

GRAFTON COUNTY, NEW HAMPSHIRE

EQUITY DIVISION

KINGCAST.NET, )

BY AND THROUGH

CHRISTOPHER KING, J.D. ) CASE NO.____________________ 15 Beasom StreetNashua, New Hampshire 03064 ) JUDGE:______________________603.438.8017m

)Plaintiff,

) ORAL ARGUMENT REQUESTED

v.)

NH ATTORNEY GENERAL

KELLY AYOTTE ) EXPEDITED DOCKET REQUESTED

33 Capitol Street

Concord, NH 03301 )

and )

TOWN OF FRANCONIA, )

P.O. Box 900Franconia, New Hampshire 03580 )

and )

FRANCONIA POLICE CHIEF )

MARK MONTMINY,

P.O. Box 900 )Franconia, New Hampshire 03580In his official and individual capacity, )

Defendants. )

MOTION FOR DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF

Now comes Plaintiffpro 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.

Plaintiffpro se


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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 Courts 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

McKays 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.

Plaintiffhas been a New Hampshire resident since 2002 who operates a law-related blog,

or "blawg" and a video podcast site calledKingCast.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 sneeknpeek 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.
http://kingcast.net/http://kingcast.net/http://kingcast.net/


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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 Plaintiffs 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.


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III. RELEVANT FACTS AND BACKGROUND

A. The Unconstitutional Fox Hill Park Arrests of 2003 and Public Comment

on Bruce McKays demeanor.

In December 2002 and January of 2003 there were a series of Unconstitutional arrests at

the trailhead of Franconias 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 suspects

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 Kenneys 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 ones olfactory senses would

indicate on close up, whereas Mr. Kenney was not:

He was merely resting in his mothers car, and that is why the possession charges againsthim 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


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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 aper 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 wasnt 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 Generals 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 ___


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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. AttachmentId.

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 youharassing 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 backto 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 aroundfor no reason." [comports with Judge Cyrs ruling].

21:05:46 - "I was sitting in my car resting before driving home and now you've done this to mefor no reason." [comports with Judge Cyrs ruling].

21:11:20"You're resisting arrest." "I'm resisting torture. You punched me in the face you hurt myinjured neck you hurt both of my arms you hurt both of my legs all because I asked you aquestion." "You grabbed my testicles, correct?" "I grabbed your testicles, hell no."[McKaylaughs, does not say 'yes you did.']" "You threw me to the ground and put your testicles in myface you fucking faggot."

21:15:00 - "Why am I in handcuffs?" "[Officer Cox or Ball] Because you resisted arrest." "Whywas I being arrested, why?" "[Officer Cox or Ball] I don't understand what the original offensewas." "That's because there is no original offense." [comports with Judge Cyrs ruling].

21:15:30 - "He punched me in the face and you and him both saw him punch me in the face and


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you both are saying he didn't. I'm being beat up IN HANDCUFFS by 3 adult armed men who allhave 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 Ayottes 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. Thats 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.


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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. Floyds actions (including the passenger in Mr. Kenneys car).

They are not. To wit:

a) Floyd as having spoken with Liko or Caleb, as claimed in the curiously

unsignedyetofficial reportat 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 undersigneds 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 thats not what Caleb said:
http://christopher-king.blogspot.com/2007/07/kingcast-question-of-day-why-didnt-nh.htmlhttp://doj.nh.gov/publications/nreleases/062507.htmlhttp://christopher-king.blogspot.com/2007/07/kingcast-question-of-day-why-didnt-nh.htmlhttp://doj.nh.gov/publications/nreleases/062507.html


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Marshall: Was your window rolled down?

Caleb: No, my window was shattered, Sir.

Marshall: He shot through the window?

Caleb: Shot through the window.

But let's address the statementsfrom Floyd himselfand 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 Likos 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 Ayottes

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:
http://aycu14.webshots.com/image20333/2005155485334663643_rs.jpghttp://img404.imageshack.us/img404/9723/caleb4rd1.jpghttp://aycu14.webshots.com/image20333/2005155485334663643_rs.jpghttp://img404.imageshack.us/img404/9723/caleb4rd1.jpg


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[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.

b) 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


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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.

c) 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 McKays

gun from his hand) and at p. 684 He had picked up the gun, aimed it and Liko went like

that.KingCastsubmits 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.
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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 Jrs 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 Kenneys state of mind, as

witnessed by the passenger in his car who allegedly supports the States 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'venever 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 parents house) was notof 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. Thats 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
http://wbztv.com/local/local_story_134194214.htmlhttp://wbztv.com/local/local_story_134194214.html


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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 Sedgwicks August, 2007 Boston Magazine feature piece

Collision Course Bruce McKay would drive his cruiser onto the Kenney property,fully a

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 aredoing that because they are trying to avoid liability for McKays 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
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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___]

HoweverLiko 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 beforeusing pepper spray and to reconsider if the target subject is emotionally desperate. WhenMcKay 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 their2003 interaction."

