Amore v. Novarro

08-3150-cv

Amore v. Novarro

1 UNITED STATES COURT OF APPEALS

2 FOR THE SECOND CIRCUIT

3 August Term, 2008

4

5 (Argued: July 16, 2009 Decided: June 22, 2010)

6 Docket No. 08-3150-cv

7 -------------------------------------

8 JOSEPH AMORE,

9 Plaintiff-Appellee,

10 - v. -

11 ANDREW NOVARRO,

12 Defendant-Appellant,

13 CITY OF ITHACA,

14 Defendant.*

15 -------------------------------------

16 Before: SACK and B.D. PARKER, Circuit Judges, and GOLDBERG,

17 Judge.**

18 Appeal from a judgment of the United States District

19 Court for the Northern District of New York (Frederick J.

20 Scullin, Jr., Judge). The district court denied police officer

21 Andrew Novarro's motion for summary judgment on a false arrest

22 claim, ruling that Novarro was not entitled to qualified immunity

23 for making an arrest pursuant to a state loitering statute that

*

The Clerk of Court is directed to amend the caption as set

forth above.

**

The Honorable Richard W. Goldberg, of the United States

Court of International Trade, sitting by designation.

1 was published as part of the New York Penal Law at the time of

2 the arrest but that had been held unconstitutional by the New

3 York Court of Appeals eighteen years prior to the arrest. We

4 conclude that the district court erred in deciding that despite

5 the fact that the statute was still widely published as though it

6 remained valid, it would have been clear to a reasonable officer

7 in Novarro's position that making the arrest was unlawful. We

8 therefore reverse the order of the district court and remand the

9 cause with instructions to grant the summary judgment motion

10 based on qualified immunity and to dismiss the complaint against

11 Novarro.

12 Reversed and remanded.

13 JONATHAN M. BERNSTEIN, Goldberg Segalla

14 LLP, Albany, NY, for Defendant-

15 Appellant.

16 EDWARD E. KOPKO, Wiggins & Kopko, LLP,

17 Ithaca, NY, (Guttman & Wallace Law Firm,

18 Ithaca, NY, on the brief), for

19 Plaintiff-Appellee.

20 SACK, Circuit Judge:

21

22 Defendant-Appellant Andrew Novarro, an Ithaca, New York

23 policeman, appeals from that part of a memorandum decision and

24 order dated March 28, 2008, by the United States District Court

25 for the Northern District of New York (Frederick J. Scullin, Jr.,

26 Judge) denying his motion for summary judgment on a false arrest

27 claim brought by plaintiff-appellee Joseph Amore under 42 U.S.C.

28 § 1983. The claim is based on Novarro's arrest of Amore pursuant

29 to New York Penal Law Section 240.35(3), which, on its face,

30 prohibits loitering in a public place for the purpose of

2

1 soliciting another person to engage in "deviate" sexual

2 behavior.1 Amore alleges that his apprehension constituted a

3 false arrest because the statute, although then officially and

4 unofficially published as currently effective law, had been ruled

5 unconstitutional by the New York Court of Appeals eighteen years

6 before.

7 The district court concluded that Novarro was not

8 entitled to qualified immunity: Amore had a clearly established

9 constitutional right to be free from unlawful arrest, and it

10 would have been clear to a reasonable officer in Novarro's

11 position that making an arrest under section 240.35(3) after it

12 had been held to be unconstitutional by the New York Court of

13 Appeals in People v. Uplinger, 58 N.Y.2d 936, 460 N.Y.S.2d 514,

14 447 N.E.2d 62 (1983) (Mem.), was unlawful.

15 We disagree. We conclude that Novarro is entitled to

16 qualified immunity under these circumstances. It was

17 unreasonable to expect this police officer to know that a statute

18 that was, and is, still on the books and being enforced had been

1

At the time of Amore's arrest, the statute in question,

N.Y. Penal Law § 240.35, read in pertinent part:

[Criminal] Loitering

A person is guilty of loitering when he:

....

3. Loiters or remains in a public place for the

purpose of engaging, or soliciting another person

to engage, in deviate sexual intercourse or other

sexual behavior of a deviate nature . . . .

Id.

3

1 held to be unconstitutional. We therefore reverse that part of

2 the district court's order dismissing Novarro's motion for

3 summary judgment on the false arrest claim based on qualified

4 immunity, and remand the cause with instructions to grant the

5 motion.

6 BACKGROUND

7 Plaintiff Joseph Amore met defendant Andrew Novarro on

8 October 19, 2001, in a public park in Ithaca, New York. Novarro

9 was there acting as an undercover police officer, watching for

10 drug activity. Amore, not knowing who Novarro was or what he was

11 doing, offered to perform a sexual act on him.

