False arrest, excessive force lawsuit against Kingsport police officer dismissed

Matthew Lane • Jan 14, 2007 at 11:51 AM

KINGSPORT - A Kingsport man who claimed he was falsely arrested and subjected to excessive force by a city police officer has had his $500,000 federal lawsuit dismissed.

James Henry filed the lawsuit in U.S. District Court in Greeneville in June 2004 naming the city of Kingsport and Kingsport Police Officer Steven Summey as the defendants.

Henry claimed that on July 23, 2003, Summey did not have probable cause to arrest him following a traffic stop and that he used excessive force during the arrest.

According to court records, Summey pulled Henry over on Maple Street with the intention of giving him a ticket for not having his lights on. During the encounter, Summey "flipped him off" and cursed at him, court records state.

Soon after, Henry testified he exited his vehicle and walked to a nearby resident's house to get a witness because he was concerned for his safety. Summey testified Henry ignored his order to stay in the truck and proceeded onto the porch.

"(Summey) did not know if the person coming out of the house was going to have a weapon," court records state.

Summey testified he attempted to handcuff Henry on the porch, but that Henry resisted arrest and he had to pepper spray him twice during the takedown. Shortly thereafter, Henry was placed in the police cruiser and Summey found a plastic bag with several types of pills in Henry's vehicle.

It was later determined Henry had a prescription for the pills, and eventually all charges against Henry were dismissed.

U.S. Magistrate Judge Dennis Inman issued a 49-page report in November dismissing all claims against the city and Summey. Inman summarized and offered his opinion on each charge made by Henry.

With regard to the false arrest charge, Inman wrote if there was probable cause it arose by virtue of Henry exiting his vehicle and ignoring Summey's order to remain in the vehicle.

As for the excessive force claim made by Henry, Inman wrote the use of pepper spray was not an excessive use of force under the circumstances.

"The use of pepper spray on a person who is handcuffed and restrained constitutes excessive force," Inman wrote. "However, the use of pepper spray on an individual who is only partially restrained or under control is still an open question."

Inman did find Summey violated the Kingsport Police Department's General Order 415.17, regarding the use of a chemical agent.

"But a violation of this or any other general order does not itself constitute a constitutional violation," Inman wrote.

Inman also discussed Summey's conduct during the arrest of Henry. Henry alleged Summey was extremely rude to him, accusing him of having just concluded a crack cocaine transaction and cursed at him prior to the arrest.

KPD conducted an internal affairs investigation of the incident and found Summey made a proper arrest and did not use excessive force. However, KPD did re-assign Summey to a less troublesome neighborhood for a "breather," sent him to "verbal judo" training to better prepare to handle crowds and counseled in regard to his infraction of general order 405.1, II professional conduct.

Assuming Henry's accusations to be true, Inman wrote Summey was rude, boorish and incredibly unprofessional. However, Summey's actions did not rise to the necessary level of provoking Henry into resisting arrest, Inman wrote.

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