Randall Rex brought this civil rights action pursuant to 42 U.S.C. SEC. 1983 (1982) against Loveland police officer John Teeples and Chief Deputy District Counsel Donald Johnson. Rex contends that his constitutional rights were violated when Teeples improperly imprisoned him by placing him on a seventy-two hour mental hold and when Teeples and Johnson coerced his involuntary confession. The district court granted Johnson's motion for summary judgment concluding as a matter of law that Johnson was entitled to absolute prosecutorial immunity. Court subsequently granted summary judgment for Teeples holding that Rex's claims were cognizable only under state tort law and did not rise to constitutional violations. We reverse and remand for further proceedings.

I.

BACKGROUND

The record in this case is scant. Defendants presented little evidence to support their motions for summary judgment and we must draw our recitation of the facts primarily from the pleadings and related state court opinions. Moreover we must view the facts and inferences in the light most favorable to Rex as the party opposing the summary judgment motion. Lindley v. Amoco Production Co. 639 F.2d 671 672 (10th Cir. 1981); 10 C. Wright A. Miller & M. Kane Federal Practice & Procedure SEC. 2716 at 643 (2d ed. 1983).

In his complaint Rex alleges that he was brought to McKee Medical Center in Loveland Colorado at about 1:30 p.m. September 14 1977 after he had attempted to commit suicide by carbon monoxide poisoning. While Rex was hospitalized on September 14 Teeples represented himself to Rex as a minister as well as a police officer and questioned him about a recent kidnapping. Rex alleges that Teeples conspired with Dr. Howard Franklin who was in charge of the Medical Center emergency room to place Rex under a seventy-two hour mental hold because Teeples had no probable cause to arrest Rex and wanted to question him further. Under Teeples' direction Rex was transferred at about midnight on September 14 to Poudre Valley Hospital in Fort Collins.

On September 15 in Rex's hospital room Teeples and Johnson began a second interrogation which they taped. Johnson testified in the summary judgment hearing that his only responsibility had been to make certain that Rex was properly advised of his rights and that Rex had waived them although Johnson also stated that he had been present for at least forty-five minutes of the four to five hour interrogation and had asked some questions.

Rex alleges that Johnson and Teeples took advantage of his confused mental state during this questioning deceived him into believing he was not a suspect induced him to talk without the assistance of an Counsel and coerced him into telling them what they wanted to hear. On September 16 Rex was transferred to the Larimar County jail and on September 19 a criminal information was filed charging Rex with attempted murder second degree kidnapping and third degree sexual assault.

The sexual assault charge was dismissed after a preliminary hearing. Rex's first trial on the remaining counts ended in a mistrial. Following a new trial Rex was convicted. The second degree murder count was dismissed in post-trial proceedings and Rex's conviction on the count of second degree kidnapping was reversed on appeal. People v. Rex 636 P.2d 1282 (Colo. Ct. App. 1981). The Colorado court concluded that Rex's statements during the September 15 interrogation were involuntary as a matter of law because "the police took advantage of [his] confused mental state and deceived him into believing that he was not a suspect in a crime." Id. at 1284. Following a third trial at which the involuntary statements were not introduced Rex was again convicted of second degree kidnapping. That conviction was reversed on appeal for reasons not relevant to the issues before us. See People v. Rex 689 P.2d 669 (Colo. Ct. App. 1984) reported in 13 Colo. Law. 1051 (1984).

II.

SUMMARY JUDGMENT FOR TEEPLES

Rex alleges that Teeples deprived him of his constitutional rights by Teeples' actions involving the imposition of the mental hold and by his participation in obtaining the involuntary statements. The district court held that these claims do not assert constitutional deprivations remediable under section 1983. We disagree.