12 Novarro identified himself as a police officer and

13 asked Amore for identification, which he produced. Novarro told

14 Amore that he did not have a ticket to write out and would have

15 to call for "backup," which he proceeded to do. Novarro later

16 testified that he did so in part because he did not have an

17 appearance ticket with which to charge Amore with loitering.

18 While they waited for another police officer to arrive,

19 Novarro told Amore that he was being charged with "loitering for

20 the purpose of deviant [sic2] sexual activity." Deposition of

21 Andrew Novarro ("Novarro Dep.") at 20. Novarro explained to

22 Amore that "they were cracking down on this kind of activity in

23 the park." Deposition of Joseph Amore ("Amore Dep.") at 36.

2

The statute refers to "deviate" sexual activity, see

footnote 1, supra.

4

1 Novarro testified, and it is not disputed in the

2 briefing of this appeal, that the New York police academy he had

3 attended issues a copy of the New York Penal Law to every

4 officer, and that most officers carry a copy of it with them on

5 duty.3 It is in the form of a looseleaf booklet containing the

6 text of the Penal Law that is published by Gould Publications,

7 Inc.4 The Ithaca Police Department furnishes each of its

8 officers with yearly updates consisting of a stack of substitute

9 pages reflecting new laws that have been enacted during the

10 previous year, or deleting laws that are no longer in effect.

11 When the officers receive these yearly updates, they are

12 "supposed to remove" those pages that have become outdated and

13 insert into the booklet, in their stead, the substitute pages

14 reflecting the current law. The booklet is unannotated, i.e.,

15 without interpretations, case law, or the like. When the backup

16 officer arrived, he gave Novarro a copy of this version of the

17 Penal Law, because Novarro had left his own copy in his office.

18 After consulting the booklet, Novarro issued Amore an

19 appearance ticket. Novarro then released Amore from custody.

20 The appearance ticket required Amore to appear in Ithaca City

3

There are multiple New York police academies. From the

portions of his deposition testimony that have been incorporated

into the record on this appeal, it appears that Novarro received

his police training at the Corning Community College. See

http://criminaljustice.state.ny.us/ops/training/zoneacademies/zon

e_12.htm (last visited April 19, 2010).

4

Now "LexisNexis Gould Publications." See

http://www.lexisnexis.com/gould/ (last visited April 19, 2010).

5

1 Court to answer a charge of "loitering" in violation of New York

2 Penal Law § 240.35(3).

3 Novarro then had Amore formally charged with a

4 violation of that offense. Accusatory Instrument, No. 01-13431

5 (Ithaca City Ct. Oct. 19, 2001).

6 Some time later, the city prosecutor informed Novarro

7 that Amore had moved to dismiss the charge against him based on

8 People v. Uplinger, a 1983 ruling by the New York Court of

9 Appeals holding, in a memorandum decision, that the loitering

10 statute pursuant to which Amore had been arrested, N.Y. Penal Law

11 § 240.35(3), was unconstitutional. The city prosecutor told

12 Novarro that she therefore could not continue the prosecution.

13 It is undisputed that Novarro was unaware that the statute had

14 been held to be unconstitutional prior to this conversation.

15 On November 7, 2001, the prosecutor, as she had told

16 Novarro she would, moved to dismiss the charge against Amore

17 based on Uplinger. The Ithaca City Court granted the motion on

18 that basis. The court observed that it was "puzzling" that the

19 statute continued to be published in the McKinney's Consolidated

20 Laws of New York Annotated -- an annotated compendium of New York

21 statutes that is separate from, and more formal and complete

22 than, the unannotated booklet provided to Novarro and other

23 officers by the police academy -- to the present day "as if it is

24 still a viable statute." People v. Amore, No. 01-36459 (Ithaca

25 City Ct. Nov. 15, 2001). "It is hard to understand why the

6

1 Legislature would continue this statute on the books, given that

2 it is now close to 20 years since it was determined to be

3 unconstitutional." Id.

4 Some two and one-half years later, on February 12,

5 2004, Amore filed a complaint in the United States District Court

6 for the Northern District of New York against Novarro and the

7 City of Ithaca for damages pursuant to 42 U.S.C. § 1983. His

8 claims against Novarro were for false arrest, malicious

9 prosecution, abuse of process, and violation of his right to

10 equal protection. His claims against the city were made pursuant

11 to Monell v. Department of Social Services, 436 U.S. 658 (1978),

12 for failure to train city employees and for maintaining an

13 improper policy, custom or practice of permitting officers to

14 make arrests under the unconstitutional statute.

15 The defendants moved to dismiss the complaint. Amore

16 opposed the motion, filing a cross-motion for partial summary

17 judgment on the issue of liability.

