*1 common-law head- supplants er the FSIA HIGAZY, immunity). Plaintiff-Appellant,
of-state Abdallah recognized court that ordi- The district narily it need to first determine would Agent TEMPLETON, FBI Michael immunity Itoua can invoke the
whether FSIA, but it unnec- provisions of the found Defendant-Cross-Claimant-Cross- essary it concluded that even if Defendant-Appellee, sovereign immunity to Itoua were entitled FSIA, the commercial under the activities Resorts, Millenium1 Hotel and the Hil- immunity. exception abrogated As Corporation, ton Hotels and Ronald above, explained that conclusion was Ferry, Yule, Stuart Defendants- Thus, applies erroneous. the FSIA if Cross-Claimants-Cross-Defendants. Itoua, then, SNPC, like he is immune from Docket No. 05-4148-cv. from
this suit and should be dismissed Accordingly, case. we vacate the district United States Appeals, Court of respect court’s decision with to Itoua and Second Circuit. to the court to remand case district (1) address the first instance under what Argued: June 2006. circumstances, any, applies if FSIA (2) Decided: Oct. individuals; 2007. whether Itoua has demonstrated the existence of such cir- In determining
cumstances.7 “foreign purposes
Itoua is a state” for FSIA, we note the burden rests Countries,
squarely on Itoua. See Virtual (“[I]n challenge F.3d at 241 FSIA
subject jurisdiction, matter the defendant present prima
must case that it is a facie (internal foreign sovereign”) quotation omitted).
marks
CONCLUSION reasons,
For foregoing judgment in part, district court is reversed part,
vacated in and remanded for further
proceedings opinion. consistent with this argued Itoua has not that he is entitled to leave it to the court to address this district law, immunity under the common and there- issue if and when it arises. express availability opinion fore we no on the unavailability response of that defense. In spelling caption, 1. We use the of the official suggestion government’s to the in the amicus although papers before the court are not available, immunity may brief that such be respect spelling consistent with Kensington contends that Itoua has waived hotel's name. any opportunity to We raise such defense. *3 Abady, Emery
Jonathan Celli Brincker- (O. Abady Wilson, hoff & LLP Andrew F. Celli Brinckerhoff & Emery Abady LLP, Ward, brief) York, Earl on the New NY, Appellant. for Lane, Sean Assistant United States At- (Heather torney McShain and Sean Cena- wood, Attorneys, Assistant United States Garcia, Attorney Michael United States York, the Southern District of on New brief) York, NY, New for Appellee. Judge, Before: JACOBS Chief POOLER, KOELTL, Judges, Circuit Judge.2 District Judge Chief JACOBS concurs in the judgment separate of the and files a Court concurring opinion.
POOLER, Judge. Circuit (“Hi- Abdallah Plaintiff-appellant gazy”) complaint filed an amended on De- cember in the United States Dis- trict Court for the Southern District of (Buchwald, J.), against New York FBI (“Tem- Special Agent Michael (“Milleni- pleton”), the Millenium Hotel um”), corporate Millenium’s owner CDL (New LLC, York), corporate Millenium’s (“Hilton”), operator Corp. Hilton Hotels employees and Millenium Stuart Yule Koeltl, York, sitting by designation. 2. The Honorable John G. United of New States District Court for the Southern District from the Trade Center (“Yule”) (“Ferry”). Ev- the street World Ferry and Ronald (“the Center”), City. Ferry moved for New York except ery defendant 56 of judgment, pursuant Rule summary Higazy awoke September On Procedure. On Rules of Civil the Federal fifty-first on the floor a corner room court district September hijacked hit the The first airliner hotel.3 for defen- summary judgment granted a.m., forty- approximately at 8:46 Center Yule, claim dants, on the except awoke, and while after five minutes judgment was denied summary where second in his room. After the he was still Higazy v. part. See granted part a.m., tower, at 9:03 hit the second plane Resorts, & Hotel Millennium other hotel evacuated with the Higazy was (S.D.N.Y.2004). 4,May On F.Supp.2d belongings left most of his guests. Higazy *4 2005, remaining against claims room, taking only one hundred in the hotel dismissed with were the hotel defendants cash, wallet, clothing dollars in his and parties a set- when the reached prejudice wearing. he was stip- in a memorialized agreement, tlement October, ho- early September In late Judgment entered and was ulation order. Yule, Millenium’s employees, including tel 2005, dismissing Higazy’s on June officer, security Ferry, and a Milleni- chief pursuant to against Templeton claims a for security employee, plan instituted um and or- memorandum September 2004 guest proper- retrieving inventorying and der, claims dismissing the and 11, 2001, Ferry retrieved ty. On October defendants, the par- to remaining pursuant in radio, he said had found which he stipulation and order. May ties’ that a Ferry pass- told Yule room 5101. ex- judgment, from this Higazy appeals medallion, were yellow and Koran port, order. stipulation and cluding parties’ the radio in the room’s safe. found with dis- improperly court Because the district November, employee another hotel In late Fifth Amendment part Higazy’s missed inventory of performing was second in claim, part, in reverse part, we affirm brought the radio to guest property and the district court case to and remand the time, Yule found Yule’s This attention. proceedings. further for and to “sinister” be circumstances that he had FBI to tell them called the Background they should “something of interest found Egypt. father is a His Higazy citizen FBI F.Supp.2d at 438. Higazy, see.” Washington, in diplomat once served as (“Sullivan”) and agents Sullivan Vincent D.C., high his Higazy part received and (“Bruno”) came