Gary P. Lee, 38, and Scott C. Tanner, 33, were on trial for assault Monday when District Judge Debra Sasser dismissed the charges, saying prosecutors hadn't established that a crime had occurred in Wake County.
Willoughby filed paperwork Tuesday to reinstate the case.
"This is really an injustice because the state deserves better than this. The victim deserves better than this," Willoughby said.
The charges stemmed from a July 20 incident outside Blinco's Sports Restaurant & Bar on Glenwood Avenue.
Rene Dennis Thomas, a 29-year-old cook at Blinco's, told authorities that he exchanged racial slurs with a group of men in a truck speeding through the restaurant parking lot. He also alleged that one of the men tried to punch him and that another kicked him.
According to court documents, Lee attempted to strike Thomas and tackled him, causing him to fall to the ground, and Tanner kicked Thomas in the head.
The officers, who were off duty at the time of the alleged assault, had been at Blinco's that night for a going-away party.
Three other Durham police officers, as well as a former Durham officer who had resigned from the department prior to the alleged assault, had also been under investigation by Raleigh police, but were later cleared of criminal charges.
Lee and Tanner were fired from the Durham Police Department last month following an internal investigation into the incident.
Willoughby said all district courts in North Carolina have jurisdiction to try all North Carolina cases. If there is a question about the venue where a case can be tried, the law requires that it be raised before the trial begins, he said.
"The lawyers just bushwacked the judge on this phony law," he said. "This may be the law in Judge Judy, but it's not the law in North Carolina."
Willoughby said he hopes the judge will realize a mistake was made and will reinstate the charges.
If Sasser stands by her ruling, Willoughby said the state would likely appeal the case.
The lawyers for Lee and Tanner couldn't be reached for comment Tuesday.
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