18 On March 28, 2008, the district court denied Amore's

19 cross-motion for summary judgment with respect to all claims,

20 and, treating the defendants' motion as a motion for summary

21 judgment, granted the defendants' motion in part and denied it in

22 part. The district court granted the motion on the malicious

23 prosecution, abuse of process, and equal protection claims

24 against Novarro, and the maintenance of an improper policy or

25 custom claim against the city. See Amore v. City of Ithaca, No.

7

1 04 Civ. 176, 2008 U.S. Dist. LEXIS 26035, *10-*13, *21-*22

2 (N.D.N.Y. Mar. 28, 2008).5 None of those claims are at issue on

3 this interlocutory appeal.

4 The district court denied summary judgment on the false

5 arrest claim, however. See id. The court reasoned that Novarro

6 lacked probable cause to arrest Amore under section 240.35(3)

7 because the New York Court of Appeals had declared that statute

8 unconstitutional in Uplinger. Id. at *14-*16.

9 The district court conceded that such a situation

10 presents a "difficult choice" for a police officer because "[a]

11 common sense reading of [§ 240.35(3)] would place [Amore's]

12 actions squarely within the purview of [that provision]." Id. at

13 *20-*21. It also acknowledged that "Novarro would have had to

14 conduct legal research or seek expert advice in order to discover

15 the statute's invalidity." Id. at *21.6 The court concluded

16 nonetheless that Novarro was not entitled to qualified immunity

17 with respect to the false arrest claim because Amore's "right to

18 be free from unlawful arrest under § 240.35(3) was clearly

19 established at the time that he was arrested." Id. at *15. In

20 the court's view, in light of Uplinger, it was objectively

21 unreasonable for Novarro to believe that the arrest was lawful,

5

Not available on WestLaw.

6

The district court made these remarks concerning the

difficulty of Novarro's position in the context of analyzing the

failure-to-train claim, discussed below, rather than in the

context of the false arrest claim. They are plainly pertinent to

the issue of qualified immunity for the false arrest claim,

however.

8

1 because courts "must at least hold [public] officials to a basic

2 standard of awareness where the state's highest court has

3 pronounced a statute facially unconstitutional."7 Id. at *16.

4 The district court also denied the motion for summary

5 judgment on the failure-to-train claim against the city. The

6 court based its decision on evidence submitted by Amore to the

7 effect that the city knew that its police officers operating in

8 Stewart Park would encounter individuals soliciting and engaging

9 in sex. See id. at *18-*19. At argument before this Court, the

10 parties represented that the failure-to-train claim against the

11 city was still pending. It is therefore not before us on this

12 appeal.8

13 On June 9, 2008, the district court denied Amore's

14 motion to reconsider the denial of his motion for summary

15 judgment on the false arrest claim. See Amore v. City of Ithaca,

7

The district court also concluded that there were triable

issues of fact as to whether Novarro had probable cause to arrest

Amore for disorderly conduct under N.Y. Penal Law § 240.20 or

second-degree harassment under N.Y. Penal Law § 240.26(3) based

on Amore's sexual encounter with a stranger in the park just

prior to his interaction with Novarro. Id. at *9, *16.

8

We note that the attorney for Novarro and the attorney

for the city are one and the same, and that at argument the

parties speculated briefly about whether the outcome of this

appeal would have any effect on the pending case against the

city, suggesting the possibility of some conflict arising out of

the dual representation. We emphasize, however, that the case

against the city is not before us on this appeal –- indeed, as

explained infra, we would lack jurisdiction over such an

interlocutory appeal from the denial of summary judgment absent

the collateral order doctrine, which the case against the city

does not implicate –- and we of course offer no opinion as to

whether, or if it does how, the resolution of this appeal affects

that case.

9

1 No. 04 Civ. 176, 2008 U.S. Dist. LEXIS 45328 (N.D.N.Y. June 9,

2 2008).

3 On June 17, 2008, the defendants petitioned the

4 district court for leave to appeal from the March 28, 2008

5 memorandum opinion and order. The district court denied leave to

6 appeal. On October 1, 2008, we concluded that we had

7 jurisdiction over the March 28 memorandum opinion and order to

8 the extent that it denied Novarro qualified immunity on the false

9 arrest claim, and directed the Clerk of the Court to issue a

10 briefing schedule for an appeal on the qualified immunity

11 question.

12 The sole question on appeal, then, is whether Novarro

13 is entitled to qualified immunity on the false arrest claim.

14 DISCUSSION

15 I. Jurisdiction and Standard of Review

16 "As a general rule, the denial of summary judgment is

17 not immediately appealable." Finigan v. Marshall, 574 F.3d 57,

18 60 n.2 (2d Cir. 2009) (citing 28 U.S.C. § 1291). "The collateral

19 order doctrine, however, allows review of a district court's

20 denial of summary judgment on the ground that the movant was not

21 entitled to qualified immunity to the extent that the district

22 court has denied the motion as a matter of law." Id. (internal

23 quotation marks omitted).

