Taser victim asks state Supreme Court to review case

Sep. 26, 2013 @ 05:55 PM

By Ray Gronberg
gronberg@heraldsun.com; 419-6648
DURHAM – A man injured in a 2009 incident has asked the N.C. Supreme Court to overrule a lower-court ruling that said Durham police are immune to being sued for having Tasered him.
Bryan DeBaun and his lawyer, Alex Charns, contend the state Court of Appeals erroneously gave the officer who wielded the Taser the benefit of the doubt, even though it had acknowledged there is a genuine dispute that merits a jury’s attention.
The inconsistency threatens to establish a precedent for other use-of-Taser cases because it’s what lawyers call “a case of first impression,” the first one like it to be decided by North Carolina’s appellate courts, Charns said.
Moreover, the Court of Appeals ruling if allowed to stand “would allow officers to use what is tantamount to deadly force against an unarmed, fleeing” misdemeanor suspect, “contrary to” U.S. Supreme Court doctrine, he said.
DeBaun was injured in a July 2009 encounter with Durham Police Department Officer Daniel Kuszaj. He sued for damages and an injunction against the department’s use of Tasers.
The encounter happened on Holloway Street, reportedly after DeBaun was deposited there by a woman he’d tried to pick up at a bar across from Brightleaf Square.
Having already consumed eight to 12 beers, he went into a convenience store and bought a 12-pack of beer. He was carrying it under one arm as he walked in the street, waving his other arm.
Kuszaj rolled up on the scene, questioned DeBaun and tried to handcuff him. But DeBaun, having been told he wasn’t under arrest, broke free and tried to run. Kuszaj responded with his Taser; DeBaun dropped immediately, breaking his upper jaw when he hit the pavement.
His post-injury medical treatment required $34,000 worth of surgery and other care.
Durham Senior Resident Superior Court Judge Orlando Hudson sided with the city in 2012, ruling that Kuszaj was within his rights as a police officer to use the Taser on a fleeing man.
The Court of Appeals, weighing in on Aug. 6, said Hudson’s ruling on the core excessive-use-of-force issue was incorrect because there was a factual dispute meriting a jury’s attention.
DeBaun and Charns had lined up an expert witness who would have testified that it’s unreasonable to Taser someone who’s running on pavement, as it’s predictable they would fall and hurt themselves.
But Judge Ann Marie Calabria, writing for a unanimous three-judge panel, said the case nonetheless should be dismissed because Kuszaj was immune from lawsuit.
The immunity doctrine means police can’t be sued unless their actions are outside the scope of their authority, committed with malice or are corrupt, Calabria said.
The key issue there was whether Kuszaj acted with malice, and Calabria said the evidence “does not demonstrate that [he] acted wantonly or contrary to his duty,” or that he was “so reckless or manifestly indifferent” as to warrant legal penalty.
But Charns contends that Calabria, with fellow Judges Sam Ervin IV and Chris Dillon, turned the law on its head by reading the evidence in the light most favorable to Kuszaj.
That effectively makes future judgments about malice “a subjective one” for judges rather than an objective one for juries, Charns told the Supreme Court.
Because it the Court of Appeals ruling was unanimous, DeBaun doesn’t have a guarantee the high court will review his case. Appeals of split-panel rulings are automatically granted; appeals of unanimous-panel rulings are not.
City lawyers in their response signaled that if the Supreme Court takes the case, they will ask it to overturn the section of Calabria’s ruling that said there was enough of a factual dispute in the case to merit a jury’s attention.