The Clerk of Court is directed to amend the caption as set forth above. The… v. Novarro UNITED STATES COURT OF APPEALS 1 FOR THE SECOND CIRCUIT 2 August Term, 2008…

* The Clerk of Court is directed to amend the caption as set
forth above.
** The Honorable Richard W. Goldberg, of the United States
Court of International Trade, sitting by designation.
08-3150-cv
Amore v. Novarro
UNITED STATES COURT OF APPEALS 1
FOR THE SECOND CIRCUIT 2
August Term, 2008 3
4
(Argued: July 16, 2009 Decided: June 22, 2010 5
Amended on Petition for Rehearing: October 12, 2010) 6
Docket No. 08-3150-cv 7
------------------------------------- 8
JOSEPH AMORE, 9
Plaintiff-Appellee, 10
- v - 11
ANDREW NOVARRO, 12
Defendant-Appellant, 13
CITY OF ITHACA, 14
Defendant.*
15
------------------------------------- 16
Before: SACK and B.D. PARKER, Circuit Judges, and GOLDBERG, 17
Judge.**
18
Appeal from a judgment of the United States District 19
Court for the Northern District of New York (Frederick J. 20
Scullin, Jr., Judge). The district court denied police officer 21
Andrew Novarro's motion for summary judgment on a false arrest 22
claim, ruling that Novarro was not entitled to qualified immunity 23

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2
for making an arrest pursuant to a state loitering statute that 1
was published as part of the New York Penal Law at the time of 2
the arrest but that had been held unconstitutional by the New 3
York Court of Appeals eighteen years prior to the arrest. We 4
conclude that the district court erred in deciding that it would 5
have been clear to a reasonable officer in Novarro's position 6
that making the arrest was unlawful. We therefore reverse the 7
order of the district court and remand the cause with 8
instructions to grant the summary judgment motion based on 9
qualified immunity and to dismiss the complaint against Novarro, 10
only. 11
Reversed and remanded. 12
JONATHAN M. BERNSTEIN, Goldberg Segalla 13
LLP, Albany, NY, for Defendant- 14
Appellant. 15
EDWARD E. KOPKO, Wiggins & Kopko, LLP, 16
Ithaca, NY (Guttman & Wallace Law Firm, 17
Ithaca, NY, on the brief), for 18
Plaintiff-Appellee. 19
Adam R. Pulver, Matthew D. Brinckerhoff, 20
Katherine R. Rosenfeld, Emery Celli 21
Brinckerhoff & Abady LLP, New York, NY, 22
for Plaintiff-Appellee (on petition for 23
rehearing). 24
Corey Stoughton, Arthur Eisenberg, New 25
York Civil Liberties Union Foundation, 26
New York, NY, and Hayley J. Gorenberg, 27
Lambda Legal Defense and Education Fund, 28
Inc., New York, NY, for amici New York 29
Civil Liberties Union and Lambda Legal 30
Defense and Education Fund, Inc., 31
respectively, in support of Appellee's 32
petition for rehearing. 33

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1 At the time of Amore's arrest, the statute in question,
New York Penal Law § 240.35, read in pertinent part:
[Criminal] Loitering
A person is guilty of loitering when he:
....
3. Loiters or remains 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 . . . .
Id.
3
SACK, Circuit Judge: 1
2
Defendant-Appellant Andrew Novarro, an Ithaca, New 3
York, police officer, appeals from that part of a memorandum 4
decision and order dated March 28, 2008, by the United States 5
District Court for the Northern District of New York (Frederick 6
J. Scullin, Jr., Judge) denying his motion for summary judgment 7
on a false arrest claim brought by plaintiff-appellee Joseph 8
Amore under 42 U.S.C. § 1983. The claim is based on Novarro's 9
arrest of Amore pursuant to New York Penal Law § 240.35(3), 10
which, on its face, prohibits loitering in a public place for the 11
purpose of soliciting another person to engage in "deviate" 12
sexual behavior. 1 Amore alleges that his apprehension 13
constituted a false arrest because the statute, although then 14
officially and unofficially published as currently effective law, 15
had been ruled unconstitutional by the New York Court of Appeals 16
eighteen years before. 17
The district court concluded that Novarro was not 18
entitled to qualified immunity: Amore had a clearly established 19

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4
constitutional right to be free from unlawful arrest, and it 1
would have been clear to a reasonable officer in Novarro's 2
position that making an arrest under section 240.35(3) after it 3
had been held to be unconstitutional by the New York Court of 4
Appeals in People v. Uplinger, 58 N.Y.2d 936, 460 N.Y.S.2d 514, 5
447 N.E.2d 62 (1983) (Mem.), was unlawful. 6
We disagree. We conclude that Novarro is entitled to 7
qualified immunity under the circumstances of this case. We 8
therefore reverse that part of the district court's order 9
dismissing Novarro's motion for summary judgment on the false 10
arrest claim based on qualified immunity, and remand the cause 11
with instructions to grant the motion. The action against the 12
City of Ithaca may proceed. 13
BACKGROUND 14
Plaintiff Joseph Amore encountered defendant Andrew 15
Novarro on October 19, 2001, at around 9:00 p.m. in Stewart Park, 16
a public park in Ithaca, New York. Novarro was there as an 17
undercover police officer, sitting in a parked unmarked car, 18
watching for drug activity. Amore, having been in the park for 19
some while and not knowing who Novarro was or what he was doing 20
there, approached his car, engaged him in conversation, and then 21
offered to perform a sexual act on him. 22
Novarro identified himself as a police officer and 23
asked Amore for identification, which he produced. Novarro told 24
Amore that he did not have a ticket to write out and would have 25
to call for "backup," which he proceeded to do. 26