to ex- Bruno Christopher in education elementary and school school radio, they determined amine which York Higazy arrived New Virginia. capable of air- an transceiver was air-band study to August from in late Cairo air-to-ground to-air and communication. Polytechnic Uni- computer engineering 17, 2001, Higazy returned York. His studies On December versity Brooklyn, New He up belongings. pick to the hotel to States sponsored the United were he had morning went Development and Agency for International that after- university final examination International Education. the Institute for FBI by three approached was stay to noon. He arranged These him institutions Sullivan, Bruno, Adam Suits Hotel, agents: and which across at the Millenium was F.Supp.2d at occupying, Higazy, see was in the briefs submitted 3. There was debate we need resolve here. Higazy which not which n. the district as to room court (“Suits”). agents grand jury The three had been told in the Southern District of Higazy coming. agents would be According affidavit, New York.” to this radio, Higazy about the and Higazy asked grand jury “investigating various felo- it told them that was his. When the offenses, ny others, including, among him agents told that the radio was found conspiracy destruction of and destroy safe, replied, his room’s he im- “[TJhat’s (18 32); § aircraft U.S.C. bombing and Higazy initially agents told the possible.” (18 bombing conspiracy 844); § U.S.C. that he had never seen radio like this one racketeering racketeering conspiracy before, agents but he later told the that he (18 1962); § U.S.C. conspira- seditious was once a lieutenant in the Air Egyptian cy levy war the United States knowledge Force had of radio commu- (18 2384).” § U.S.C. questioned Ferry nications. The FBI day, Later that Higazy brought be- Higazy twice while being interviewed. fore the United States District Court for time, Ferry Each asserted that he found (Ra- the Southern District of New York top the radio in the safe on passport. koff, /.), on Bruno’s material witness war- interview, At the end of the the FBI de- rant. alleged This warrant witness, pur- tained as a material was a might witness who have information suant to the federal material witness stat- *5 related to the terrorist Septem- attacks of ute. See 18 U.S.C. § Higazy later Judge ber 11. Rakoff summarized the explained that he was worried about the government’s theory: “the suggestion that effect this scholarship: could have on his the government is making is based on the amongst “I remember that I things witness, fact that a cooperating based on told the scholarships people, apologize. T activities, Qaeda other A1 suggests that the going my I’ve been arrested. I’m to miss hijackers may placed have today.’ just final exam I want beacon or put that other device in the on record. And I remember the form of this detective transceiver in looking saying, at me and or near the being ‘You’re World Trade Center in arrested as material witness for and advance of an help attack to direct the 9/11 only thing you’re worried about is pilots targets.” to their Higazy’s attorney ” said, missing your final exam?’ I ‘Yes.’ told the Higazy court that owning denied “urgently radio and was desirous of Higazy was taken from the hotel to the taking a lie detector test.” Judge Rakoff was, building, words, FBI where he in his noted, bail, regard subject with to the of “I shock, “in in Higazy voluntarily disbelief.” reemphasize want to per- that this is not counsel, waived his spoke with haps the overwhelming showing most on agents, and changed then his mind and part of government,” but he decid- attorney. asked for an interrogation The ed that “the witness will be detained stopped. Higazy spent night of De- through, present showing but on the cember in detention. Because of beyond, Judge December 28.” Rakoff Higazy contradiction between what scheduled another on December said and what the hotel employees told the FBI, things 28 “to see Judge where stand.” Bruno swore out an affidavit where said, government clearly Rakoff also Higazy might given “[t]he he concluded that have suggesting might false statements to that it have further federal law enforce- 28th, applications ment on agents. completed Bruno the affida- make but it is vit, it, representing, dated December in as I support expec- understand its warrant, a material [Higa- witness “so that tation that the witness would presented be may zy] produced testimony be grand jury before to the before the busi- close of motion, that right?” Templeton that did not contest ness on the 28th. Is were Higazy’s witness will be statements coerced. government replied: “[t]he that expectation our that presented Higazy gave Templeton then series of —it happen.” will explanations as to how he obtained the First, that he radio. he admitted stole the expressed its doubt government R, radio from J & an electronics store. Higazy be useful polygraph that a would story, explained Then he recanted this and Higazy’s request to take one. opposed Higazy that it R. he found near J & next Higazy if was a mem- They explained that seeing possessing denied ever the radio. it. Qaeda, pass al he could Never- ber of allegedly banged on Templeton the table theless, Templeton on December —who Higazy: and screamed at “You lied to me point until this was not involved up again! many This is lies?” what? How polygraph ex- investigation —conducted time Higazy again, telling then lied Higazy. Templeton began amination that Templeton he found the radio on the by asking Higazy background the test Brooklyn Bridge. Higazy other side of the subjects such as questions on Templeton I recalled “turned so red homeland, scholarship, family Egypt, thought going Temple- he was to hit me.” York, upstate girl- New brother liar, being ton accused asked he friend. He also Agent said he would “tell Sullivan anything to do with the attacks of had my expert opinion you are terrorist.” September 2001. The first round of Finally, Higazy told that he testing allegedly suggested Egyptian had stolen the radio from the questions relating answers to military eavesdrop and had used it to on September deceptive. 