Gary P. Lee, 38, and Scott C. Tanner, 33, were on trial for assault when District Judge Debra Sasser dismissed the charges, saying prosecutors hadn't established that a crime had occurred in Wake County.
Wake County District Attorney Colon Willoughby asked that the judge reconsider, noting all district courts in North Carolina have jurisdiction to try all North Carolina cases.
Willoughby said he hasn't decided whether he will appeal Sasser's ruling.
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.
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