The opinion of the court was delivered by: Scullin, Senior Judge
MEMORANDUM-DECISION AND ORDER
Plaintiff filed a complaint on February 18, 2004, asserting § 1983 claims against Defendant Andrew Novarro, a City of Ithaca police officer, for (1) false arrest, (2) malicious prosecution, (3) abuse of process, and (4) deprivation of his Fourteenth Amendment right to equal protection. See Complaint at ¶¶ 17-93. He also asserts Monell claims against Defendant City of Ithaca ("City") for (1) use of an improper policy, custom, or practice and (2) failure to train its employees. See id. at ¶¶ 94-120. Currently before the Court are Defendants' motion for summary judgment*fn1 and Plaintiff's cross-motion for partial summary judgment on the issue of liability.
On October 19, 2001, Defendant Novarro sat in his unmarked police vehicle in plain clothes watching for drug activity in Stewart Park, a public park in Ithaca, New York. See Plaintiff's Statement of Material Facts at ¶¶ 5-6; Defendants' Statement of Material Facts at 9. Plaintiff approached Defendant Novarro's vehicle on the driver's side and tapped on the window. See Defendants' Statement of Material Facts at 9.*fn2 The parties did not know each other beforehand. See id. They now disagree on the content of their dialogue during the encounter.
According to Defendant Novarro, he asked what Plaintiff wanted; and Plaintiff replied, in essence, that he wanted to perform oral sex on him. See id. Plaintiff, however, claims that he initiated the conversation by asking Defendant Novarro whether he was "looking for something." See Plaintiff's Statement of Material Facts at ¶ 9. When Defendant Novarro responded, "I don't know, what do you have?," see id.,Plaintiff claims he replied, "how about a blow job[?]," see id.
After Defendant Novarro identified himself as a police officer, Plaintiff "closed his eyes, sighed and dropped his chin down, made a sighing sound like, oh, and . . . said can't you just let me go[?]" See Plaintiff's Statement of Material Facts at ¶ 8. Defendant Novarro told Plaintiff that he could not leave, asked him for identification, and called for backup so he could issue Plaintiff an appearance ticket for loitering under New York Penal Law § 240.35(3). See id. Several days after Defendant Novarro issued Plaintiff the appearance ticket, he filed a criminal complaint on October 24, 2001, charging Plaintiff with violating § 240.35(3), see id. at ¶¶ 10-11, which prohibits "loiter[ing] or remain[ing] 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[,]" N.Y. Penal Law § 240.35(3).
The Office of the City Prosecutor filed a motion in Ithaca City Court to dismiss the criminal charge against Plaintiff after discovering that the New York Court of Appeals had held § 240.35(3) unconstitutional in People v. Uplinger, 58 N.Y. 2d 936 (1983). See id. at ¶¶ 12-13; Defendants' Statement of Material Facts at 9-10. The city court granted the prosecutor's motion and entered an order on November 15, 2001, dismissing Plaintiff's criminal charge. See Plaintiff's Statement of Material Facts at ¶ 14.
A. Section 1983 claims against Defendant Novarro
When analyzing a claim for false arrest under the Fourth Amendment to the United States Constitution, the court looks to "the law of the state in which the arrest occurred." Davis v. Rodriguez, 364 F.3d 424, 433 (2d Cir. 2004) (citations omitted); see also Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996). To prevail on such a claim under New York law, a plaintiff must demonstrate that "(1) the defendant intended to confine the plaintiff, (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the confinement, and (4) the confinement is not otherwise privileged." Bernard v. United States, 25 F.3d 98, 102 (2d Cir. 1994) (citation omitted).
Plaintiff has unquestionably met the first three elements. Defendant Novarro testified at his deposition that, once he revealed himself to Plaintiff as a police officer, Plaintiff closed his eyes, sighed and dropped his chin down, made a sighing sound like, oh, and he then said can't you just let me go. And I said I don't think so. . . . And I called for a marked patrol car to come down to the park because I did not have the specific item that I needed to issue him there for arresting him for the offense I arrested him for . . . .
See Plaintiff's Statement of Material Facts at ¶ 7. This dialogue reveals Defendant Novarro's intention to confine Plaintiff and Plaintiff's acknowledgment of that confinement and request to go free. Defendant Novarro does not contest these facts. Rather, he contends that Plaintiff has not proven the fourth element - that the confinement was not otherwise privileged.
A confinement is privileged if the officer had probable cause to arrest; therefore, the existence of probable cause is an absolute defense to a false arrest claim. See Weyant, 101 F.3d at 852. "An officer has probable cause to arrest when he or she has 'knowledge or reasonably trustworthy information of facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief that the person to be arrested has committed or is committing the crime.'" Jaegly v. Couch, 439 F.3d 149, 152 (2d Cir. 2006) (quoting [Weyant, 101 F.3d at 852])) (other citation omitted).
Under New York law, the defendant bears the burden of proving probable cause for a warrantless arrest. See Raysor v. Port Auth.of N.Y. & N.J., 768 F.2d 34, 39-40 (2d Cir. 1985); see also Jenkins v. City of N.Y., 478 F.3d 76, 88 (2d Cir. 2007) (recognizing that under New York law, a warrantless arrest gives rise to the presumption that the plaintiff's arrest is unlawful, which can be rebutted if the arresting officer can show "reasonable cause") (citing Broughton v. State, 37 N.Y.2d 451, 458 (1975)). Since "[p]resumptions and other matters related to the burden of proof are considered matters of substantive law, governed by the law of the jurisdiction whose substantive law applies to the merits of the question in issue[,]" United States v. McCombs, 30 F.3d 310, 323-24 (2d Cir. 1994) (citations omitted), this burden of proof standard applies equally to § 1983 false arrest claims in federal court.
Defendant Novarro did not have probable cause to arrest Plaintiff under § 240.35(3) because the New York Court of Appeals held that subsection facially unconstitutional in Uplinger in 1983. Cf. Michigan v. DeFillippo, 443 U.S. 31, 38 (1979) ("Police are charged to enforce laws . . . unless they are declared unconstitutional." (emphasis added)). Nevertheless, to execute a lawful arrest, a police officer need only have probable cause to believe that a person has committed some criminal offense. See Devenpeck v. Alford, 543 U.S. 146, 153-54 (2004). Here, Defendant Novarro asserts that, even if he did not have probable cause to arrest Plaintiff for loitering under § 240.35(3), he had probable cause to arrest him for disorderly conduct pursuant to New York Penal Law § 240.20 or harassment in the second degree pursuant to New York Penal Law § 240.26(3) or both. See id. at 19.
New York Penal Law § 240.20 provides, in pertinent part, that A person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof:
3. In a public place, he uses abusive or obscene language, or makes an obscene gesture; or
7. He creates a hazardous or physically offensive condition by any act which serves no ...