Ronald J. HIGGS, Petitioner,
The DISTRICT COURT In and For the COUNTY OF DOUGLAS, the Honorable William M. Calvert, James R. Florey, Jr. and Michael Miller, Respondents. James R. FLOREY, Jr. and Michael Miller, Petitioners,
The DISTRICT COURT In and For the COUNTY OF DOUGLAS, the Honorable William M. Calvert, and Ronald J. Higgs, Respondents.
As Modified on Denial of Rehearings Jan. 27, 1986.
Long and Jaudon, P.C., Joseph C. Jaudon, Gary B. Blum, Michael T. McConnell,
Robert M. Baldwin, Denver, for Ronald J. Higgs.
William M. Calvert, Colorado Springs, pro se.
Wood, Ris & Hames, P.C., F. Michael Ludwig, Jeffrey Clay Ruebel, Denver, for James R. Florey, Jr. and Michael Miller.
Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., John Daniel Dailey, Asst. Atty. Gen., Denver, Amicus Curiae.
Norman S. Early, Jr., Denver Dist. Atty., O. Otto Moore, Asst. Dist. Atty., Brooke Wunnicke, Chief Appellate Deputy Dist. Atty., Denver, amicus curiae for the Colorado Dist. Attys. Council.
Mary G. Allen, Denver, amicus curiae for the Colorado Crim. Defense Bar.
QUINN, Chief Justice.
These consolidated original proceedings, brought under C.A.R. 21, arise out of a civil rights action initiated by Ronald Higgs pursuant to 42 U.S.C. § 1983 (1982) against James R. Florey, Jr., and Michael Miller, deputy district attorneys in the District Attorney's Office for the Eighteenth Judicial District, following a jury verdict acquitting Higgs of the crimes of first degree burglary, first degree sexual assault, and first degree criminal trespass. Higgs' action was based on the claim that Florey and Miller deprived him of his civil rights in the course of investigating the criminal accusations made against him. After a jury awarded Higgs $770,000 compensatory damages and $351,000 exemplary damages, the respondent court granted a new trial on damages and ruled that Florey and Miller were absolutely immune from any liability stemming from their roles in preparing affidavits in support of the warrants for Higgs' arrest and the search of his home.
In Higgs v. District Court in and for the County of Douglas, 83SA493, we granted Higgs' petition for an order directing the district court to show cause why it should not be required to vacate its order concerning absolute prosecutorial immunity, to set aside its order granting a new trial on the issue of damages, and to reinstate the jury verdict. In Florey v. District Court in and for the County of Douglas, 84SA19, we likewise issued an order, at the request of Florey and Miller, directing the district court to show cause why it should not be required to discharge its order for a new trial on damages and to dismiss Higgs' complaint or, in the alternative, to order a new trial on all issues and to limit the evidence to events that preceded Higgs' arrest. We now make the rule absolute in Higgs v. District Court and discharge the rule in Florey v. District Court.
Ronald Higgs was charged with and tried for two counts of first degree burglary,  two counts of first degree sexual assault,  and one count of first degree criminal trespass.  He was ultimately acquitted by a jury on all five counts. Thereafter, in December 1978, Higgs filed a civil action against several defendants, including Sandra Price who was the complaining witness in the criminal case, Edward Rossmeisl, Richard Rozycki, and Steven Smith, who were deputy sheriffs with the Douglas County Sheriff's Department, and James R. Florey, Jr., Michael Miller, and James Peters, deputy district attorneys in the District Attorney's Office for the Eighteenth Judicial District. Although the complaint alleged several claims for relief, the only claims actually submitted to the jury were a malicious prosecution claim against Sandra Price and civil rights claims under 42 U.S.C. § 1983 (1982) against Sheriff's Officers Rossmeisl, Rozycki, and Smith, and Deputy District Attorneys Florey and Miller. All other claims and parties were dismissed.  The essence of Higgs' malicious
prosecution claim was that Sandra Price initiated and maintained the criminal action against him without probable cause and that she was motivated by malice. Higgs' § 1983 claims were based on the contention that the deputy sheriffs and deputy district attorneys, under color of state and local law, knowingly deprived Higgs of his constitutional rights guaranteed by the Fourth and Fourteenth Amendments to the United States Constitution by authorizing, directing, and/or conducting an illegal and highly suggestive photo identification procedure in order to obtain a positive identification of Higgs as the perpetrator of the alleged crimes under investigation, and by preparing false and misleading affidavits in connection with an order for nontestimonial identification evidence, an arrest warrant for Higgs, and a search warrant for the search of his home.