11 attacks were As telephone conversations. questioning series of was end- second *6 that ing, Higazy Templeton requested Templeton then wrote out a statement stop. began “feeling He testified that he providing Higazy that had the radio stolen pain my arm. I remember intense military, Egyptian from the which he hearing my my heartbeat head and I Higazy sign. Higazy asked to remem- said, ‘Sir, sir, just couldn’t breathe. I outside, attorney bered that his and It please, stop. stop. hurts. Please first, attorney. Higa- asked to see his At ” Templeton Please take it off.’ unhooked zy’s attorney angry Higazy, with polygraph, according Higazy, the and to him, thinking Higazy had lied to but when Higazy baby called and told him that a Higazy attorney told his that he had not nine-year-old pain. could tolerate this him, attorney Higazy lied to the advised get left the Higazy room to sign not to the statement. water, return, upon Higazy asked parties appeared following day, the anybody else had ever suffered 28, 2001, previously December for the physical pain during to polygraph, the hearing Judge scheduled before Rakoff. Templeton replied: which hap- never “[i]t At hearing, government proffered the pened anyone to who told the truth.” evidence,” apparently its “new the infor- Higazy alleges during poly- that gained during polygraph mation inter- graph, Templeton him told that he should “[Higazy] view: it ra- has admitted is his cooperate .... dio, and he I provided has believe about opinion This has been redacted because three different where it came versions of commented, portions of the record are For Judge under seal. from.” Rakoff “it no the purposes summary judgment longer arguably of the strikes me an as even him, given Higazy. had not had interaction with whether to detain close call Ferry, The FBI re-interviewed who re- unreliability inconsistency be- apparent account, represented original vised his this time ex- previously what was tween plaining is the the radio was found on a being what I am now advised adjourn Higazy’s table in room and not in the parties agreed to safe. situation.” Higazy’s attorney government complaint did not The withdrew its hearing; the bail request against Higazy, who was released on Janu- object government’s 16, 2002, ary thirty-four days de- after Higazy denied and be further cus- bail be Maas, In tody. Judge gov- Rakoff ordered de- a letter to Judge tained. parties appear ernment conceded: tained and instructed him January on before The owner of the aviation radio had no Higazy. interaction with Mr. It is still Agent Bruno filed On unclear, therefore, how the radio was complaint against Higazy a criminal transferred from the room on the 50th statements, in making false violation of 18 Floor to Mr. room on the 51st 1001(a). Higazy brought § be- U.S.C. Employees floor. of the hotel have indi- District Court for fore the United States that, although cated the hotel has been (Maas, of New York the Southern District 11th, September closed since a number M.J.), government implied where people entered the room in which Mr. were somehow Higazy’s false statements staying had been at different Sep- investigation connected to the September 11th and times between crime tember terrorist attacks: “[t]he day on which the radio was found. being investigated that was when these I repeatedly false statements were made con Judge On March Rakoff per- fairly think can be characterized as inquire parties’ vened into country’s haps the most serious our him representations regarding Higazy’s argument, govern- In re Material Witness history.” its bail confession. See Warrant, (S.D.N.Y. ment alluded to “three different F.Supp.2d 2002). into posses- versions of how he had come explained Rakoff that he felt Judge radio,” and concluded that Hi- sion opinion he had “misled” twice. In an been somebody order, who can be deemed gazy “is he wrote: *7 trustworthy.” Magistrate Judge Maas or- simply willing Court was not to [T]he Higazy dered to be detained and held request go-along with the uncontested bail. without but, Higazy detention of for a further instead, demanded further information later, 14, 2002, days on Three previously had seemed regarding what pilot, staying an airline who had been on call, process in the was materi- close and the 50th floor of the Millenium Hotel re- ally by being informed of a con- misled . property. to reclaim turned the hotel his subsequently that was shown to fession items, pilot in- inspecting After be false. formed the hotel staff his transceiver Warrant, In re Material Witness immediately missing. Millenium con- FBI, for F.Supp.2d Judge then at 362. Rakoff asked
tacted which verified Higazy into the af- thought Higazy’s government inquiry what was to be transceiv- pilot’s pilot er was in fact the and that the fair.4 government agents in the course of their investi-
4. The
later filed an information
ernment
30, 2002, Ferry
gov-
gation
May
against Ferry, accusing
lying
him
On
of
radio.
plaintiff
filed an with
case in which a
success-
On December
Templeton
§
complaint against
fully raised a Bivens or
1983 action
eight-count
(under
Higazy’s claims
the hotel defendants.
and
redress the
of counsel
brought pursuant
Amendment)
against Templeton were
either the Fifth or Sixth
Agents
Named
(footnote omitted).
to Bivens v. Six Unknown
Fi-
the abstract.” Id.
Narcotics, 403 U.S.
the Fed. Bureau
entered on June
judgment
nal
of
(1971).