24 Our jurisdiction is limited such that we may only

25 review Novarro's assertion of qualified immunity based on

10

1 "stipulated facts, facts accepted for purposes of the appeal, or

2 the plaintiff's version of the facts that the district court

3 deemed available for jury resolution." Kelsey v. County of

4 Schoharie, 567 F.3d 54, 60 (2d Cir. 2009) (internal quotation

5 marks omitted). While "we must examine whether a given factual

6 dispute is 'material' for summary judgment purposes, we may not

7 review whether a dispute of fact identified by the district court

8 is 'genuine.'" Jones v. Parmley, 465 F.3d 46, 55 (2d Cir. 2006)

9 (internal quotation marks omitted).

10 Summary judgment should be granted where "there is no

11 genuine issue as to any material fact and . . . the movant is

12 entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c).

13 The court construes all evidence in the light most favorable to

14 the non-moving party, drawing all inferences and resolving all

15 ambiguities in his favor. See, e.g., LaSalle Bank Nat'l Ass'n v.

16 Nomura Asset Capital Corp., 424 F.3d 195, 205 (2d Cir. 2005). We

17 review the district court's denial of summary judgment on

18 qualified immunity grounds, as in other contexts, de novo. See,

19 e.g., Moore v. Andreno, 505 F.3d 203, 208 (2d Cir. 2007).

20 II. Qualified Immunity

21 Qualified immunity is an affirmative defense designed

22 to "protect[] the [defendant public] official not just from

23 liability but also from suit . . . thereby sparing him the

24 necessity of defending by submitting to discovery on the merits

25 or undergoing a trial." X-Men Sec., Inc. v. Pataki, 196 F.3d 56,

11

1 65 (2d Cir. 1999). Government officials are entitled to

2 qualified immunity "insofar as their conduct does not violate

3 clearly established statutory or constitutional rights of which a

4 reasonable person would have known." Harlow v. Fitzgerald, 457

5 U.S. 800, 818 (1982). "A police officer who has an objectively

6 reasonable belief that his actions are lawful is entitled to

7 qualified immunity." Okin v. Village of Cornwall-On-Hudson

8 Police Dep't, 577 F.3d 415, 433 (2d Cir. 2009).

9 "The central purpose of affording public officials

10 qualified immunity from suit is to protect them 'from undue

11 interference with their duties and from potentially disabling

12 threats of liability.'" Elder v. Holloway, 510 U.S. 510, 514

13 (1994) (quoting Harlow, 457 U.S. at 806). The qualified immunity

14 defense is supposed to "provide[] ample protection to all but the

15 plainly incompetent or those who knowingly violate the law."

16 Malley v. Briggs, 475 U.S. 335, 341 (1986).

17 In order to overcome a qualified immunity defense, a

18 plaintiff must demonstrate that "[t]aken in the light most

19 favorable to the [plaintiff,] . . . the facts alleged show [that]

20 the officer's conduct violated a constitutional right," and that

21 the right allegedly violated was "clearly established." Saucier

22 v. Katz, 533 U.S. 194, 201 (2001), overruled in part on other

23 grounds, Pearson v. Callahan, 129 S. Ct. 808 (2009). "For a

24 constitutional right to be 'clearly established' for purposes of

25 determining whether an officer is entitled to qualified immunity,

26 the 'contours of the right must be sufficiently clear that a

12

1 reasonable official would understand that what he is doing

2 violates that right.'" Mollica v. Volker, 229 F.3d 366, 370 (2d

3 Cir. 2000) (quoting Anderson v. Creighton, 483 U.S. 635, 640

4 (1987)); see also Saucier, 533 U.S. at 202 ("The relevant,

5 dispositive inquiry in determining whether a right is clearly

6 established is whether it would be clear to a reasonable officer

7 that his conduct was unlawful in the situation he confronted.").

