What began as a typical hit-and-run report on the night of June 6, 2009, has ended in Jeffrey Tenpenny, 47, of Nevada, getting a $140,000 settlement from the Nevada Police Department and the Vernon County Sheriff's Office in a federal civil rights violations lawsuit settled on Aug. 7.
In the 2009 incident, Tenpenny was arrested after a Nevada officer responded to a report of a hit and run on East Locust Street in Nevada. The victim, Kevin W. Horst, told responding officers he had been struck by a white Jeep Cherokee while walking on Locust Street. Horst said the driver backed up and "told him that he was going to get help and drove west on Locust to Centennial," according to court documents.
Horst was transported to Nevada Regional Medical Center and Tenpenny was stopped a short distance from the scene driving a white Jeep Cherokee. The probable cause statement doesn't say so, but Tenpenny admits that he was naked when he was stopped.
He was given a field sobriety test and taken to the Vernon County jail to be booked for driving while intoxicated resulting in injury and leaving the scene of an accident. Tenpenny eventually entered an Alford plea on the charges. In an Alford plea, the defendant does not admit guilt, but does admit that the state could likely prove the charges. The court pronounced Tenpenny guilty of the charges.
At the jail is where Tenpenny claims his civil rights were violated under the Fourth and 14th amendments to the United States Constitution. Tenpenny claimed that while handcuffed to a bench in the booking area, he was repeatedly tased by Nevada police officer Tim Wallace.
The lawsuit was filed in the U.S. District Court in Kansas City, Mo., in July 2011 by Tenpenny's attorney, Sean Pickett of Kansas City, Mo. The lawsuit alleged that city officers violated Tenpenny's Fourth Amendment rights when they used excessive force, that they were inadequately trained, and that they committed two counts of the civil offense of battery while denying Tenpenny his right to due process under the 14th Amendment.
Neither the Nevada Police Department nor the attorney representing them in the case responded to numerous requests for comment.
The suit named Wallace, Officer Richard DeBruin, Chief Graham Burnley, the city of Nevada, the Vernon County Sheriff's Office, a deputy and all three Vernon County commissioners as defendants. The suit claimed the Nevada Police Department "has a history of widespread use of Tasers that is abusive, unwarranted, malicious, sadistic and for the very purpose of causing harm."
Tenpenny also says he suffered an epileptic seizure during the incident and that officers continued to tase him. A video recorded by an onboard camera contained within the Taser appears to confirm that Tenpenny was tased. Tenpenny claims he had an epileptic seizure in between tasing episodes. The video also shows him writhing on the floor after the Taser charge with hands cuffed. Pickett said the video was from the Taser used by Wallace. No video from the jail's security cameras was available.
It cannot be heard on the video, but Tenpenny said he told officers at the time that he was an epileptic. Court documents said Tenpenny "took a swing" at one of the deputies and that's when he was tased.
Tenpenny's federal lawsuit claims that he suffered a serious head injury in the state of Nevada in 1990 and "continues to suffer from neurological conditions including epilepsy, depression and drastic mood swings which can be exacerbated when plaintiff is placed in highly stressful situations."
According to court documents, Tenpenny was taken to NRMC the night of his arrest to be certain he was fit for confinement.
Tenpenny's suit never made it into a federal courtroom. The case was ordered into mediation.
Doug Harpool, one of the attorneys who handled the case for the county, said the case "went to mediation to avoid litigation costs." He said the case fell under the Early Assessment Program and the parties are mandated "to meet early to resolve as many (cases) as possible in order to keep litigation costs low and courts moving quickly."
Settling was "financially a wise decision" on the part of the county's insurance carrier, Harpool said.
"I do think the cost of us prevailing would have been more than the settlement," Harpool said.
Pickett agreed with Harpool.
"If you measure everything together, with the chances, costs and risks of going to trial," mediation was the best way to handle the case. "Mediation doesn't always work," he said, "but it's mandated -- in this case it worked," Pickett said.
Pickett said he believes they still would have won the case had it gone to trial.
"The facts were egregious, the acts of the parties involved were violations of his civil rights," he said. Pickett also said he thought the "city of Nevada in particular has a problem with using Tasers," but he "understands that the new chief of police is trying to change that."
Both Pickett and Tenpenny think the settlement was fair. Tenpenny said, "It ain't about the money; it's about right and wrong." He said he has always taken responsibility for his actions, but that in this case he was not drunk. He said it never had to go this far. As for taking the settlement, Tenpenny said, "if we had gone to trial, it would have been tied up in court for years."
Tenpenny said, "We wanted more, but they weren't going to go any higher. I can live with it." He also said that no one has ever given him any kind of an apology for any wrongdoing. The settlement documents say that "said payment is not to be construed as any admission of liability."
"I don't care what that paper says, when they signed it they admitted they were wrong," Tenpenny said.
Tenpenny said he will invest his money so he doesn't have to worry about work slowing down on his job as an electrician. Of the $140,000, the city of Nevada is required to pay $110,000 and Vernon County will pay $30,000. The city and the county will split the cost of all attorney fees and court costs associated with the case.
Video of the incident can be seen here: http://www.youtube.com/watch?v=c9rIr405Z...