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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NE\V HAMPSHIRE

ESTATE OF LlKO KENNEY PLAINTIFF

CASE NO. 20 I O-CV -00 18I-PB

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TO\,VN OF FRANCONIA BOARD OF SELECTlv1EN, E1 AL

DEFENDANTS

DECEMBER 13,2011

AFFIDAVIT OF Il\VESTIGATOR TOM NICKELS IN SUPPORT OF PLAINTIFF'S OPPOSITIOJ\ TO DEFENDANTS' MOTION FOR SlMMARY JUDGEMENT
Torn :Nickds, being duly sworn deposes: 1. I am a New Hampshire licensed professional private investigator hired by the plaintiff 10 do background research and investigatory interviews of witnesses in this matter. 2. On Friday. September 7, 2007, I interviewed Carl I Belz at his Franconia. New Hampshire home. This was my second interview of Mr. Belz. Mr. Belz is a highly educated man and forrnc-l art director of Brandeis University. About 10 years before the interview Mr. 13elz retired to his Franconia home. Mr. Belz was serving his fourth term as a Franconia selectman and chair ofrhat Board when I interviewed him (first elected in March. 2003). Mr. Belz understood that the purpose of my interview was to know his understanding of certain events concerning Liko Kenney, defendant Bruce McKay, or both of them, and Franconia personnel procedures, and Franconia personnel policy changes to be enacted due to the deaths of Kenney and McKay. I reviewed several cases concerning either Kenney, McKay, or both, with Mr. Belz as fo110\V5 for his comments. 3. 1 asked Selectboard Chairman Belz about the May 11, 2007 shootings and deaths of Liko Kenney and Bruce McKay. Mr. Belz said the deaths weighed on him heavily. I was under the impression that Mr. Belz felt somewhat responsible for the deaths. Belz said that upon receipt of citizen complaints against McKay, he refened them to defendant Montminy, who Belz assumed would resolve them, and get Corporal McKay "under control". Belz said that it was obvious to him that that did not happen and that Franconia selectmen should have assumed the duty to investigate complaints against McKay themselves. Belz said that if Franconia selectmen had made follow through investigations into the complaints it is possible that the Kenney-McKay tragedy could have been avoided. Belz said that it was pretty obvious that McKay was an "out of control" police officer, and that Franconia police had been allowed to polke themselves. Belz

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then said, "Who polices the police?" 4. 1 asked !\kBelz about the Profile School case reported to Franconia Board of Selectmen and Franconia Police Department. Profile School is located in Bethlehem, New Hampshire, outside Franconia Police Department jurisdiction. Mr. Belz said he heard about the incident from a complaint filed against Franconia Police Department. Mr. Belz said defendant McKay \vent to the school to enforce an arrest warrant. While there McKay maced some students and "almost caused a catastrophe". Belz said the school administrators were outraged and filed a complaint 'with Franconia Police Department. 1 asked Mr. Belz about McKay's May, 2006 stop of a minor female high school student, living with Franconia relatives, for driving with a legitimate Florida driver's license. The license was not in the driver' possession at the stop, so McKay and his partner, Officer Chris Fowler, followed the minor female to her home and ordered her to produce the license. Officer Fowler entered the home without permission of the owner or the minor female, followed her to her bedroom, and searched the minor's room for her Florida driver's license, which \vas produced. Mr. Belz said that the home o\\<ner, the mino{ s Aunt, filed a complaint directly with Belz about this case, but that defendant Montminy addresses the complaint. 6. I asked Belz about numerous complaints tiled by Lisbon, New Hampshire police chief Tavernier to defendant Montminy concerning defendant McKay's speeding in Lisbon, his out of jurisdiction policing of Lisbon drivers in Lisbon, and his monitoring of Lisbon's mutual aid radio frequency on duty, where Travernier finally demanded that Montminy order that the mutual aid radio be removed from McKay's cruiser. Belz said he knew about the case, but expected defendant Montminy to resolve the matter: a decision Belz said he regretted. 7. Belz described to me a meeting between a local merchant and Belz concerning McKay's harassment of the merchant's teen daughter and other youth congregating at the Franconia skating rink. Belz said this complaint caused him to consider scheduling a meeting between the youth and Franconia police to discuss a compromise regarding youth needing a place to congregate. 8. I showed Belz a copy ofa letter dated May 15,2006 signed by Lincoln, Ne\\ Hampshire Attorney Troy Watts on Watts' office letterhead certified mailed to defendant McKay and copied to defendant Montminy where Watt's said that McKay committed unethical and unprotessional withdrawal and breach of McKay's plea agreement with Watts where McKay withdrew the agreement on the record at the court causing the client to suiTer a greater penalty. \Vatts' letter also alleged that McKay's acts made Franconia liable for civil damages to Watts. Belz asked me for another copy of the letter, since he had not seen it and did not have a copy. Belz seemed in total disbelief and said, "1 cannot believe this was not brought to my attention".

