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 Higa-zy’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, 538 U.S. 760, 769, 123 S.Ct. 1994, 155 L.Ed.2d 984 (2003) (emphasis added); see Weaver v. Brenner, 40 F.3d 527, 534-35 (2d Cir.1994). Under settled law of this Circuit, the Fifth Amendment 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 177, supra. 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.
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, 176 F.3d 138 (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. Id. at 141. The complaint alleged that the plaintiffs 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 chain of causation for purposes of § 1983 liability.” Id. at 147. We held:
*181It 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.
Id. (citations omitted).
Again, in Zahrey v. Coffey, 221 F.3d 342 (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.” Id. at 351 n. 7 (citing Restatement (Second) of Toyts § 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.” Id. at 351— 52. In Zahrey, a prosecutor was accused of manufacturing false evidence 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.” Id. at 352. 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, 490 F.3d 189 (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. Id. at 195. 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 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. Id. at 193. “[T]he alleged conduct of [the officer] was not in itself illegal or unconstitutional. The constitutional harm occurred when the showup was impermissi-bly used to compromise the fairness of [plaintiffs] trial — at behest of the prosecutor, by order of the trial court, and beyond [the officer’s] control.” Id. at 194.
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 used against a defendant in a criminal case, but its analysis *182implicitly 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 178, supra; 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 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 177, supra (citing Wray, 490 F.3d at 195), 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 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.
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.” *183Higazy 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 [Temple-ton] with what I said he said. I did. He [Templeton] denied it.” Id. An affidavit 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 Tem-pleton’s flat denial of coercion impaired counsel’s independent decision (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.
. 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. Hi-gazy’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.
Id.