A recapitulation of the facts leading up to the jury verdicts in Higgs' § 1983 action will provide the necessary background to the issues raised here. On April 12, 1978, Sandra Price, a resident of the Acres Green subdivision in unincorporated Douglas County, reported to the Douglas County Sheriff's office that a man, whom she later identified as Ronald Higgs, had broken into her house at approximately 11:40 a.m. that day. The intruder left when Price confronted him with a pair of sewing scissors. Sheriff's officers investigating the incident found no evidence of forced entry. The evidence later established that at the time of the alleged break-in Higgs was on his way to a luncheon appointment with his minister at a country club some twenty miles from Price's home.
On April 15, shortly after 8:00 p.m., Price reported to the Douglas County Sheriff's Office that at approximately 7:45 p.m. she had been sexually assaulted by the same man who had entered her house on April 12. She stated that her assailant, who was armed with a knife, accosted her in front of her house, forced her into her bedroom, compelled her to commit an act of oral sex, and then raped her anally.
Douglas County sheriff's officers arrived at the Price home about twenty minutes after receiving Price's call. They found no signs of forced entry into the home and no fingerprints. The officers recovered a pair of women's panties from Price's bedroom floor. Tests conducted by the Colorado Bureau of Investigation showed that this undergarment had a semen deposit which contained sperm. Officer Rossmeisl, who headed the rape investigation for the sheriff's office, took Price to Swedish Medical Center for a rape examination. Hospital personnel found no rectal trauma, no semen, and no other evidence of rape. They took samples of Mrs. Price's head hair and
pubic hair for comparison with hairs found at the scene of the rape.
Price described her assailant as a white male, approximately thirty-five to forty years old, 5' 10"'' tall, about 190 pounds, possibly with brown eyes, medium brown hair with some grey at the top of the head and around the ears, grey sideburns, a hairy chest, a space between his front two teeth, no facial scars, possibly a cigarette smoker, and wearing a silver ring with a large turquoise stone on the little finger of his right hand. The assailant, according to Price, left her home in a pickup truck with a white roof and blue body. Higgs, who was 42 years old in 1978, has overlapping front teeth, distinctive green eyes, no hair whatsoever on his chest, a scar below his lower lip, had only a few grey hairs at the base of his sideburns at the time, did not smoke, and, according to his and other witnesses' testimony, had never worn a ring on his little finger. Higgs did own a pickup truck at the time of the alleged assault on Price. The truck, however, had a blue roof, white hood and upper side panels, and blue lower side panels. According to Higgs and his wife, they were watching a movie at a Tamarac Square movie theatre in southeast Denver at 8:00 p.m. on April 15, 1978.
On April 17 Price reported seeing her assailant driving his pickup on Surrey Ridge Road and stated that his license plates had the prefix "RV." Higgs had purchased his pickup in April 1978 and had only a temporary registration sticker on the truck on April 17. On May 5 Price reported that she was brutally beaten and raped again by the same man who had entered her home on April 12 and sexually assaulted her on April 15. Her report to the sheriff's office described the following events. The man came into the kitchen from the garage, grabbed her by the wrist, struck her on the side of her head and neck, and dragged her through the kitchen by her shoulders. Price struck her head on the doorway between the kitchen and the living room so hard that she thought she would black out. The assailant then pushed her to the living room floor, hit her in the stomach hard enough to knock the wind out of her, and put his knee in her stomach to keep her pinned to the floor. He then raped her twice vaginally, and she was sure that he ejaculated once.