The policies also warn against using pepper spray on someone who feels trappedbecause 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 wasnt 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 thats not

what Gregory Floyd had in mind. Gregory Floyd was after all a 3-term Vietnam veteran (in his


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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 didnt 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 Floyds truck and that she issued a

decision on the merits before the autopsies were even conducted. See Attachment___.

Defendant Ayottes 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 youve caught a face full of mace without

directive or comment youre 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

McKays life while noting that people in the town do not trust McKay and that even she feared

him.

ii. On Route 116:

On 11 May 2007 one of Likos 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


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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 Likos 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 Likos face and front passenger

compartment. Likos head does not move the entire time and he appears to be in shock.

1Of course jurisdictional vagaries had little impact on Bruce McKay who never met a jurisdiction he didntlike. Lisbon Chief Tavernier told him to quit policing his jurisdiction and for him to quit listening to theirfrequency.


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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 Likos whole face was discoloured because of the sheer

amount of pepper spray, a fact that NH AG Kelly Ayottes 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 Likos windshield becomes of paramount importance,

especially because NH AG Kelly Ayottes 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 Likos 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


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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 twopages. 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, lets 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 Stephensons 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 Macaulays 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....

2 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 TimStephenson sued Mckay after McKay allegedly told him he would do whatever it takes to get him out oftown, while caressing his service pistol.


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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 didnt say a word before shooting.

Sgt. West: All right, so and did you say anything to, before you fired?

Greg Floyd: No I didnt.

Only much laterin 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 McKays gun from his hand) and at p. 684 He had picked up the gun, aimed it

and Liko went like that.3

3Of course the larger issue is that if Floyd picked up McKays gun from his hand, then perhaps McKay hadit out already or was reaching for it when Liko began shooting. That is entirely possible because as notedelsewhere in this Motion 911 witnesses saw Floyd standing over McKay with a gun in his hands, so he hadno time to get over to McKay and unholster that gun in that time span to have it ready and trained on Likoand Caleb before they even crossed the road. So if Liko sees McKay reaching for his gun after theproduction with the Tahoe and the OC Spray a reasonable argument can be made that he shot in self-defense and the so-called murder of Bruce McKay becomes justifiable homicide to protect ones self from a


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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 afterCaleb 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:

Hes 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 Likos 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 Floyds activities constitute murder or

criminal menacing, especially given Floyds mysteriously dismissed charges for threatening a

rogue cop. Just ask Mrs. B.


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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 doesnt 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 States 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


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DID NOT say anything to Liko.

Why wouldnt NH AG Kelly Ayotte take the most contemporaneous version of Floyds

statement as truth, instead of what he said later when hes 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 Calebs window?

Could Floyds actions have muddied the waters and possibly constituted murder?

Reckless endangerment of Caleb Macaulay? Criminal menacing? Of course its 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 Floyds 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: Im fine. That was the 43rd person Ive killed, Im 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 didnt 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 JohnP. at Atttachment ___.4

4It 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. **********"


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IV. 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 expertspoint outthat 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 McKays 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: [email protected]

Subject: 5/11 FRANCONIA - RIGHT TO KNOW

CC: [email protected], [email protected], [email protected],

[email protected]

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 bccd him on it, it is in his files already but of course as amatter of Law that in no way obviates NH AG Kelly Ayottes duty to provide me a copy of it, and it was simple to findusing 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 bearingthe names Liko Kenney or Bruce McKay. If we cannot trust the AGs to give us the emails between John P. and theiroffice, 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 theirabhorrent track record in this instance. The Franconia Collective will also approach for a United States Congressionalinvestigation and International support using this very Motion.
http://www.righttoknownh.org/Documents/NHMA/NHMA%20When%20to%20Release%20Police%20Files.pdfhttp://www.righttoknownh.org/Documents/NHMA/NHMA%20When%20to%20Release%20Police%20Files.pdfhttp://www.righttoknownh.org/Documents/NHMA/NHMA%20When%20to%20Release%20Police%20Files.pdf


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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.

