Malicious Prosecution

STATE OF SOUTH DAKOTA IN CIRCUIT COURT

COUNTY OF UNION FIRST JUDICIAL CIRCUIT

Patrick Durkee )

)

Plaintiff, )

)

)

)

Brandon Ehlers )

Rachel McAfee )

Blake McAfee )

Amy Evans )

Troy Evans ) SUMMONS

Melissa Hansen )

)

Defendants. )

TO THE ABOVE NAMED DEVENDANTS:

You are hereby summoned and required to answer the Complaint of the plaintiff, a copy of

which is herewith served upon you, and to serve the undersigned a copy of your Answer at the

undersigned’s address within thirty (30) days from the date of service of the Summons upon you,

exclusive of the date of service. If you fail to do so, judgment by default may be rendered against you as

requested in the Complaint.

Dated: December 31, 2020

______________________________________

Patrick Durkee

813 Brookside Drive

Jefferson, SD 57038

STATE OF SOUTH DAKOTA IN CIRCUIT COURT

COUNTY OF UNION FIRST JUDICIAL COURT

PATRICK DURKEE,

PLAINTIFF,

BRANDON EHLERS COMPLAINT

BLAKE MCAFEE

RACHEL MCAFEE MALICIOUS PROSECUTION

AMY EVANS

TROY EVANS

MELISSA HANSEN

This matter comes on before the court upon the complaint of the Plaintiff, Patrick Durkee.

FACTS:

On 12/12/19, defendants discovered group text messages on their daughter’s telephones, the group which included two adults, Stacie Kingsbury (a parent to one of the minor recipients of the messages) and the Plaintiff, who at the time was dating Stacie Kingsbury.
The defendants were unamused by the vulgar humor in some of the messages, and on 12/12/19 sent messages to Stacie Kingsbury and the Plaintiff asking them to refrain from any further group messages with their daughters. Kingsbury and Plaintiff complied with the defendant’s request.
On 1/27/20, a trial was held in Dixon County, NE regarding protection orders for the four minor daughters, from Plaintiff. The protection orders were subsequently granted for 12 months (and have been complied with by the Plaintiff).
On 1/30/20, defendant Brandon Ehlers made a report to the Union County Sheriff’s Deputy Schenzel alleging “possible solicitation”.
The 1/30/20 mention of “possible solicitation” was the first mention of such an accusation. In neither the applications for protection orders, nor at any point during the 1/27/20 proceeding in Dixon County, NE were allegations of “possible solicitation” mentioned by any of the defendants, any of the alleged victims, nor law enforcement who testified.
The Search Warrant Affidavit filed 2/19/20, presumably based largely on the 1/30/20 interview with Ehlers contained a number of misstatements and falsehoods:
1. “Deputy Schenzel noted Durkee had sent images of male genitals and nude ‘boys’.” While the “male genitals” in question fail to meet the definition of SDCL 11-12-1-14b, no further details were given regarding the alleged pictures of “nude boys”, nor have the pictures ever been produced.
2. “He apparently sent ‘ejaculation emojis…”. No such messages have ever been produced, and in sworn testimony on 1/27/20, the alleged recipient of the emojis, S.E., denied having ever received them. Pictures of the alleged emojis have never been produced.
3. “In other messages, apparently Durkee asked Samantha if she wanted to take a trip.” In actuality, the message was sent to S.E., A.E. and Stacie Kingsbury, inviting them all to go to a Minnesota Timberwolves game. Never was a message exclusively sent to S.E. with such an invitation.
The 2/19/20 dated search warrant affidavit goes on to detail numerous other group messages that were sent between S.E., A.E., G.E., A.M., Stacie Kingsbury and Petitioner.
Throughout the entirety of the 2/19/20 dated search warrant affidavit, there are no mentions made of any allegations of “possible solicitation” or “Sexual Exploitation of a Minor.”
On 2/20/20, the search warrant was executed at the Plaintiff’s Residence (813 Brookside Drive, Jefferson, SD 57038). During the execution of the search warrant, Special Agent Schnabel was repeatedly asked what he hoped to find, given that all of the text messages in question had already been made public at both the 1/27/20 hearing in Dixon County, NE as well as during an additional examination of S.E.’s phone on 2/6/20 by Special Agent Schnabel himself. Special Agent Schnabel offered no reply to the repeated questions.
On 5/20/20, the Plaintiff was charged with 2 counts of Furnishing Beverage to Child SDCL 35-9-1, and two counts of Contributing to the Delinquency of a Child SDCL 26-9-1.