1999,
moved Discussion The district summary judgment.5 (I) argues that appeal, Higazy On and order on court issued a memorandum summary in granting district court erred alia, inter September granting, Fifth judgment on his Amendment self- Higazy’s Templeton’s motion to dismiss (a) Templeton incrimination claim because Fourth, Fifth, and Sixth Amendment immunity, qualified was not entitled to and at Higazy, F.Supp.2d claims.6 See (b) Templeton’s proximate conduct was court dismissed 436. The district Higazy’s allegedly cause of the use of claim, Fifth Amendment self-incrimination Higazy’s resulting coerced statements concluding Templeton was entitled to (II) detention; and the district court erred qualified immunity. The district court dis- granting summary judgment on his Higazy’s Fifth Amendment due missed (a) Higa- Sixth Amendment claim because “Templeton’s con- process claim because zy’s plead- claim can Sixth Amendment be cannot duct and threats as a matter law alternative to his Fifth Amend- ed conscience-shocking or con- be classified as (b) claim, was not ment al- stitutionally oppressive. Templeton’s qualified immunity. entitled to threats, leged whether intended to coax granting This Court reviews de novo the arbitrarily frighten, may be confession by a court. summary judgment district criticism, subject proper they but Co., Pepsico, Inc. v. Coca-Cola the Fifth Amend- are not actionable under (2d Cir.2002). Summary judg- Id. at process ment’s due clause.” 451.7 “[ejxamin- where, only appropriate ment is The district court also dismissed ing light the evidence in the most favor- “Higazy’s claim: Sixth Sixth Amendment nonmoving party,” Adjustrite claim the thresh- able Amendment fails Servs., Inc., Sys., Inc. v. Bus. present old.... does not the Court GAB May Higazy's pleaded guilty and to three 6. On claims was sentenced preju- hotel were dismissed with defendants years probation and six months of intermit parties dice when the reached settlement on weekends. See United tent confinement agreement, stipulation in a memorialized 221(GBD). Ferry, States v. 02 Cr. No addi *8 order. complaints tional indictments or were filed against any employee. other hotel Higazy appeals only the denial of his Fifth Amendment self-incrimination and Sixth summary judgment, Tem- 5.In his motion for argument an Amendment claims. An issue (1) pleton arguments: made two he was enti- may appellate brief be that is not raised in the immunity qualified tled consti- to City abandoned. LoSacco v. considered rights Higazy sought tutional to vindicate 88, Middletown, (2d Cir.1995). 71 F.3d 92-93 clearly were not violated and were not estab- Higazy appeals only the denial of his Because time; (2) Higazy claims, at that could not lished Fifth and Sixth Amendment limit alleged a causal link between the establish court's decision our discussion of district appeal. Templeton’s parts harm and conduct. to those relevant to this
169 Admin., (2d Cir.1998), Drug record 158 F.3d 543, U.S. 547 F.3d Enforcement (2d Cir.1998). 647, genuine no issue as “that there is 652 shows moving par- and that the any material fact judgment a as a matter
ty
is entitled to
I.
Fifth Amendment Claim
56(c).
law,”
A motion for
Fed.R.Civ.P.
Qualified immunity
A.
rejected “if
summary judgment must be
jury
such that a reasonable
the evidence is
Qualified immunity
gov
shields
nonmoving
for the
return a verdict
could
ernment officials from civil suits for dam
Inc.,
Liberty Lobby,
Anderson v.
party.”
as their conduct does not
ages “insofar
2505,
242, 248, 106
91
477 U.S.
S.Ct.
clearly
statutory
violate
established
or con
(1986).
party
L.Ed.2d 202
The
rights
stitutional
of which a reasonable
summary judgment
sought
“must
whom
person would have known.” Harlow v.
simply
than
show that there is
do more
818,
800,
Fitzgerald, 457 U.S.
102 S.Ct.
doubt as to the materi-
metaphysical
some
(1982).8
2727,
lawful. Anderson
3034,
only
Reviewing question this fession had Higazy properly alleged Higazy, we hold that has been coerced. deprivation F.Supp.2d an actual of his Fifth Amend at 447 n. Temple- 20. Because specific Higazy's allegedly 9. The we address here is the conclude here that issue coerced case, genuine existence of a issue of material fact as statements were used in a criminal deprived of an different actual from the issues of whether Tem- right. greater pleton constitutional As we discuss in caused the statements to be used at below, allege Higazy’s hearing Templeton's detail and whether right against proximate Fifth Amendment self-incrimina- actions were a cause of tion, detention, allege only must that the both of which we conclude raise coerced, genuine confession was but that it was used issues of material fact that should be him in a criminal While we decided the fact finder. case.
171
summary judgment did “mere coercion does not violate the text of
ton’s motion for
sufficiency
challenge
not
the Self-Incrimination Clause absent use
that
his
statements were
allegation
compelled
statements in a criminal
(or
id.,
coerced,
the issue of coercion
see
769,
against
case
the witness.” Id. at
123
not)
us,
and we too assume
before
Thus,
privilege may
S.Ct. 1994.
while the
were coerced.
that
statements
any proceeding,
be invoked in
a violation of
(2d
Brenner,
concurred
Although
Kennedy
Justice
is used
hearings
of bail
under other
The status
11,
the con-
provisions supports
constitutional
By the time of
hearing
part
that such a
of a
complaint had
clusion
hearing, a criminal
2002 bail
against
an individual
subject
against
criminal case
him and he was
been filed
charges
pending.
are
In the Sixth
pro-
The
whom
complaint.11
on that
to detention
context,
Supreme
Court
appearance on the Amendment
ceeding was an initial
hearing
that a bail
is a “critical
and the determination
found
complaint,
criminal
process at
stage
of the State’s criminal
part
proceeding.
of that
of bail
the accused is as much entitled
governed by the Federal which
proceeding was
(of counsel)
aid
... as at the trial
Procedure.12 Mitch-
such
Rules of Criminal
Alabama,
1,
States,
v.