8 Thus the inquiry into whether it was objectively

9 reasonable for an officer to believe that his conduct did not

10 violate a constitutional right has been viewed as part of the

11 inquiry into whether the constitutional right allegedly violated

12 was "clearly established." See Harlow, 457 U.S. at 818

13 ("Reliance on the objective reasonableness of an official's

14 conduct[] [is] measured by reference to clearly established

15 law . . . ."); Okin, 577 F.3d at 433 n.11 ("Saucier makes it

16 clear that the 'objectively reasonable' inquiry is part of the

17 'clearly established' inquiry."). We have, however, sometimes

18 framed the "objectively reasonable" inquiry as separate from the

19 "clearly established" inquiry. See, e.g., Cornejo v. Bell, 592

20 F.3d 121, 128 (2d Cir. 2010) ("[Q]ualified immunity . . . is

21 sufficient to shield executive employees from civil liability

22 under § 1983 if either (1) their conduct did not violate clearly

23 established rights of which a reasonable person would have known,

24 or (2) it was objectively reasonable to believe that their acts

25 did not violate these clearly established rights." (internal

26 quotation marks and alterations omitted)). Whether the

13

1 "objectively reasonable" inquiry is framed as part of the

2 "clearly established" inquiry, or apart from it, does not affect

3 the outcome of the qualified immunity analysis here.9

4 III. Novarro's Qualified Immunity

5 We assume here, not without reason, that when Novarro

6 arrested Amore he violated a constitutional right of Amore not to

7 be arrested for activity made criminal by section 240.35(3),

8 which had been held unconstitutional by the New York Court of

9 Appeals. Cf. Lemon v. Kurtzman, 411 U.S. 192, 207-08 (1973)

10 (plurality opinion) (indicating that a statute is a legal basis

11 for arrest only "[u]ntil judges say otherwise"). And the broad

12 right not to be arrested pursuant to an unconstitutional statute

13 may well be considered clearly established. But the question

14 here is whether the right not to be arrested under this statute

15 was clearly established, that is, whether it was objectively

16 reasonable for Novarro to fail to realize that the statute he was

17 attempting to enforce against Amore had been held to be

18 unconstitutional by the New York Court of Appeals. See Okin, 577

19 F.3d at 433 n.11 (framing inquiry as whether "the law was clearly

20 established . . . for the particular context in which [the

9

For several years, under Saucier, courts were required to

address first whether taken in the light most favorable to the

plaintiff, the facts alleged disclosed a constitutional violation

at all, and only then decide whether it was clearly established

and whether the defendant's acts were objectively reasonable.

That is no longer required. See Pearson, 129 S. Ct. at 813 ("We

now hold that the Saucier procedure should not be regarded as an

inflexible requirement and that petitioners are entitled to

qualified immunity on the ground that it was not clearly

established at the time of the search that their conduct was

unconstitutional.").

14

1 challenged conduct] occurred"). "A policeman's lot is not so

2 unhappy that he must choose between being charged with

3 dereliction of duty if he does not arrest when he has probable

4 cause, and being mulcted in damages if he does." Pierson v. Ray,

5 386 U.S. 547, 555 (1967).10

6 To spare police officers the unenviable choice between

7 failing to enforce the law and risking personal liability for

8 enforcing what they reasonably, but mistakenly, think is the law,

9 we generally extend qualified immunity to an officer for an

10 arrest made pursuant to a statute that is "on the books," so long

11 as the arrest was based on probable cause that the statute was

12 violated. See Conn. ex rel. Blumenthal v. Crotty, 346 F.3d 84,

13 105 (2d Cir. 2003) ("Officials charged with enforcing a statute

14 on the books . . . are generally entitled to rely on the

15 presumption that all relevant legal and constitutional issues

16 have been considered and that the statute is valid."); see also

17 id. at 102 ("In order to determine whether [the defendant] may

18 prevail, we consider many factors, but rely primarily on one

19 factor as particularly persuasive: that the challenged conduct

20 involved enforcement of a presumptively valid statute."); Vives

21 v. City of New York, 405 F.3d 115, 117 (2d Cir. 2005)

10

Cf. Gilbert & Sullivan, Pirates of Penzance:

When constabulary duty's to be done, to be done.

Ah, take one consideration with another, with another,

A policeman's lot is not a happy one.

Id., Act II, available at http://math.boisestate.edu/

GaS/pirates/web_op/pirates24.html (last visited April 19, 2010).

15

1 (distinguishing Crotty from "case which did not involve state

2 officials acting under the color of a properly-enacted statute")

3 (emphasis in original); Grossman v. City of Portland, 33 F.3d

4 1200, 1209 (9th Cir. 1994) ("[C]ourts have continued to adhere to

5 the central principle . . . [that] where a police officer has

6 probable cause to arrest someone under a statute that a

7 reasonable officer could believe is constitutional, the officer

8 will be immune from liability even if the statute is later held

9 to be unconstitutional."); Shero v. City of Grove, Okl., 510 F.3d

10 1196, 1204 (10th Cir. 2007) (referring to reliance on statute as

11 "extraordinary circumstance[]" that could "so prevent[] the

12 official from knowing that his or her actions were

13 unconstitutional that he or she should not be imputed with

14 knowledge of a clearly established right").

15 We noted some years ago that:

16 [I]t has long been clearly established that

17 an arrest without probable cause is a

18 constitutional violation. Nonetheless, the

19 arresting officer is entitled to qualified

20 immunity as a matter of law if the undisputed

21 facts and all permissible inferences

22 favorable to the plaintiff show either (a)

23 that it was objectively reasonable for the

24 officer to believe that probable cause

25 existed, or (b) that officers of reasonable

26 competence could disagree on whether the

27 probable cause test was met.