MALICIOUS PROSECUTION

The six elements necessary to sustain an action for malicious prosecution are:

The commencement or continuance of an original criminal or civil judicial proceeding.
It’s legal causation by the present defendant against the plaintiff, who was the defendant in the original proceeding.
It’s bona fide termination in favor of the present plaintiff
The absence of probably cause for such proceeding
The presence of malice
Damages conforming to legal standards resulting to the plaintiff

Looking at the six necessary elements of malicious prosecution individually:

The commencement or continuance of an original criminal or civil judicial proceeding

According to the 2/19/20 dated search warrant affidavit, the criminal proceeding commenced with Brandon Ehlers’ 1/30/20 report. The other defendants were subsequently interviewed as well for the criminal proceeding. The defendants were the sole driving force of the criminal proceeding against the Plaintiff.

It’s legal causation by the present defendant against the plaintiff, who was

the defendant in the original proceeding

Per the 5/20/20 charges that were filed against the Plaintiff, Patrick Durkee was the defendant in the original proceeding.

It’s bona fide termination in favor of the plaintiff

Regarding the allegation of Sexual Exploitation of a Minor SDCL 22-22-24.3, which originally appeared on the 2/19/20 Search Warrant, the charge was ultimately dropped and never made it to the 5/20/20 charges.

Additionally, Count III and Count IV from the 5/20/20 charges were dropped from the final judgment.

The absence of probable cause

In the past, the court has stated, “We have defined probable cause in this context as “a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in believing that the accused is guilty.” In the case before us, the idea of “exploitation” never appeared until Brandon Ehlers’ 1/30/20 report to the Union County Sheriff’s Department. Prior to that, not a single time was it mentioned in the 1/27/20 court proceeding in Dixon County, NE. In fact, repeatedly throughout that proceeding, every single one of the alleged victims admitted that the Plaintiff had never been alone with them, nor had he ever attempted to be alone with them.

Additionally, prior to the 1/27/20 hearing in Dixon County, NE, all of the alleged victims and parents were interviewed by the Ponca, NE Police Chief, as well as a Dixon County Sheriff’s Deputy. Their investigations were forwarded to the Dixon County, NE prosecutor, who brought no charges, seeing no probably cause for any crime. Similarly, the Plaintiff was reported by the Defendants to Nebraska Child Protective Services, who also found all allegations of abuse and/or solicitation to be unfounded. Finally, prior to Brandon Ehlers’ 1/30/20 interview in Union County, all of the Defendants were provided affidavits by 3 parties who were present and witness to every time the alleged victims were at my residence. All three affidavits emphatically state that there was no abuse nor exploitation of any minors.

Despite all of this exculpatory evidence prior to 1/30/20, the Defendants provided law enforcement the false accusation that the Plaintiff had engaged in “possible solicitation” or “Sexual Exploitation of a Minor”. Particularly with all of the text messages already in possession, the Defendants had no reasonable ground of suspicion to support that the Plaintiff was guilty of SDCL 22-22-24.3, Sexual Exploitation of a Minor.

To further support the notion that not only was there no probable cause for the charge, but that the Defendants should have known there was no probable cause, upon the execution of the 2/20/20 search warrant, and subsequent investigation, the allegations of SDCL 22-22-24.3, Sexual Exploitation of a Minor were dropped from the 5/20/20 charges.

Regarding Count III and Count IV from the 5/20/20 charges, the accompanying affidavit itself states, “S.E. also admitted during her interview with Special Agent Schnabel that Defendant had provided S.E. with alcohol on a second occasion during the trip with the Defendant, S.E., A.K. and S.K to Minnesota between October 25, 2019 and October 27, 2019. S.E. claims that Defendant had furnished S.E. and A.K. with alcoholic beverages by leaving them with S.E. and A.K. in their hotel room. S.E. also admits that she consumed some of the alcohol that Defendant had left for S.E. and A.K.”

