05-4148 -cv
Higazy v. M illenium Hotel and Resorts



                               UNITED STATES COURT OF APPEALS

                                         FOR THE SECOND CIRCUIT

                                     __________________________



                                             August Term, 2005

      (Argued: June 23, 2006                                         Decided: October 19, 2007)

                                           Docket No. 05-4148-cv

                                     __________________________

ABDALLAH HIGAZY,

        Plaintiff-Appellant,

        v.

FBI AGENT MICHAEL TEMPLETON,

        Defendant-Cross-Claimant-Cross-
        Defendant-Appellee,


MILLENIUM1 HOTEL AND RESORTS,
THE HILTON HOTELS AND CORPORATION,
RONALD FERRY, STUART YULE,

        Defendants-Cross-Claimants-
        Cross-Defendants.

                                  _______________________________


        1
         We use the spelling of the official caption, although the papers before the court are not
consistent with respect to the spelling of the hotel’s name.

                                                    1
Before: JACOBS, Chief Judge, POOLER, Circuit Judges, KOELTL, District Judge.2 Chief

Judge Jacobs concurs in the judgment of the Court and files a separate concurring opinion.

       Plaintiff-appellant Abdallah Higazy appeals from the June 29, 2005 judgment of the

United States District Court for the Southern District of New York (Buchwald, J.) in so far as it

dismissed his claims against Defendant-Cross-Claimant-Cross-Defendant-Appellee Michael

Templeton. See Higazy v. Millennium Hotel & Resorts, 

(S.D.N.Y. 2004).

Higazy has properly alleged a deprivation of his Fifth Amendment right against compulsory self-

incrimination, as to his bail hearing on January 11, 2002, by which time a criminal complaint had

been filed against him and he was subject to detention on that complaint.

       AFFIRMED in part, VACATED in part, and REMANDED.

__________________________

                   JONATHAN ABADY, Emery Celli Brinckerhoff & Abady LLP (O. Andrew
                   F. Wilson, of Emery Celli Brinckerhoff & Abady LLP, Earl Ward, on the
                   brief) New York, NY, for Appellant,

                   SEAN LANE, Assistant United States Attorney (Heather McShain and Sean
                   Cenawood, Assistant United States Attorneys, Michael Garcia, United States
                   Attorney for the Southern District of New York, on the brief) New York, NY,
                   for Appellee.

__________________________

POOLER, Circuit Judge.

       Plaintiff-appellant Abdallah Higazy (“Higazy”) filed an amended complaint on December

12, 2002, in the United States District Court for the Southern District of New York (Buchwald,

J.), against FBI Special Agent Michael Templeton (“Templeton”), the Millenium Hotel


       2
       The Honorable John G. Koeltl, United States District Court for the Southern District of
New York, sitting by designation.

                                                2
(“Millenium”), Millenium’s corporate owner CDL (New York), LLC, Millenium’s corporate

operator Hilton Hotels Corp. (“Hilton”), and Millenium employees Stuart Yule (“Yule”) and

Ronald Ferry (“Ferry”). Every defendant except Ferry moved for summary judgment, pursuant to

Rule 56 of the Federal Rules of Civil Procedure. On September 30, 2004, the district court

granted summary judgment for defendants, except on the claim against Yule, where summary

judgment was denied in part and granted in part. See Higazy v. Millennium Hotel & Resorts,

(S.D.N.Y. 2004). On May 4, 2005, Higazy’s remaining claims against the

hotel defendants were dismissed with prejudice when the parties reached a settlement agreement,

memorialized in a stipulation and order. Judgment was entered on June 29, 2005, dismissing

Higazy’s claims against Templeton pursuant to the September 30, 2004 memorandum and order,

and dismissing the claims against the remaining defendants, pursuant to the parties’ May 4, 2005

stipulation and order. Higazy appeals from this judgment, excluding the parties’ stipulation and

order. Because the district court improperly dismissed part of Higazy’s Fifth Amendment claim,

we affirm in part, vacate in part, and remand the case to the district court for further proceedings.



                                           BACKGROUND

       Higazy is a citizen of Egypt. His father once served as a diplomat in Washington, D.C.,

and Higazy received part of his high school and elementary school education in Virginia. Higazy

arrived in New York from Cairo in late August 2001, to study computer engineering at

Polytechnic University in Brooklyn, New York. His studies were sponsored by the United States

Agency for International Development and the Institute for International Education. These




                                                  3
institutions arranged for him to stay at the Millenium Hotel, which was across the street from the

World Trade Center (“the Center”), in New York City.

       On September 11, 2001, Higazy awoke in a corner room on the fifty-first floor of the

hotel.3 The first hijacked airliner hit the Center at 8:46 a.m., approximately forty-five minutes

after Higazy awoke, and while he was still in his room. After the second plane hit the second

tower, at 9:03 a.m., Higazy was evacuated with the other hotel guests. Higazy left most of his

belongings in the hotel room, taking only one hundred dollars in cash, his wallet, and the clothing

he was wearing.

       In late September or early October, hotel employees, including Yule, Millenium’s chief

security officer, and Ferry, a Millenium security employee, instituted a plan for retrieving and

inventorying guest property. On October 11, 2001, Ferry retrieved a radio, which he said he had

found in room 5101. Ferry told Yule that a passport, yellow medallion, and Koran were found

with the radio in the room’s safe. In late November, another hotel employee was performing a

second inventory of guest property and brought the radio to Yule’s attention. This time, Yule

found the circumstances to be “sinister” and called the FBI to tell them that he had found

“something of interest they should see.” 

. FBI agents Vincent

Sullivan (“Sullivan”) and Christopher Bruno (“Bruno”) came to examine the radio, which they

determined was an air-band transceiver capable of air-to-air and air-to-ground communication.

       On December 17, 2001, Higazy returned to the hotel to pick up his belongings. He went

in the morning because he had a university final examination that afternoon. He was approached



       3
        There was debate in the briefs submitted to the district court as to which room Higazy
was occupying, see 

n.5, which we need not resolve here.

                                                 4
by three FBI agents: Sullivan, Bruno, and Adam Suits (“Suits”). The three agents had been told

that Higazy would be coming. The agents asked Higazy about the radio, and Higazy told them

that it was not his. When the agents told him that the radio was found in his room’s safe, he

replied, “[T]hat’s impossible.” Higazy initially told the agents that he had never seen a radio like

this one before, but he later told the agents that he was once a lieutenant in the Egyptian Air

Force and had knowledge of radio communications. The FBI questioned Ferry twice while

Higazy was being interviewed. Each time, Ferry asserted that he found the radio in the safe on

top of the passport. At the end of the interview, the FBI detained Higazy as a material witness,

pursuant to the federal material witness statute. See 18 U.S.C. § 3144. Higazy later explained

that he was worried about the effect this could have on his scholarship: “I remember amongst the

things that I told the scholarships people, ‘I apologize. I’ve been arrested. I’m going to miss my

final exam today.’ I just want to put that on record. And I remember the detective looking at me

and saying, ‘You’re being arrested as a material witness for 9/11 and the only thing you’re

worried about is missing your final exam?’ I said, ‘Yes.’”

       Higazy was taken from the hotel to the FBI building, where he was, in his words, “in

shock, in disbelief.” Higazy voluntarily waived his right to counsel, spoke with agents, and then

changed his mind and asked for an attorney. The interrogation stopped. Higazy spent the night

of December 17, 2001, in detention. Because of the contradiction between what Higazy said and

what the hotel employees told the FBI, Bruno swore out an affidavit where he concluded that

Higazy might have given false statements to federal law enforcement agents. Bruno completed

the affidavit, dated December 18, 2001, in support of a material witness warrant, “so that

[Higazy] may be produced for testimony before a grand jury in the Southern District of New


                                                 5
York.” According to this affidavit, the grand jury was “investigating various felony offenses,

including, among others, the destruction of and conspiracy to destroy aircraft (18 U.S.C. § 32);

bombing and bombing conspiracy (18 U.S.C. § 844); racketeering and racketeering conspiracy

(18 U.S.C. § 1962); and seditious conspiracy to levy war against the United States (18 U.S.C. §

2384).”

