Amore v. Novarro

• Citation: 610 F.3d 155
• Decision Date: 22 June 2010
• Docket Number: Docket No. 08-3150-cv.
• Parties: Joseph AMORE, Plaintiff-Appellee,v.Andrew NOVARRO, Defendant-Appellant,City of Ithaca, Defendant.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

610 F.3d 155

Joseph AMORE, Plaintiff-Appellee,v.Andrew NOVARRO, Defendant-Appellant,City of Ithaca, Defendant.^*

Docket No. 08-3150-cv.

United States Court of Appeals,

Second Circuit.

Argued: July 16, 2009.

Decided: June 22, 2010.

COPYRIGHT MATERIAL OMITTED

Jonathan M. Bernstein, Goldberg Segalla LLP, Albany, NY, for Defendant-Appellant.

Edward E. Kopko, Wiggins & Kopko, LLP, Ithaca, NY, (Guttman & Wallace Law Firm, Ithaca, NY, on the brief), for Plaintiff-Appellee.

Before SACK and B.D. PARKER, Circuit Judges, and GOLDBERG, Judge. ^**

SACK, Circuit Judge:

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.¹ 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.

BACKGROUND

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 ²] 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.³ It is in the form of a looseleaf booklet containing the text of the Penal Law that is published by Gould Publications, Inc.⁴ 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. 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, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), for failure to train city employees and for maintaining an improper policy, custom or practice of permitting officers to make arrests under the unconstitutional statute.

The defendants moved to dismiss the complaint. Amore opposed the motion, filing a cross-motion for partial summary judgment on the issue of liability.

On March 28, 2008, the district court denied Amore's cross-motion for summary judgment with respect to all claims, and, treating the defendants' motion as a motion for summary judgment, granted the defendants' motion in part and denied it in part. The district court granted the motion on the malicious prosecution, abuse of process, and equal protection claims against Novarro, and the maintenance of an improper policy or custom claim against the city. See Amore v. City of Ithaca, No. 04 Civ. 176, 2008 U.S. Dist. LEXIS 26035, *10-13, *21-22 (N.D.N.Y. Mar. 28, 2008).⁵ None of those claims are at issue on this interlocutory appeal.

The district court denied summary judgment on the false arrest claim, however. See id. The court reasoned that Novarro lacked probable cause to arrest Amore under section 240.35(3) because the New York Court of Appeals had declared that statute unconstitutional in Uplinger. Id. at *14-16.

The district court conceded that such a situation presents a “difficult choice” for a police officer because “[a] common sense reading of [§ 240.35(3) ] would place [Amore's] actions squarely within the purview of [that provision].” Id. at *20-*21. It also acknowledged that “Novarro would have had to conduct legal research or seek expert advice in order to discover the statute's invalidity.” Id. at *21.⁶ The court concluded nonetheless that Novarro was not entitled to qualified immunity with respect to the false arrest claim because Amore's “right to be free from unlawful arrest under § 240.35(3) was clearly established at the time that he was arrested.” Id. at *15. In the court's view, in light of Uplinger, it was objectively unreasonable for Novarro to believe that the arrest was lawful, because courts “must at least hold [public] officials to a basic standard of awareness where the state's highest court has pronounced a statute facially unconstitutional.” ⁷ Id. at *16.

The district court also denied the motion for summary judgment on the failure-to-train claim against the city. The court based its decision on evidence submitted by Amore to the effect that the city knew that its police officers operating in Stewart Park would encounter individuals soliciting and engaging in sex. See id. at *18-19. At argument before this Court, the parties represented that the failure-to-train claim against the city was still pending. It is therefore not before us on this appeal.⁸

On June 9, 2008, the district court denied Amore's motion to reconsider the denial of his motion for summary judgment on the false arrest claim. See Amore v. City of Ithaca, No. 04 Civ. 176, 2008 U.S. Dist. LEXIS 45328 (N.D.N.Y. June 9, 2008).

On June 17, 2008, the defendants petitioned the district court for leave to appeal from the March 28, 2008 memorandum opinion and order. The district court denied leave to appeal. On October 1, 2008, we concluded that we had jurisdiction over...