Randall Edward Rex v. John P. Teeples, Donald E. Johnson, Jr., and Edward Rupert, Defendants

BARRETT, Circuit Judge,

dissenting:

I would affirm the district court’s grant of the defendants-appellees’ motion for summary judgment. Some additional undisputed facts reflected by the record should be observed.

Officer Teeples, a Loveland, Colorado police officer, was called to the hospital following Rex’s suicide attempt because Rex resembled a composite drawing of a kidnapping suspect. While in the emergency room, Rex requested a minister. Teeples was also a minister and he identified himself to Rex both as a minister and as a police officer. Teeples questioned Rex briefly about the kidnapping matter. Rex was later moved to another hospital, by direction of his attending physician, and placed on a 72-hour “mental hold.” All of this occurred September 14, 1977.

On September 15, 1977, Officer Teeples, out of concern, requested that Chief Deputy District Attorney Johnson come to the hospital to supervise Rex’s Miranda advisement. Johnson did so and he determined that Rex could be interrogated. Johnson then advised Rex of his Miranda rights, and Rex signed a written waiver of those rights. Teeples, and to a far lesser extent, Johnson, then questioned Rex, who eventually confessed to the kidnapping.

My differences with the majority are as follows:

A. The Mental Hold.

The emergency “mental hold” order was, from the record, the action of the attending physician, even though the action was apparently requested by Officer Teeples. Under § 27-10-105, C.R.S.1973, this action was that of a “professional person” referred to in the statute. However, the statute also authorizes the action to be taken by a peace officer. The predicate is that “when any person appears to be mentally ill and, as a result ... appears to be an imminent danger to others or to himself *845 ____” I believe there was every reason why the propriety of the mental hold was not specifically addressed by the trial court. The justification is clear from the record.

Under the circumstances, it was wise and prudent to certify Rex to the short-term involuntary 72-hour commitment because he was then dangerous to himself as shown by the suicide attempt, and, given the valid suspicions held by Officer Teeples on the criminal acts of kidnapping and attempted murder, was likely dangerous to others. Dr. Franklin, a “professional” under the Colorado statute, believed that Rex should be placed on the 72-hour “mental hold.” This case required a due process balancing. The action here was that recognized as valid under the subject statute by the Colorado Supreme Court in other settings. See People v. Taylor, 618 P.2d 1127, 1137 (Colo.1980) (En Banc) (“Passive injury to oneself, because of an inability to take care of one’s most basic personal needs, may be as dangerous or damaging to the individual as the active threat posed by suicide.”); People v. Lane, 196 Colo. 42 , 581 P.2d 719 (1978).

Rex alleged that he was detained “without probable cause.” “Probable cause” is, of course, terminology justifying the 72-hour “mental hold” under § 27-10-105, C.R.S.1973. Under Colorado law, when any person appears mentally ill and dangerous to himself or to others, “a peace officer, a professional person, or a licensed social worker ... upon probable cause may take the person into custody, or cause him to be taken into custody ... in a [designated] facility for a seventy-two-hour treatment and evaluation.” § 27-10-105, C.R.S. 1973. It is beyond dispute that Rex’s suicide attempt and his own alleged confused mental state indicated that he was, at the very least, a danger to himself. These circumstances alone provided the probable cause necessary to invoke the 72-hour mental hold provision.

B. Summary Judgment for Johnson.

I cannot agree that Deputy District Attorney Johnson is entitled only to a qualified (good faith) immunity when he appeared at the request of Officer Teeples to assure .that Rex was properly advised of his rights under Miranda. I realize that the courts have “sliced” the prosecutor’s functions into what they hope may be specific categories serving to identify the absolute immunity question. It may be helpful in certain cases. A prosecutor who accompanies police officers on routine investigative work without any specific objective in mind is involved in routine police “investigative” work. Such is not the case here. Johnson appeared at the request of Officer Teeples to assure (because Officer Teeples asked for help) that the mandates of Miranda were met before general police interrogation. Such is investigation in the broad- sense of law enforcement activity. Not all interrogation is investigative in the sense of “police work” in a particular scenario. I am not willing to attempt to slice the prosecutor’s activities into neat niches. For example, in Lerwill v. Joslin, 712 F.2d 435 (10th Cir.1983), although we said that the prosecutor was acting as an advocate before the neutral magistrate, the fact is that he prepared the arrest warrant. Thus, the prosecutor was involved in “investigative” activities necessary to his preparation of the arrest warrant simply because he had to be prepared to establish probable cause. The same is true of a search warrant or a recommendation for bail when a prosecutor appears before the magistrate. He advocates, but he has been and always must be involved in “investigative” work prior thereto.