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9. According to Franconia Personnel Procedures effective at the interview of Chairman Belz and before and during the shootings of Kenney and McKay, the Franconia selectmen were to conduct yearly interviews and performance reviews of the Franconia chief of police. Belz told me that he and his selectmen ignored this requirement for Franconia Police Department, but they did conduct performance evaluations of other Franconia departments and personnel. including transfer station, highway department, town offices and buildings & grounds. Belz said that in retrospect he wished that he and other selectmen had followed through with Franconia perfonnance evaluations and procedures which were effective beginning 2005. Bel? said that had the selectmen interviewed and evaluated the Franconia police chiefs performance regarding the many complaints filed by Franconia citizens against defendant McKay. perhaps the deaths of Liko Kenney and Bruce McKay. could have been avoided. 10. Belz told me that as a result of the shootings, and defendant McKay's actions over the years. and related terror and fear among Franconia residents and those in towns surrounding Franconia stemming from events involving defendant McKay, Franconia selectmen agreed to conduct future annual reviews of the Franconia Police Department and to examine as a board all complaints made against Franconia Police Department Belz said it was too late to avoid the deaths of Kenney and McKay, but the selectboard intended to work to make Franconia citizens feel safe in and out oftheir homes again and to improve Franconia life. 11. Belz told me that as a result of the deaths of Kenney and McKay, the Franconia selectboard was considering creating a police commission. Belz said that because Franconia is so small, the selectboard will now be available to hear all complaints citizens file against the police once a month with the police chief attending. Belz concluded by saying, "This is my watch and I have to fix what is broken." 12. On September 7, 2007 I interviewed Matthew Chemicki, Easton Road, Easton, New Hampshire, who lives about one mile from Liko Kenney's parents' home. Mr. Chemicki said that Liko was one of his best friends and that he spent considerable time with Liko. tv1r. Chernicki said that he was studying for his bachelors degree in criminal justice and would like to become a lawyer. He said that he had completed his associates degree in the field and served in the Marine Corps. He said that Liko loved life and that everyone who knew Liko well knew that. Chemicki said that Liko just wanted to be left alone and to enjoy his life. Chernicki said that Liko believed in the US Constitution and carried The Bill of Rights in his pocket routinely. Chernicki said that Liko did not want 10 harm anyone and did not express a desire to harm defendant McKay. Chernicki said that Liko was always attempting to avoid McKay, but that McKay "had other ideas". Chernicki said that Liko felt by McKay each time Liko drove home down Easton Road, and that "everyone" in the area seems to agree that McKay "had it ouC for Liko. Chernicki said that it was rumored that defendant McKay wanted to challenge McKay to show Liko "who was boss", as McKay was known to put it. Chernicki said that he thinks Liko' s state of mind on May 11, 2007 was that Liko was trying to protect his rights against violations by defendant McKay.