       Later that day, Higazy was brought before the United States District Court for the

Southern District of New York (Rakoff, J.), on Bruno’s material witness warrant. This warrant

alleged that Higazy was a witness who might have information related to the terrorist attacks of

September 11. Judge Rakoff summarized the government’s theory: “the suggestion that the

government is making is based on the fact that a cooperating witness, based on other Al Qaeda

activities, suggests that the hijackers may have placed a beacon or other device in the form of this

transceiver in or near the World Trade Center in advance of an attack to help direct the pilots to

their targets.” Higazy’s attorney told the court that Higazy denied owning the radio and was

“urgently desirous of taking a lie detector test.” Judge Rakoff noted, with regard to the subject of

bail, “I want to reemphasize that this is not perhaps the most overwhelming showing on the part

of the government,” but he decided that “the witness will be detained through, but on the present

showing not beyond, December 28.” Judge Rakoff scheduled another hearing on December 28

“to see where things stand.” Judge Rakoff also said, “[t]he government clearly is suggesting that

it might have further applications to make on the 28th, but it is representing, as I understand it, its

expectation that the witness would be presented to the grand jury before the close of business on

the 28th. Is that right?” The government replied: “[t]he witness will be presented —it is our

expectation that that will happen.”


                                                  6
       The government expressed its doubt that a polygraph of Higazy would be useful and

opposed Higazy’s request to take one. They explained that if Higazy was a member of al Qaeda,

he could pass it. Nevertheless, on December 27, Templeton—who up until this point was not

involved in the investigation—conducted a polygraph examination of Higazy. Templeton began

the test by asking Higazy background questions on subjects such as Higazy’s scholarship,

homeland, family in Egypt, brother in upstate New York, and girlfriend. He also asked Higazy

whether he had anything to do with the attacks of September 11, 2001. The first round of testing

allegedly suggested that Higazy’s answers to the questions relating to the September 11 attacks

were deceptive. As the second series of questioning was ending, Higazy requested that

Templeton stop. He testified that he began “feeling intense pain in my arm. I remember hearing

my heartbeat in my head and I just couldn’t breathe. I said, ‘Sir, sir, please, stop. It hurts. Please

stop. Please take it off.’” Templeton unhooked the polygraph, and according to Higazy, called

Higazy a baby and told him that a nine-year-old could tolerate this pain. Templeton left the room

to get Higazy water, and upon his return, Higazy asked whether anybody else had ever suffered

physical pain during the polygraph, to which Templeton replied: “[i]t never happened to anyone

who told the truth.”

       Higazy alleges that during the polygraph, Templeton told him that he should cooperate . .

..




This opinion has been redacted because portions of the record are under seal. For the purposes of
the summary judgment motion, Templeton did not contest that Higazy's statements were coerced.




                                                  7
       Higazy then gave Templeton a series of explanations as to how he obtained the radio.

First, he admitted that he stole the radio from J&R, an electronics store. Then he recanted this

story, and explained that he found it near J&R. Higazy next denied ever seeing or possessing the

radio. Templeton allegedly banged on the table and screamed at Higazy: “You lied to me again!

This is what? How many lies?” Higazy then lied again, this time telling Templeton that he

found the radio on the other side of the Brooklyn Bridge. Higazy recalled that Templeton

“turned so red I thought he was going to hit me.” Templeton accused Higazy of being a liar, and

said that he would “tell Agent Sullivan in my expert opinion you are a terrorist.” Finally, Higazy

told Templeton that he had stolen the radio from the Egyptian military and had used it to

eavesdrop on telephone conversations.

       Templeton then wrote out a statement providing that Higazy had stolen the radio from the

Egyptian military, which he asked Higazy to sign. Higazy remembered that his attorney was

outside, and asked to see his attorney. At first, Higazy’s attorney was angry with Higazy,

thinking Higazy had lied to him, but when Higazy told his attorney that he had not lied to him,

the attorney advised Higazy not to sign the statement.

       The parties appeared the following day, December 28, 2001, for the previously scheduled

hearing before Judge Rakoff. At the hearing, the government proffered its “new evidence,”

apparently the information gained during the polygraph interview: “[Higazy] has admitted it is

his radio, and he has provided I believe about three different versions of where it came from.”

Judge Rakoff commented, “it no longer strikes me as even an arguably close call whether to

detain him, given the apparent unreliability or inconsistency between what was previously

represented and what I am now being advised is the situation.” The parties agreed to adjourn the


                                                 8
bail hearing; Higazy’s attorney did not object to the government’s request that bail be denied and

Higazy be further detained. Judge Rakoff ordered Higazy detained and instructed the parties to

appear before him on January 14, 2002.

       On January 11, 2002, Agent Bruno filed a criminal complaint against Higazy for making

false statements, in violation of 18 U.S.C. §1001(a). Higazy was brought before the United

States District Court for the Southern District of New York (Maas, M.J.), where the government

implied that Higazy’s false statements were somehow connected to the investigation of the

September 11 terrorist attacks: “[t]he crime that was being investigated when these false

statements were repeatedly made I think can fairly be characterized as perhaps the most serious

in our country’s history.” In its bail argument, the government alluded to Higazy’s “three

different versions of how he had come into possession of the radio,” and concluded that Higazy

“is not somebody who can be deemed trustworthy.” Magistrate Judge Maas ordered Higazy to be

detained and held without bail.

       Three days later, on January 14, 2002, an airline pilot, who had been staying on the 50th

floor of the Millenium Hotel returned to the hotel to reclaim his property. After inspecting his

items, the pilot informed the hotel staff that his transceiver was missing. Millenium immediately

contacted the FBI, which then verified that what was thought to be Higazy’s transceiver was in

fact the pilot’s and that the pilot had not had any interaction with Higazy. The FBI re-

interviewed Ferry, who revised his original account, this time explaining that the radio was found

on a table in Higazy’s room and not in the safe. The government withdrew its complaint against

Higazy, who was released on January 16, 2002, after thirty-four days in custody. In a letter to

Judge Maas, the government conceded:


                                                 9
       The owner of the aviation radio had no interaction with Mr. Higazy. It is still unclear,
       therefore, how the radio was transferred from the room on the 50th Floor to Mr. Higazy’s
       room on the 51st floor. Employees of the hotel have indicated that, although the hotel has
       been closed since September 11th, a number of people entered the room in which Mr.
       Higazy had been staying at different times between September 11th and the day on which
       the radio was found.

       On March 18, 2002, Judge Rakoff convened a hearing to inquire into the parties’

representations to him regarding Higazy’s confession. See In re Material Witness Warrant, 

(S.D.N.Y. 2002). Judge Rakoff explained that he felt he had been “misled”

twice. In an opinion and order, he wrote:

       [T]he Court was not willing to simply go-along with the uncontested request for a further
       detention of Higazy but, instead, demanded further information regarding what had
       previously seemed a close call, and in the process was materially misled by being
       informed of a confession that subsequently was shown to be false.

In re Material Witness 

. Judge Rakoff asked for a government

inquiry into the Higazy affair.4

       On December 12, 2002, Higazy filed an eight-count complaint against Templeton and the

hotel defendants. Higazy’s claims against Templeton were brought pursuant to Bivens v. Six

Unknown Named Agents of the Fed. Bureau of Narcotics, 

(1971). After discovery,

all defendants but Ferry moved (Templeton in a separate motion) for summary judgment.5 The



       4
        The government later filed an information against Ferry, accusing him of lying to
government agents in the course of their investigation of the radio. On May 30, 2002, Ferry
pleaded guilty and was sentenced to three years probation and six months of intermittent
confinement on weekends. See United States v. Ferry, 02 Cr. 221 (GBD). No additional
indictments or complaints were filed against any other hotel employee.
       5
          In his motion for summary judgment, Templeton made two arguments: (1) he was
entitled to qualified immunity because the constitutional rights Higazy sought to vindicate were
not violated and were not clearly established at that time; and (2) Higazy could not establish a
causal link between the alleged harm and Templeton’s conduct.