Johnson was doing exactly what Imbler v. Pachtman, 424 U.S. 409 , 431 n. 33, 96 S.Ct. 984 , 995 n. 33, 47 L.Ed.2d 128 (1976), contemplated, i.e% properly obtaining evidence:

We recognize that the duties of the prosecutor in his role as advocate for the State involve actions preliminary to the initiation of a prosecution and actions apart from the courtroom. A prosecuting attorney is required constantly, in the course of his duty as such, to make *846 decisions on a wide variety of sensitive issues. These include questions of whether to present a case to a grand jury, whether to file an information, whether and when to prosecute, whether to dismiss an indictment against particular defendants, which witnesses to call, and what other evidence to present. Preparation, both for the initiation of the criminal process and for a trial, may require the obtaining, reviewing, and evaluating of evidence. At some point, and with respect to some decisions, the prosecutor no doubt functions as an administrator rather than as an officer of the court. [Emphasis supplied.]

The concurring opinion of Mr. Justice White in Imbler (joined by Justices Brennan and Marshall) cites with approval the rule that a prosecutor is absolutely immune from suit even for malicious prosecution. 424 U.S. at 437, 438 , 96 S.Ct. at 998, 999 . In deciding whether or not to prosecute, the prosecutor performs a “quasi-judicial” function. This, I submit, requires that the prosecutor act in “obtaining, reviewing, and evaluating the evidence.” 424 U.S. at 431 , 96 S.Ct. at 995 , supra. See also For-syth v. Kleindienst, 599 F.2d 1203 (3rd Cir.1979), cert. denied, 453 U.S. 913 , 101 S.Ct. 3147 , 69 L.Ed.2d 997 (1981). In Atkins v. Lanning, 556 F.2d 485, 488 (10th Cir.1977), we recognize that a prosecutor must be accorded leeway in performing the function of assembling the state’s case and that some investigative work is a necessary part of the prosecutor’s preparation of the case. In my view the record supports the trial court’s finding that Deputy Johnson was entitled to absolute immunity.

C. Summary Judgment for Teeples.

Rex’s involuntary statement was introduced into evidence at his first trial. It is unclear from the record whether Deputy Johnson acted as prosecutor in that trial, but assuming that he did, his adjudicative function in introducing the confession entitled him to absolute immunity against civil rights claims. Imbler v. Pachtman, supra 424 U.S. at 430-31 , 96 S.Ct. at 995-96 (1976). Although Officer Teeples does not enjoy a similar immunity against § 1983 claims, there is no evidence supporting Rex’s allegation that Teeples “caused” the constitutional deprivation. 1 Teeples took Rex’s confession only after being informed by Deputy Johnson that Rex had been properly advised of his Miranda rights and that he had waived those rights. The decision to introduce Rex’s confession was made, not by Teeples, but by the prosecutor. The decision to admit the evidence was made, not by Teeples, but by the judge. In my view, these factors constituted intervening factors sufficient to preclude a finding that Teeples caused the involuntary confession to be used against Rex. See generally Duncan v. Nelson, 466 F.2d 939, 942 (7th Cir.1972), cert. denied, 409 U.S. 894 , 93 S.Ct. 116 , 34 L.Ed.2d 152 (1972); Jackson v. Dillon, 518 F.Supp. 618, 622 (E.D.N.Y.1981).

It would be sadly ironic if Officer Tee-ples could somehow be held liable under § 1983 on the basis of his dealings with Rex. It should be recalled that Officer Teeples asked Deputy Johnson to come to the hospital to insure that Rex was properly advised of his Miranda rights. Johnson, seeking to assist Officer Teeples, attempted to perform this function and indeed informed Teeples that the proper procedures had been followed. Such efforts on behalf of the police and prosecutors are commendable. To hold Officer Teeples liable on these facts because the Colorado Court of *847 Appeals subsequently found Rex’s confession involuntary would in my view, be unjust. For the above-stated reasons I would hold that the district court did not err in granting the defendants’ motion for summary judgment.

. Traditional tort analysis dictates that another defendant's actions may constitute an intervening cause of plaintiff’s injury and thus break the chain of causation so as to relieve the initial actor of liability if the latter defendant's actions were unforeseeable. Prosser, Law of Torts, 281-86 (4th ed. 1971). Courts in civil rights cases have generally followed this approach. See Ames v. United States, 600 F.2d 183, 185 (8th Cir.1979); Dellums v. Powell, 566 F.2d 167, 192 (D.C.Cir.1977), cert. denied, 438 U.S. 916 , 98 S.Ct. 3146 , 57 L.Ed.2d 1161 (1978); Rodriguez v. Ritchey, 556 F.2d 1185, 1193 (5th Cir.1977), cert. denied, 434 U.S. 1047 , 98 S.Ct. 894 , 54 L.Ed.2d 799 (1978); Hoffman v. Holden, 268 F.2d 280, 296-97 (9th Cir.1959); Soto v. City of Sacramento, 567 F.Supp. 662, 688 (D.C.Cal.1983).