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2 The statute refers to "deviate" sexual activity, see
footnote 1, supra.
3 There are multiple New York police academies. From the
portions of his deposition testimony that have been incorporated
into the record on this appeal, it appears that Novarro received
his police training at the Corning Community College. See
http://criminaljustice.state.ny.us/ops/training/zoneacademies/zon
e_12.htm (last visited April 19, 2010).
4 Now "LexisNexis Gould Publications." See
http://www.lexisnexis.com/gould/ (last visited April 19, 2010).
5
While they waited for another police officer to arrive, 1
Novarro told Amore that he was being charged with "loitering for 2
the purpose of deviant [sic 2 ] sexual activity." Deposition of 3
Andrew Novarro ("Novarro Dep.") at 20. Novarro told Amore that 4
"they were cracking down on this kind of activity in the park." 5
Deposition of Joseph Amore ("Amore Dep.") at 36. 6
Novarro testified, and it is not disputed before us, 7
that the New York police academy he had attended issues a copy of 8
the New York Penal Law to, inter alia, every Ithaca police 9
officer. 3 Most officers carry a copy of it with them on duty in 10
the form of a looseleaf booklet containing the text of the Penal 11
Law published by Gould Publications, Inc. 4 The Ithaca Police 12
Department furnishes each of its officers with yearly updates 13
consisting of a stack of substitute pages reflecting new laws 14
that have been enacted during the previous year, or deleting laws 15
that are no longer in effect. When the officers receive these 16
yearly updates, they are supposed to remove those pages that have 17
become outdated and insert into the booklet, in their stead, the 18
substitute pages reflecting the current law. The booklet is 19

-- 5 of 28 --

6
unannotated, i.e., without interpretations, case law, or the 1
like. When the backup officer arrived, because Novarro had left 2
his own copy in his office, the officer gave Novarro a copy of 3
this version of the Penal Law, which Novarro then consulted. 4
Novarro then drove from the park to the police station 5
to prepare an accusatory instrument reflecting the citation 6
issued to Amore. It alleged that Amore had violated section 7
240.35(3) by "loitering . . . in a public place for the purpose 8
of . . . soliciting another person to engage[,] in . . . sexual 9
behavior of a deviate nature, TO WIT: . . . [Amore] did solicit 10
[Novarro] to engage in deviate sexual intercourse." Accusatory 11
Instrument, No. 01-13431 (Ithaca City Ct. Oct. 19, 2001) 12
("Accusatory Instrument"). Novarro then issued Amore an 13
appearance ticket pursuant to the Penal Law, and released him 14
from custody. The appearance ticket required Amore to appear in 15
Ithaca City Court to answer a charge of "loitering" in violation 16
of New York Penal Law § 240.35(3). 17
Novarro then had Amore formally charged with a 18
violation of that offense. See Accusatory Instrument. 19
Some time later, the city prosecutor informed Novarro 20
that Amore had moved to dismiss the charge against him based on 21
Uplinger, a 1983 ruling by the New York Court of Appeals holding, 22
in a memorandum decision, that the loitering statute pursuant to 23
which Amore had been arrested, New York Penal Law § 240.35(3), 24
was unconstitutional. The city prosecutor told Novarro that she 25

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7
therefore could not continue the prosecution. It is undisputed 1
that Novarro was unaware, prior to this conversation, that the 2
statute had been held to be unconstitutional. 3
On November 7, 2001, the prosecutor moved to dismiss 4
the charge against Amore based on Uplinger, as she had told 5
Novarro she would. The Ithaca City Court granted the motion on 6
that basis. The court observed that it was "puzzling" that the 7
statute continued to be published in the McKinney's Consolidated 8
Laws of New York Annotated -- an annotated compendium of New York 9
statutes that is separate from, and more formal and complete 10
than, the unannotated booklet provided to Novarro and other 11
officers by the police academy -- "as if it is still a viable 12
statute." People v. Amore, No. 01-36459 (Ithaca City Ct. Nov. 13
15, 2001). "It is hard to understand why the Legislature would 14
continue this statute on the books, given that it is now close to 15
20 years since it was determined to be unconstitutional." Id. 16
Some two and one-half years later, on February 12, 17
2004, Amore filed a complaint in the United States District Court 18
for the Northern District of New York against Novarro and the 19
City of Ithaca seeking damages pursuant to 42 U.S.C. § 1983. His 20
claims against Novarro were for false arrest, malicious 21
prosecution, abuse of process, and violation of his right to 22
equal protection. His claims against the city were made pursuant 23
to Monell v. Department of Social Services, 436 U.S. 658 (1978), 24
for failure to train city employees and for maintaining an 25

-- 7 of 28 --

5 Not available on WestLaw.
8
improper policy, custom or practice of permitting officers to 1
make arrests under the unconstitutional statute. 2
The defendants moved to dismiss the complaint. Amore 3
opposed the motion, filing a cross-motion for partial summary 4
judgment on the issue of liability. 5
On March 28, 2008, the district court denied Amore's 6
cross-motion for summary judgment with respect to all claims, 7
and, treating the defendants' motion as a motion for summary 8
judgment, granted the defendants' motion in part and denied it in 9
part. The district court granted the motion on the malicious 10
prosecution, abuse of process, and equal protection claims 11
against Novarro, and the maintenance of an improper policy or 12
custom claim against the city. See Amore v. City of Ithaca, No. 13
04 Civ. 176, 2008 U.S. Dist. LEXIS 26035, *10-*13, *21-*22 14
(N.D.N.Y. Mar. 28, 2008). 5 None of those claims are at issue on 15
this interlocutory appeal. 16
The district court denied summary judgment on the false 17
arrest claim, however. See id. The court reasoned that Novarro 18
lacked probable cause to arrest Amore under section 240.35(3) 19
because the New York Court of Appeals had declared that statute 20
unconstitutional in Uplinger. Id. at *14-*16. 21
The district court acknowledged that such a situation 22
presents a "difficult choice" for a police officer because "[a] 23
common sense reading of [section 240.35(3)] would place [Amore's] 24

