Judges ordered to reconsider ruling in Taser case

Dec. 26, 2013 @ 06:52 PM

North Carolina’s Supreme Court wants a lower court to reconsider its decision to throw out a lawsuit filed by a man injured after a Durham police officer used a Taser on him.

The Dec. 18 order sent back to the state Court of Appeals the case of Bryan DeBaun, who suffered a broken jaw when he fell to the pavement after having been shocked in 2009.

DeBaun is suing the city and Daniel Kuszaj, the officer who Tasered him.

Durham Superior Court Judge Orlando Hudson and the Court of Appeals sided with the officer and the city, largely on grounds of governmental immunity.

But the Supreme Court, stopping short of ruling on the merits of the case directly, told the Court of Appeals that it should consult a 2009 precedent that said the immunity defense isn’t a bar to claims arising directly under the state constitution’s Declaration of Rights.

DeBaun and his lawyer, Alex Charns, contend that Kuszaj violated his state-guaranteed right against being detained on a “general warrant” unsupported by evidence of an offense.

Kuszaj encountered DeBaun on Holloway Street in July 2009.

DeBaun by all accounts was likely inebriated, already having consumed as many as 12 beers before he went into a convenience store and buying a 12-pack. He was carrying his purchase under an arm as he walked in the street, waving his other arm.

Kuszaj questioned DeBaun and tried to handcuff him.

But he also told DeBaun that he wasn’t under arrest. DeBaun took that as a cue to break free and run. The officer responded with his Taser, DeBaun landing on his face and suffering injuries that eventually cost about $34,000 to remedy.

Charns contends the “general warrant” provision of the state constitution is equivalent to the U.S. Constitution’s ban on unreasonable searches and seizures. And he says there wasn’t anything reasonable about using an electric shock, “force tantamount to deadly force,” against an unarmed man who was trying to flee.

Police “shouldn’t be allowed to seriously injure or kill Durham residents who are accused of no more than a traffic offense in order to ‘assist’ or ‘protect’ them by shooting them with a Taser,” he said in a message forwarding the Supreme Court order.

Lawyers for the city, however, contend that courts in other jurisdictions have in fact allowed police to use Tasers on fleeing suspects, even in cases as minor as jaywalking.

August’s Court of Appeals panel ruling in the case rejected DeBaun’s common-law claims of malicious prosecution, excessive force and assault.

Its author, Judge Ann Marie Calabria, said immunity applied because there was no evidence that Kuszaj had “acted wantonly or contrary to his duty.”

But backed by the other two judges on the panel, Sam Ervin IV and Chris Dillon, she also said DeBaun couldn’t bring a violation-of-rights claim under the state constitution either.

Calabria said the courts by weighing his common-law claims had offered DeBaun “an adequate alternative” to the constitutional argument, even though immunity blocked them.