                                               10
district court issued a memorandum and order on September 30, 2004, granting, inter alia,

Templeton’s motion to dismiss Higazy’s Fourth, Fifth, and Sixth Amendment claims.6 See

. The district court dismissed Higazy’s Fifth Amendment self-

incrimination claim, concluding that Templeton was entitled to qualified immunity. The district

court dismissed Higazy’s Fifth Amendment due process claim because “Templeton’s conduct

and threats as a matter of law cannot be classified as conscience-shocking or constitutionally

oppressive. Templeton’s alleged threats, whether intended to coax a confession or arbitrarily

frighten, may be the subject of proper criticism, but they are not actionable under the Fifth

Amendment’s due process clause.” 

The district court also dismissed Higazy’s Sixth

Amendment claim: “Higazy’s Sixth Amendment claim fails at the threshold . . . . Higazy does

not present the Court with any case in which a plaintiff successfully raised a Bivens or § 1983

action to redress the deprivation of counsel (under either the Fifth or Sixth Amendment) in the

abstract.” 

Final judgment was entered on June 29, 2005.



                                           DISCUSSION

       On appeal, Higazy argues that (I) the district court erred in granting summary judgment

on his Fifth Amendment self-incrimination claim because (a) Templeton was not entitled to


       6
         On May 4, 2005, Higazy’s claims against the hotel defendants were dismissed with
prejudice when the parties reached a settlement agreement, memorialized in a stipulation and
order.
       7
         Higazy appeals only the denial of his Fifth Amendment self-incrimination and Sixth
Amendment claims. An argument or an issue that is not raised in the appellate brief may be
considered abandoned. LoSacco v. City of Middletown, 

, 92–93 (2d Cir. 1995).
Because Higazy appeals only the denial of his Fifth and Sixth Amendment claims, we limit our
discussion of the district court’s decision to those parts relevant to this appeal.

                                                 11
qualified immunity, and (b) Templeton’s conduct was a proximate cause of the use of Higazy’s

allegedly coerced statements and Higazy’s resulting detention; and (II) the district court erred in

granting summary judgment on his Sixth Amendment claim because (a) Higazy’s Sixth

Amendment claim can be pleaded in the alternative to his Fifth Amendment claim, and (b)

Templeton was not entitled to qualified immunity.

       This Court reviews de novo the granting of summary judgment by a district court.

Pepsico, Inc. v. Coca-Cola Co., 

, 104 (2d Cir. 2002). Summary judgment is

appropriate only where, “[e]xamining the evidence in the light most favorable to the nonmoving

party,” Adjustrite Sys., Inc. v. GAB Bus. Servs., Inc., 

, 547 (2d Cir. 1998), the

record shows “that there is no genuine issue as to any material fact and that the moving party is

entitled to a judgment as a matter of law,” Fed. R. Civ. P. 56(c). A motion for summary

judgment must be rejected “if the evidence is such that a reasonable jury could return a verdict

for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 

, 248 (1986). The party

against whom summary judgment is sought “must do more than simply show that there is some

metaphysical doubt as to the material facts. . . . The nonmoving party must come forward with

specific facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 

, 586–87 (1986) (internal quotation marks omitted).

       A Bivens action is a judicially-created remedy designed to provide individuals with a

cause of action against federal officials who have violated their constitutional rights. Ellis v.

Blum, 

, 84 (2d Cir. 1981). “Bivens established that the victims of a constitutional

violation by a federal agent have a right to recover damages against the official in federal court

despite the absence of any statute conferring such a right.” Carlson v. Green, 

, 18


                                                 12
(1980). The only remedy available in a Bivens action is an award for monetary damages from

defendants in their individual capacities. See Polanco v. U.S. Drug Enforcement Admin., 

, 652 (2d Cir. 1998).



                              I. HIGAZY ’S FIFTH AMENDMENT CLAIM

A. Qualified immunity

       Qualified immunity shields government officials from civil suits for damages “insofar as

their conduct does not violate clearly established statutory or constitutional rights of which a

reasonable person would have known.” Harlow v. Fitzgerald, 

, 818 (1982).8 We

have explained:

       In determining whether a particular right was clearly established at the time defendants
       acted, this Court has considered three factors: (1) whether the right in question was
       defined with “reasonable specificity”; (2) whether the decisional law of the Supreme
       Court and the applicable circuit court support the existence of the right in question; and
       (3) whether under preexisting law a reasonable defendant official would have understood
       that his or her acts were unlawful.

Jermosen v. Smith, 

, 550 (2d Cir. 1991). As the third part of the test provides, even

where the law is “clearly established” and the scope of an official’s permissible conduct is



       8
           To rule on the issue of qualified immunity, this Court generally proceeds in two steps.
First, this Court must address the threshold question of whether the amended complaint alleges
the deprivation of an actual constitutional right. Wilson v. Layne, 

, 609 (1999).
The Supreme Court has explained that “[i]f no constitutional right would have been violated
were the allegations established, there is no necessity for further inquiries concerning qualified
immunity. On the other hand, if a violation could be made out on a favorable view of the parties’
submissions, the next, sequential step is to ask whether the right was clearly established.”
Saucier v. Katz, 

, 201 (2001). A right is sufficiently clearly established if “it would
be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” 

                                                 13
“clearly defined,” the qualified immunity defense also protects an official if it was “objectively

reasonable” for him at the time of the challenged action to believe his acts were lawful.

Anderson v. Creighton, 

, 641 (1987) (explaining 

); see also

Robison v. Via, 

, 920–21 (2d Cir. 1987).

               The matter of whether a right was clearly established at the pertinent time is a
               question of law. In contrast, the matter of whether a defendant official’s conduct
               was objectively reasonable, i.e., whether a reasonable official would reasonably
               believe his conduct did not violate a clearly established right, is a mixed question
               of law and fact.

Kerman v. City of New York, 

, 108–09 (2d Cir. 2004) (citations omitted). Moreover,

“[a]lthough a conclusion that the defendant official’s conduct was objectively reasonable as a

matter of law may be appropriate where there is no dispute as to the material historical facts, if

there is such a dispute, the factual questions must be resolved by the factfinder.” 

(citations omitted). “Though ‘immunity ordinarily should be decided by the court,’ that is true

only in those cases where the facts concerning the availability of the defense are undisputed;

otherwise, jury consideration is normally required . . . .” Oliveira v. Mayer, 

, 649 (2d

Cir. 1994) (quoting Hunter v. Bryant, 

, 228 (1991)).

       I. Did Higazy allege a violation of an actual constitutional right?

       Reviewing this question de novo, we hold that Higazy has properly alleged an actual

deprivation of his Fifth Amendment constitutional right against compulsory self-incrimination

only as to the second bail hearing, which took place on January 11, 2002.9


       9
         The specific issue we address here is the existence of a genuine issue of material fact as
to whether Higazy was deprived of an actual constitutional right. As we discuss in greater detail
below, to allege a deprivation of the Fifth Amendment right against self-incrimination, Higazy
must allege not only that the confession was coerced, but that it was used against him in a
criminal case. While we conclude here that Higazy’s allegedly coerced statements were used in a

                                                 14
       The Fifth Amendment provides that no person “shall be compelled in any criminal case to

be a witness against himself.” U.S. Const. Amend. V. “It can be asserted in any proceeding, civil

or criminal, administrative or judicial, investigatory or adjudicatory; and it protects against any

disclosures which the witness reasonably believes could be used in a criminal prosecution or

could lead to other evidence that might be so used.” Kastigar v. United States, 

,

444–45 (1972) (footnotes omitted). In Kastigar, the Supreme Court declared that the

Amendment’s “sole concern is to afford protection against being forced to give testimony leading

to the infliction of [criminal] penalties.” 

