In a decision demonstrating that the ultimate determination of the availability of the qualified immunity defense rests upon a careful examination of the specific facts of each case, the Second Circuit holds, in a case argued by Jonathan Bernstein, of Goldberg Segalla that an officer arresting an individual for violation of a Penal Law Statute held unconstitutional eighteen years earlier is entitled to dismissal on immunity grounds! Expert law enforcement consulting was provided by OSS – Law Enforcement Advisors of Spring, Texas.
In 1983, the New York Court of Appeals held that Penal Law Section 240.35(3) prohibiting loitering in a public place for the purpose of engaging or soliciting deviate sexual behavior unconstitutional on its face. Nearly 18 years later, undercover Ithaca police officer Novarro was sitting in his unmarked police car in a public park when plaintiff Amore unwittingly approached Novarro and offered to perform a sexual act upon him. Novarro pulled his department issued Penal Law, found Section 240.35(3) and charged Amore with loitering in a public place for the purpose of engaging or soliciting deviate sexual behavior. After the charges were dismissed against Amore, he commenced an action in United States District Court seeking damages under 42 USC sec. 1983 for violation of his constitutional rights. Novarro moved for Summary Judgment seeking dismissal upon the grounds of qualified immunity. Summary Judgment was denied at the District Court level.
On appeal, the Second Circuit’s inquiry in determining the qualified immunity issue that is “forgiving” and “protects all but the plainly incompetent or those who knowingly violate the law,” analyzed and evaluated whether Novarro’s conduct (1) did not violate clearly established rights of which a reasonable person would have known, or (2) it was objectively reasonable for him to believe his actions did not violate clearly established rights. The court “assume(d)” the arrest to be a violation of constitutional rights as the law was clearly unconstitutional as determined by the New York Court of Appeals years before. Regardless, the court determined it was “objectively reasonable” for the officer to make the arrest as he failed to realize the statute was unconstitutional because the New York legislature did not remove the statute from the Penal Law and the officer therefore could presume it to be valid. Moreover, the officer had undergone police training and had never been instructed or trained with respect to the validity or constitutionality of the statute he was enforcing. Applying the reasonable person standard under the circumstances, versus imputing knowledge to the officer that a lawyer or judge would have known, the court found officer Navarro’s conduct objectively reasonable and dismissed.
The court went out of its way to note the “failure to train” claim against the City of Ithaca remained pending, though not part of the appeal.
