dissenting:
I respectfully dissent. In this original proceeding, the majority, in addressing a federal issue, has placed limitations on the absolute immunity that prosecutors are granted when claims are made against them under 42 U.S.C. § 1983 (1982). In my view, the defendants, deputy district attorneys Florey and Miller, are absolutely immune from liability for: (1) approving the photo identification procedure; (2) drafting affidavits to support a Crim.P. 41.1 nontes-timonial identification order; and (3) assisting in the preparation of the arrest and search warrants.
Prior to the occurrence of the activities upon which liability in this case is premised, the investigation of the alleged crimes against Sandra Price focused on Ronald Higgs. Price reported being sexually assaulted by a man who wore a silver ring on the little finger of his right hand. Price told the police that the assailant had fled in a blue and white pickup truck. Police officers knew that Higgs owned a blue and white pickup truck and that he wore a silver ring on his little finger. Price also had identified Higgs as the assailant after viewing a photo lineup. Florey and Miller, as deputy district attorneys, were carrying out the investigative duties that were necessary to determine whether charges should be filed against Higgs.
The American Bar Association’s Standards Relating to the Prosecution Function (1979) set forth the duties and responsibilities of a prosecutor. It is the duty of *864a prosecutor to provide legal advice to the police concerning police functions and duties in criminal matters. ABA Standards Relating to the Prosecution Function § 3-2.7 (1979). The decision to charge is also the primary responsibility of the prosecutor and in most instances the police should obtain the approval of the prosecutor before seeking an arrest warrant or a search warrant. ABA Standards Relating to the Prosecution Function § 3-3.4 (1979). The prosecutor necessarily must be granted broad discretion in making the charging decision. ABA Standards Relating to the Prosecution Function § 3-3.9 (1979).
A prosecutor is absolutely immune from civil liability in an action brought pursuant to 42 U.S.C. § 1983 (1982) for initiating and trying a criminal case. Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). Imbler recognizes that absolute immunity may extend to the actions of the prosecutor which precede the filing of charges. 424 U.S. at 431 n. 33, 96 S.Ct. at 995 n. 33. A number of lower courts have held that efforts by a prosecutor to obtain information necessary to make the decision to file charges are protected by absolute immunity. See, e.g., Ybarra v. Reno Thunderbird Mobile Home Village, 723 F.2d 675 (9th Cir.1984); Simons v. Bellinger, 643 F.2d 774 (D.C.Cir.1980); Atkins v. Banning, 556 F.2d 485 (10th Cir.1977).
The reasons set forth in Imbler for granting absolute immunity apply to this case. I would not employ the majority’s bright-line rule to deprive the prosecutors of immunity for claims made pursuant to section 1983 merely because charges had not been filed against Higgs. I find little support in the federal cases for the “filing of charges” test. For example, in Atkins v. Lanning, 556 F.2d at 485, a district attorney was held absolutely immune from liability under section 1983 based upon his failure to correctly spell the name of a criminal suspect in an arrest warrant which was prepared before any suspect was charged with a crime. Similarly, Simons v. Bellinger, 643 F.2d at 774, held that purely investigative activities prior to the filing of charges by the District of Columbia Unauthorized Practice of Law Committee were absolutely immune from suit under section 1983.
The majority’s assertion “that the decision to file charges against a particular person, because of its accusatorial overtones, carries a qualitatively greater risk of inciting retaliatory litigation than pre-charging decisions” (713 P.2d at 854) is certainly not supported by the facts in the present case. All of Higgs’ section 1983 damage claims are based entirely on alleged prosecutorial wrongdoing which occurred before criminal charges were filed against him.
The majority’s interpretation of the “functional test” for prosecutor immunity goes beyond what was contemplated by Imbler and the subsequent cases which created the functional test. The majority would give absolute immunity under section 1983 when a prosecutor acts in an “advocatory” capacity but only qualified immunity when a prosecutor acts in an “investigative” capacity. Limiting the liability of a prosecutor acting in an investigative capacity will cause prosecutors to cooperate less with the police and will force the police to obtain independent counsel or to act without the advice of those knowledgeable in the law. In my view, the police should be encouraged to consult with and obtain the advice of prosecutors.
The “traditional police function” test relied on by the majority also goes beyond any statement yet made by the United States Supreme Court. The majority states that if any particular prosecutorial activity, for example the investigation of criminal activity, is a function traditionally performed by police, the prosecutorial conduct is automatically not quasi-judicial and is not due the absolute immunity of Imbler. I fail to see why “traditional police functions” and “quasi-judicial functions” must be mutually exclusive categories in all cases. See Comment, Section 1983 and Prosecutorial Immunity: Marrero v. City of Hialeah, 19 Am.Crim.L.Rev. 81 (1981); *865Comment, Supplementing the Functional Test of Prosecutorial Immunity, 34 Stan. L.Rev. 487 (1982).
Atkins, 556 F.2d at 485, and Simons, 643 F.2d at 774, held that prosecutorial investigation which is integral to the preparation of the prosecution’s case and which focuses on whether prosecution is warranted against a particular suspect is quasi-judicial conduct absolutely immune from section 1983 suit. Such prosecutorial investigation is apparently exactly the conduct that the majority in the present case would classify as a “traditional police function” undeserving of Imbler immunity.
I agree with the majority that the availability of alternate remedies to deter and rectify prosecutorial misconduct should be considered in determining whether absolute immunity should be granted to a prosecutor in a particular case. The adversarial trial process, the use of evidentiary and exclusionary rules, rules of professional discipline, and. even the possibility of criminal liability on the part of the prosecutor are all possible alternative remedies for prosecutorial misconduct rather than damages under section 1983. See Butz v. Economou, 438 U.S. 478, 515-16, 98 S.Ct. 2894, 2915, 57 L.Ed.2d 895 (1978).
Prosecutorial investigation prior to the filing of charges necessarily focuses on whether charges are warranted and is, in my view, conduct which is absolutely immune from liability under section 1983.
In the present case, Florey and Miller should be absolutely immune from liability under section 1983 for all of the acts alleged by Higgs. The approval of the photo lineup, the drafting of the affidavit in support of the Crim.P. 41.1 nontestimonial identification evidence order, and the drafting of affidavits in support of an arrest warrant for Higgs and a search warrant for Higgs’ house were all investigative activities to gather evidence to determine whether prosecution was warranted against Higgs. Barriers should not be erected to prevent a prosecutor from exercising free and unfettered judgment in determining whether a charge should be filed. Sandoval v. Farish, 675 P.2d 300 (Colo. 1984). “[HJarassment by unfounded litigation would cause a deflection of the prosecutor’s energies from his public duties, and the possibility that he would shade his decisions instead of exercising the independence of judgment required by his public trust.” Imbler, 424 U.S. at 423, 96 S.Ct. at 991.
For the reasons set forth in this dissent, I would affirm the district court’s judgment setting aside the verdicts against Flo-rey and Miller on the grounds of absolute immunity.