Ignorant Cop Immune From Suit in Unconstitutional Loitering Arrest

An Ithaca, New York, undercover police officer could not be held personally liable for making an unconstitutional arrest, ruled the U.S. Court of Appeals for the 2^nd Circuit on June 22, because the state legislature has not repealed or relevantly amended the statute criminalizing loitering for the purpose of soliciting oral or anal sex to cure its constitutional deficiencies and the unconstitutional statute continues to appear in penal law materials given to police officers for use in their job. Reversing a decision by U.S. District Judge Frederick J. Scullin, Jr., of the Northern District of New York in Amore v. Novarro, No. 08-3150-cv, the court ruled in an opinion by Circuit Judge Robert D. Sack that the ignorant police officer enjoys qualified immunity from liability.

According to Judge Sack’s opinion, plaintiff Joseph Amore encountered Officer Andrew Novarro in Stewart Park in Ithaca, New York, on October 19, 2001. Novarro was working undercover "watching for drug activity." Not realizing that Novarro was a police officer, Amore "offered to perform a sexual act on him" and was arrested. Novarro called for back-up in order to get a ticket to fill out and to consult the statute book to determine the charge. Novarro told Amore that the police were "cracking down" on this kind of conduct. The statute book available to police officers includes the unconstitutional loitering statute, N.Y. Penal Law section 240.35(3), which was invalidated by the New York Court of Appeals in People v. Uplinger, 58 N.Y.2d 936 (1983). Officer Novarro charged Amore with a violation of this provision.

Of course, a lawyer researching the issue using the annotated statute or an on-line resource such as westlaw or lexis would immediately see that the statute was declare unconstitutional, but the version of the penal law given to police officers does not include case law annotations, just the plain text of the statute.

Amore moved in Ithaca City Court to dismiss the charge on the ground that the statute was unconstitutional. The city prosecutor agreed, joining in the motion. The city judge granted the motion, observing that it was "puzzling" that a statute that had been declared unconstitutional continued to be published in the official New York statutes, "as if it is still a viable statute. 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."

The judge’s comments were rather naive, considering the lack of intestinal fortitude common among state legislators when called upon to clean up unconstitutional sex crimes statutes. It took more than two decades for the state legislature to get around to repealing the sodomy law, which was held unconstitutional in 1980. And it has still not acted to clean up the loitering statute. There are still some state legislatures that have not revised their sex crimes laws in response to the U.S. Supreme Court’s 2003 ruling in Lawrence v. Texas that the Constitution forbids criminalizing consensual sodomy in private between adults.

Several years after the charges were dismissed, Amore decided to seek compensation, filing a complaint in the U.S. District Court under 42 USC section 1983, a jurisdictional statute authorizing suits against the government for violations of constitutional rights. Amore sued two defendants: Officer Novarro, for false arrest, malicious prosecution, abuse of process, and violation of equal protection of the laws; and the City of Ithaca, for failure to train city employees and for maintaining an improper policy, custom or practice of permitting officers to make arrests under the unconstitutional loitering statute.

In pretrial motion practice, District Judge Scullin denied a motion for summary judgment by plaintiff Amore, while granting Novarro’s motion for summary judgment on the claims of malicious prosecution, abuse of process, and equal protection, and the City of Ithaca’s motion to reject the claim of maintaining an improper policy or custom. However, Judge Scullin rejected Amore’s motion for summary judgment on the false arrest claim, finding that because the Court of Appeals had invalidated the loitering statute, Novarro lacked probable cause to arrest Amore, and that Novarro’s claim of immunity from suit was invalid because Amore’s right not to be arrested under the statute was "clearly established" as a matter of law. Judge Scullin also denied the city’s summary judgment motion on the failure to train claim, which is still pending before the district court for trial.

Officer Novarro appealed the court’s refusal to grant him immunity from suit, arguing that based on what he knew at the time, he acted reasonably in arresting Amore because the statute was in the copy of the Penal Law available to him and Amore’s conduct fell squarely within the prohibition of the statute. The 2^nd Circuit panel, which took eleven months from the time of argument until it issued its opinion, agreed with Officer Novarro.

"We conclude that Novarro is entitled to qualified immunity under these circumstances," wrote Sack. "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."

The comment about the statute "still being enforced" is not inaccurate. On April 26, U.S. District Judge Shira Scheindlin held the City of New York in contempt for continuing to enforce the loitering statute, even in the face of a long-running lawsuit brought on behalf of people who have been unconstitutionally arrested. And, Judge Sack noted, the N.Y. City Parks Department issued two summonses for violations of the statute on April 6 of this year, citing Judge Scheindlin's decision in Casale v. Kelly, which noted the recent enforcement activity in finding that New York City had failed to take adequate steps to end improper enforcement of the statute.

In light of the jurisprudence on qualified immunity, the court’s decision seems to make practical sense. Police officers are not legal scholars and cannot be expected to make up for the deficiencies of the Legislature, the Police Academy, and the criminal justice administrators who fail to incorporate appropriate changes into the law in response to final court rulings, and so it follows that police officers should not be held personally liable when they ignorantly enforce unconstitutional statutes under such circumstances. This does not mean, of course, that Amore should be without any redress for his unlawful arrest. He continues to maintain his claim against the City of Ithaca, which has failed to provide appropriate training to its police officers so they will not mistakenly enforce an unconstitutional statute.

Presumably, having suffered the dismissal of the charges against Amore and the notoriety of this resulting lawsuit, Office Novarro is now well-informed that the loitering statute is unconstitutional, but it remains for the City of Ithaca and, indeed, for all law enforcement agencies in the state to figure out an appropriate mechanism for re-educating law enforcement personnel when the courts invalidate penal laws, and for the state Legislature to take appropriate action in response to such court rulings to keep the statute books up to date.

　

　

Comments

[Art Leonard]

The underlying problem in this case was addressed by the legislature a month later, when both chambers voted unanimously to pass a bill repealing three subdivisions of the loitering statute that have been declared unconstitutional by the courts, including the sexual solicitation provision. I've posted more details about this on August 5 in a separate blog posting.