CLEVELAND, Ohio — The federal civil rights suit filed in October 2010 over a controversial Cleveland police officer's use of a Taser can proceed, the 6th U.S. Circuit Court of Appeals in Cincinnati ruled Wednesday.

The case will return to the federal court in Cleveland and move forward in the midst of a U.S. Justice Department investigation of the Cleveland Police Department's regulations on the use of excessive force and how supervisors monitor it.

Attorneys for retired Patrolman Jim Simone had tried to have the suit thrown out by asserting that Simone was justified in using a stun gun on a suspect who may have had a gun.

The appeals court rejected that argument and ruled that citizens suspected of having a gun "clearly have a right to not be tazed when not resisting arrest," attorney Nick DiCello said. "Had the ruling gone the other way, any person suspected of carrying a gun could be tazed."

DiCello filed the suit on behalf of Rafael Correa, 31, of Cleveland.

Simone and other officers encountered Correa May 15, 2010, near Detroit Avenue and West 28th Street when Simone was responding to a call about an armed man assaulting someone at a nightclub.

Correa was shirtless, had his arms up and was on his knees when Simone used the Taser to shock him, according to the parties and a video from Simone dashboard camera

Two other patrolmen then tackled Correa to the ground and handcuffed him.

"He was unconscious and bleeding from the eye when the officers searched him and did not find a gun," DiCello said. "They knew they had a problem, so they charged him with assault, obstruction and disorderly conduct."

The assault charge was based on a woman's statement that Correa had spit on her at the club. Correa spent the next four days in jail. Prosecutors dropped the charges in September.

The civil suit seeks at least $75,000 in damages and accuses of Simone of battery, using excessive force and making a false arrest.

Simone said in a previous interview that he used the Taser because he was alone and Correa and failed to obey his order to lie down.

Simone, whose nickname was "Super Cop," shot and killed five suspects in the line of duty before he retired in March 2011.

A Plain Dealer analysis in 2011 found that Cleveland police officers used Tasers to subdue suspects 969 times between October 2005 and March 2011. And during that period, Chief Michael McGrath and other supervisors found the Taser use appropriate in all but five of the cases they reviewed. The 99.5 percent clearance rate "strains credibility," said Samuel Walker, a criminal-justice professor emeritus at the University of Nebraska at Omaha who focuses on police accountability.