This statement coincides with the statement from Brandon Ehlers’ in his 1/30/20 interview, “Brandon Ehlers further said there was possibly a trip to a basketball game in Minnesota involving Durkee, Stacie Kingsbury, her two daughters and Brandon’s daughters. He noted Durkee left alcohol in the hotel room and Samantha Ehlers did consume some.”

In the Affidavit for Search Warrant, Affidavit for Arrest Warrant and Arrest Warrant itself, all state that the alleged offense took place between October 25th and October 27th, in a hotel room in Minneapolis, MN, outside of the jurisdiction of the state of South Dakota. Given that there was no dispute in any of the records about the site of the alleged incident, no probable cause existed that any crime occurred in Union County, SD or anywhere in the entirety of South Dakota for that matter.

The Presence of Malice

Malice is essential to the maintenance and recovery of a malicious prosecution action. Malice “exists when the proceedings are instituted primarily for an improper purpose.” An improper purpose occurs in situations where:

The plaintiff in the original action was actuated by any unjustifiable motive, as where he did not believe his claim would be held valid, or where his primary motive was hostility or ill will, or where his sole purpose was to deprive the defendant of a beneficial use of his property or to force a settlement having no relation to the merits of the claim.

Although malice is not the same as want of probable cause, the jury may infer [evidence of] malice from a want of probable cause.

In the case before us, there was never an allegation of “solicitation” or “sexual exploitation of a minor” by any of the alleged victims until Brandon Ehlers’ 1/30/20 interview with the Union County Sheriff’s Department. Throughout the entire court proceedings of 1/27/20 in Dixon County, NE, the transcript shows not a single mention of neither solicitation nor sexual exploitation of a minor. The allegations were fabricated by Brandon Ehlers and the additional defendants. It wasn’t simply that the allegations lacked probable cause, Brandon Ehlers and the defendants knew that the allegations were false prior to providing them on 1/30/20, because they had never even been alleged by the victims themselves.

Regarding Counts III and IV, the statements of S.E., Brandon Ehlers, the Affidavit for Search Warrant and Affidavit for Arrest Warrant are all in agreement that the alleged offense constituted the “leaving of alcohol in a hotel room” in Minneapolis, MN. Continuing with criminal charges for an offense for which there is no debate, which even if it occurred, occurred outside of the jurisdiction of South Dakota, can be described as nothing other than malicious.

Finally consider the Affidavit in Support of Issuance of Arrest Warrant. The entire first page, contains no references to the actual charges of Furnishing Beverage To Child or Contributing to the Delinquency of a Child. Rather, the entire first page is devoted to the “possible solicitation of a minor based on a series of messages between Defendant…” No mention is made of the actual charges until the second page of the affidavit. The entire first page of the affidavit served to act as a malicious smear campaign against the Plaintiff, lobbing out accusations, such as “possible solicitation” without having to provide any proof of such allegations, since the Plaintiff never wound up being charged with them in the first place. Such commentary had no place in the affidavit, since it provided no context to the actual charges, and served only to paint the plaintiff in a worse light than the charges themselves. For example, the Plaintiff was denied a Suspended Imposition (once initially, and again upon reconsideration) not because of the actual crimes that he was charged with, but rather because according to the Judge, he exhibited the signs of a “classic groomer.” The Plaintiff was forced to defend himself against crimes for which he was never charged, because of the malicious inclusion of irrelevant information.

Damages conforming to legal standards resulting to the plaintiff

From 2005 – 2015, Plaintiff served as a chaplain in the United States Air Force Reserve. During the legal action in question, Plaintiff was in the process of transitioning to the South Dakota National Guard, in an effort to complete his military career. While making the transition, a new background check was commenced for a renewal of Plaintiff’s Security Clearance. The 9/21/20 judgment appeared during the background check. While the conviction itself would not have been a disqualifying factor for the Plaintiff from the National Guard, the Investigator requested a copy of the Affidavit in Support of Issuance of Arrest Warrant. Due to the first page of the affidavit being devoted to depicting the Plaintiff as guilty of “solicitation” and “sexual exploitation of a minor”, without having to actually prove the Plaintiff’s guilt, the National Guard deemed the Plaintiff to be “morally unfit” to continue duty.