(internal quotation marks and citation

omitted). The Fifth Amendment’s self-incrimination clause bars the government from using a

compelled confession in any criminal case.

       The test for whether a statement was improperly obtained by coercion is “determined by

the totality of the circumstances.” Deshawn E. by Charlotte E. v. Safir, 

, 346 (2d

Cir. 1998). In order to decide the summary judgment motion, and only for that purpose, the

district court assumed that Higazy’s confession had been coerced. 

n.20. Because Templeton’s motion for summary judgment did not challenge the sufficiency of

Higazy’s allegation that his statements were coerced, see 

of coercion (or not) is not

before us, and we too assume that the statements were coerced.

       In Weaver v. Brenner, 

(2d Cir. 1994), we concluded that a coerced statement

did not have to be introduced at trial to violate a plaintiff’s Fifth Amendment rights. We held



criminal case, this is different from the issues of whether Templeton caused the statements to be
used at Higazy’s hearing and whether Templeton’s actions were a proximate cause of Higazy’s
detention, both of which we conclude raise genuine issues of material fact that should be decided
by the fact finder.

                                                 15
“that use or derivative use of a compelled statement at any criminal proceeding against the

declarant violates that person’s Fifth Amendment rights; use of the statement at trial is not

required.” 

(emphasis in original). We concluded that the use of a coerced confession

before a grand jury was a violation of the self-incrimination clause: “The use of a coerced

confession before a grand jury plainly makes the [person who gave the statement] a witness

against himself in a criminal case, one leading to the infliction of criminal penalties against him.

Such use, if the confession is found to have been coerced, violates [the declarant’s] constitutional

rights . . . .” 

        The Supreme Court more recently discussed the meaning of the Amendment’s phrase, “in

any criminal case,” in Chavez v. Martinez, 

(2003). The Supreme Court concluded

that an officer could not be subjected to civil liability for an alleged violation of the privilege

against compelled self-incrimination where the coerced statement is not thereafter used against

the person who gave the statement. In his plurality opinion, Justice Thomas explained that “mere

coercion does not violate the text of the Self-Incrimination Clause absent use of the compelled

statements in a criminal case against the witness.” 

Thus, while the privilege may be

invoked in any proceeding, a violation of the constitutional right “occurs only if one has been

compelled to be a witness against himself in a criminal case.” 

In Chavez, Justice

Thomas concluded in his plurality opinion that “a ‘criminal case’ at the very least requires the

initiation of legal proceedings.” 

Justice Thomas quoted Blyew v. United States, 

, 595 (1872), which explained that “[t]he words ‘case’ and ‘cause’ are constantly used as

synonyms in statutes and judicial decisions, each meaning a proceeding in court, a suit, or

action,” and Black’s Law Dictionary 215 (6th ed. 1990), which defined “case” as “[a] general


                                                  16
term for an action, cause, suit, or controversy at law . . . a question contested before a court of

. Declining to decide “the precise moment when a ‘criminal case’

commences,” Justice Thomas wrote that “it is enough to say that police questioning does not

constitute a ‘case’ any more than a private investigator’s precomplaint activities constitute a

‘civil case.’” 

However, Justice Thomas did explain, “it is not until [statements

compelled by a police interrogation are used] in a criminal case that a violation of the Self-

Incrimination Clause occurs.” 

10 Justice Souter concurred in an opinion joined by

Justice Breyer and concluded that it was unnecessary to expand the privilege against self-

incrimination to include a claim for civil liability against an officer who took a coerced statement

when that statement was not used against the person claiming the privilege. 

Justice

Souter did not attempt to define when a criminal case commenced for the purpose of determining

when a statement is used in a criminal case against a person.

       By the time of Higazy’s January 11, 2002 bail hearing, a criminal complaint had been

filed against him and he was subject to detention on that complaint.11 The proceeding was an


       10
            Justice Thomas cited United States v. Verdugo-Urquidez, 

, 264 (1990),
for this proposition. The Court in Verdugo-Urquidez had actually indicated that a violation of
the self-incrimination clause “occurs only at trial.” 

was in fact dealing
with a violation of the Fourth Amendment and it is clear that Justice Thomas did not read it as
limiting the application of the self-incrimination clause to statements that were introduced at trial
rather than in other parts of a “criminal case.” Similarly, Justice Kennedy, who wrote a
concurring and dissenting opinion in Chavez, and who would have found that a violation of the
self-incrimination clause is complete when a coerced confession is taken, did not find that
Verdugo-Urquidez required the use of a coerced statement at trial to complete a violation of the
self-incrimination clause. See 

(Kennedy, J., concurring in part and
dissenting in part).
       11
         The district court and the parties refer to the proceeding before Judge Maas as an
arraignment. However, an arraignment occurs after an indictment or information has been filed.
See Fed. R. Crim. P. 10. The bail hearing before Judge Maas was part of an initial appearance by

                                                  17
initial appearance on the criminal complaint, and the determination of bail was part of that

proceeding. The proceeding was governed by the Federal Rules of Criminal Procedure.12 In

Mitchell v. United States, 

, 327 (1999), the Supreme Court held that the protection

against self-incrimination applies to the sentencing phase of a criminal trial. There, Justice

Kennedy wrote, “[t]o maintain that sentencing proceedings are not part of ‘any criminal case’ is

contrary to the law and to common sense.” 

Although Justice Kennedy was discussing

sentencing, there are several reasons why a bail hearing is a “proceeding in court,” as the

Supreme Court in Chavez defined “case” when it quoted Black’s Law Dictionary (“general term

for an action, cause, suit, or controversy at law . . . a question contested before a court of

justice.”). 

–67.13

       The status of bail hearings under other constitutional provisions supports the conclusion

that such a hearing is part of a criminal case against an individual against whom charges are

pending. In the Sixth Amendment context, the Supreme Court found that a bail hearing is a

“critical stage of the State’s criminal process at which the accused is as much entitled to such aid


the defendant on a criminal complaint. The complaint was signed by Special Agent Bruno before
Judge Maas. The procedures for an initial appearances are governed by Rule 5 of the Federal
Rules of Criminal Procedure, which includes guidance on what to tell the defendant about his
rights, the charge(s) against him, and the available means of securing pretrial release. See Fed.
R. Cr. P. 5(d).
       12
           As for the December 28, 2001, bail hearing we need not decide whether Higazy has
properly alleged an actual deprivation of his Fifth Amendment right because we hold that it was
not clearly established in December 2001 that a bail hearing in a material witness proceeding
was, for Fifth Amendment purposes, a criminal case. We disagree that Noto v. United States, 

(1955), established the right in question.
       13
          The Federal Rules of Criminal Procedure, which are “intended to provide for the just
determination of every criminal proceeding,” Fed. R. Crim. P. 2, make specific provisions for
bail proceedings. See Fed. R. Crim. P. 46(a).

                                                  18
(of counsel) . . . as at the trial itself.” Coleman v. Alabama, 

, 9–10 (1970) (internal

quotation marks and citation omitted; ellipsis in original). The Court followed this logic when

discussing the Eight Amendment, in Stack v. Boyle, 

, 6–7 (1951), where it also treated

a bail hearing as “a criminal proceeding.” This accords with our case law on bail hearings. In

United States v. Abuhamra, 

, 323 (2d Cir. 2004), we wrote that “[b]ail hearings fit

comfortably within the sphere of adversarial proceedings closely related to trial.” There, we

explained that:

       [B]ail hearings, like probable cause and suppression hearings, are frequently hotly
       contested and require a court’s careful consideration of a host of facts about the defendant
       and the crimes charged . . . . Bail hearings do not determine simply whether certain
       evidence may be used against a defendant at trial or whether certain persons will serve as
       trial jurors; bail hearings determine whether a defendant will be allowed to retain, or
       forced to surrender, his liberty during the pendency of his criminal case.

The issue there was whether ex parte evidence could be used against a defendant

in a bail proceeding. We held, “neither the defendant nor the public would be well served by

having determinations that so immediately affect even this reduced interest routinely made in

closed proceedings or on secret evidence.” 