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13. On September 1, 2007 I was instructed by the plaintiff s attorney Mark SistL now off the case, to interview three Franconia selectmen regarding information Sisti received that during 2004-05 selectmen were deciding whether to terminate defendant McKay's employment on poor performance grounds. Sisti told me that the selectmen considered using budget cut to end McKay's employment, but the reasons for ending employment were McKay's lack of credibility and poor demeanor with the public, and citizen complaints thereof. This process took into account Sergeant Mark Taylor's written complaint to defendant Montminy that defendant McKay was untit to be a police officer. 14. Pursuant to paragraph 13 above. on Saturday, September I. 2007, I tried to interview Dr. David Ramesh, Profile Road. Franconia, New Hampshire. Dr. Ramesh had been a Franconia selectman for two years. He was known to be a selectman who voted not to terminate defendant McKay's employment. Dr. Ramesh made this decision because he was told that without a personnel policy in place for its police department, Franconia could be sued by defendant McKay. Dr. Ramesh was not at home and could not be interviewed. 15. On Tuesday, June 19,2007 I interviewed Caleb Macaulay, Franconia, New Hampshire. Mr. Macaulay was Liko Kenney's passenger during the May 1 L 2007 shootings. Macaulay had moved in with Liko Kenney and his parents in 2007. Macaulay said that in 2003 defendant McKay had sexually assaulted and Liko Kenney and beaten Kenney unconscious; an event witnessed by on duty Littleton, New Hampshire policemen. On May 11. 2007, Kenney passed McKay's cruiser while driving home from work. Macaulay said that he saw McKay stare at Kenney as they passed (McKay was driving in the opposite direction), immediately put on his cruiser lights. Kenney then asked Macaulay if McKay was in the cruiser and Macaulay said ycs. Kenney then slowed to 35 mph, 5 mph below the 40 mph speed limit. Macaulay said Kenney then pulled into a rainbow-shaped turn around area, Kenney thinking that he might need to exit the area if McKay became abusive. Macaulay said he say McKay exit his cruiser and approach Kenney's stopped car. McKay asked for Kenney's license and registration. Macaulay said Kenney was thinking about McKay's 2003 attack on Kenney, so Kenney asked McKay three times to call for another officer. McKay refused. Macaulay said Kenney put his car in first gear and drove slowly tmev-ard his home just down the street, since Liko was feeling very unsafe. Macaulay said Kenney intended to drive to Tamarack Tennis Camp owned by his family a tew feet from the stop, so he would feel safe while dealing with McKay. Kenney's speed was 35 mph. McKay passed Kenney very fast, made a K turn in the middle of the road, and drove up to and stopped Kenney's car head on in front of the McKenzie farm house. There was a barn and front loader across the street. Macaulay said Kenney backed up his car so it faced the farm. McKay followed, parking his SUV in front of Kenney. Macaulay said Kenney then turned his car off and was putting on the parking brake. Macaulay said as Kenney applied that brake, McKay caused his SUV to ram Kenney's Toyota Supra very hard from the front twice. Macaulay said it was a "horrendous experience", like nothing he had experienced before. Macaulay said the impacts were so hard that though he had his seat belt on. was toss('d violently on and about the seat. Macaulay said that on the second hit from McKay. McKay's

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SUY climbed halfway up onto the hood of the Toyota Supra. Macaulay said during this attack Kenney was waving his hands at McKay, and yelling at McKay to end the attack. Macaulay said that he then saw McKay shake his head "no" as McKay rammed the car again, trying 10 push it into the bucket of the large loader, parked behind the Supra. Macaulay said !v1cKay then exited the SUY, rushed to the Supra, and heavily doused first Kenney, and then Macaulay with OC spray. Macaulay said he then thought he saw McKay reaching for his fireann. Macaulay said he then ducked under the dash and heard shooting, but could not tell who was shooting. Macaulay said when the shooting stopped, he looked up and sa\v McKay walking away directly in front of Kenney's car. Macaulay said he was pretty sure that McKay had pulled his weapon before the shooting began because the object in McKay's hand was not shiny. Macaulay said that Kenney could not see due to heavy mace in Kenney's eyes. Kenney put the car into gear. It ended up in grass next to an embankment. Macaulay said hc saw defendant Floyd run to McKay and grab McKay's revolver from McKay's hand. Macaulay said Floyd fired many shots, so tv1acaulay ducked as before, but felt air turbulence over his back as bullets passed. When firing ceased he saw that Kenney had been killed. Macaulay said he had never been in more fear. He said he opened the car door and fell to the ground. He looked up and saw defendant Floyd standing over him holding McKay's gun. Macaulay said Floyd told Macaulay to pick up Kenney's gun. Macaulay said he began to cry. Macaulay said Floyd then bragged that he shot Kenney, bragged that Floyd had killed 19 people before Kenney and that Kenney made 20 killed, and that Floyd could escape prosecution because he was on medication. 16. I am willing to make these statements in a court of law. I have made them of my free "vill without compensation or being under duress of any kind. 17. I acknowledge that I have read this affidavit, certify that I know its contents, and that its statements are true and correct.

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Tom ).Jickels, Investigator, Affiant State of New Hampshire County of Merrimack Subscribed and sworn before me 12-13-11.

Date: 12-13-11

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Attorney Charles O'Leary Justice of the Peace State of New Hampshire