After Price reported this rape, she was taken to Swedish Medical Center for another rape examination. This examination, like the previous one, showed no physical evidence of the alleged rape and beating, no bruises or abrasions around the head, neck or stomach, no vaginal trauma, and no trace of semen. Hospital personnel again took body fluid and head and pubic hair samples. The Douglas County sheriff's investigation of the Price home revealed no fingerprints, no sign of forced entry, and, although it had snowed two to three inches that day, no footprints anywhere around the house. 
On May 8 Higgs went to the Douglas County Sheriff's Office to be fingerprinted for a security dealer's license. Officer Rozycki recognized Higgs as a person who had been identified as a potential suspect because he lived in the same subdivision as Price and owned a blue and white pickup with license plate prefix "RV."  Although Rozycki took a complete set of fingerprints, he did not report seeing any rings on either of Higgs' little fingers. To obtain color photographs of Higgs for use in suspect identification, Rozycki falsely told
Higgs that the sheriff's office took pictures of all persons who had their fingerprints taken.
On May 9 Officer Rossmeisl took Price by Higgs' house to see if she could identify his truck. She said that it was definitely not the truck driven by her assailant. Later that day two sheriff's officers stopped Higgs in his truck, apparently without cause.  One of the officers later reported seeing a silver ring on Higgs' little finger at this time.
On May 19 Price identified Higgs as her assailant from a photo lineup. She later testified at a suppression hearing in Higgs' criminal prosecution that at the time of the photo identification she was not completely positive that the man in the picture was her assailant. One source of her uncertainty was the poor quality of the picture which the sheriff's officers had obtained from the Colorado Department of Motor Vehicles. Upon completion of the photo identification Officer Rossmeisl, who had been in constant contact with the district attorney's office since the first reported rape, again contacted attorneys in the district attorney's office but was told that there was not enough evidence to take any action against Higgs.
Rossmeisl then learned of the May 9 stop of Higgs during which another officer saw a silver ring on Higgs' finger. After Rossmeisl informed the district attorney's office of this incident, Deputy District Attorney Florey apparently told Rossmeisl there was sufficient information to seek a Crim.P. 41.1 order for removal of bodily fluids and hair samples from Higgs for comparison with those taken from the scene of the rape.  Rossmeisl testified that Florey and Miller prepared the affidavit in support of this warrant, decided what information to include in the affidavit, and how to characterize that information. Although Florey and Miller, according to Rossmeisl's testimony, knew that Price had stated that Higgs' truck was definitely not the one driven by her assailant, the affidavit did not mention that fact, nor did it mention any other exculpatory information.  Florey
testified that he neither drafted nor reviewed this affidavit. Miller testified that he may have reviewed it for grammatical errors and to check the legal language, but that he did not draft the factual statements.
Based on this affidavit, a judge on May 19, 1978, issued the order for nontestimonial identification evidence, which Officer Rossmeisl executed on the morning of May 22. Higgs was taken to Swedish Medical Center, where samples of his blood, saliva, head hair and pubic hair were obtained. The Colorado Bureau of Investigation conducted laboratory tests that showed that neither Price's nor Higgs' hair matched the hair found at the scene of the alleged rape. 
On June 6 Officer Rossmeisl contacted Deputy District Attorney Florey. Rossmeisl either obtained permission or was directed by Florey to show Sandra Price the two color photographs of Higgs that Officer Rozycki had surreptitiously obtained when Higgs came to the sheriff's office to be fingerprinted for a security dealer's license. No other pictures were shown for comparison, and Price made a positive identification at that time. Later that day Rossmeisl met with Deputy District Attorneys Florey and Miller to prepare affidavits in support of warrants for Higgs' arrest and for the search of his home for clothing that Price had described her attacker as wearing and for the knife allegedly used in the first rape. It was Rossmeisl's testimony that Florey and Miller drafted the affidavits and decided what information to include and how to characterize it. As in the case of the affidavit supporting the order for nontestimonial identification evidence under Crim.P. 41.1, these affidavits failed to mention Price's statement that Higgs' truck was not the truck driven by her assailant and also excluded the fact that Higgs' hair samples did not match the hair found at the scene, even though Florey and Miller were aware of these facts. Florey and Miller, however, denied the drafting of the affidavits for the arrest and search warrants issued on June 6, 1978.