A. The Mental Hold

Colorado law provides an emergency procedure under which a peace officer may upon probable cause place a person in an appropriate facility for a seventy-two hour treatment and evaluation when that person "appears to be mentally ill and as a result of such mental illness appears to be an imminent danger to others or to himself." Colo. Rev. Stat. SEC. 27-10-105 (1973). *fn1 Rex alleges in his complaint that Teeples had Rex placed on mental hold not because he appeared to be an imminent danger to himself or others but because Teeples suspected Rex of a crime.

The propriety of the mental hold was not addressed in the proceedings below. The record is absolutely devoid of anything on this issue except Rex's allegation that Teeples conspired with the doctor to hold Rex for an improper purpose an allegation that we must accept as true. Notably absent is any affidavit from either the doctor or Teeples describing why Rex was placed on mental hold. If as Rex alleges Teeples deprived Rex of his freedom by placing him under a mental hold without the probable cause required by state law and for an improper purpose Rex was denied his liberty without due process an injury to his constitutional rights for which section 1983 provides a remedy. See e.g. Lessman v. McCormick 591 F.2d 605 609-11 (10th Cir. 1979). Accordingly we reverse and remand for further proceedings on this claim.

B. The Involuntary Statements

We also conclude that Rex has stated a constitutional claim arising from the September 15 interrogation. Extracting an involuntary confession by coercion is a due process violation. Haynes v. Washington 373 U.S. 503 513-15 10 L. Ed. 2d 513 83 S. Ct. 1336 (1963); and Spano v. New York 360 U.S. 315 320-23 3 L. Ed. 2d 1265 79 S. Ct. 1202 (1959). This is so notwithstanding the coercion is psychological rather than physical. See Spano 360 U.S. at 323; Duncan v. Nelson 466 F.2d 939 944-45 (7th Cir.) cert. denied 409 U.S. 894 34 L. Ed. 2d 152 93 S. Ct. 116 93 S. Ct. 175 (1972). Consequently extracting an involuntary confession is actionable under section 1983. Id.; Kerr v. City of Chicago 424 F.2d 1134 1138 (7th Cir.) cert. denied 400 U.S. 833 27 L. Ed. 2 64 91 S. Ct. 66 (1970); Lewis v. Brautigam 227 F.2d 124 128 (5th Cir. 1955).

In this case Rex alleged that the improper interrogation took place while he was under the influence of carbon monoxide poisoning and that defendants misled him and coerced his statements from him. The Colorado Court of Appeals reversed his conviction on this ground concluding that the police had taken advantage of his mental state and had deceived him.

We believe there are factual issues precluding summary judgment on this claim particularly when we view the transcript of the taped interrogation most favorably to Rex. Indeed at the summary judgment hearing Johnson conceded that nothing in the transcript establishes that Rex waived his right to an Counsel and asked defendants to come back and talk to him. Johnson stated the existence of waiver was a matter of his Johnson's credibility because he knew what had happened there that day. Rec. vol. II at 35.

Moreover the transcript shows that Rex repeatedly said "If I do make an attempt to incriminate myself at any time I wish you'd get me a lawyer." Rec. supp. vol. I at 22 27. Under these circumstances the issues involving the voluntariness of the statements are particularly inappropriate for resolution by summary judgment. Accordingly we conclude that Rex has stated a constitutional due process claim arising out of the alleged coerced confession. The summary judgment on this ground is reversed.

III.

SUMMARY JUDGMENT FOR JOHNSON

In view of our conclusion in Part IIB supra that Rex has alleged a constitutional claim arising from the September 15 interrogation we must address the district court's conclusion that Johnson as a deputy district Counsel was absolutely immune for his part in obtaining the allegedly involuntary confession.

A prosecutor is absolutely immune only for those activities "intimately associated" with "initiating a prosecution [and] presenting the State's case." Imbler v. Pachtman 424 U.S. 409 430-31 47 L. Ed. 2d 128 96 S. Ct. 984 (1976). Absolute prosecutorial immunity extends no further than necessary to protect those activities. See Harlow v. Fitzgerald 457 U.S. 800 811 73 L. Ed. 2d 396 102 S. Ct. 2727 (1982).