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6 The district court made these remarks concerning the
difficulty of Novarro's position in the context of analyzing the
failure-to-train claim, discussed below, rather than in the
context of the false arrest claim. They are plainly pertinent to
the issue of qualified immunity for the false arrest claim,
however.
7 The district court also concluded that there were triable
issues of fact as to whether Novarro had probable cause to arrest
Amore for disorderly conduct under New York Penal Law § 240.20 or
second-degree harassment under New York Penal Law § 240.26(3)
based on Amore's sexual encounter with a stranger in the park
just prior to his interaction with Novarro. Id. at *9, *16.
9
actions squarely within the purview of [that provision]." Id. at 1
*20-*21. It also recognized that "Novarro would have had to 2
conduct legal research or seek expert advice in order to discover 3
the statute's invalidity." Id. at *21. 6 The court concluded 4
nonetheless that Novarro was not entitled to qualified immunity 5
with respect to the false arrest claim because Amore's "right to 6
be free from unlawful arrest under § 240.35(3) was clearly 7
established at the time that he was arrested." Id. at *15. In 8
the court's view, in light of Uplinger, it was objectively 9
unreasonable for Novarro to believe that the arrest was lawful, 10
because courts "must at least hold [public] officials to a basic 11
standard of awareness where the state's highest court has 12
pronounced a statute facially unconstitutional." 7 Id. at *16. 13
The district court also denied the motion for summary 14
judgment on the failure-to-train claim against the city. The 15
court based its decision on evidence submitted by Amore to the 16
effect that the city knew that its police officers operating in 17
Stewart Park would encounter individuals soliciting and engaging 18

-- 9 of 28 --

8 We note that the attorney for Novarro and the attorney
for the city are one and the same, and that at argument the
parties speculated briefly about whether the outcome of this
appeal would have any effect on the pending case against the
city, suggesting the possibility of some conflict arising out of
the dual representation. We emphasize, however, that the case
against the city is not before us on this appeal –- indeed, as
explained infra, we would lack jurisdiction over such an
interlocutory appeal from the denial of summary judgment absent
the collateral order doctrine, which the case against the city
does not implicate –- and we of course offer no opinion as to
whether, or if it does how, the resolution of this appeal affects
that case.
10
in sex. See id. at *18-*19. At argument before this Court, the 1
parties represented that the failure-to-train claim against the 2
city was still pending. It is not before us on this appeal. 8
3
On June 9, 2008, the district court denied Amore's 4
motion to reconsider the denial of his motion for summary 5
judgment on the false arrest claim. See Amore v. City of Ithaca, 6
No. 04 Civ. 176, 2008 U.S. Dist. LEXIS 453 (N.D.N.Y. June 9, 7
2008). 8
On June 17, 2008, the defendants petitioned the 9
district court for leave to appeal from the March 28, 2008, 10
memorandum opinion and order. The court denied leave to appeal. 11
On October 1, 2008, we concluded that we had jurisdiction over an 12
appeal of the March 28 order to the extent that it denied Novarro 13
qualified immunity on the false arrest claim, and directed the 14
Clerk of the Court to issue a briefing schedule for an appeal on 15
the qualified immunity question. 16
The sole question on appeal, then, is whether Novarro 17
is entitled to qualified immunity on the false arrest claim. 18

-- 10 of 28 --

11
DISCUSSION 1
I. Jurisdiction and Standard of Review 2
"As a general rule, the denial of summary judgment is 3
not immediately appealable." Finigan v. Marshall, 574 F.3d 57, 4
60 n.2 (2d Cir. 2009) (citing 28 U.S.C. § 1291). "The collateral 5
order doctrine, however, allows review of a district court's 6
denial of summary judgment on the ground that the movant was not 7
entitled to qualified immunity to the extent that the district 8
court has denied the motion as a matter of law." Id. (internal 9
quotation marks omitted). 10
Our jurisdiction is limited such that we may only 11
review Novarro's assertion of qualified immunity based on 12
"stipulated facts, facts accepted for purposes of the appeal, or 13
the plaintiff's version of the facts that the district court 14
deemed available for jury resolution." Kelsey v. County of 15
Schoharie, 567 F.3d 54, 60 (2d Cir. 2009) (internal quotation 16
marks omitted). While "we must examine whether a given factual 17
dispute is 'material' for summary judgment purposes, we may not 18
review whether a dispute of fact identified by the district court 19
is 'genuine.'" Jones v. Parmley, 465 F.3d 46, 55 (2d Cir. 2006) 20
(internal quotation marks omitted). 21
Summary judgment should be granted where "there is no 22
genuine issue as to any material fact and . . . the movant is 23
entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). 24