       Based on our prior rulings on the Fifth Amendment and bail hearings, and Justice

Thomas’s definition of “criminal case” in Chavez, which illuminates the cases decided before

January 2002, on which we may rely, we hold that Higazy’s initial appearance on January 11,

2002, which included the determination of whether he would be detained or released on bail, was

part of the criminal case against Higazy.

ii. Was the constitutional right clearly established as of December 2001?




                                                 19
        In December 2001 and January 2002, the Fifth Amendment right that Higazy claims with

respect to the January 11, 2002 bail hearing was defined with “reasonable specificity” and

supported by Second Circuit case law. It was clearly established in December 2001 and January

2002 that a coerced confession could not constitutionally be used against a defendant in a

criminal case, and it was clearly established that a bail hearing, after criminal charges had been

filed, was part of a criminal case. This is a question of law, which we review de novo. See

.

        In Weaver, we addressed a very similar issue to the one we face here, and explained:

“Appellants contend that the coerced statement must be introduced at the individual’s trial before

the [Fifth] Amendment is violated. We 

. We ultimately concluded, as

noted above: “As a consequence, we hold that the use or the derivative use of a compelled

statement at any criminal proceeding against the declarant violates that person’s Fifth

Amendment rights; use of the statement at trial is not required.” 

found that

this right was sufficiently well established at the time of the alleged violation to satisfy the first

prong of the qualified immunity analysis.14

             On January 11, 2002, it was clearly established that the FBI could not coerce a

confession and later use that confession in a criminal case, including in a proceeding before a

judge after criminal charges had been filed, to impose the penalty of continued detention. The



        14
           United States v. Awadallah, 

(2d Cir. 2003) (holding that the federal
material witness statute can be applied constitutionally to a grand jury witness) is not relevant to
this case, because it dealt solely with whether a material witness could be held for grand jury
testimony, not whether a bail proceeding—per se or as part of a material witness
proceeding—was a criminal case for the purposes of the Fifth Amendment's self-incrimination
clause.

                                                   20
government argues that there was conflicting Supreme Court law as to whether a Fifth

Amendment right against self-incrimination was only a trial right, or extended more broadly. We

disagree.

       Chavez rejected the proposition that there is a completed violation of the self-

incrimination clause when a statement is obtained by coercion but never used against the

declarant. Justice Thomas’s plurality opinion provided some definition for “criminal case” but

Justice Souter’s concurring opinion did not attempt to provide such a definition. There is no hint

in any of these opinions that the use of an allegedly coerced statement at an initial appearance,

after a criminal complaint has been filed, is not use in a “criminal case.”15

       Our decision in Weaver, as well as the case law we cited therein, lead us to conclude that

in December 2001, when the confession was allegedly coerced, and in January 2002, when the

confession was used at Higazy’s bail hearing, it was clearly established that the use of the

allegedly coerced statement at that hearing completed the violation of Higazy’s Fifth

Amendment’s guarantee against compulsory self-incrimination.

iii. Was Templeton’s conduct objectively reasonable?

       Where there is a dispute about the material facts, this question must be resolved by the

fact finder. See 

. Again, we assume for the purposes of this appeal that

Templeton coerced Higazy’s statements, because this issue was not raised before the district

court; these facts were not disputed for the purposes of summary judgment. Although Templeton

asked Higazy about his involvement in September 11, he later told Higazy, during the same


       15
           The Supreme Court decided Chavez after Higazy’s bail hearing, and thus its holding
does not bear on the issue of qualified immunity. However, we find Justice Thomas’s analysis
helpful insofar as it demonstrates where the law stood when Chavez was decided.

                                                 21
interview, that he knew Higazy had nothing to do with the attack. On December 27, 2001, and in

the days following the polygraph examination, Templeton could not have known exactly how he

would use the confession because he could not predict the course that the case would take. The

use of the confession would either ripen into a Fifth Amendment violation or it would not —that

is the first question that we must examine, and a question that we have answered in the

affirmative. Indeed, it ripened when it was used at the second bail hearing to deprive Higazy of

his freedom. The objective prong of the qualified immunity test asks whether an officer in

Templeton’s shoes would have known that he was violating the right in question. We believe

that a reasonable jury could conclude that he would.

        For the purposes of our inquiry here, we conclude that when the facts are cast in the light

most favorable to Higazy, an officer in Templeton’s shoes would have understood that the

confession he allegedly coerced from Higazy would have been used in a criminal case against

Higazy and that his actions therefore violated Higazy’s constitutional right to be free from

compelled self-incrimination.

       Templeton essentially argues that it was objectively reasonable for him to believe that this

was not a criminal case and therefore his conduct was objectively reasonable. However, a

reasonable fact finder could conclude that Templeton obtained the statements from Higazy so

that they could be used in a criminal case against him. A reasonable fact finder could conclude

that it was not reasonable for an officer to believe that it was constitutional to coerce a confession

and then to hand that information to a prosecutor—without divulging the means by which the

confession was acquired— for use in a criminal case.




                                                 22
B. Causation

       The district court did not reach the issue of causation; instead it “summarize[d]

defendant’s argument” so it could “complete the description of the legal debate.” Higazy, 346 F.

Supp. 2d at 449. There are two separate questions that must be resolved at trial: whether

Templeton caused the use of the allegedly coerced statements at the January 11, 2002 bail

hearing and whether Templeton’s conduct was a proximate cause of Higazy’s detention after that

bail hearing. Templeton argues that the actions of Higazy’s lawyer, the prosecutor and the

Magistrate Judge were superseding causes that cut off his liability.

       Tort defendants, including those sued in Bivens actions, are responsible for the “natural

consequences” of their actions. See Monroe v Pape, 

, 187 (1961) (referring to

defendants in Section 1983 actions); 

(same); Zahrey v. Coffey, 

, 357 (2d Cir. 2000) (involving a Bivens action). We have explained that

“‘foreseeability and causation . . . are issues generally and more suitably entrusted to fact finder

adjudication.’” Lombard v. Booz-Allen & Hamilton, Inc., 

, 216 (2d Cir. 2002)

(quoting Palka v. Servicemaster Mgmt. Servs. Corp., 

(N.Y. 1994)); see also

McKinley v. City of Mansfield, 

, 437–438 (6th Cir. 2005) (“It is hard to see how

law enforcement officials could ‘ultimately impair’ the right against self-incrimination if not by

compelling a suspect to make incriminating statements that are later used against him at trial. It is

equally hard to see how officials whose conduct ultimately impaired a citizen's Fifth Amendment

rights could nonetheless escape civil liability merely because a different state official put the

statements into evidence at trial.”). Based on the facts here, viewed in the light most favorable to

the non-moving party, we conclude that the issues of causation depend on the resolution of issues


                                                 23
of fact that cannot be decided as a matter of law. If the fact finder concludes that there were

superseding causes cutting off Templeton’s liability, Higazy’s action against him will fail.

       We explained in Townes v. City of New York, 

(2d Cir. 1999), that an

action to vindicate a constitutional right (there, a Section 1983 action) employs the tort principle

of proximate causation. 

. The same is true of Bivens actions. Cf.

Gierlinger v. Gleason, 

, 872 (2d Cir. 1998). In Townes, we explained that this

Court adheres to the common law definition of superseding cause: “an act of a third person or

other force which by its intervention prevents the actor from being liable for harm to another

which his antecedent negligence is a substantial factor in bringing about.” 

(quoting Restatement (Second) of Torts § 440 (1965)).16 The inquiry in Townes was

whether the conviction and incarceration were “proximately (or legally) caused by the

defendants’ constitutional torts.” 