399 U.S.
526 U.S.
119 itself.” Coleman
ell v. United
(1970)
(1999),
9-10,
1999,
hotly contested constitutionally against be used a defen consideration of host of facts careful case, clearly dant in a criminal and it was and the crimes the defendant about hearing, that a bail after crimi established hearings Bail do not deter- charged.... filed, had charges part nal been was simply mine whether certain evidence law, a question criminal case. This is a defendant at trial may against be used Kerman, which we review de novo. See persons certain will serve as or whether F.3d at 93. hearings jurors; trial determine bail Weaver, very we addressed similar will be allowed to whether defendant here, issue to the one we face and ex- surrender, retain, liberty or forced to plained: “Appellants contend pendency of his criminal case. during introduced at coerced statement must be there was wheth- Id. at 323-24. The issue the individual’s trial before the [Fifth] against could be used parte er ex evidence disagree.” Amendment is violated. We held, proceeding. in a bail We defendant concluded, ultimately at 535. F.3d We public nor “neither the defendant consequence, above: “As a as noted by having would be served determina- well derivative use of a hold that the use or the immediately affect even this tions so pro- statement at criminal compelled routinely in closed reduced interest made ceeding the declarant violates that proceedings or on secret evidence.” Id. rights; Fifth Amendment use of person’s required.” at trial not Id. the statement that this Significantly, we found prior rulings Based on our on the Fifth sufficiently at the time of well established hearings, and Amendment and bail Justice satisfy alleged violation to the first “criminal case” in Thomas’s definition of immunity analysis.14 prong qualified Chavez, which illuminates the cases decid- may January 11, 2002, on which we January clearly ed before it was es- On initial rely, appear- we hold that FBI not coerce a tablished that the could which included ance on confession and later use that confession case, including proceeding of whether he would be a criminal in a determination bail, had part judge charges or released on of before a after criminal detained filed, of contin- Higazy. impose penalty criminal been case Awadallah, proceed- jury testimony, whether a bail 14. United States v. (2d Cir.2003) (holding that the federal materi- ing per part or as of a material witness se— applied al witness statute can be constitution- pur- proceeding a criminal case for the —was witness) ally grand jury to a is not relevant to poses self-incrimi- Fifth Amendment’s case, solely because it dealt with clause. nation grand a material witness could be held for argues though Templeton asked about his government ued detention. Supreme September involvement in he later told conflicting Court that there was interview, Higazy, during Fifth the same that he Amendment law as to whether only nothing a knew had to do with right against self-incrimination broadly. attack. December and in the more We On right, trial or extended examination, days following polygraph disagree. exactly could not have known rejected proposition Chavez how he would use the confession because *13 violation of the self- completed there is a that predict he could not the course clause when a statement is incrimination take. The use of the confes- case would but never used by coercion obtained ripen either into a Fifth sion would Thomas’s against the declarant. Justice Amendment violation or it would not—that some definition plurality opinion provided examine, question that we must is the first Justice Souter’s for “criminal case” but in question and a that we have answered opinion attempt pro- did not concurring Indeed, affirmative. ripened it when it is no hint in a definition. There vide such at was used the second bail that the use of an opinions these Higazy objec- of his freedom. The deprive at an initial allegedly coerced statement immunity prong qualified tive test complaint has appearance, after criminal in Templeton’s asks whether an officer filed, in “criminal is not use case.”15 been would have known that he was vio- shoes Weaver, well as the Our decision as question. lating We believe therein, lead us to con- case law we cited jury that that a reasonable could conclude clude that in December when he would. coerced, and in allegedly confession was here, purposes inquiry For the of our when the confession was are cast in conclude that when the facts it clear- Higazy’s hearing, at bail used light Higazy, favorable to an most allegedly that the use of the ly established Templeton’s officer in shoes would have hearing complet- coerced statement at that alleged- that he understood the confession Fifth Amend- Higazy’s ed the violation of ly Higazy have coerced from would been compulsory self- guarantee against ment’s in criminal against used case incrimination. Higazy’s violated that his actions therefore objective- Templeton’s right to be free from com- iii. conduct constitutional Was ly self-incrimination. pelled reasonable? essentially argues that it was dispute Templeton there is a about
Where facts, objectively him question the material must be reasonable for to believe Kerman, that not a criminal case and by the fact finder. See this was resolved objectively rea- Again, at 109. we assume for the therefore his conduct was However, Templeton that fact find- purposes appeal of this sonable. reasonable statements, er could conclude that coerced because this obtained they the district the statements from so that issue was not raised before court; disputed facts not for could be used a criminal case these were Al- con- summary judgment. him. A reasonable fact finder could purposes Supreme analysis helpful it demonstrates Court decided after insofar as Chavez holding hearing, thus its bail decid where the law stood when Chavez qualified does not bear on the issue of immu ed. However, nity. we find Justice Thomas's (6th Cir.2005) (“It an 404 F.3d 437-438 it not reasonable elude how law enforcement officials hard to see it was constitutional to believe officer ‘ultimately impair’ right against to hand could and then a confession to coerce if compelling self-incrimination prosecutor to a that information —without suspect incriminating to make statements the confes- the means which divulging him trial. It that are later used use in a criminal acquired sion was —for equally hard to see how officials whose case. ultimately a citizen’s impaired conduct B. Causation rights Fifth Amendment could nonetheless escape liability merely civil dif- did not reach
The district court
put the
into
causation;
ferent state official
statements
instead it “summa
the issue
trial.”). Based on the facts
it could evidence at
argument” so
defendant’s
rize[d]
here,
favorable to
legal
light
de
viewed
most
description
“complete
F.Supp.2d
non-moving party,
at 449.
we conclude
Higazy,
bate.”