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12
The court construes all evidence in the light most favorable to 1
the non-moving party, drawing all inferences and resolving all 2
ambiguities in his favor. See, e.g., LaSalle Bank Nat'l Ass'n v. 3
Nomura Asset Capital Corp., 424 F.3d 195, 205 (2d Cir. 2005). We 4
review the district court's denial of summary judgment on 5
qualified immunity grounds, as in other contexts, de novo. See, 6
e.g., Moore v. Andreno, 505 F.3d 203, 208 (2d Cir. 2007). 7
II. Qualified Immunity 8
Qualified immunity is an affirmative defense designed 9
to "protect[] the [defendant public] official not just from 10
liability but also from suit . . . thereby sparing him the 11
necessity of defending by submitting to discovery on the merits 12
or undergoing a trial." X-Men Sec., Inc. v. Pataki, 196 F.3d 56, 13
65 (2d Cir. 1999). In explaining the justification for the 14
provision of qualified immunity to government officers, we have 15
looked to Judge Learned Hand's discussion of absolute immunity in 16
Gregoire v. Biddle, 177 F.2d 579 (2d Cir. 1949), cert. denied, 17
339 U.S. 949 (1950). See Back v. Hastings on Hudson Union Free 18
School Dist., 365 F.3d 107, 129 (2d Cir. 2004) ("The 19
justification for the common law privilege of qualified immunity 20
has been eloquently described by Judge Learned Hand . . . ."). 21
Judge Hand explained that "to submit all officials, the innocent 22
as well as the guilty, to the burden of a trial and to the 23
inevitable danger of its outcome, would dampen the ardor of all 24
but the most resolute, or the most irresponsible, in the 25
unflinching discharge of their duties. Again and again the 26

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9 The vitality of the holding of Gregoire is in doubt, see
Iqbal v. Hasty, 490 F.3d 143, 176 (2d Cir. 2007), reversed and
remanded in part on other grounds, Ashcroft v. Iqbal, 129 S. Ct.
1937 (2009), but its explanation of the basis for immunity for
public officials under some circumstances remains sound, see,
e.g, Van de Kamp v. Goldstein, 129 S. Ct. 855, 859-60 (2009).
13
public interest calls for action which may turn out to be founded 1
on a mistake . . . ." Gregoire, 177 F.2d at 581. He emphasized 2
the need to avoid "subject[ing] those who try to do their duty to 3
the constant dread of retaliation." Id. at 581. 9; see also 4
Harlow v. Fitzgerald, 457 U.S. 800, 814 (1982) (quoting Gregoire 5
in describing the possible effect of "fear of being sued" on 6
public officials' performance of their duties). 7
We have since reiterated our concern that for the 8
public benefit, public officials be able to perform their duties 9
unflinchingly and without constant dread of retaliation. See, 10
e.g., Provost v. City of Newburgh, 262 F.3d 146, 160 (2d Cir. 11
2001) ("Qualified immunity serves important interests in our 12
political system, chief among them to ensure that damages suits 13
do not 'unduly inhibit officials in the discharge of their 14
duties' by saddling individual officers with 'personal monetary 15
liability and harassing litigation.'" (quoting Anderson v. 16
Creighton, 483 U.S. 635, 638 (1987)). And the Supreme Court has 17
described the "central purpose" of qualified immunity as 18
preventing threats of liability that would be "'potentially 19
disabling'" to officials. Elder v. Holloway, 510 U.S. 510, 514 20
(1994) (quoting Harlow, 457 U.S. at 818). 21

-- 13 of 28 --

10 For several years, under Saucier, courts were required
to address first whether the facts alleged disclosed a
constitutional violation at all, and only then decide whether it
was clearly established and whether the defendant's acts were
objectively reasonable. That is no longer required.
See Pearson, 129 S. Ct. at 813 ("We now hold that the Saucier
procedure should not be regarded as an inflexible requirement and
14
In light of these considerations, we have developed a 1
standard for determining whether an officer is entitled to 2
qualified immunity that is "forgiving" and "'protects all but the 3
plainly incompetent or those who knowingly violate the law.'" 4
Provost, 262 F.3d at 160 (quoting Malley v. Briggs, 475 U.S. 335, 5
341 (1986)). "[Q]ualified immunity . . . is sufficient to shield 6
executive employees from civil liability under § 1983 if either 7
(1) their conduct did not violate clearly established rights of 8
which a reasonable person would have known, or (2) it was 9
objectively reasonable [for them] to believe that their acts did 10
not violate these clearly established rights." Cornejo v. Bell, 11
592 F.3d 121, 128 (2d Cir. 2010); see also, e.g., Taravella v. 12
Town of Wolcott, 599 F.3d 129, 134 (2d Cir. 2010) ("Even where 13
the law is 'clearly established' and the scope of an official's 14
permissible conduct is 'clearly defined,' the qualified immunity 15
defense also protects an official if it was 'objectively 16
reasonable' for him at the time of the challenged action to 17
believe his acts were lawful." (internal quotation marks 18
omitted)); Okin v. Village of Cornwall-On-Hudson Police Dep't, 19
577 F.3d 415, 433 (2d Cir. 2009) ("A police officer who has an 20
objectively reasonable belief that his actions are lawful is 21
entitled to qualified immunity."). 10
22

-- 14 of 28 --

that petitioners are entitled to qualified immunity on the ground
that it was not clearly established at the time of the search
that their conduct was unconstitutional.").
11 Cf. Gilbert & Sullivan, Pirates of Penzance:
When constabulary duty's to be done, to be done.
Ah, take one consideration with another, with another,
A policeman's lot is not a happy one.
Id., Act II, available at
http://math.boisestate.edu/GaS/pirates/web_op/pirates24.html
(last visited April 19, 2010).
15
"Ordinarily, determining whether official conduct was 1
objectively reasonable requires examination of the information 2
possessed by the officials at that time (without consideration of 3
subjective intent)." Connecticut ex rel. Blumenthal v. Crotty, 4
346 F.3d 84, 106 (2d Cir. 2003). "In an unlawful arrest action, 5
an officer is . . . subject to suit only if his 'judgment was so 6
flawed that no reasonable officer would have made a similar 7
choice.'" Provost, 262 F.3d at 160 (quoting Lennon v. Miller, 66 8
F.3d 416, 425 (2d Cir. 1995)). "A policeman's lot is not so 9
unhappy that he must choose between being charged with 10
dereliction of duty if he does not arrest when he has probable 11
cause, and being mulcted in damages if he does." Pierson v. Ray, 12
386 U.S. 547, 555 (1967). 11
13
III. Novarro's Qualified Immunity 14
We assume here, not without reason, that when Novarro 15
arrested Amore he violated a constitutional right of Amore not to 16
be arrested for activity made criminal by section 240.35(3), 17
which had been held unconstitutional by the New York Court of 18
Appeals. Cf. Lemon v. Kurtzman, 411 U.S. 192, 207-08 (1973) 19