After applying proximate cause analysis, we found

that the unconstitutional search and seizure was not a proximate cause of the plaintiff’s

conviction because of “the trial court’s refusal to suppress the evidence, which is an intervening

and superseding cause of Townes’s conviction.” Id.17




       16
          Put differently, a superseding cause is “[a]n intervening act that the law considers
sufficient to override the cause for which the original tortfeasor was responsible, thereby
exonerating that tortfeasor from liability.” Black’s Law Dictionary 213 (7th ed. 1999).
       17
           Townes was decided as an appeal of a decision granting summary judgment, but there,
the facts were such that we could determine proximate cause as a matter of law. The same is not
true here.

                                                 24
       In Zahrey, 

, we expanded our Townes holding: “there is a constitutional

right not to be deprived of liberty as a result of the fabrication of evidence by a government

officer acting in an investigatory capacity, at least where the officer foresees that he himself will

use the evidence with a resulting deprivation of liberty.” 

The question in Zahrey was

framed as “whether the deprivation of liberty may be considered a legally cognizable result of the

initial misconduct.” 

In Zahrey, we discussed our decision in Townes:

       In the context of criminal law enforcement, courts have differed as to the circumstances
       under which acts of subsequent participants in the legal system are superseding causes
       that avoid liability of an initial actor. If the subsequent participant exercises independent
       judgment, the chain of causation has sometimes been held to have been broken. Thus, in
       Townes v. City of New York, 

(2d Cir. 1999), we ruled that a trial judge’s
       erroneous decision not to suppress unlawfully seized evidence was an exercise of
       independent judgment that avoided liability of the police officers who seized the evidence
       for the ensuing conviction and incarceration. See 

Police officers have also
       been insulated from liability for any deprivation of liberty resulting from their misconduct
       by the intervening acts of other participants in the criminal justice system.

(citations and footnote omitted). However, the analysis did not end there. We

immediately qualified our characterization of Townes:

       On the other hand, the Supreme Court has ruled that a judge’s decision to issue an arrest
       warrant did not break the causal chain between the act of a police officer who submitted
       an affidavit and the arrest where “a reasonably well-trained officer in [the same] position
       would have known that his affidavit failed to establish probable cause.” Malley v. Briggs,
       

, 345 (1986). Applying Malley, we have ruled that the decision of a
       sentencing judge does not break the causal chain between the wrongful recommendation
       of a probation officer and an unconstitutional sentence. See Warner v. Orange County
       Dep't of Prob., 

, 1071 (2d Cir. 1997), reinstated after opinion vacated, 

, 121 (2d Cir. 1999); see also Wagenmann v. Adams, 

, 212–13 (1st
       Cir. 1987) (decision of court clerk acting as bail commissioner in setting bail did not
       insulate police officer from liability for violating plaintiff's right to be free from excessive
       bail). We have also sustained a claim against a police officer, despite the subsequent

                                                 25
       actions of a prosecutor and a grand jury. See White v. Frank, 

, 962 (2d Cir.
       1988) (“As with the grand jury . . . the public prosecutor’s role in a criminal prosecution
       will not necessarily shield a complaining witness from subsequent civil liability where the
       witness’s testimony is knowingly and maliciously false.”)

this analysis, we explained:

       These differing results seem to place in tension the principle that the “intervening
       exercise of independent judgment” will break a causal chain, 

,
       and the principle that defendants in section 1983 cases are liable for consequences caused
       by “reasonably foreseeable intervening forces,” Gutierrez-Rodriguez v. Cartagena, 

, 561 (1st Cir. 1989) (internal quotation marks omitted). Some courts have
       sought to resolve the tension by considering the intervening act of a decision-maker not to
       be an exercise of truly independent judgment, and therefore reasonably foreseeable, if
       caused by pressure or misleading information provided by the actor whom the plaintiff
       seeks to hold liable.

–52.

       While in Townes we observed that a defendant cannot rely on the alleged existence of a

superseding cause when that subsequent decision-maker has been deceived by the defendant’s

actions, see 

, in Zahrey we explained that “[e]ven if the intervening

decision-maker (such as a prosecutor, grand jury, or judge) is not misled or coerced, it is not

readily apparent why the chain of causation should be considered broken where the initial

wrongdoer can reasonably foresee that his misconduct will contribute to an ‘independent’

decision that results in a deprivation of 

. In a footnote, we explained

that “[t]he initial wrongdoer might avoid liability where the intervening decision-maker would

have precipitated the deprivation of liberty, even in the absence of the antecedent misconduct; in

that circumstance, ‘but for’ causation could be claimed to be lacking.” 

n.8. Zahrey


                                                 26
addresses a prosecutor who knowingly used wrongfully obtained evidence that he himself

obtained, but says nothing about a police officer who might knowingly provide wrongful

evidence.

       Defendants in Bivens actions may be liable for consequences caused by reasonably

foreseeable intervening forces; here, the chain of causation need not be considered broken if

Templeton deceived the subsequent decision maker, see 

, or could

“reasonably foresee that his misconduct [would] contribute to an ‘independent’ decision that

results in a deprivation of liberty,” 

. When the facts are viewed in the

light most favorable to Higazy, we cannot conclude as a matter of law that there are sufficient

superseding causes to cut off Templeton’s liability.

       Our recent decision in Wray v. City of New York, 

(2d Cir. 2007), is not to

the contrary. There, a police officer who arranged an unduly suggestive station house showup

was not found liable on a Section 1983 claim, because the violation of plaintiff’s constitutional

rights “was caused by the ill-considered acts and decisions of the prosecutor and trial judge,” 

which the officer could not reasonably have foreseen. “It is always possible that a judge

who is not misled or deceived will err; but such an error is not reasonably foreseeable . . . it is not

the ‘legally cognizable result’ of an investigative abuse.” 

By contrast, construing the

facts in the light most favorable to Higazy as the non-moving party, a fact finder could conclude

that Templeton could reasonably have foreseen that a coerced confession would be used against

Higazy and would lead to Higazy’s detention.

                                                  27
       While the record tells us very little about Templeton’s actions following the polygraph

examination, or Higazy’s communications with his attorney about what transpired during the

polygraph interview, there are genuine issues of material fact as to whether Templeton caused the

use of the confession and whether Templeton’s conduct was a proximate cause of Higazy’s

detention. At the January 11, 2002 bail hearing before Judge Maas, there were several factors

that could have militated in Higazy’s favor: there were at least twenty local people who vouched

for him and said they would allow him to reside in their homes; Higazy had no criminal record;

and Higazy had a brother in Ithaca, New York, and a girlfriend in Pennsylvania. Higazy was

willing to accept supervisory conditions such as wearing an ankle bracelet and “any other

monitoring device that the Court might deem necessary.”

       The government argued that Higazy was a flight risk because, inter alia, “his behavior

since his arrest in mid-December [] has proven that he is a poor candidate for court supervision

because he’s repeatedly lied to law enforcement officers.” Apparently referring to the Templeton

interrogation, the government continued, adding: “[i]t’s entirely possible given the number of

different false statements he’s made on different occasions an indictment would contain multiple

counts.” And shortly thereafter: “[h]e was questioned about the radio. At first [Higazy] denied

ownership of the radio and later admitted ownership of the radio but told three different versions

of how he had come into possession of the radio. So this is not somebody who can be deemed

trustworthy, somebody who’s not deemed untrustworthy. Other things being the same, I submit

is not [sic] a good candidate for bail.”

                                                28
       These arguments, in part, led Judge Maas to tell Higazy’s attorney: “[o]n the face of it it

appears that insofar as the complaint charges the defendant with making false statements, it

seems to me [that the government] has the better of the argument in that this does seem to be a

very strong case of false statements made by your client.” 18

       There is not enough evidence in the record about what communications occurred between

Templeton and the prosecutor, and Higazy and his attorney, to allow us to decide, as a matter of

law, whether there were superseding causes cutting off Templeton’s liability.