Higgs was arrested later that day while at his office, in full view of other people in the building. The search warrant for Higgs' home was executed simultaneously, although only Higgs' three youngest children were home. When Higgs' wife and mother later came home in the middle of the search, they were informed that Higgs had been arrested for sexual assault and burglary.
Higgs' arrest generated extensive publicity. Prior to Higgs' criminal trial, Higgs' attorney informed Deputy District Attorney Florey of Higgs' alibis, the fact that he had a vasectomy and could not produce sperm, and that Higgs' truck had no license plates on April 17.  Higgs' criminal trial was also widely publicized in the community. There was evidence in the § 1983 trial that Higgs' character changed dramatically as a result of the prosecution, that his acquittal failed to restore his reputation, that he incurred substantial legal fees in defense of the criminal charges, that he found it necessary to give up his insurance
business, and that his wife subsequently divorced him.
Following his acquittal in the criminal prosecution, Higgs filed a civil action alleging, inter alia, violation of his civil rights under 42 U.S.C. § 1983 (1982). Insofar as relevant here, Higgs alleged that Florey and Miller's participation in drafting the affidavits in support of the Crim.P. 41.1 order for nontestimonial identification evidence and the arrest and search warrants deprived him of his Fourth Amendment rights and that Florey's approval of a suggestive photo lineup consisting of only two color pictures of Higgs violated his Fourteenth Amendment right to due process. Florey and Miller moved to dismiss the § 1983 claims against them, arguing that as prosecutors they were absolutely immune for any investigatory activity necessary to the decision to prosecute. The respondent court denied this motion on the grounds that investigative activity is not absolutely immune under 42 U.S.C. § 1983. Florey and Miller also filed an in limine motion to exclude evidence of any events relating to Higgs' prosecution that occurred subsequent to Higgs' arrest, claiming the evidence was prejudicial and irrelevant, since they were absolutely immune for all post-arrest conduct. Higgs argued that this motion should be denied because this evidence was at least relevant to the issue of damages. The respondent court denied the motion, concluding that the evidence was admissible for some purposes and that a limiting instruction to the jury would be the appropriate way to resolve the problem.
The respondent court submitted to the jury Higgs' claim for malicious prosecution against Price, his § 1983 claim against Sheriff's Officers Rossmeisl, Rozycki and Smith, and his § 1983 claim against Deputy District Attorneys Florey and Miller. The court gave extensive instructions to the jury on the elements of Higgs' § 1983 claims and on the constitutional duties of law enforcement officers and prosecuting attorneys with respect to photo identifications, nontestimonial identification evidence, and arrest and search warrants, including the duty not to prepare false or misleading affidavits in connection with applications for court orders directed to a criminal suspect. The jury was also instructed on the affirmative defense of qualified immunity in connection with Higgs' § 1983 claims. The jury returned a special verdict finding Price, Rossmeisl, Rozycki, Florey, and Miller liable to Higgs for compensatory damages in the amount of $770,000 and finding no liability on the part of Smith. The jury assessed the following exemplary damages against the individual defendants:
Rozycki $ 1,000
Price $ 50,000
After the jury's verdicts were returned, Rossmeisl, Rozycki, and Price reached settlements with Higgs. Florey and Miller, however, filed motions for judgment notwithstanding the verdict and for new trial, claiming, inter alia, that (1) they were absolutely immune because their actions were advocatory, not investigatory, in nature; (2) the trial court abused its discretion under CRE 403 in admitting evidence of post-charging events relating to Higgs' prosecution--i.e., evidence that Florey was told of Higgs' alibis for April 12 and 15 and of the absence of license plates on Higgs' pickup truck on April 17, and evidence that Higgs was acquitted in his criminal trial; and (3) the jury verdict was excessive and was motivated by bias, prejudice, or passion, or, if not so motivated, was so manifestly excessive as to require the court to order Higgs to choose between a remittitur and a new trial.
