RALEIGH, N.C. (Legal Newsline) -- A North Carolina man wants the state's Supreme Court to review his case against Durham police, arguing that the law enforcement officer who Tasered him is not immune from being sued.
Bryan DeBaun filed his petition for discretionary review Sept. 6.
The city of Durham and officer Daniel Kuszaj filed their response to the petition Sept. 12.
According to court filings, DeBaun was injured in July 2009.
After being dropped off by a woman on Holloway Street, he went into a convenience store and bought a 12-pack of beer. At this point, he already had consumed eight to 12 beers.
Upon leaving the store, DeBaun walked in the street, waving his arm.
Kuszaj then arrived at the scene, questioned the man and tried to handcuff him. DeBaun tried to run.
Kuszaj Tasered DeBaun, who dropped to the ground immediately, breaking his upper jaw.
His injuries required more than $30,000 worth of surgery and care.
DeBaun sued for his injuries and an injunction against the Durham Police Department's use of Tasers.
A superior court judge sided with the city in 2012, saying the officer was within his rights.
The state Court of Appeals, in an August ruling, said the case should be dismissed because Kuszaj was immune from being sued.
DeBaun wants that ruling overturned.
But the city and Kuszaj, in their seven-page response, argue that the case presents no significant issues of substantive law, and fails both the "public interest" and "significant legal issue" grounds.
"Plaintiff's repetitive assertions that use of a Taser against a fleeing subject is 'tantamount to deadly force' is a factual non-sequitur and irrelevant to the issues before the Court," they wrote.
"The applicable statute, N.C. Gen. Stat. § 15A-401(d), authorizes a law enforcement officer to use force in an arrest 'when and to the extent that he reasonably believes it necessary... to prevent the escape or to effect the arrest of a person who he reasonably believes has committed a criminal offense."
From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.