Appeal from a judgment of the United States District Court for the Northern District of New York (Frederick J. Scullin, Jr., Judge). The district court denied police officer Andrew Novarro's motion for summary judgment on a false arrest claim, ruling that Novarro was not entitled to qualified immunity for making an arrest pursuant to a state loitering statute that was published as part of the New York Penal Law at the time of the arrest but that had been held unconstitutional by the New York Court of Appeals eighteen years prior to the arrest. We conclude that the district court erred in deciding that despite the fact that the statute was still widely published as though it remained valid, it would have been clear to a reasonable officer in Novarro's position that making the arrest was unlawful. We therefore reverse the order of the district court and remand the cause with instructions to grant the summary judgment motion based on qualified immunity and to dismiss the complaint against Novarro.
The opinion of the court was delivered by: Sack, Circuit Judge
Before: SACK and B.D. PARKER, Circuit Judges, and GOLDBERG, Judge.*fn2
Defendant-Appellant Andrew Novarro, an Ithaca, New York policeman, appeals from that part of a memorandum decision and order dated March 28, 2008, by the United States District Court for the Northern District of New York (Frederick J. Scullin, Jr., Judge) denying his motion for summary judgment on a false arrest claim brought by plaintiff-appellee Joseph Amore under 42 U.S.C. § 1983. The claim is based on Novarro's arrest of Amore pursuant to New York Penal Law Section 240.35(3), which, on its face, prohibits loitering in a public place for the purpose of soliciting another person to engage in "deviate" sexual behavior.*fn3 Amore alleges that his apprehension constituted a false arrest because the statute, although then officially and unofficially published as currently effective law, had been ruled unconstitutional by the New York Court of Appeals eighteen years before.
The district court concluded that Novarro was not entitled to qualified immunity: Amore had a clearly established constitutional right to be free from unlawful arrest, and it would have been clear to a reasonable officer in Novarro's position that making an arrest under section 240.35(3) after it had been held to be unconstitutional by the New York Court of Appeals in People v. Uplinger, 58 N.Y.2d 936, 460 N.Y.S.2d 514, 447 N.E.2d 62 (1983) (Mem.), was unlawful.
We disagree. We conclude that Novarro is entitled to qualified immunity under these circumstances. It was unreasonable to expect this police officer to know that a statute that was, and is, still on the books and being enforced had been held to be unconstitutional. We therefore reverse that part of the district court's order dismissing Novarro's motion for summary judgment on the false arrest claim based on qualified immunity, and remand the cause with instructions to grant the motion.
Plaintiff Joseph Amore met defendant Andrew Novarro on October 19, 2001, in a public park in Ithaca, New York. Novarro was there acting as an undercover police officer, watching for drug activity. Amore, not knowing who Novarro was or what he was doing, offered to perform a sexual act on him.
Novarro identified himself as a police officer and asked Amore for identification, which he produced. Novarro told Amore that he did not have a ticket to write out and would have to call for "backup," which he proceeded to do. Novarro later testified that he did so in part because he did not have an appearance ticket with which to charge Amore with loitering.
While they waited for another police officer to arrive, Novarro told Amore that he was being charged with "loitering for the purpose of deviant [sic*fn4] sexual activity." Deposition of Andrew Novarro ("Novarro Dep.") at 20. Novarro explained to Amore that "they were cracking down on this kind of activity in the park." Deposition of Joseph Amore ("Amore Dep.") at 36.
Novarro testified, and it is not disputed in the briefing of this appeal, that the New York police academy he had attended issues a copy of the New York Penal Law to every officer, and that most officers carry a copy of it with them on duty.*fn5 It is in the form of a looseleaf booklet containing the text of the Penal Law that is published by Gould Publications, Inc.*fn6 The Ithaca Police Department furnishes each of its officers with yearly updates consisting of a stack of substitute pages reflecting new laws that have been enacted during the previous year, or deleting laws that are no longer in effect. When the officers receive these yearly updates, they are "supposed to remove" those pages that have become outdated and insert into the booklet, in their stead, the substitute pages reflecting the current law. The booklet is unannotated, i.e., without interpretations, case law, or the like. When the backup officer arrived, he gave Novarro a copy of this version of the Penal Law, because Novarro had left his own copy in his office.
After consulting the booklet, Novarro issued Amore an appearance ticket. Novarro then released Amore from custody. The appearance ticket required Amore to appear in Ithaca City Court to answer a charge of "loitering" in violation of New York Penal Law § 240.35(3).
Novarro then had Amore formally charged with a violation of that offense. Accusatory Instrument, No. 01-13431 (Ithaca City Ct. Oct. 19, 2001).
Some time later, the city prosecutor informed Novarro that Amore had moved to dismiss the charge against him based on People v. Uplinger, a 1983 ruling by the New York Court of Appeals holding, in a memorandum decision, that the loitering statute pursuant to which Amore had been arrested, N.Y. Penal Law § 240.35(3), was unconstitutional. The city prosecutor told Novarro that she therefore could not continue the prosecution. It is undisputed that Novarro was unaware that the statute had been held to be unconstitutional prior to this conversation.
On November 7, 2001, the prosecutor, as she had told Novarro she would, moved to dismiss the charge against Amore based on Uplinger. The Ithaca City Court granted the motion on that basis. The court observed that it was "puzzling" that the statute continued to be published in the McKinney's Consolidated Laws of New York Annotated -- an annotated compendium of New York statutes that is separate from, and more formal and complete than, the unannotated booklet provided to Novarro and other officers by the police academy -- to the present day "as if it is still a viable statute." People v. Amore, No. 01-36459 (Ithaca City Ct. Nov. 15, 2001). "It is hard to understand why the Legislature would continue this statute on the books, given that it is now close to 20 years since it was determined to be unconstitutional." Id.
Some two and one-half years later, on February 12, 2004, Amore filed a complaint in the United States District Court for the Northern District of New York against Novarro and the City of Ithaca for damages pursuant to 42 U.S.C. § 1983. His claims against Novarro were for false arrest, malicious prosecution, abuse of process, and violation of his right to equal protection. His claims against the city were made pursuant to Monell v. Department of Social Services, 436 U.S. 658 (1978), for failure to train city employees ...