Drummond Woodsum Attorneys at Law

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ED BENJAMIN AND KASIA PARK OBTAIN SUMMARY JUDGMENT FOR TOWN OF WINDHAM IN POLICE DEADLY FORCE CASE




April 12, 2017


On April 12, 2017, the U.S. District Court for the District of Maine granted summary judgment in favor of the Town of Windham in a police excessive force claim arising out of the fatal shooting of Stephen McKenney on April 12, 2014. See McKenney v. Mangino, et al, CV-00073-JDL. On that date, two Windham police officers were dispatched in response to a 911 call from the decedent's wife, claiming her husband was suicidal. The dispatcher heard some interaction between Mr. and Mrs. McKenney during the call that prompted her to advise responding officers that it appeared Mr. McKenney was "getting physical" with his wife. When Windham officers arrived on the scene, they were joined by a Cumberland County Sheriff's Office deputy, who responded to provide any needed backup for the Windham police. The three law enforcement officers spoke to Mrs. McKenney outside the residence on arrival, and were advised that Mr. McKenney was inside the house. Guns were noted to be present in the residence, but Mrs. McKenney believed her husband had not armed himself at that point and was sitting in the living room of the residence. The officers entered the residence, announcing their presence as police and asking Mr. McKenney to come speak to them so they could get him some help. When Mr. McKenney came into the living room, however, he was armed with a .357 magnum revolver and refused commands to put the gun down. Seeking to avoid a confrontation, the officers retreated back outside the residence, but Mr. McKenney pursued them out of the residence. One Windham officer managed to get Mrs. McKenney into his cruiser and drove away from the residence, stopping at a cul de sac a short distance down the street. The other Windham officer was forced to retreat around the rear of the residence on foot, when an armed Mr. McKenney blocked access to his cruiser which was parked in the driveway. The CCSO deputy retreated to his cruiser at the end of the driveway and armed himself with his AR-15 service rifle, using the vehicle for cover. After approximately 6 minutes, during which time Mr. McKenney entered and exited his residence and garage several times, he began deliberately advancing on the deputy's position at the end of the driveway, still carrying the loaded handgun. As he approached to within 70 feet of the deputy, he fired twice, fatally wounding Mr. McKenney.

The McKenney estate brought suit against the Town of Windham as well as Cumberland County and its deputy. The claim against the Town was based on the conduct of its two officers alleging, among other things, that the Town failed to train its officers properly on the lawful use of force and that the officers failed to accommodate Mr. McKenney's alleged mental "disability" in violation of the Americans with Disabilities Act. Following discovery, the court granted the summary judgment motion filed by Attorneys Benjamin and Park, who argued that no Windham police officer used actionalble force against Mr. McKenney and that there is no duty of accommodation owed under the ADA to an armed person suffering some type of mental health crisis until the public safety crisis posed by that person has been resolved. The court ruled that there was no civil rights violation by the Windham officers, and therefore no failure to train theory could be pursued against their municipal employer. The court also found that the Town of Windham was immune from all state tort claims that were asserted.






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