-- 15 of 28 --

12 While the cases establishing this principle do not
involve statutes that had previously been held unconstitutional
by courts at the time of enforcement, and therefore do not
directly control this case, the principle is nonetheless material
to our analysis here.
16
(plurality opinion) (indicating that a statute is a legal basis 1
for arrest only "[u]ntil judges say otherwise"). But the 2
question for purposes of determining Novarro's entitlement to 3
qualified immunity is whether it was objectively reasonable for 4
him to arrest Amore while failing to realize that the statute he 5
was attempting to enforce had been held unconstitutional. 6
To spare police officers the unenviable choice between 7
failing to enforce the law and risking personal liability for 8
enforcing what they reasonably, but mistakenly, think is the law, 9
we generally extend qualified immunity to an officer for an 10
arrest made pursuant to a statute that is "on the books," so long 11
as the arrest was based on probable cause that the statute was 12
violated. 12 See Crotty, 346 F.3d at 105 ("Officials charged with 13
enforcing a statute on the books . . . are generally entitled to 14
rely on the presumption that all relevant legal and 15
constitutional issues have been considered and that the statute 16
is valid."); see also id. at 102 ("In order to determine whether 17
[the defendant] may prevail, we consider many factors, but rely 18
primarily on one factor as particularly persuasive: that the 19
challenged conduct involved enforcement of a presumptively valid 20
statute."); Vives v. City of New York, 405 F.3d 115, 117 (2d Cir. 21
2005) (distinguishing Crotty from "case which did not involve 22
state officials acting under the color of a properly-enacted 23

-- 16 of 28 --

13 "In analyzing § 1983 claims for unconstitutional false
arrest, we have generally looked to the law of the state in which
the arrest occurred." Davis v. Rodriguez, 364 F.3d 424, 433 (2d
Cir. 2004). "Under New York law, a plaintiff claiming false
arrest must show, inter alia, that the defendant intentionally
confined him without his consent and without justification."
Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996). Novarro
17
statute") (emphasis in original); Shero v. City of Grove, Okl., 1
510 F.3d 1196, 1204 (10th Cir. 2007) (referring to reliance on 2
statute as "extraordinary circumstance[]" that could "so 3
prevent[] the official from knowing that his or her actions were 4
unconstitutional that he or she should not be imputed with 5
knowledge of a clearly established right"). 6
We noted some years ago that: 7
[I]t has long been clearly established that 8
an arrest without probable cause is a 9
constitutional violation. Nonetheless, the 10
arresting officer is entitled to qualified 11
immunity as a matter of law if the undisputed 12
facts and all permissible inferences 13
favorable to the plaintiff show either (a) 14
that it was objectively reasonable for the 15
officer to believe that probable cause 16
existed, or (b) that officers of reasonable 17
competence could disagree on whether the 18
probable cause test was met. 19
Robison v. Via, 821 F.2d 913, 921 (2d Cir. 1987) (citations 20
omitted). 21
Similarly here, we assume that it is clearly 22
established that an arrest under a statute that has been 23
authoritatively held to be unconstitutional is ordinarily a 24
constitutional violation. And it is clear that Amore was 25
sufficiently detained for him to have been "arrested" for 26
purposes of bringing this false arrest claim, 13 and that the 27

-- 17 of 28 --

conceded that Amore was detained, contrary to his express desire
to be released, while Novarro compelled him to produce
identification and waited for backup to arrive.
In a letter submitted after argument pursuant to Federal
Rule of Appellate Procedure 28(j), Novarro argues that under our
recent decision in Burg v. Gosselin, 591 F.3d 95 (2d Cir. 2010),
which was issued after this case was briefed and argued, Amore's
detention was insufficient to give rise to a claim of false
arrest. That argument is based on our conclusion in Burg that
"the issuance of a pre-arraignment, non-felony summons requiring
a later court appearance, without further restrictions, does not
constitute a Fourth Amendment seizure." Id. at 98. Novarro
misconstrues Burg, which distinguished false arrest claims based
on a plaintiff's detention while interacting with law
enforcement: "Burg thus does not contend that she was detained or
seized while [the officer] wrote out the summons." Id. at 96
n.3. Indeed, we noted in Burg that "a plaintiff pleads a seizure
when he alleges that a police officer held on to his
identification and ordered him to stay put while the police
officer wrote out a summons." Id. (citing Vasquez v. Pampena,
No. 08 Civ. 4184, 2009 WL 1373591, at *2 (E.D.N.Y. May 18, 2009))
(internal quotation marks omitted). There is nothing in Burg,
therefore, inconsistent with our conclusion that Amore's
detention was a Fourth Amendment seizure for purposes of a false
arrest claim.
14 "'Deviate sexual intercourse'" meant "'sexual conduct
between persons not married to each other consisting of contact
18
statute under which he was arrested had been held by the New York 1
Court of Appeals to be unconstitutional. 2
The question is whether it was nonetheless objectively 3
reasonable for Novarro, as the arresting officer, to have 4
believed that the statute in question remained fully in force and 5
that his arrest was therefore not a violation of Amore's 6
constitutional rights. 7
Section 240.35(3) made it a crime to loiter "in a 8
public place for the purpose of engaging, or soliciting another 9
person to engage, in deviate sexual intercourse or other sexual 10
behavior of a deviate nature." 14 Uplinger, 58 N.Y.2d at 937, 447 11