Consequently a prosecutor acting as an investigator has only qualified immunity. See id. at n. 16. Although identifying those acts entitled to absolute immunity is not always easy the determinative factor is "advocacy" because that is the prosecutor's main function and the one most akin to his quasi-judicial role. See e.g. Lerwill v. Joslin 712 F.2d 435 437 (10th Cir. 1983); Gray v. Bell 229 U.S. App. D.C. 176 712 F.2d 490 500-02 (D.C. Cir. 1983) cert. denied 465 U.S. 1100 104 S. Ct. 1593 80 L. Ed. 2d 125 (1984).

In Atkins v. Lanning 556 F.2d 485 488 (10th Cir. 1977) this court distinguished between the prosecutor's quasi-judicial role warranting absolute immunity and his "police-related" work not accorded such immunity. We there cited cases making this distinction: Hampton v. City of Chicago 484 F.2d 602 609 (7th Cir. 1973) (planning a raid to obtain evidence of criminal activity not covered by prosecutorial immunity) cert. denied 415 U.S. 917 39 L. Ed. 2d 471 94 S. Ct. 1413 (1974); Apton v. Wilson 165 U.S. App. D.C. 22 506 F.2d 83 91 (D.C. Cir. 1974) (prosecutorial immunity not available when a civil rights claim "focuses on a prosecutor's actions in the course of directing police investigative activity"); and Weathers v. Ebert 505 F.2d 514 517 (4th Cir. 1974) ("Making an arrest is a police function not a judicial one .") cert. denied 424 U.S. 975 47 L. Ed. 2d 745 96 S. Ct. 1480 (1976).

Other courts have held that the preliminary gathering of evidence which may blossom into a potential prosecution is investigatory activity receiving only a qualified immunity. McSurely v. McClellan 225 U.S. App. D.C. 67 697 F.2d 309 320 (D.C. Cir. 1982). "[A] prosecutor who assists directs or otherwise participates with the police in obtaining evidence prior to an indictment undoubtedly is functioning more in his investigative capacity than in his quasi-judicial capacities. " Marrero v. City of Hialeah 625 F.2d 499 505 (5th Cir. 1980).

We conclude that giving Miranda warnings to a general suspect and participating in his interrogation is "police-related" work and does not fall within the category of a prosecutor's quasi-judicial functions. Accordingly Johnson is entitled only to qualified immunity with respect to Rex's claims arising from the alleged coerced confession.

Under Harlow summary judgment in favor of a defendant seeking qualified immunity is appropriate only if the constitutional standards governing the challenged conduct were not clearly established. 457 U.S. at 818-19. In this case the law with respect to involuntary confessions and the ability to knowingly waive constitutional rights was clear at the time the questioning took place. The grant of summary judgment in favor of Johnson is reversed.

This action is reversed and remanded for further proceedings.

Dissenting: The Hon. Justice Barrett

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 Counsel 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 SEC. 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 " 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 SEC. 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." SEC. 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 Counsel 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 Court 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 47 L. Ed. 2d 128 96 S. Ct. 984 (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 Courtroom. A prosecuting Counsel is required constantly in the course of his duty as such to make 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 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. 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 supra.

See also Forsyth v. Kleindienst 599 F.2d 1203 (3rd Cir. 1979) cert. denied 453 U.S. 913 69 L. Ed. 2d 997 101 S. Ct. 3147 (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 at 430-31 (1976). Although Officer Teeples does not enjoy a similar immunity against SEC. 1983 claims there is no evidence supporting Rex's allegation that Teeples "caused" the constitutional deprivation. *fn2

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 Court. 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 34 L. Ed. 2d 152 93 S. Ct. 116 93 S. Ct. 175 (1972); Jackson v. Dillon 518 F. Supp. 618 622 (E.D.N.Y. 1981).

It would be sadly ironic of Officer Teeples could somehow be held liable under SEC. 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 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.