Officer Not Liable for|Arrest Under Axed Law

(CN) - A New York man who offered to perform a sexual act on an undercover police officer in a public park can't sue the officer for arresting him under a loitering statute deemed unconstitutional nearly 20 years earlier, the 2nd Circuit ruled.

Reversing a federal judge's denial of qualified immunity, the federal appeals court in Manhattan found the arrest for "loitering for the purposes of deviate sexual intercourse" reasonable, even though the New York Supreme Court found that loitering statute unconstitutional in 1983.

Ithaca resident Joseph Amore approached undercover officer Andrew Novarro on an October night in 2001 at Stewart Park.

"Amore, having been in the park for some while and not knowing who Novarro was or what he was doing there, approached his car, engaged him in conversation, and then offered to perform a sexual act on him," the ruling states.

Novarro cited Amore under a New York penal code which, "on its face, prohibits loitering in a public place for the purpose of soliciting another person to engage in 'deviate' sexual behavior," according to the ruling.

Novarro later admitted that he had no idea that the law had been declared unconstitutional nearly 20 years earlier.

Prosecutors dropped the charges, and more than two years later Amore sued for false arrest.

The federal district court denied Novarro's request for qualified immunity, ruling that "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."

The three-judge appellate panel saw it differently, finding the arrest reasonable because the statute had never been deleted from New York Penal Law.

Novarro "was relying on an accurate, if unannotated, copy of the New York Penal Law when he arrested Amore - indeed, he was literally reading the Penal Law during the course of the arrest," Judge Robert Sack wrote.

Amore insisted that the fact that the statute had been held unconstitutional automatically stripped the officer of immunity, but Sack disagreed.

There is no "binding authority" declaring that "if a statute has been held unconstitutional, adherence to it by a law enforcement official is, ipso facto, unreasonable for qualified immunity purposes irrespective of the circumstances," he wrote.

"In the case at bar, where the defendant acted deliberately and rationally in seeking to determine the then-valid, applicable and enforceable law before taking the actions for which the plaintiff now seeks to hold him accountable, we cannot say that Novarro's arrest of Amore was objectively unreasonable. His immunity stands."

Amore's related failure-to-train lawsuit against Ithaca is pending, according to the ruling.

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