*14
questions
depend
causation
on the reso-
separate
are two
the issues of
There
trial: whether Tem-
of fact that cannot be de-
resolved at
lution of
must be
issues
allegedly
use of the
of law. If the fact finder
caused the
cided as a matter
pleton
11,
2002
superseding
at the
there were
coerced statements
concludes that
con
Templeton’s
Hi-
Templeton’s liability,
and whether
off
cutting
bail
causes
of
proximate
a
cause
duct was
him will fail.
gazy’s action
hearing. Temple-
that bail
detention after
City
in
v.
New
explained
Townes
We
of
of
argues that
the actions
ton
(2d
York,
Cir.1999), that an
detention. At the about the radio. At first denied Maas, Judge there were hearing ownership before of the radio and later admitted could have militated in several factors that ownership of the radio but told three dif- twenty at Higazy’s favor: there were least ferent versions how he had come into him people local who vouched for and said possession of the radio. So this is not him to reside in they would allow their somebody trustworthy, who can be deemed homes; record; had no Higazy criminal somebody who’s not deemed untrustwor- Ithaca, a brother in New Higazy had same, thy. things being Other I sub- York, girlfriend Pennsylvania. and a mit good is not candidate for bail.” [sic] willing accept supervisory Higazy was arguments, part, These Judge led wearing an ankle brace- conditions such as Higazy’s attorney: toMaas tell “[o]n “any monitoring that let and other device appears face of it it insofar as the necessary.” might the Court deem complaint charges the defendant with government argued statements, making false it seems to me because, alia, flight was a risk inter “his government] has the better of [that behavior since his arrest in mid-December argument in that this does seem to be a proven poor has that he is a [ ] candidate very strong case of false statements made supervision for court because he’s re- by your client.”18 peatedly lied to law enforcement officers.” Apparently referring Templeton to the in- There is enough evidence in the continued, terrogation, government record about what communications oc- entirely adding: possible given curred between prose- “[i]t’s and the cutor, attorney, number different false statements he’s and his decide, law, made on different an indictment allow occasions us to as a matter of multiple would contain counts.” And whether there superseding were causes shortly questioned thereafter: cutting Templeton’s liability. off “[h]e allegations relating yet 18. While the factual papers fered from the hearing, government. December bail are not as hearing, relevant as the Connecting the false confession to deci- Higazy's rights bail, which Amendment Fifth were deny Judge explained: sion to Rakoff violated, provide summary this short happened government] [W]hat was that [the the December 28 because we believe represented flat out defendant had light important it is sheds on the role of radio, now admitted it was his and then the hearings. confession in both court, that, in reliance on concluded that *17 obviously bail should be more denied than 18, 2002, hearing At the on March after the assume, had been the case earlier. I be- charges against Higazy criminal had been absolutely cause I have no reason to believe dropped, Judge Rakoff stated: Attorney’s anything the U.S. know, Office has been subject This much I think we to forthright throughout but accurate and counsel, hearing from and that is that either proceedings, these that that awas fair state- Higazy Mr. did to the not confess FBI government] [counsel ment of what for the agent, agent in which case the FBI made a court, agent. had learned from the misrepresentation to the via the order, AUSA, or, Judge In his written likely, Rakoff character- a false more confession obtained, effect, deny ized his decision to bail as a conse- was course, which still had the of quence learning misleading of his had con- of the court but would radio, owning part have involved the fessed to In re Material same intent on the of Warrant, minimum, agent. F.Supp.2d And at a one would Witness at ex- explanation plaining materially think some would be forth- he "was misled coming being as to how false confession could informed of a confession that subse- obtained, false,” quently have been but none has been of- was shown to be id. at 363. Higazy’s “criminal detainees and materi dicta that II. Amendment Claim Sixth detainees are free to retain al witness his Sixth alleges that court-ap provided counsel and have been was violated right to counsel Amendment they rep counsel if cannot afford pointed 27, 2001, polygraph inter at the December resentation, by the Sixth required as engaged question view when (Em to the Amendment Constitution.” examination polygraph after the ing added.) However, of we know no phasis that he argument Higazy’s complete. own, court, including that has held that our only for the to counsel right waived interview. For a material witness has a Sixth Amendment polygraph duration below, affirm the charges reasons stated to counsel before have been right Higazy’s Sixth witness, dismissal of district court’s the material because filed quali grounds on the claim Amendment the “initiation of adver it is unclear how immunity.19 fied occur in sary judicial proceedings” could prior presentation to the of a this context pursuant detained A material witness hearing, in charge, preliminary “formal statute, 18 U.S.C. the material witness dictment, information, arraignment.” to counsel statutory right § has a Illinois, 682, 689, U.S.C. Kirby 3142. See 18 406 U.S. under Section (“At 3142(f) person (1972) such a hearing, § (plurality L.Ed.2d 411 S.Ct. counsel, right represented to be has therefore affirm opinion). Accordingly, we and, financially to obtain ade- if unable right of this the district court’s dismissal ap- to have counsel quate representation, grounds quali on to counsel claim the 3142(1) (“In § a detention or- pointed.”); immunity, there was no viola fied (e) of this under subsection der issued right under clearly tion of a established (3) ... section, judicial shall di- offer Harlow, here. See the Sixth Amendment reason- person be afforded rect that 818, 102 S.Ct. 2727. 