The respondent court ruled that Florey and Miller were absolutely immune for their role in preparing the arrest and search warrants on June 6 but not for preparing the affidavit supporting the nontestimonial identification warrant on May 19 and that Florey was not absolutely immune with respect to approving or directing the photo identification procedure. Although
the court rejected Florey's and Miller's challenge to the admission of post-arrest events, it ordered a new trial on damages. The court concluded that the compensatory damage award was "grossly excessive and [could not] be explained by any facts in evidence" and that a new trial on compensatory damages required the setting aside of the exemplary damages award also.
Florey and Miller thereafter filed an original proceeding in this court, as did Higgs. Florey and Miller claim that the respondent court grossly abused its discretion in three particulars that warrant extraordinary relief by this court: (1) in not dismissing Higgs' § 1983 claim on the ground that as a deputy district attorney Florey was absolutely immune in connection with the photo identification procedure in which Sandra Price identified Higgs as her assailant, and that Florey and Miller, again acting as deputy district attorneys, were absolutely immune for their activities relating to the nontestimonial identification order issued under Crim.P. 41.1 and to the arrest of Higgs and the search of his home; (2) in ordering a new trial solely on the issue of damages because, in view of the form of the verdict, it is possible that the jury found against them on the basis of conduct that would be absolutely immune under the judge's post-trial ruling; and (3) in failing to limit evidence in the new trial to events relating to the investigation and prosecution of Higgs that occurred prior to his arrest. Higgs, in contrast, argues that the court grossly abused its discretion (1) in limiting his damage claim in the new trial to Florey's role in the photo identification procedure and to Florey and Miller's conduct in preparing the affidavit in support of the nontestimonial identification order; and (2) in granting a new trial on both compensatory and exemplary damages.
Before we address the merits of the issues raised in these proceedings, it is appropriate to state the reasons why we have elected to exercise our original jurisdiction in this matter. Our jurisdiction in original proceedings is rooted in article VI, section 3 of the Colorado Constitution. Although our exercise of original jurisdiction is discretionary and is not a substitute for an appeal, People v. District Court, 673 P.2d 991 (Colo.1983); Sanchez v. District Court, 624 P.2d 1314 (1981), we have chosen on prior occasions to address issues of significant public importance raised pursuant to C.A.R. 21. See, e.g., People v. District Court, 673 P.2d 991; Sanchez, 624 P.2d 1314; Stull v. District Court, 135 Colo. 86, 308 P.2d 1006 (1957). Because this case raises significant issues relating to the nature and scope of prosecutorial immunity under 42 U.S.C. § 1983 and because these questions have not previously been addressed by this court, we deem it appropriate to consider these issues in this proceeding. Considerations of judicial economy also operate in favor of resolving other issues raised by the parties in order to avoid an unnecessary retrial and possibly a subsequent appeal, especially since these other issues are closely related to the principal matter in controversy. We therefore will first consider the nature and scope of prosecutorial immunity under 42 U.S.C. § 1983 and then the other issues raised by the parties with respect to the respondent court's order for a new trial on damages.
We turn then to the primary question before us, which is the type of functions for which a prosecutor is absolutely immune from liability for a civil rights claim under 42 U.S.C. § 1983. In its post-trial order, the respondent court ruled that Florey and Miller were absolutely immune for drafting the affidavits in support of the warrants for the arrest of Higgs and the search of his home but that they were not absolutely immune for drafting the affidavit supporting the Crim.P. 41.1 order for nontestimonial identification evidence or for approving the photograph identification procedure for Higgs. Pointing to the presence of several factors as indicative of absolutely immune conduct, Florey and Miller argue that absolute immunity should extend
to all of the above acts.  In contrast, Higgs argues that, since preparing affidavits in support of arrest and search warrants is an investigatory activity traditionally performed by the police, Florey and Miller are not absolutely immune. We conclude that, under the particular facts of this case, Florey and Miller are not entitled to absolute immunity for drafting affidavits in support of the arrest warrant, the search warrant, and the nontestimonial identification order, nor does Florey enjoy absolute immunity for approving the photo identification procedure.
Section 42 U.S.C. § 1983 (1982), states in pertinent ...