-- 18 of 28 --

between the penis and the anus, the mouth and penis, or the mouth
and the vulva.'" People v. Onofre, 51 N.Y.2d 476, 484, 415
N.E.2d 936, 938 (1980) (quoting former New York Penal Law
§ 130.00).
15 New York Governor David Paterson signed a measure
repealing section 240.35, including subdivision (3), on July 31,
2010. See Joel Stashenko, Albany Catches Up With Courts, Repeals
Voided Loitering Laws, N.Y.L.J., Aug. 4, 2010, at 1. Prior to
its repeal, section 240.35(3) had been enforced as recently as
April 6, 2010, by the New York City Parks Department, when the
19
N.E.2d at 62. In that 1983 decision, the New York Court of 1
Appeals declared the provision unconstitutional. The court 2
explained that "[t]he object of the loitering statute is to 3
punish conduct anticipatory to the act of consensual sodomy. 4
Inasmuch as the conduct ultimately contemplated by the loitering 5
statute may not be deemed criminal, we perceive no basis upon 6
which the State may continue to punish loitering for that 7
purpose." Id., 58 N.Y.2d at 938, 447 N.E.2d at 63; see also 8
People v. Onofre, 51 N.Y.2d 476, 485, 415 N.E.2d 936, 938-39 9
(1980) (invalidating "consensual sodomy" statute prohibiting 10
"deviate sexual intercourse" on constitutional privacy and Equal 11
Protection grounds because the statute "reach[ed] noncommercial, 12
cloistered personal sexual conduct of consenting adults and . . . 13
permitt[ed] the same conduct between persons married to each 14
other without sanction"). 15
At the time Novarro arrested Amore -- and indeed, until 16
after the issuance of our initial opinion in this appeal -- 17
"[d]espite judicial invalidation, the State of New York ha[d] not 18
formally repealed [section 240.35(3)]." Casale v. Kelly, 257 19
F.R.D. 396, 401 (S.D.N.Y. 2009). 15 The Court of Appeals' 20

-- 19 of 28 --

Parks Department issued two summonses for violations of that
provision. Casale v. Kelly, Nos. 08 Civ. 2173, 05 Civ. 5442,
2010 WL 1685582, at *6, 2010 U.S. Dist. LEXIS 40606, at *28
(S.D.N.Y. Apr. 26, 2010).
In 2003, as part of a sweeping amendment to various New York
statutes, the legislature had amended section 240.35(3) by
changing the phrase, "deviate sexual intercourse," to "oral
sexual conduct, anal sexual conduct." 2003 N.Y. LAWS 264, ch.
264 § 30, eff. Nov 1, 2003. The section had otherwise remained
unchanged.
16 To be sure, McKinney's Consolidated Laws of New York
Annotated contains a reference to the fact that section 240.35(3)
"has been declared unconstitutional." See 39 McKinney's Penal
Law § 240.35, William C. Donnino, "Practice Commentary" (citing
Uplinger). WestLaw and Lexis versions of the statute contain
similar references. But it is undisputed on this appeal that the
copy of the Penal Law provided to Novarro by the police
department, published by a professional third-party publisher,
contained no such annotation. It is also undisputed that Novarro
received no information or instruction regarding the
constitutionality of section 240.35(3) prior to the arrest.
17 See footnote 15, supra.
18 The United States District Court for the Southern
District of New York (Scheindlin, Judge) recently held the City
of New York to be in contempt of court for failing to act with
reasonable diligence to eliminate enforcement of section
240.35(3) and two related loitering provisions in the Penal Code
20
decision in Uplinger notwithstanding, section 240.35(3) continued 1
to be published in official versions of the New York Penal Law. 2
See N.Y. Penal Law § 240.35(3) (2010). WestLaw and Lexis 3
continued to include the text in their services. 16
4
Indeed, more than two years after Amore's arrest for 5
violating section 240.35(3), the New York State legislature 6
amended the wording of this very section, 17 thus treating section 7
240.35(3) as though it were fully in effect despite the holding 8
of the New York Court of Appeals two decades previously that the 9
section was unconstitutional. 18
10

-- 20 of 28 --

that have been ruled unconstitutional, sections 240.35(7) and
240.35(1), after being ordered by that court on June 23, 2005 and
May 2, 2008 to do so. See Casale v. Kelly, 2010 WL 1685582, 2010
U.S. Dist. LEXIS 40606, and footnote 15, supra. The decision was
based on what the court found to be the inadequate response of
the City to two court orders that were issued after the events
pertinent to this appeal took place. It did not involve the
question of any individual officer's qualified immunity or the
question of any conduct or policy of the City of Ithaca. The
Casale court noted: "While it is unclear why the New York
Legislature has not repealed these void provisions, there can be
no question that formal repeal of the Statutes would in all
likelihood decrease enforcement of them." Id., 2010 WL 1685582,
at *1 n.6, 2010 U.S. Dist. LEXIS 40606, at *5 n.6.
21
In determining whether an officer is entitled to 1
qualified immunity, "[t]he question is not what a lawyer would 2
learn or intuit from researching case law, but what a reasonable 3
person in a defendant's position should know about the 4
constitutionality of the conduct." Young v. County of Fulton, 5
160 F.3d 899, 903 (2d Cir. 1998); see also Scarbrough v. Myles, 6
245 F.3d 1299, 1303 n.8 (11th Cir. 2001) ("Police officers are 7
not expected to be lawyers or prosecutors."). It is undisputed 8
that: Novarro did not know that section 240.35(3) was 9
unconstitutional; he had not received instruction or information 10
on the constitutionality of the statute; and he was relying on an 11
accurate, if unannotated, copy of the New York Penal Law when he 12
arrested Amore –- indeed, he was literally reading the Penal Law 13
during the course of the arrest. 14
The plaintiff and amici suggest the fact that the 15
statute had been held unconstitutional automatically and 16
necessarily strips the officer of immunity. We disagree. 17