457 U.S. private for consultation opportunity able counsel.”) with Conclusion in this interrogation time of the At the reasons, we affirm the foregoing For the case, clearly no established there was Fifth court’s dismissal of district witness that was to counsel for material to the Amendment claim as by the Amendment as guaranteed Sixth Sixth December statutory right to counsel to the opposed interrogation claim as Amendment material under the guaranteed that was but we vacate of December National statute. Center witness Higazy’s Fifth court’s dismissal of district Depart- Security Studies v. United States claim as Justice, Amendment ment of hearing. The case is remanded (D.C.Cir.2003), noted in 2002 bail the D.C. Circuit question directly [the move circumstances] whether Hi- We not reach the issue of do rights immunity] from de- gazy’s qualified Amendment were violat- and refrain Sixth *18 ed, principles judicial restraint right of has termining whether a constitutional reaching constitutional us to avoid violated”); caution Pelligrino, 303 Anobile v. been unnecessary they to the questions when are 107, Cir.2001) (2d (holding that to 123 F.3d v. Town disposition of a case. See Ehrlich of exceeded a con- whether a search determine 48, Cir.2003) (2d Glastonbury, 348 F.3d 57 scope disposing stitutionally after allowable that, (recognizing with Saucier v. consistent grounds violated the on other of the issue 2151, Katz, U.S. 121 S.Ct. 150 533 restraint.) judicial principle of (2001)), ("we may certain [in L.Ed.2d 272 180 proceedings
for further consistent with sion would against Higazy be used opinion. this would lead to Maj. detention.” Op. supra. In an error that flows JACOBS, Judge, Chief DENNIS error, from that majority presumes concurring: proximate jury question cause is a in case, the odd majority opinion I in the insofar circumstance of this concur where it of the criminal as affirms the dismissal the Sixth defendant failed to challenge in in Amendment claim and the dismissal the confession court. This odd circum- part Fifth Amendment claim. I also stance limits the majority’s influence of the concur in the remand to the district court error to the odd facts of this case. But I the Fifth Amendment claim that, reinstate as emphasize write to oddball facts not- January hearing, 2002 bail but I withstanding, precedents our remain in- respectfully disagree grounds as to the tact.
doing so.
surviving
claim in this Bivens action
I.
that,
test,
during
polygraph
defendant
Templeton coerced a confession that later
precedents:
Under our
where the con
became a basis for the
of Higa-
injury
stitutional
flowing
alleged
from
offi
zy’s liberty
at the
hearing.
bail
cial
only
misconduct occurs
when the re
(The parties assume the fact of coercion sults of that misconduct are
used
solely
purpose
for the
of
summary
proceeding,
criminal
the burden is on the
motion.)
judgment
The Fifth Amendment Section
plaintiff
allege
prove
protects
not to be a witness
that the defendant
proxi
official was the
case;
oneself
a criminal
but
Thus,
mate
of
cause
the use.
in Townes v.
“mere coercion does not violate the text of
York,
(2d
City New
It is well settled the that furnishes precedent unlawful cent answer. a officer’s police tion between and conviction subsequent and arrest York, Wray City In New v. of interven- broken the is incarceration (2d Cir.2007), plaintiff similarly the judgment. independent of ing exercise than that the required was to show more of in the absence that is so At least fore- illegally of obtained evidence was use misled or police that the officer evidence officer; defendant the plain- seeable to the could be ex- the official who pressured proximately the defendant tiff had to show independent judg- to exercise pected of the evidence. Id. at 195. caused the use ment. Wray had been convicted plaintiff The jailed prose- a trial in which the omitted). and after (citations Id. judge the trial re- cutor introduced —and Coffey, F.3d 342 Zahrey Again, unduly suggestive to suppress fused —an (2d Cir.2000), person “a recognized that identification. After habeas showup cause of initial act is the ‘but for’ whose admission of this court found the evidence (i.e., harm the would harm some ultimate error, sued plaintiff to be the reversible act) the is happened but for initial not have who had police officer conducted harm if an inter- liable for the legally held procedure. identification We that that ‘superseding cause’ vening act is summary judgment officer entitled cause.” legal proximate chain of breaks plaintiff failed to because the introduce (Sec- (citing n. 7 Id. at 351 Restatement pres- misled or evidence the officer that Toyts (1965)). ond) Applying § 440 of judge trial to use prosecution or sured context, in the law enforcement principle identification. Id. suggestive showup causal chain between we held alleged conduct of [the at 193. “[T]he injury to a criminal official misconduct illegal in itself or was not unconsti- officer] subsequent when a defendant is broken oc- constitutional harm tutional. The judgment exercises participant impermissi- showup curred when that is not “truly independent” judgment — the fairness of bly compromise used to in- misleading product “pressure of prosecu- [plaintiffs] behest trial —at by the actor whom provided formation court, tor, beyond of the trial order liable.” Id. at 351— plaintiff seeks to hold Id. at 194. control.” officer’s] [the accused Zahrey, prosecutor In law that traditional tort cases affirm Our which he manufacturing false evidence of equally to a Section 1983 principles apply proceed- grand jury at a then introduced him to show the caus- require plaintiff the Section ing. reinstated We misconduct original police link from the al him because his fabrication claims injury pro- in order up point intervening judgment compromised ceed on his claim. the indictment and actors who authorized plaintiff having plaintiff arrest of the —the II. dicta, object. opportunity to had no our majority opinion misapplies “the to decide Zahrey declined con- it misconceives the precedent should be considered chain causation majority lip pays can stitutional violation. wrongdoer the initial broken where that the constitution- law reasonably that his will service settled foresee misconduct only when a occurs coerced al violation ‘independent’ contribute to an decision actually used defen- confession liberty.” Id. results case, analysis but its in a relies on dant criminal majority opinion here 352. The *20 implicitly depends localizing Contrary on the consti- to reason and experience, the majority it reasonably tutional in the interview room and assumes is violation party protect foreseeable that a will fail to finding complete on the violation when the rights. his own Just as an officer who has coerced. This error is confession was expected coerced statements is not to fore- majority’s treatment manifest in the a judge’s denying sup- see trial error in a subsequent the coerced events to confes- motion, pression Maj. Op. supra see at Thus, majority sion. the sees insufficient 195), (citing Wray, 490 he F.3d should to determine whether record evidence sub- expected not be to foresee that defense sequent “superseding events constitute any objection counsel will decide to forgo cutting Templeton’s liability,” causes off admissibility to the defendant’s —unless Maj. at Op. supra; but instead of ability object to has been com- somehow deciding Higazy thereby failed to of- promised police. or undermined summary fer evidence sufficient to resist view, majority’s Higazy’s failure to ad- judgment, majority puts the burden on duce evidence of causation makes liability Templeton, whose is assumed un- jury majority implicitly case. The thus disprove less he can causation. The ma- plaintiff relieves burden of demon- jority betrays its mistaken assump- thus strating that he will introduce evidence Templeton’s liability tion that attached jury sufficient to allow reasonable to find (allegedly) when he coerced the confession. proximate the defendant’s conduct was a violation, cause of the constitutional law, liability case Under our could not (on motion) summary judgment ma- possibly January attach until the 11 bail jority displaces production the burden of hearing wrongful resulted de- police officer to show as matter obvious, being tention. At the risk of law that the officer did not deceive the denial of bail was the cause of intervening actors and that the officer prohibition detention. The constitutional could not foresee the use of the state- against use of coerced statements could ments. not have violated until that hearing, been when the statements were “used.” Such III. hearing ordinarily controlled majority’s analysis gratuitous judge participation with the of counsel. be- cause this case there is sufficient record Higazy would have been aware that his evidence of proximate preserve cause to confession was coerced and could tell his majority’s claim without the mud- lawyer; interrupted causation would be if foreseeability. dled discussion about so, lawyer he failed to do or if he told his genuine record reveals a issue of fact toas who then failed to raise the issue—or if the Templeton took an affirmative raised, despite issue were truthful tes- step to mislead defense counsel about the timony (allegedly) happened as to what circumstances under which the statements room, judge interview decided to obtained, were thereby compromised accept the confession. In to get order to a Higazy’s opportunity object to the use jury, the burden is on to show that allegedly coerced statements. pressured party misled or such that Templeton compro- point attested that at some be- party’s independent judgment mised that attorney fore the 11 hearing his on, offering, relying failing object why say “asked me did I I I what did. to the use of the my family coerced confession. told him that was threatened.” *21 coercion, place) in the first could found 2002. Sept. Aff. at circumstances that Tem- from these time he met infer the next attested further impaired coercion flat denial of attorney’s presence, pleton’s in his agents with (either be- [Temple- independent decision to confront counsel’s me attorney “asked lawyer that his I did. He I he said. cause it convinced what said with ton] lawyer An affidavit lying it.” Id. client was because denied [Templeton] would not with- Templeton objection corroborates that an by believed provided denial), and therefore Templeton’s stand account: I rule on this causation.1 would effected 8,] by the at- January I was met [On basis, I concur in the why and that his client would informed me torney who result. test polygraph] this [second not take him, threatened the writer had
because owner- denying was now his client The accusation of the radio....
ship writer .... denied threat was I hear the attorney requested that client.... directly from the
complaint “all I can remember
[Higazy] stated to it that you would see you saying that SPGGC, LLC, Plaintiff-Appellant, my make security service Egyptian de- living hell.” Writer parents lives attorney that BLUMENTHAL, Attorney and the [Higazy] nied to Richard in- Defendant-Appellee. made .... General, [W]hen threat was [Higazy] [by writer] formed Docket No. 05-4711-cv. attorney’s writer of the by the advised time, Appeals, availability at Court of United States presence if what the [Higazy] Circuit. attorney asked Second true, ad- [Higazy] writer had said May Argued: couldn’t re- attorney that he vised the 19, 2007. Oct. Decided: attorney [Higazy] asked member. (the writer) you tell that?” he
again, “did “I can’t remember.
[Higazy] responded, tape recorder.”
I’m not a human 11-12, Aff. at Oct. (if added). jury A it reasonable
(emphasis they itself, were ments were inadmissible defense 1. At the waiver, Higazy's but scope he had make clear that counsel's statements outside Higazy's allegations in only decided not to raise hinted at coercion: counsel any detail: during those sessions occurred [W]hatever detector complete the lie purpose He was unable to of him waiver for was a limited hurling get want into exam. I don't polygraph examina- being to a submitted forth that which accusations back and happened in I don't know what tion .... So and those provided me the defendant room, happen in that didn't that room or by the Government as to that are attested polygraph it’s of a other than the results but what, saying what pressured who into who table. off the what one other said. misconstrued Id. 11, 2002. Hi- Arraignment at Jan. Tr. of argue in fact the state- gazy’s counsel did