       18
          While the factual allegations relating to the December 28, 2001, bail hearing, are not as
relevant as the January 11, 2002, hearing, at which Higazy’s Fifth Amendment rights were
violated, we provide this short summary of the December 28 hearing because we believe it is
sheds important light on the role of the confession in both hearings.
        At the hearing on March 18, 2002, after the criminal charges against Higazy had been
dropped, Judge Rakoff stated:
                This much I think we know, subject to hearing from counsel, and that is that either
        Mr. Higazy did not confess to the FBI agent, in which case the FBI agent made a
        misrepresentation to the court, via the AUSA, or, more likely, a false confession was
        obtained, which still had the effect, of course, of misleading the court but would have
        involved the same intent on the part of the agent. And at a minimum, one would think
        that some explanation would be forthcoming as to how a false confession could have
        been obtained, but none has been offered yet in any of the papers from the government.
Connecting the false confession to his decision to deny bail, Judge Rakoff explained:
        [W]hat happened was that [the government] represented flat out that the defendant had
        now admitted it was his radio, and then the court, in reliance on that, concluded that bail
        should be more obviously denied than had been the case earlier. I assume, because I have
        absolutely no reason to believe the U.S. Attorney’s Office has been anything but accurate
        and forthright throughout these proceedings, that that was a fair statement of what
        [counsel for the government] had learned from the agent.
In his written order, Judge Rakoff characterized his decision to deny bail as a consequence of his
learning that Higazy had confessed to owning the radio, In re Material Witness Warrant, 214 F.
Supp. 2d at 359, explaining that he “was materially misled by being informed of a confession that
subsequently was shown to be false,” 

                                                29
                               II. HIGAZY ’S SIXTH AMENDMENT CLAIM

        Higazy alleges that his Sixth Amendment right to counsel was violated at the December

27, 2001, polygraph interview when Templeton engaged in questioning after the polygraph

examination was complete. Higazy’s argument is that he waived his right to counsel only for the

duration of the polygraph interview. For the reasons stated below, we affirm the district court’s

dismissal of Higazy’s Sixth Amendment claim on the grounds of qualified immunity. 19

        A material witness detained pursuant to the material witness statute, 18 U.S.C. § 3144,

has a statutory right to counsel under Section 3142. See 18 U.S.C. § 3142(f) (“At the hearing,

such a person has a right to be represented by counsel, and, if financially unable to obtain

adequate representation, to have counsel appointed.”); § 3142(I) (“In a detention order issued

under subsection (e) of this section, the judicial offer shall . . . (3) direct that the person be

afforded reasonable opportunity for private consultation with counsel.”)

        At the time of the interrogation in this case, there was no clearly established right to

counsel for a material witness that was guaranteed by the Sixth Amendment as opposed to the



        19
           We do not reach the issue of whether Higazy’s Sixth Amendment rights were violated,
because principles of judicial restraint caution us to avoid reaching constitutional questions when
they are unnecessary to the disposition of a case. See Ehrlich v. Town of Glastonbury, 

, 57 (2d Cir. 2003) (recognizing that, consistent with Saucier v. Katz, 

(2001),
(“we may [in certain circumstances] move directly to [the question of qualified immunity] and
refrain from determining whether a constitutional right has been violated”); Anobile v.
Pelligrino, 

, 123 (2d Cir. 2001) (holding that to determine whether a search
exceeded a constitutionally allowable scope after disposing of the issue on other grounds violated
the principle of judicial restraint.)

                                                   30
statutory right to counsel that was guaranteed under the material witness statute. In Center for

National Security Studies v. United States Department of Justice, 

, 922 (D.C. Cir.

2003), the D.C. Circuit noted in dicta that “criminal detainees and material witness detainees are

free to retain counsel and have been provided court-appointed counsel if they cannot afford

representation, as required by the Sixth Amendment to the Constitution.” (Emphasis added.)

However, we know of no court, including our own, that has held that a material witness has a

Sixth Amendment right to counsel before charges have been filed against the material witness,

because it is unclear how the “initiation of adversary judicial proceedings” could occur in this

context prior to the presentation of a “formal charge, preliminary hearing, indictment,

information, or arraignment.” Kirby v. Illinois, 

, 689 (1972) (plurality opinion).

Accordingly, we therefore affirm the district court’s dismissal of this right to counsel claim on

the grounds of qualified immunity, because there was no violation of a clearly established right

under the Sixth Amendment here. See 

.



                                           CONCLUSION

       For the foregoing reasons, we affirm the district court’s dismissal of Higazy’s Fifth

Amendment claim as to the hearing of December 28, 2001, and Higazy’s Sixth Amendment

claim as to the interrogation of December 27, 2001, but we vacate the district court’s dismissal of

Higazy’s Fifth Amendment claim as to the January 11, 2002 bail hearing. The case is remanded

for further proceedings consistent with this opinion.

                                                31
DENNIS JACOBS, Chief Judge, concurring:

    I concur in the majority opinion insofar as it affirms

the dismissal of the Sixth Amendment claim and the dismissal

in part of the Fifth Amendment claim.   I also concur in the

remand to the district court to reinstate the Fifth

Amendment claim as to the January 11, 2002 bail hearing, but

I respectfully disagree as to the grounds for doing so.

    The surviving claim in this Bivens action is that,

during a polygraph test, defendant Templeton coerced a

confession that later became a basis for the deprivation of

Higazy’s liberty at the January 11 bail hearing.   (The

parties assume the fact of coercion solely for the purpose

of the summary judgment motion.)   The Fifth Amendment

protects the right not to be a witness against oneself in a

criminal case; but “mere coercion does not violate the text

of the Self-Incrimination Clause absent use of the compelled

statements in a criminal case against the witness.”      Chavez

v. Martinez, 

, 769 (2003) (emphasis added); see

Weaver v. Brenner, 

, 534-35 (2d Cir. 1994).

Under settled law of this Circuit, the Fifth Amendment


                             1
violation that flows from a coerced confession transpires

only if and when the confession is used in court, and even

then, the officer who coerced the confession is liable only

if the officer conceals the coercion; absent concealment of

the circumstances amounting to coercion, the error of the

court in accepting the confession is treated as a

superseding cause.   See Point I, infra.

    Notwithstanding this precedent, the majority thinks

that Higazy need show no more than “that Templeton could

reasonably have foreseen that a coerced confession would be

used against Higazy and would lead to Higazy’s detention.”

Maj. Op. at 

.   In an error that flows from that

error, the majority presumes that proximate cause is a jury

question in the odd circumstance of this case, where the

criminal defendant failed to challenge the confession in

court.   This odd circumstance limits the influence of the

majority’s error to the odd facts of this case.     But I write

to emphasize that, oddball facts notwithstanding, our

precedents remain intact.




                              2
                                I.

    Under our precedents:     where the constitutional injury

flowing from alleged official misconduct occurs only when

the results of that misconduct are used in a criminal

proceeding, the burden is on the Section 1983 plaintiff to

allege and prove that the defendant official was the

proximate cause of the use.     Thus, in Townes v. City of New

York, 

(2d Cir. 1999), we dismissed a Section

1983 claim arising out of an illegal search and seizure

where the plaintiff was unable to show that his subsequent

conviction and incarceration were “fairly traceable” to the

police misconduct.   

      The complaint alleged that

the plaintiff’s injury was the foreseeable result of the

officers’ misconduct because he would not have been

convicted but for the illegally seized evidence.        This was

insufficient to state a claim that the officers proximately

caused his injury, because the trial judge’s decision to

admit the illegally seized evidence was a superseding cause

of the constitutional injury.        The trial judge’s “exercise

of independent judgment in deciding not to suppress the

evidence, though later ruled to be erroneous, broke the




                                3
chain of causation for purposes of § 1983 liability.”     

   We held:

      It is well settled that the chain of causation
      between a police officer’s unlawful arrest and a
      subsequent conviction and incarceration is broken by
      the intervening exercise of independent judgment. At
      least that is so in the absence of evidence that the
      police officer misled or pressured the official who
      could be expected to exercise independent judgment.

    Again, in Zahrey v. Coffey, 

(2d Cir.