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22
We accept that it is the unusual case where a police 1
officer's enforcement of an unconstitutional statute will be 2
immune. And there are suggestions from the Supreme Court and our 3
own court that an officer's entitlement to rely on a statute 4
ordinarily expires when a binding court decision declares the 5
statute unconstitutional. See Michigan v. DeFillippo, 443 U.S. 6
31, 38 (1979) (state officials "are charged to enforce laws until 7
and unless they are declared unconstitutional"); Vives, 405 F.3d 8
at 117 ("We have held that absent contrary direction, state 9
officials are entitled to rely on a presumptively valid state 10
statute until and unless the statute is declared 11
unconstitutional.") (internal quotation marks, ellipses, and 12
alterations omitted); Crotty, 346 F.3d at 102 ("[U]ntil judges 13
say otherwise, state officers have the power to carry forward the 14
directives of the state legislature") (internal quotation marks 15
and ellipsis omitted). 16
There are cases, too, from other circuits where 17
qualified immunity was denied to an officer enforcing a statute 18
that, while still "on the books," had previously been declared 19
unconstitutional in a binding court decision. See, e.g., Leonard 20
v. Robinson, 477 F.3d 347, 358-61 (6th Cir. 2007) (denying 21
qualified immunity to a police officer who arrested a citizen for 22
using a "mild profanity while peacefully advocating a political 23
position" at a public assembly, and noting that "it cannot 24
seriously be contended that any reasonable peace officer, or 25
citizen, for that matter, would believe" that such speech 26

-- 22 of 28 --

23
constituted a "criminal act," in light of "the prominent position 1
that free political speech has in our jurisprudence and in our 2
society"); Baribeau v. City of Minneapolis, 596 F.3d 465, 479 3
(8th Cir. 2010) (denying qualified immunity to police officers 4
who arrested citizens for "engaging in an artistic protest"). 5
We have no reason to doubt the conclusions of those 6
courts. But the statutes at issue and the circumstances of 7
arrest they were considering differ from the facts presented 8
here. Cf. Brief of Amici Curiae New York Civil Liberties Union & 9
Lambda Legal Defense and Education Fund, Inc. in Support of 10
Appellee's Pet. for Reh'g and Reh'g En Banc ("Amici Br.") at 2-3 11
(discussing statutes banning interracial marriage that remained 12
on the books until 2000). None of these cases, nor any other 13
binding authority of which we are aware, stands for the 14
categorical proposition that if a statute has been held 15
unconstitutional, adherence to it by a law enforcement official 16
is, ipso facto, unreasonable for qualified immunity purposes 17
irrespective of the circumstances. We do not think that to be 18
the law. Cf. Gertz v. Robert Welch, Inc., 418 U.S. 323, 343-44 19
(1974) (observing that while a "broad rule[] of general 20
application" was justified in the First Amendment context of that 21
case, "[s]uch rules necessarily treat alike various cases 22
involving differences as well as similarities. Thus it is often 23
true that not all of the considerations which justify adoption of 24

-- 23 of 28 --

24
a given rule will obtain in each particular case decided under 1
its authority."). 2
We ordinarily impute knowledge of the case law to 3
public officials. See Harlow, 457 U.S. at 819 ("[A] reasonably 4
competent public official should know the law governing his 5
conduct."); Simms v. Village of Albion, N.Y., 115 F.3d 1098, 1106 6
(2d Cir. 1997) (qualified immunity inquiry focuses on "reasonably 7
well-trained officer"); Salahuddin v. Coughlin, 781 F.2d 24, 27 8
(2d Cir. 1986) ("Officials are held to have constructive 9
knowledge of established law."). But, as Judge Hartz of the 10
Tenth Circuit has noted, albeit in dissent, "[t]he statement in 11
Harlow that reasonably competent public officials know clearly 12
established law[] is a legal fiction." Lawrence v. Reed, 406 13
F.3d 1224, 1237 (10th Cir. 2005) (Hartz, J., dissenting) 14
(internal citation omitted). Qualified immunity is appropriate 15
in "those situations in which the legal fiction does not make 16
sense and applying that fiction would create problems that 17
qualified immunity is intended to avert." Id.; cf. Harlow, 457 18
U.S. at 819 ("[I]f the official pleading the [qualified immunity] 19
defense claims extraordinary circumstances and can prove that he 20
neither knew nor should have known of the relevant legal 21
standard, the defense should be sustained."). 22
While we may not consider an official's subjective 23
intent in determining whether he is entitled to qualified 24
immunity, see Crotty, 346 F.3d at 106, we do -- and must -- 25
consider "the particular facts of the case," Robinson, 821 F.2d 26