Due to the Defendant’s malicious prosecution for the crimes at hand, he will miss out on 19 years of continued National Guard pay, with a present value of approximately $153,049.95. Additionally, being unable to attain his 20 years of duty, the Plaintiff will also miss out on his future military retirement income, with a present value of approximately $191,177.24 (assuming the average life expectancy of a US male, of 76.1 years).

The Plaintiff requests $344,227.19 in actual damages, for the defendant’s reckless and malicious prosecution, as well as $100,000 for the severe damage to his reputation, both in the military and civilian communities.

STATE OF SOUTH DAKOTA IN CIRCUIT COURT

COUNTY OF UNION FIRST JUDICIAL CIRCUIT

Patrick Durkee )

)

Plaintiff, )

)

)

)

Brandon Ehlers )

Rachel McAfee )

Blake McAfee ) COMPLAINT

Amy Evans )

Troy Evans ) MALICIOUS PROSECUTION

Melissa Hansen )

)

Defendants. )

Prior to the commencement of this action the defendants pursued knowingly false and

malicious prosecution against the plaintiff.

The plaintiff has shown that the elements of the case meet the merits of Malicious Prosecution in the state of South Dakota.

WHEREFORE, plaintiff demands judgment against the defendants in the sum of $344,227.19 in actual damages for lost wages and retirement. Plaintiff also demands $100,000 for the severe damage to his reputation, both in the military and civilian communities.

Dated: December 31, 2020

______________________________________

Patrick Durkee

Pro se

813 Brookside Drive

Jefferson, SD 57038

CASE FILING STATEMENT – Information Only; Not Retained in Case Records Provide the Case File No. for the record you are filing into or the Case Type if initiating a new action: Civil – Other A list of case types and party roles can be found here: https://ujs.sd.gov/Attorneys/FormsDocumentation.aspx Social Security Numbers (not Driver’s License Numbers) must be provided for divorce, child support, & paternity cases, 42 USC 666(a)(13)(B).* All filers are required to provide the SSN or DL# for each of their participants regardless of the case type. Business entities must provide the EIN number in lieu of SSN or DL#.
INFORMATION FOR PLAINTIFF/PETITIONER/APPLICANT:
DurkeeLast/Business Name	PatrickFirst Name	DavidMiddle	Suffix
813 Brookside Dr Physical Address ☒ Check if Same as Mailing Mailing Address	JeffersonCity City	SDState State	57038Zip Zip
303-646-7387Home	605-217-8232Work	303-646-7387Cell
470-13-4722Social Security No.	03/27/1978 Date of Birth	01817085 SD Driver’s License No. State	Employer ID (Business)
Attorney: Last Name	First Name	State Bar ID No.
Mailing Address	City	State	Zip
Phone
INFORMATION FOR DEFENDANT/RESPONDENT/MINOR/DECEDENT/PERSON IN NEED OF PROTECTION:
EhlersLast/Business Name	BrandonFirst Name	Middle	Suffix
4015 Division StPhysical Address ☒ Check if Same as Mailing Mailing Address	Sioux CityCity City	IAState State	51104Zip Zip
Home	Work	Cell
Social Security No.	Date of Birth Date of Death	Driver’s License No. State	Employer ID (Business)
Attorney: Last Name	First Name	State Bar ID No.
Mailing Address	City	State	Zip
Phone

