Colorado’s second-highest court on Thursday concluded a trial judge and a magistrate in Fremont County both mistakenly dismissed prison rioting charges against an incarcerated man when they should have found probable cause existed to proceed to trial.

During a preliminary hearing in the case of Dreion M. Dearing, where the prosecution needed to demonstrate probable cause existed for two counts related to prison rioting, a magistrate watched a video of the brawl and concluded Dearing was actually the victim. A district court judge agreed Dearing did not actively participate in the fight.

But a three-judge panel for the Court of Appeals determined the evidence did show Dearing participated, at least initially, in the prison melee. While a jury could find Dearing was not guilty of the charges because he acted in self-defense, that was not something the trial court judges needed to address.

“These conclusions seem to reflect the court’s view that Dearing acted to defend himself from others’ attacks,” wrote Judge Anthony J. Navarro in the Aug. 10 opinion. “A defendant’s potential affirmative defense, however, is ‘not relevant to the issue of probable cause.'”

Case: People v. Dearing

Decided: August 10, 2023

Jurisdiction: Fremont County

Ruling: 3-0

Judges: Anthony J. Navarro (author)

Jaclyn Casey Brown

David H. Yun

Dearing was incarcerated in July 2021 when he began to argue with another inmate. A prison investigator narrated the video in court, as the footage did not have audio. Dearing and the other man, identified as “Davis,” were close to each other and Dearing shoved Davis. They continued to argue, with others standing around to watch.

Davis “initiated contact with Mr. Dearing by head butting,” the investigator said. The fight “was started by Mr. Davis.” A brawl ensued. At one point, Dearing pulled one inmate off of another, only to be attacked by a third man. Prison staff ordered inmates to “lock down,” to no immediate effect. Twelve minutes after Davis headbutted Dearing, the rioters dispersed.

Prosecutors charged Dearing with two felonies of rioting and disobeying the order to disperse. At the probable cause hearing, Magistrate Michael W. Meyrick found there was insufficient evidence to proceed to trial because Dearing was not the culpable one.

“Mr. Dearing’s participation in the violent conduct was limited to that of a victim,” Meyrick wrote. “He was punched, kicked and held down on the floor as he was assaulted by multiple persons. There was no evidence that Mr. Dearing was a participant in that conduct other than being a victim of it.”

The district attorney’s office appealed Meyrick’s decision to Fremont County District Court, but Chief Judge Patrick W. Murphy agreed that the “balance of the video” showed Dearing reacting to assaults from others. Murphy also found Dearing could not be guilty of failing to disperse upon command when he was under attack.

“To conclude otherwise,” Murphy explained, “one would have to find that inmates have a duty to obey an order to lock down immediately upon command, regardless of the danger compliance would pose to their physical safety and regardless of the actions of other inmates which impeded the ability of the inmate to comply.”

The prosecution turned to the Court of Appeals, arguing the video did not portray Dearing as a victim. The government only had to show Dearing was an active participant, which it did. Dearing’s attorney acknowledged there “may have been a nano-moment” where Dearing could have disengaged, but it did not appear possible to do so in the moment.

The appellate panel concluded Meyrick and Murphy wrongly dismissed the charges. The video showed Dearing in an argument with Davis, after which Dearing “threw punches” and “scuffled with others.”

Meyrick’s statements that Dearing was a victim “seem to invoke the concepts that Dearing was acting in self-defense and that his failure to immediately comply with the lockdown orders was reasonable and necessary under the circumstances,” Navarro wrote.

While a jury might agree with a self-defense argument, it was not appropriate for a probable cause hearing. The panel ordered the trial to proceed.

The case is People v. Dearing.