-- 24 of 28 --

19 In order for his conduct to be immune, Novarro also had
to have an objectively reasonable belief that Amore had violated
the statute. That subject is discussed in Part IV., infra.
25
at 921, including the objective information before the officer at 1
the time of the arrest. In the case at bar, where the defendant 2
acted deliberately and rationally in seeking to determine the 3
then-valid, applicable and enforceable law before taking the 4
actions for which the plaintiff now seeks to hold him 5
accountable, we cannot say that Novarro's arrest of Amore was 6
objectively unreasonable. His immunity stands. 19
7
Our conclusion that Novarro's motion for summary 8
judgment on the section 1983 claim against him must be granted on 9
qualified-immunity grounds does not detract, of course, from 10
Amore's remaining failure-to-train claim against the City of 11
Ithaca; indeed the facts upon which it is based may tend to 12
support such a claim. See Rohman v. N.Y.C. Trans. Auth., 215 13
F.3d 208, 218 (2d Cir. 2000) (granting qualified immunity on 14
section 1983 claim but noting that state-law claim may well 15
succeed). Amore "may be richly entitled to a recovery on that 16
cause of action." Id. at 218-19 (internal quotation marks and 17
citation omitted). But "[t]hat issue is not before us," id. at 18
219, and it has no bearing on our decision here. Both Amore and 19
the amici urge us to consider that "holding municipalities liable 20
. . . can be quite difficult." Amici Br. at 6; see also Appellee 21
Pet. for Reh'g at 12-13 ("The limited remedy provided by Monell 22
v. Department of Social Services, 436 U.S. 658, 690-91 (1978)), 23
is a wholly inadequate alternative. Litigation of Monell claims 24

-- 25 of 28 --

20 After Amore and the amici suggested in their briefing on
motion for rehearing that stripping Novarro of his immunity was
necessary ultimately to persuade the New York legislature to
fulfill its responsibility by striking the unconstitutional
statute from the books, and without our doing so, the legislature
did indeed repeal the statute. See Joel Stashenko, Albany
Catches Up With Courts, Repeals Voided Loitering Laws, footnote
15, supra.
26
requires significant resources, which many plaintiffs will not 1
possess."). But that is an argument against the Monell doctrine 2
in its present form, not for depriving a law officer acting 3
objectively reasonably of his immunity from suit. 20
4
IV. Whether Novarro Had Arguable Probable Cause to Arrest 5
Amore under Section 240.35(3) 6
Amore argues that even if it was reasonable for Novarro 7
to rely on section 240.35(3), his apprehension of Amore was a 8
false arrest because it was not supported by probable cause. And 9
Amore contends that Novarro is not entitled to qualified immunity 10
because he did not have even "arguable probable cause" for the 11
arrest. 12
"The existence of probable cause to arrest constitutes 13
justification and is a complete defense to an action for false 14
arrest, whether that action is brought under state law or under 15
§ 1983." Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996) 16
(internal quotation marks and citation omitted). Probable cause 17
exists if at the time of the arrest "the facts and circumstances 18
within th[e officer's] knowledge and of which [he] had reasonably 19
trustworthy information were sufficient to warrant a prudent man 20
in believing that the [suspect] had committed or was committing 21

-- 26 of 28 --

27
an offense." Beck v. Ohio, 379 U.S. 89, 91 (1964); accord, 1
Zellner v. Summerlin, 494 F.3d 344, 369 (2d Cir. 2007). 2
In determining whether an officer is entitled to 3
qualified immunity for a false arrest claim in the absence of 4
probable cause, we examine whether there was "arguable probable 5
cause." Walczyk v. Rio, 496 F.3d 139, 163 (2d Cir. 2007). 6
"Arguable probable cause exists if either (a) it was objectively 7
reasonable for the officer to believe that probable cause 8
existed, or (b) officers of reasonable competence could disagree 9
on whether the probable cause test was met." Id. (internal 10
quotation marks omitted). In deciding whether an officer's 11
conduct was "objectively reasonable" for purposes of qualified 12
immunity, we look to the information possessed by the officer at 13
the time of the arrest, but "we do not consider the subjective 14
intent, motives, or beliefs" of the officer. Crotty, 346 F.3d at 15
106. 16
At the time of Amore's arrest, section 240.35(3) on its 17
face prohibited "[l]oiter[ing] . . . in a public place for the 18
purpose of engaging, or soliciting another person to engage, in 19
deviate sexual intercourse or other sexual behavior of a deviate 20
nature . . . ." N.Y. Penal Law § 240.35(3) (pre-2003 amendment 21
text)); see also Uplinger, 58 N.Y.2d at 937, 447 N.E.2d at 62. 22
Amore does not dispute that the sexual act he offered to perform 23
on Novarro would have been treated under the statute as "sexual 24
behavior of a deviate nature." 25

-- 27 of 28 --

28
Amore argues instead that the facts could as easily 1
support a theory that Novarro solicited him, not the other way 2
around. But in all the versions of the interaction between Amore 3
and Novarro reflected in the record, it is Amore who initiates 4
the conversation with Novarro and who proposes a sexual 5
interaction. 6
We therefore disagree with Amore's insistence that the 7
several versions of the event are materially "inconsistent." 8
Appellee's Br. 14. On the undisputed facts Novarro had at least 9
arguable probable cause to believe that Amore was 10
"[l]oiter[ing] . . . in a public place for the purpose of 11
engaging, or soliciting another person to engage, in deviate 12
sexual intercourse or other sexual behavior of a deviate 13
nature . . . ." 14
V. Disorderly Conduct; Harassment 15
Because we conclude that Novarro is entitled to 16
qualified immunity for arresting Amore pursuant to New York Penal 17
Law § 240.35(3), we decline to reach Novarro's argument that he 18
is entitled to qualified immunity because there was arguable 19
probable cause to arrest Amore for disorderly conduct or 20
harassment. 21
CONCLUSION 22
For the foregoing reasons, we reverse the district 23
court's denial of Novarro's motion for summary judgment, and 24
remand the cause with instructions to the district court to grant 25
the motion, thereby dismissing the false arrest claim. 26

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