UJS-232 Rev. 12\2020

CASE FILING STATEMENT – Information Only; Not Retained in Case Records Provide the Case File No. for the record you are filing into or the Case Type if initiating a new action: Civil – Other A list of case types and party roles can be found here: https://ujs.sd.gov/Attorneys/FormsDocumentation.aspx Social Security Numbers (not Driver’s License Numbers) must be provided for divorce, child support, & paternity cases, 42 USC 666(a)(13)(B).* All filers are required to provide the SSN or DL# for each of their participants regardless of the case type. Business entities must provide the EIN number in lieu of SSN or DL#.
INFORMATION FOR PLAINTIFF/PETITIONER/APPLICANT:
DurkeeLast/Business Name	PatrickFirst Name	DavidMiddle	Suffix
813 Brookside Dr Physical Address ☒ Check if Same as Mailing Mailing Address	JeffersonCity City	SDState State	57038Zip Zip
303-646-7387Home	605-217-8232Work	303-646-7387Cell
470-13-4722Social Security No.	03/27/1978 Date of Birth	01817085 SD Driver’s License No. State	Employer ID (Business)
Attorney: Last Name	First Name	State Bar ID No.
Mailing Address	City	State	Zip
Phone
INFORMATION FOR DEFENDANT/RESPONDENT/MINOR/DECEDENT/PERSON IN NEED OF PROTECTION:
McAfeeLast/Business Name	RachelFirst Name	Middle	Suffix
59009 Hwy 12Physical Address ☒ Check if Same as Mailing Mailing Address	PoncaCity City	NEState State	68770Zip Zip
Home	Work	Cell
Social Security No.	Date of Birth Date of Death	Driver’s License No. State	Employer ID (Business)
Attorney: Last Name	First Name	State Bar ID No.
Mailing Address	City	State	Zip
Phone

UJS-232 Rev. 12\2020

CASE FILING STATEMENT – Information Only; Not Retained in Case Records Provide the Case File No. for the record you are filing into or the Case Type if initiating a new action: Civil – Other A list of case types and party roles can be found here: https://ujs.sd.gov/Attorneys/FormsDocumentation.aspx Social Security Numbers (not Driver’s License Numbers) must be provided for divorce, child support, & paternity cases, 42 USC 666(a)(13)(B).* All filers are required to provide the SSN or DL# for each of their participants regardless of the case type. Business entities must provide the EIN number in lieu of SSN or DL#.
INFORMATION FOR PLAINTIFF/PETITIONER/APPLICANT:
DurkeeLast/Business Name	PatrickFirst Name	DavidMiddle	Suffix
813 Brookside Dr Physical Address ☒ Check if Same as Mailing Mailing Address	JeffersonCity City	SDState State	57038Zip Zip
303-646-7387Home	605-217-8232Work	303-646-7387Cell
470-13-4722Social Security No.	03/27/1978 Date of Birth	01817085 SD Driver’s License No. State	Employer ID (Business)
Attorney: Last Name	First Name	State Bar ID No.
Mailing Address	City	State	Zip
Phone
INFORMATION FOR DEFENDANT/RESPONDENT/MINOR/DECEDENT/PERSON IN NEED OF PROTECTION:
McAfeeLast/Business Name	BlakeFirst Name	Middle	Suffix
59009 Hwy 12Physical Address ☒ Check if Same as Mailing Mailing Address	PoncaCity City	NEState State	68770Zip Zip
Home	Work	Cell
Social Security No.	Date of Birth Date of Death	Driver’s License No. State	Employer ID (Business)
Attorney: Last Name	First Name	State Bar ID No.
Mailing Address	City	State	Zip
Phone

UJS-232 Rev. 12\2020

CASE FILING STATEMENT – Information Only; Not Retained in Case Records Provide the Case File No. for the record you are filing into or the Case Type if initiating a new action: Civil – Other A list of case types and party roles can be found here: https://ujs.sd.gov/Attorneys/FormsDocumentation.aspx Social Security Numbers (not Driver’s License Numbers) must be provided for divorce, child support, & paternity cases, 42 USC 666(a)(13)(B).* All filers are required to provide the SSN or DL# for each of their participants regardless of the case type. Business entities must provide the EIN number in lieu of SSN or DL#.
INFORMATION FOR PLAINTIFF/PETITIONER/APPLICANT:
DurkeeLast/Business Name	PatrickFirst Name	DavidMiddle	Suffix
813 Brookside Dr Physical Address ☒ Check if Same as Mailing Mailing Address	JeffersonCity City	SDState State	57038Zip Zip
303-646-7387Home	605-217-8232Work	303-646-7387Cell
470-13-4722Social Security No.	03/27/1978 Date of Birth	01817085 SD Driver’s License No. State	Employer ID (Business)
Attorney: Last Name	First Name	State Bar ID No.
Mailing Address	City	State	Zip
Phone
INFORMATION FOR DEFENDANT/RESPONDENT/MINOR/DECEDENT/PERSON IN NEED OF PROTECTION:
EvansLast/Business Name	AmyFirst Name	Middle	Suffix
321 W Rock StPhysical Address ☒ Check if Same as Mailing Mailing Address	PoncaCity City	NEState State	68770Zip Zip
Home	Work	Cell
Social Security No.	Date of Birth Date of Death	Driver’s License No. State	Employer ID (Business)
Attorney: Last Name	First Name	State Bar ID No.
Mailing Address	City	State	Zip
Phone