28 Robison v. Via, 821 F.2d 913, 921 (2d Cir. 1987) (citations

29 omitted).

30 Similarly here, we assume that it is clearly

31 established that an arrest under a statute that has been

16

1 authoritatively held to be unconstitutional is ordinarily a

2 constitutional violation. And it is clear that Amore was

3 sufficiently detained for him to have been "arrested" for

4 purposes of bringing this false arrest claim,11 and that the

5 statute under which he was arrested had been held by the New York

6 Court of Appeals to be unconstitutional. But the question is

7 whether it was nonetheless objectively reasonable for Novarro, as

8 the arresting officer, to have believed that the statute in

9 question remained fully in force and that his arrest was

11

"In analyzing § 1983 claims for unconstitutional false

arrest, we have generally looked to the law of the state in which

the arrest occurred." Davis v. Rodriguez, 364 F.3d 424, 433 (2d

Cir. 2004). "Under New York law, a plaintiff claiming false

arrest must show, inter alia, that the defendant intentionally

confined him without his consent and without justification."

Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996). Novarro

conceded that Amore was detained, contrary to his express desire

to be released, while Novarro compelled him to produce

identification and waited for backup to arrive.

In a letter submitted after argument pursuant to Federal

Rule of Appellate Procedure 28(j), Novarro argues that under our

recent decision in Burg v. Gosselin, 591 F.3d 95 (2d Cir. 2010),

which was issued after this case was briefed and argued, Amore's

detention was insufficient to give rise to a claim of false

arrest. That argument is based on our conclusion in Burg that

"the issuance of a pre-arraignment, non-felony summons requiring

a later court appearance, without further restrictions, does not

constitute a Fourth Amendment seizure." Id. at 98. Novarro

misconstrues Burg, which distinguished false arrest claims based

on a plaintiff's detention while interacting with law

enforcement: "Burg thus does not contend that she was detained or

seized while [the officer] wrote out the summons." Id. at 96

n.3. Indeed, we noted in Burg that "a plaintiff pleads a seizure

when he alleges that a police officer held on to his

identification and ordered him to stay put while the police

officer wrote out a summons." Id. (citing Vasquez v. Pampena,

No. 08 Civ. 4184, 2009 WL 1373591, at *2 (E.D.N.Y. May 18, 2009))

(internal quotation marks omitted). There is nothing in Burg,

therefore, inconsistent with our conclusion that Amore's

detention was a Fourth Amendment seizure for purposes of a false

arrest claim.

17

1 therefore not a violation of Amore's constitutional rights. Cf.

2 id. (focusing inquiry on "the particular facts of the case"). If

3 it was objectively reasonable for Novarro to believe that the

4 statute in question was valid, then arrest under this particular

5 unconstitutional statute in the circumstances presented here was

6 not a clearly established constitutional violation for purposes

7 of qualified immunity.12

8 Section 240.35(3) made it a crime to loiter "in a

9 public place for the purpose of engaging, or soliciting another

10 person to engage, in deviate sexual intercourse or other sexual

11 behavior of a deviate nature."13 Uplinger, 58 N.Y.2d at 937, 447

12 N.E.2d at 62. In that 1983 decision, the New York Court of

13 Appeals declared the provision unconstitutional. The court

14 explained that "[t]he object of the loitering statute is to

15 punish conduct anticipatory to the act of consensual sodomy.

16 Inasmuch as the conduct ultimately contemplated by the loitering

17 statute may not be deemed criminal, we perceive no basis upon

18 which the State may continue to punish loitering for that

19 purpose." Id., 58 N.Y.2d at 938, 447 N.E.2d at 63; see also

12

In Robison, it should be noted, we framed the

"objectively reasonable" inquiry as separate from the "clearly

established" inquiry. Robison, 821 F.2d at 921. As noted in the

text, supra, whether the inquiries are so framed, or whether the

former inquiry is encompassed within the latter, has no bearing

on the resolution of the qualified immunity issue.

13

"'Deviate sexual intercourse'" meant "'sexual conduct

between persons not married to each other consisting of contact

between the penis and the anus, the mouth and penis, or the mouth

and the vulva.'" People v. Onofre, 51 N.Y.2d 476, 484, 415

N.E.2d 936, 938 (1980) (quoting former New York Penal Law Section

130.00).

18

1 People v. Onofre, 51 N.Y.2d 476, 485, 415 N.E.2d 936, 938-39

2 (1980) (invalidating "consensual sodomy" statute prohibiting

3 "deviate sexual intercourse" on constitutional privacy and Equal

4 Protection grounds because the statute "reach[ed] noncommercial,

5 cloistered personal sexual conduct of consenting adults and . . .

6 permitt[ed] the same conduct between persons married to each

7 other without sanction").

