Lovern v. Dorscheid, 082714 FED10, 14-1089

Docket Nº:14-1089
Opinion Judge:BOBBY R. BALDOCK UNITED STATES CIRCUIT JUDGE
Party Name:DENNY LOVERN, Plaintiff-Appellant, v. BART DORSCHEID, Investigator, Eighteenth Judicial District Attorney's Office; MICHAEL KNIGHT, Chief Investigator, Eighteenth Judicial District Attorney's Office, Defendants-Appellees.
Judge Panel:Before KELLY, BALDOCK, and BACHARACH, Circuit Judges.
Case Date:August 27, 2014
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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DENNY LOVERN, Plaintiff-Appellant,

v.

BART DORSCHEID, Investigator, Eighteenth Judicial District Attorney's Office; MICHAEL KNIGHT, Chief Investigator, Eighteenth Judicial District Attorney's Office, Defendants-Appellees.

No. 14-1089

United States Court of Appeals, Tenth Circuit

August 27, 2014

(D.C. No. 13-CV-2446-LTB) (D. Colo.)

Before KELLY, BALDOCK, and BACHARACH, Circuit Judges. [**]

ORDER AND JUDGMENT [*]

BOBBY R. BALDOCK UNITED STATES CIRCUIT JUDGE

To say Plaintiff Denny Lovern has a problem with alcohol, and in particular drinking and driving, is an understatement. During one of many such incidents in Arapahoe County, Colorado, Lovern attempted to pull out of a carport. Instead, Lovern hit a cinderblock wall, passed out at the wheel, came to, attempted to pull out again, hit the wall again, passed out again, came to again, drove out into the road, passed out again, came to again, drove off, and hit a wooden fence in an alley. A sheriff's deputy arrested Lovern and sent him to medical detox where his blood alcohol content measured ".321", or four times the legal limit. Prosecutors subsequently charged Lovern with two felonies: criminal attempt to commit manslaughter in violation of Colo. Rev. Stat. § 18-3-104(1)(a) and criminal attempt to commit assault in the second degree with a deadly weapon (i.e., a motor vehicle) in violation of Colo. Rev. Stat. § 18-3-203(1)(d). The state trial court dismissed the former charge and the prosecution dismissed the latter charge.

Lovern then filed this § 1983 action against Defendants Bart Dorscheid and Michael Knight claiming unlawful arrest and malicious prosecution in violation of the Fourth Amendment. Defendants are investigators with the local prosecutor's office responsible for preparing and filing the affidavit of probable cause in support of Lovern's arrest warrant. According to paragraphs fifteen and sixteen of the complaint:

Dorscheid knew, and Knight either knew or acted in reckless disregard of the fact, that there was not probable cause for believing that the Plaintiff committed these felonies because his alleged reckless actions were directed at a fence and a cinderblock, not at an identifiable human being. In order to have probable cause for these criminal crimes of reckless conduct, the reckless conduct must be directed at a particular and identifiable human being.

* * *

No reasonable officer...

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