UJS-232 Rev. 12\2020

CASE FILING STATEMENT – Information Only; Not Retained in Case Records Provide the Case File No. for the record you are filing into or the Case Type if initiating a new action: Civil – Other A list of case types and party roles can be found here: https://ujs.sd.gov/Attorneys/FormsDocumentation.aspx Social Security Numbers (not Driver’s License Numbers) must be provided for divorce, child support, & paternity cases, 42 USC 666(a)(13)(B).* All filers are required to provide the SSN or DL# for each of their participants regardless of the case type. Business entities must provide the EIN number in lieu of SSN or DL#.
INFORMATION FOR PLAINTIFF/PETITIONER/APPLICANT:
DurkeeLast/Business Name	PatrickFirst Name	DavidMiddle	Suffix
813 Brookside Dr Physical Address ☒ Check if Same as Mailing Mailing Address	JeffersonCity City	SDState State	57038Zip Zip
303-646-7387Home	605-217-8232Work	303-646-7387Cell
470-13-4722Social Security No.	03/27/1978 Date of Birth	01817085 SD Driver’s License No. State	Employer ID (Business)
Attorney: Last Name	First Name	State Bar ID No.
Mailing Address	City	State	Zip
Phone
INFORMATION FOR DEFENDANT/RESPONDENT/MINOR/DECEDENT/PERSON IN NEED OF PROTECTION:
EvansLast/Business Name	TroyFirst Name	Middle	Suffix
321 W Rock StPhysical Address ☒ Check if Same as Mailing Mailing Address	PoncaCity City	NEState State	68770Zip Zip
Home	Work	Cell
Social Security No.	Date of Birth Date of Death	Driver’s License No. State	Employer ID (Business)
Attorney: Last Name	First Name	State Bar ID No.
Mailing Address	City	State	Zip
Phone

UJS-232 Rev. 12\2020

CASE FILING STATEMENT – Information Only; Not Retained in Case Records Provide the Case File No. for the record you are filing into or the Case Type if initiating a new action: Civil – Other A list of case types and party roles can be found here: https://ujs.sd.gov/Attorneys/FormsDocumentation.aspx Social Security Numbers (not Driver’s License Numbers) must be provided for divorce, child support, & paternity cases, 42 USC 666(a)(13)(B).* All filers are required to provide the SSN or DL# for each of their participants regardless of the case type. Business entities must provide the EIN number in lieu of SSN or DL#.
INFORMATION FOR PLAINTIFF/PETITIONER/APPLICANT:
DurkeeLast/Business Name	PatrickFirst Name	DavidMiddle	Suffix
813 Brookside Dr Physical Address ☒ Check if Same as Mailing Mailing Address	JeffersonCity City	SDState State	57038Zip Zip
303-646-7387Home	605-217-8232Work	303-646-7387Cell
470-13-4722Social Security No.	03/27/1978 Date of Birth	01817085 SD Driver’s License No. State	Employer ID (Business)
Attorney: Last Name	First Name	State Bar ID No.
Mailing Address	City	State	Zip
Phone
INFORMATION FOR DEFENDANT/RESPONDENT/MINOR/DECEDENT/PERSON IN NEED OF PROTECTION:
HansenLast/Business Name	MelissaFirst Name	Middle	Suffix
700 N Court StPhysical Address ☒ Check if Same as Mailing Mailing Address	PoncaCity City	NEState State	68770Zip Zip
Home	Work	Cell
Social Security No.	Date of Birth Date of Death	Driver’s License No. State	Employer ID (Business)
Attorney: Last Name	First Name	State Bar ID No.
Mailing Address	City	State	Zip
Phone

UJS-232 Rev. 12\2020

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Malicious Prosecution – Draft 1

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