                                                                               FILED
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                         August 27, 2014
                                     TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                          Clerk of Court


 DENNY LOVERN,

           Plaintiff-Appellant,
 v.                                                             No. 14-1089
 BART DORSCHEID, Investigator,                         (D.C. No. 13-CV-2446-LTB)
 Eighteenth Judicial District Attorney’s                        (D. Colo.)
 Office; MICHAEL KNIGHT, Chief
 Investigator, Eighteenth Judicial District
 Attorney’s Office,

           Defendants-Appellees.


                                  ORDER AND JUDGMENT*


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


       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

       *
         This order and judgment is not binding precedent except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
       **
         After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered
submitted without oral argument.
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 in the Defendants’ position, with the information each
       had in his possession, would believe that they could lawfully charge the
       Plaintiff with violating CRS 18-3-104(1)(a) or CRS 18-3-203(1)(d) based on
       the facts set forth in Dorscheid’s affidavit becuase they knew there was no
       human victim. A person cannot be prosecuted for the attempted reckless
       manslaughter or assault of a fence or cinderblock.

       Pursuant to Defendants’ motion, the district court dismissed Lovern’s complaint on

the basis of qualified immunity. In a thorough written order, the district court held


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Defendants were immune from suit because their conclusion that Lovern could be charged

with attempted reckless manslaughter and attempted assault was based on a reasonable

interpretation of existing Colorado case law. Lovern v. Dorscheid, 2014 WL 503789

(D. Colo.) (unpublished). Lovern appealed consistent with 28 U.S.C. § 1291.

       We need not belabor the point. We have carefully reviewed both the parties’ briefs

and the appellate record in view of the applicable law including the appropriate standard of

review. Suffice to say the district court’s analyses and resolution in the first instance of

Lovern’s constitutional claims were correct. As the court ably explained, at the time of

Lovern’s arrest, the question of whether the State of Colorado had to identify a likely victim

to convict a drunk driver of attempted reckless manslaughter or attempted second degree

assault was (and appears to remain) very much unsettled. “Where the district court

accurately analyzes the issues in a case and articulates a cogent rationale based upon the

relevant facts and applicable law, no useful purpose is served by us writing at length. This

is such a case.” United States v. Debrew, 419 F. App’x 877, 880 (10th Cir. 2011)

(unpublished) (internal citation omitted).

       Accordingly, we affirm substantially for the reasons set forth in the district court’s

written order at issue in this appeal.

       AFFIRMED.

                                             Entered for the Court


                                             Bobby R. Baldock
                                             United States Circuit Judge


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