2000), we recognized that “a person whose initial act is the

‘but for’ cause of some ultimate harm (i.e., the harm would

not have happened but for the initial act) is not legally

liable for the harm if an intervening act is a ‘superseding

cause’ that breaks the legal chain of proximate cause.”     

n.7 (citing Restatement (Second) of Torts § 440

(1965)).   Applying this principle in the law enforcement

context, we held that the causal chain between official

misconduct and injury to a criminal defendant is broken when

a subsequent participant exercises judgment that is “truly

independent”--judgment that is not the product of “pressure

or misleading information provided by the actor whom the

plaintiff seeks to hold liable.”   

-52.   In Zahrey,

a prosecutor was accused of manufacturing false evidence



                              4
which he then introduced at a grand jury proceeding.         We

reinstated the Section 1983 claims against him because his

fabrication compromised the judgment of intervening actors

who authorized the indictment and arrest of the plaintiff–-

the plaintiff having had no opportunity to object.      In

dicta, Zahrey declined to decide whether “the chain of

causation should be considered broken where the initial

wrongdoer can reasonably foresee that his misconduct will

contribute to an ‘independent’ decision that results in a

deprivation of liberty.”     

.   The majority opinion

here relies on this question in dicta to ignore more recent

precedent that furnishes the answer.

    In Wray v. City of New York, 

(2d Cir.

2007), the plaintiff similarly was required to show more

than that the use of illegally obtained evidence was

foreseeable to the defendant officer; the plaintiff had to

show the defendant proximately caused the use of the

evidence.   

   The plaintiff in Wray had been

convicted and jailed after a trial in which the prosecutor

introduced--and the trial judge refused to suppress--an

unduly suggestive showup identification.      After a habeas

court found the admission of this evidence to be reversible



                                5
error, the plaintiff sued the police officer who had

conducted the identification procedure.      We held that the

officer was entitled to summary judgment because the

plaintiff failed to introduce evidence that the officer

misled or pressured the prosecution or trial judge to use

the suggestive showup identification.      

“[T]he

alleged conduct of [the officer] was not in itself illegal

or unconstitutional.      The constitutional harm occurred when

the showup was impermissibly used to compromise the fairness

of [plaintiff’s] trial--at behest of the prosecutor, by

order of the trial court, and beyond [the officer’s]

control.”   

    Our cases affirm that traditional tort law principles

apply equally to a Section 1983 plaintiff and require him to

show the causal link from the original police misconduct up

to the point of injury in order to proceed on his claim.



                                II.

    The majority opinion misapplies our precedent because

it misconceives the constitutional violation.      The majority

pays lip service to settled law that the constitutional

violation occurs only when a coerced confession is actually


                                 6
used against a defendant in a criminal case, but its

analysis implicitly depends on localizing the constitutional

violation in the interview room and on finding the violation

complete when the confession was coerced.   This error is

manifest in the majority’s treatment of events subsequent to

the coerced confession.   Thus, the majority sees

insufficient record evidence to determine whether subsequent

events constitute “superseding causes cutting off

Templeton’s liability,” Maj. Op. at 

; but instead

of deciding that Higazy thereby failed to offer evidence

sufficient to resist summary judgment, the majority puts the

burden on Templeton, whose liability is assumed unless he

can disprove causation.   The majority thus betrays its

mistaken assumption that Templeton’s liability attached when

he (allegedly) coerced the confession.

    Under our case law, liability could not possibly attach

until the January 11 bail hearing that resulted in the

wrongful detention.   At the risk of being obvious, the

denial of bail was the cause of Higazy’s detention.      The

constitutional prohibition against use of coerced statements

could not have been violated until that hearing, when the

statements were “used.”   Such a hearing is ordinarily



                              7
controlled by the judge with the participation of counsel.

Higazy would have been aware that his confession was coerced

and could tell his lawyer; causation would be interrupted if

he failed to do so, or if he told his lawyer who then failed

to raise the issue--or if the issue were raised, and despite

truthful testimony as to what (allegedly) happened in the

interview room, the judge decided to accept the confession.

In order to get to a jury, the burden is on Higazy to show

that Templeton misled or pressured a party to the hearing

such that Templeton compromised that party’s independent

judgment in offering, relying on, or failing to object to

the use of the coerced confession.

    Contrary to reason and experience, the majority assumes

that it is reasonably foreseeable that a party will fail to

protect his own rights.   Just as an officer who has coerced

statements is not expected to foresee a trial judge’s error

in denying a suppression motion, see Maj. Op. at 

(citing 

), he should not be expected to

foresee that defense counsel will decide to forgo any

objection to admissibility--unless the defendant’s ability

to object has been somehow compromised or undermined by the

police.   In the majority’s view, Higazy’s failure to adduce



                              8
evidence of causation makes this a jury case.   The majority

thus implicitly relieves plaintiff of the burden of

demonstrating that he will introduce evidence sufficient to

allow a reasonable jury to find the defendant’s conduct was

a proximate cause of the constitutional violation, and (on a

summary judgment motion) the majority displaces the burden

of production to the police officer to show as a matter of

law that the officer did not deceive the intervening actors

and that the officer could not foresee the use of the

statements.



                            III.

    The majority’s analysis is gratuitous because in this

case there is sufficient record evidence of proximate cause

to preserve Higazy’s claim without the majority’s muddled

discussion about foreseeability.   The record reveals a

genuine issue of fact as to whether Templeton took an

affirmative step to mislead defense counsel about the

circumstances under which the statements were obtained, and

thereby compromised Higazy’s opportunity to object to the

use of the allegedly coerced statements.




                             9
    Higazy attested that at some point before the January

11 hearing his attorney “asked me why did I say what I did.

I told him that my family was threatened.”        Higazy Aff. at

5, Sept. 23, 2002.     Higazy further attested that the next

time he met with agents in his attorney’s presence, his

attorney “asked me to confront [Templeton] with what I said

he said.   I did.    He [Templeton] denied it.”     

provided by Templeton corroborates this account:

      [On January 8,] I was met by the attorney who
      informed me his client would not take this [second
      polygraph] test because the writer had threatened
      him, and his client was now denying ownership of the
      radio. . . . The accusation of the threat was denied
      by writer . . . . The attorney requested that I hear
      the complaint directly from the client. . . .
      [Higazy] stated “all I can remember is you saying
      that you would see to it that the Egyptian security
      service make my parents lives a living hell.” Writer
      denied to [Higazy] and the attorney that the threat
      was made . . . . [W]hen informed [by the writer]
      that [Higazy] was advised by the writer of the
      attorney’s presence and availability at any time, the
      attorney asked [Higazy] if what the writer had said
      was true, [Higazy] advised the attorney that he
      couldn’t remember. The attorney asked [Higazy]
      again, “did he (the writer) tell you that?” [Higazy]
      responded, “I can’t remember. I’m not a human tape
      recorder.”

Templeton Aff. at 11-12, Oct. 25, 2002 (emphasis added).           A

reasonable jury (if it found coercion, in the first place)

could infer from these circumstances that Templeton’s flat

denial of coercion impaired counsel’s independent decision

                                10
(either because it convinced the lawyer that his client was

lying or because the lawyer believed that an objection would

not withstand Templeton’s denial), and therefore effected

causation. 1   I would rule on this basis, and that is why I

concur in the result.




     1
          At the January 11 hearing itself, defense counsel’s
statements make clear that he had decided not to raise Higazy’s
allegations in any detail:
          He was unable to complete the lie detector exam. I
          don’t want to get into hurling accusations back and
          forth that which was provided to me by the defendant
          and those that are attested by the Government as to who
          pressured who into saying what, what misconstrued what
          one other said.
Tr. of Arraignment at 24, Jan. 11, 2002. Higazy’s counsel did in
fact argue the statements were inadmissible because they were
outside the scope of Higazy’s waiver, but counsel only hinted at
coercion:
          [W]hatever occurred during those sessions was a limited
          waiver for the purpose of him being submitted to a
          polygraph examination. . . . So I don’t know what
          happened in that room or didn’t happen in that room,
          but other than the results of a polygraph it’s off the
          table.