8 "Despite judicial invalidation, the State of New York

9 has not formally repealed [section 240.35(3)]." Casale v. Kelly,

10 257 F.R.D. 396, 401 (S.D.N.Y. 2009).14 At the time Novarro

11 arrested Amore -- and to this day15 -- section 240.35(3), despite

12 Uplinger's 1983 holding that the section is unconstitutional, has

13 continued to be published in official versions of the New York

14 Penal Law. See N.Y. Penal Law § 240.35(3) (2010). Indeed,

15 WestLaw and Lexis sites continue to include the text in their

16 services.16

14

Indeed, the provision was enforced as recently as April

6, 2010, by the New York City Parks Department, when the Parks

Department issued two summonses for violations of the provision.

Casale v. Kelly, Nos. 08 Civ. 2173, 05 Civ. 5442, 2010 WL

1685582, at *6, 2010 U.S. Dist. LEXIS 40606, at *28 (S.D.N.Y.

Apr. 26, 2010).

15

In 2003, as part of a sweeping amendment to various New

York statutes, the legislature amended N.Y. Penal Law § 240.35(3)

by changing the phrase, "deviate sexual intercourse," to "oral

sexual conduct, anal sexual conduct." 2003 N.Y. LAWS 264, ch.

264 § 30, eff. Nov 1, 2003. The section otherwise remained

unchanged.

16

To be sure, McKinney's Consolidated Laws of New York

Annotated contains a reference to the fact that § 240.35(3) "has

been declared unconstitutional." See 39 McKinney's Penal Law

§ 240.35, William C. Donnino, "Practice Commentary" (citing

Uplinger). WestLaw and Lexis versions of the statute contain

19

1 More than two years after Amore's arrest for violating

2 section 240.35(3), the New York State legislature amended the

3 wording of this very section,17 thus treating section 240.35(3)

4 as though it were fully in effect despite the holding of the New

5 York Court of Appeals two decades previously that the section was

6 unconstitutional.18

7 In determining whether an officer is entitled to

8 qualified immunity, "[t]he question is not what a lawyer would

9 learn or intuit from researching case law, but what a reasonable

10 person in a defendant's position should know about the

11 constitutionality of the conduct." Young v. County of Fulton,

similar references. But is undisputed on this appeal that the

copy of the Penal Law provided to Novarro by the police

department, published by a professional third-party publisher,

contained no such annotation. It is also undisputed that Novarro

received no information or instruction regarding the

constitutionality of section 240.35(3) prior to the arrest.

17

See footnote 15, supra.

18

The United States District Court for the Southern

District of New York (Scheindlin, Judge) recently held the City

of New York to be in contempt of court for failing to act with

reasonable diligence to eliminate enforcement of section

240.35(3) and two related loitering provisions in the Penal Code

that have been ruled unconstitutional, sections 240.35(7) and

240.35(1), after being ordered by that court on June 23, 2005 and

May 2, 2008 to do so. See Casale v. Kelly, 2010 WL 1685582, 2010

U.S. Dist. LEXIS 40606. The decision was based on what the court

found to be the inadequate response of the City to two court

orders that were issued after the events pertinent to this appeal

took place. It did not involve the question of any individual

officer's qualified immunity or the question of any conduct or

policy of the City of Ithaca. The Casale court noted: "While it

is unclear why the New York Legislature has not repealed these

void provisions, there can be no question that formal repeal of

the Statutes would in all likelihood decrease enforcement of

them." Id., 2010 WL 1685582, at *1 n.6, 2010 U.S. Dist. LEXIS

40606, at *5 n.6.

20

1 160 F.3d 899, 903 (2d Cir. 1998). It is undisputed that:

2 Novarro did not know that section 240.35(3) was unconstitutional;

3 he had not received instruction or information on the

4 constitutionality of the statute; and he was relying on an

5 accurate, if unannotated, copy of the New York Penal Law when he

6 arrested Amore. We cannot say that Novarro's arrest of Amore was

7 objectively unreasonable under these circumstances, where he had

8 every reason to believe that the statute of arrest was valid and

9 in effect.19 Amore has not pointed us to any cases that compel a

10 contrary conclusion, nor are we ourselves aware of one.

11 There are, to be sure, judicial dicta suggesting that

12 an officer's entitlement to rely on a statute expires when a

13 binding court decision declares the statute unconstitutional.

14 See Michigan v. DeFillippo, 443 U.S. 31, 38 (1979) (state

15 officials "are charged to enforce laws until and unless they are

16 declared unconstitutional"); Vives, 405 F.3d at 117 ("We have

17 held that absent contrary direction, state officials are entitled

18 to rely on a presumptively valid state statute until and unless

19 the statute is declared unconstitutional.") (internal quotation

20 marks, ellipses, and alterations omitted); Crotty, 346 F.3d at

21 102 ("[U]ntil judges say otherwise, state officers have the power

22 to carry forward the directives of the state legislature")

23 (internal quotation marks and ellipsis omitted); see also Gann v.

