The case is Amore v. Novarro, decided on June 22. In a public park in Ithaca, Amore approached Novarro, an undercover officer, offering to perform a sexual act. Novarro arrested Amore for violating a provision of the New York Penal Law, Section 240.35(3), which prohibits loitering for purposes of soliciting "deviate" sexual behavior. There was a problem with this arrest: 18 years earlier, the New York Court of Appeals struck down this law as unconstitutional, in People v. Uplinger, 58 N.Y. 936 (1983). Because of this, the criminal charge against Amore was dropped, which gives Amore a ticket to the federal courthouse.
Police officers are immune from lawsuits if the arrest was objectively reasonable, even if in hindsight the arrest was unconstitutional. We call it qualified immunity. But surely Novarro is not entitled to any immunity here, right? Where does he get off arresting someone under a law that the state's highest court struck down as unconstitutional nearly 20 years earlier? The district court in this case denied Novarro's motion to dismiss. The Court of Appeals (Sack, Parker and Goldberg) rules in Novarro's favor, granting him qualified immunity.
Here is what happened. Like all police officers, Novarro was trained at the police academy. He received a copy of the Penal Law to study and learn. That copy is published by Gould Publications in the form of a looseleaf book that allows you to insert updates and remove laws repealed by the State Legislature. For some reason, that law literally remains on the books; the State Legislature has not formally repealed it. As far as Novarro was concerned, that provision of the Penal Law was still good and Amore was breaking the law in offering to perform a sexual act.
For the rest of us, ignorance of the law is no excuse. But in this case, the Court of Appeals grants Novarro qualified immunity for the improper arrest, reasoning,
It is undisputed that: Novarro did not know that section 240.35(3) was unconstitutional; he had not received instruction or information on the constitutionality of the statute; and he was relying on an accurate, if unannotated, copy of the New York Penal Law when he arrested Amore. We cannot say that Novarro's arrest of Amore was objectively unreasonable under these circumstances, where he had every reason to believe that the statute of arrest was valid and in effect. Amore has not pointed us to any cases that compel a contrary conclusion, nor are we ourselves aware of one.
Amore also sues the City of Ithaca for failure to train its officers and allowing them to make arrests under a statute that declared unconstitutional. Those claims are not the subject of this appeal. Maybe Amore will win his case against the City, but Novarro gets a free pass.
A few observations. First, this is the second case in a week in which the Court of Appeals makes reference to the continued enforcement of provisions of the Penal Law that were declared unconstitutional years ago. In Brown v. Kelly, the Second Circuit took up a class action involving New York City's enforcement of an anti-panhandling law that the Second Circuit had struck down in 1993. What's going on with these arrests under laws that were long ago struck down? Is the City of New York a lawless entity?
Second, if qualified immunity means that officers are off the hook for objectively reasonable arrests, wouldn't immunity be denied to Novarro in this case in light of the well-known 2003 Supreme Court ruling that allows for consensual gay and lesbian sexual activity, Lawrence v. Texas, 539 U.S. 558 (2003)? And if the concern is that Amore was a loiterer asking Novarro for sex in a public park, what about the Supreme Court rulings that struck down anti-public loitering statutes, including City of Chicago v. Morales, 527 U.S. 41 (1999) and Papachristou v. City of Jacksonville, 405 U.S. 156 (1972)?