Plaintiffs 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 publics 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 officers 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.


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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 McKays privacy interest still obtains, but Plaintiff

will not of course rest his hat on that theory.

Next, we assess the publics interest in disclosure. Id. at 476-77. While an individuals

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 individuals 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

McKays 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


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toward greater, rather than less, disclosure. While the issue not directly on point some of the

movement in this case may inform the Courts judgment. In Theodosopoulos the Court was

addressing the availability of a police officers 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) Definas credibility or his

use of police vehicles.

The Attorney Generals office lost a Supreme Court challenge over a Hooksett Court

ruling that compelled production of a police officers personnel file. The Supreme Court held that

the lower Court did not err in providing substantial portions of the file instead of using an in-

camera inspection because the Defendant is entitled to ALL exculpatory evidence, and thats 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

McKays 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 ofhis 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 itsSunshine 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
http://www.zwire.com/site/printerFriendly.cfm?brd=1698&dept_id=21849&newsid=14895237http://www.zwire.com/site/printerFriendly.cfm?brd=1698&dept_id=21849&newsid=14895237http://www.zwire.com/site/printerFriendly.cfm?brd=1698&dept_id=21849&newsid=14895237


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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 Plaintiffs request was overly broad because his position was

that there was NEVER any protection under a privacy exception.

While Plaintiffs 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___.

C. Plaintiff seeks Declaratory Judgment that Franconia Chief Montminy's initial response to

KingCast on the Fox Hill "suspicious" issue violated the letter and spirit of RSA 91-A.

Plaintiff served Defendant Montminy an RSA 91-A request on 2 July that identified

McKays 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 Montminys response does

constitute such a violation, as this was the totality of his response on 3 July 2007:


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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 on11 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 toschool......" "You're in a suspicious place at a suspicious time.

********


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As such, Plaintiff respectfully asks that this Court find that it is a violation of RSA 91-A for anofficer not to provide his or her

1. Name2. Badge Number

3. Jurisdiction

When asked by a suspect or anyone unless truly exigent circumstances would make it impractical.

F. 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. Floyds

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 (hes 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 AGs 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 Floyds

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.


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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 Likos car. Why the misrepresentation?

Lastly, remember that Attorney Ayottes 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
http://aycu14.webshots.com/image20333/2005155485334663643_rs.jpghttp://img404.imageshack.us/img404/9723/caleb4rd1.jpghttp://www.nh.gov/judiciary/supreme/opinions/2001/hawki220.htmhttp://www.nh.gov/judiciary/supreme/opinions/2001/hawki220.htmhttp://aycu14.webshots.com/image20333/2005155485334663643_rs.jpghttp://img404.imageshack.us/img404/9723/caleb4rd1.jpghttp://www.nh.gov/judiciary/supreme/opinions/2001/hawki220.htmhttp://www.nh.gov/judiciary/supreme/opinions/2001/hawki220.htm


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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 Ayottes 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 Ayottes 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 30-

45 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
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(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 Generals 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 AGs 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 water-

treading 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 underrespondeat superiorand other legal

principles of agency, made the affirmative misrepresentation that the reason there were only six
http://nhdcyf.info/rsa/91-a.htmlhttp://christopher-king.blogspot.com/2007/06/kingcast-presents-update-on-rsa-91_1694.htmlhttp://christopher-king.blogspot.com/2007/06/kingcast-presents-update-on-rsa-91_1694.htmlhttp://christopher-king.blogspot.com/2007/06/kingcast-files-ethics-complaint-against.htmlhttp://christopher-king.blogspot.com/2007/07/nh-ag-kelly-ayotte-produces-three-3.htmlhttp://nhdcyf.info/rsa/91-a.htmlhttp://christopher-king.blogspot.com/2007/06/kingcast-presents-update-on-rsa-91_1694.htmlhttp://christopher-king.blogspot.com/2007/06/kingcast-presents-update-on-rsa-91_1694.htmlhttp://christopher-king.blogspot.com/2007/06/kingcast-files-ethics-complaint-against.htmlhttp://christopher-king.blogspot.com/2007/07/nh-ag-kelly-ayotte-produces-three-3.html


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(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 Floyds 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 States 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 Ayottes 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


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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 Plaintiffs

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 Plaintiffs 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.


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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 McKays 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 McKays 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 govern