24 Cline, 519 F.3d 1090, 1092 (10th Cir. 2008) ("A plaintiff can

19

In order for his conduct to be immune, Novarro also had

to have an objectively reasonable belief that Amore had violated

the statute. That subject is discussed in Section IV., infra.

21

1 demonstrate that a constitutional right is clearly established by

2 references to cases from the Supreme Court, the [federal Circuit

3 in which the case arose], or the weight of authority from other

4 circuits.") (internal quotation marks omitted). But these

5 statements were uttered in the course of granting qualified

6 immunity or, in DeFillippo, ruling in favor of the police

7 officers on a motion to suppress. None of them suggested that if

8 a statute has been held unconstitutional, adherence to it by a

9 law enforcement official is, ipso facto, unreasonable

10 irrespective of the circumstances. That is not the law.

11 We conclude that Novarro's reliance on New York Penal

12 Law Section 240.35(3) in arresting Amore was objectively

13 reasonable.

14 IV. Whether Novarro Had Arguable Probable Cause to Arrest

15 Amore under Section 240.35(3)

16 Amore argues that even if it was reasonable for Novarro

17 to rely on section 240.35(3), his apprehension of Amore was a

18 false arrest because it was not supported by probable cause. And

19 Amore contends that Novarro is not entitled to qualified immunity

20 because he did not have even "arguable probable cause" for the

21 arrest.

22 "The existence of probable cause to arrest constitutes

23 justification and is a complete defense to an action for false

24 arrest, whether that action is brought under state law or under

25 § 1983." Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996)

26 (internal quotation marks and citation omitted). Probable cause

27 exists if at the time of the arrest "the facts and circumstances

22

1 within th[e officer's] knowledge and of which [he] had reasonably

2 trustworthy information were sufficient to warrant a prudent man

3 in believing that the [suspect] had committed or was committing

4 an offense." Beck v. Ohio, 379 U.S. 89, 91 (1964); accord,

5 Zellner v. Summerlin, 494 F.3d 344, 369 (2d Cir. 2007).

6 In determining whether an officer is entitled to

7 qualified immunity for a false arrest claim in the absence of

8 probable cause, we examine whether there was "arguable probable

9 cause." Walczyk v. Rio, 496 F.3d 139, 163 (2d Cir. 2007).

10 "Arguable probable cause exists if either (a) it was objectively

11 reasonable for the officer to believe that probable cause

12 existed, or (b) officers of reasonable competence could disagree

13 on whether the probable cause test was met." Id. (internal

14 quotation marks omitted). In deciding whether an officer's

15 conduct was "objectively reasonable" for purposes of qualified

16 immunity, we look to the information possessed by the officer at

17 the time of the arrest, but "we do not consider the subjective

18 intent, motives, or beliefs" of the officer. Crotty, 346 F.3d at

19 106.

20 At the time of Amore's arrest, section 240.35(3) on its

21 face prohibited "[l]oiter[ing] . . . in a public place for the

22 purpose of engaging, or soliciting another person to engage, in

23 deviate sexual intercourse or other sexual behavior of a deviate

24 nature . . . ." N.Y. Penal Law § 240.35(3) (pre-2003 amendment

25 text)); see also Uplinger, 58 N.Y. 2d at 937, 447 N.E. 2d at 62.

26 Amore does not dispute that the sexual act he offered to perform

23

1 on Novarro would have been treated under the statute as "sexual

2 behavior of a deviate nature."

3 Amore argues instead that the facts could as easily

4 support a theory that Novarro solicited him, not the other way

5 around. But in all the versions of the interaction between Amore

6 and Novarro reflected in the record, it is Amore who initiates

7 the conversation with Novarro and who proposes a sexual

8 interaction.

9 We therefore disagree with Amore's insistence that the

10 several versions of the event are materially "inconsistent."

11 Appellee's Br. 14. On the undisputed facts Novarro had at least

12 arguable probable cause to believe that Amore was

13 "[l]oiter[ing] . . . in a public place for the purpose of

14 engaging, or soliciting another person to engage, in deviate

15 sexual intercourse or other sexual behavior of a deviate

16 nature . . . ."

17 V. Disorderly Conduct; Harassment

18 Because we conclude that Novarro is entitled to

19 qualified immunity for arresting Amore pursuant to N.Y. Penal Law

20 § 240.35(3), we decline to reach Novarro's argument that he is

21 entitled to qualified immunity because there was arguable

22 probable cause to arrest Amore for disorderly conduct or

23 harassment.

24 CONCLUSION

24

1 For the foregoing reasons, we reverse the district

2 court's denial of Novarro's motion for summary judgment, and

3 remand the cause with instructions to the district court to grant

4 the motion, thereby dismissing the false arrest claim.

25