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

1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 August Term, 2008 4 5 (Argued: July 16, 2009 Decided: June 22, 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 21Andrew Novarro's motion for summary judgment on a false arrest 22 claim, ruling that Novarro was not entitled to qualified immunity 23 for making an arrest pursuant to a state loitering statute that2 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 despite 5 the fact that the statute was still widely published as though it 6 remained valid, it would have been clear to a reasonable officer 7 in Novarro's position that making the arrest was unlawful. We 8 therefore reverse the order of the district court and remand the 9 cause with instructions to grant the summary judgment motion 10 based on qualified immunity and to dismiss the complaint against 11 Novarro. 12 Reversed and remanded. 13 JONATHAN M. BERNSTEIN, Goldberg Segalla 14 LLP, Albany, NY, for Defendant15 Appellant. 16 EDWARD E. KOPKO, Wiggins & Kopko, LLP, 17 Ithaca, NY, (Guttman & Wallace Law Firm, 18 Ithaca, NY, on the brief), for 19 Plaintiff-Appellee. 20 SACK, Circuit Judge: 21 22 Defendant-Appellant Andrew Novarro, an Ithaca, New York 23policeman, appeals from that part of a memorandum decision and 24 order dated March 28, 2008, by the United States District Court 25 for the Northern District of New York (Frederick J. Scullin, Jr., 26 Judge) denying his motion for summary judgment on a false arrest 27 claim brought by plaintiff-appellee Joseph Amore under 42 U.S.C. 28 § 1983. The claim is based on Novarro's arrest of Amore pursuant 29 to New York Penal Law Section 240.35(3), which, on its face, 30 prohibits loitering in a public place for the purpose ofAt the time of Amore's arrest, the statute in question, 1 N.Y. 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 1 soliciting another person to engage in "deviate" sexual 2 behavior.Amore alleges that his apprehension constituted a 1 3 false arrest because the statute, although then officially and 4 unofficially published as currently effective law, had been ruled 5 unconstitutional by the New York Court of Appeals eighteen years 6before. 7 The district court concluded that Novarro was not 8 entitled to qualified immunity: Amore had a clearly established 9 constitutional right to be free from unlawful arrest, and it 10 would have been clear to a reasonable officer in Novarro's 11 position that making an arrest under section 240.35(3) after it 12 had been held to be unconstitutional by the New York Court of 13Appeals in People v. Uplinger, 58 N.Y.2d 936, 460 N.Y.S.2d 514, 14 447 N.E.2d 62 (1983) (Mem.), was unlawful. 15 We disagree. We conclude that Novarro is entitled to 16 qualified immunity under these circumstances. It was 17 unreasonable to expect this police officer to know that a statute 18 that was, and is, still on the books and being enforced had beenThe statute refers to "deviate" sexual activity, see 2 footnote 1, supra. 4 1 held to be unconstitutional. We therefore reverse that part of 2 the district court's order dismissing Novarro's motion for 3 summary judgment on the false arrest claim based on qualified 4 immunity, and remand the cause with instructions to grant the 5motion. 6 BACKGROUND 7 Plaintiff Joseph Amore met defendant Andrew Novarro on 8 October 19, 2001, in a public park in Ithaca, New York. Novarro 9was there acting as an undercover police officer, watching for 10 drug activity. Amore, not knowing who Novarro was or what he was 11 doing, offered to perform a sexual act on him. 12 Novarro identified himself as a police officer and 13 asked Amore for identification, which he produced. Novarro told 14 Amore that he did not have a ticket to write out and would have 15 to call for "backup," which he proceeded to do. Novarro later 16 testified that he did so in part because he did not have an 17 appearance ticket with which to charge Amore with loitering. 18 While they waited for another police officer to arrive, 19Novarro told Amore that he was being charged with "loitering for 20 the purpose of deviant [sic] sexual activity." Deposition of 2 21Andrew Novarro ("Novarro Dep.") at 20. Novarro explained to 22 Amore that "they were cracking down on this kind of activity in 23 the park." Deposition of Joseph Amore ("Amore Dep.") at 36.There are multiple New York police academies. From the 3 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). Now "LexisNexis Gould Publications." See 4 http://www.lexisnexis.com/gould/ (last visited April 19, 2010). 5 1 Novarro testified, and it is not disputed in the 2 briefing of this appeal, that the New York police academy he had 3 attended issues a copy of the New York Penal Law to every 4 officer, and that most officers carry a copy of it with them on 5 duty.It is in the form of a looseleaf booklet containing the 3 6 text of the Penal Law that is published by Gould Publications, 7 Inc.The Ithaca Police Department furnishes each of its

4 8 officers with yearly updates consisting of a stack of substitute 9pages reflecting new laws that have been enacted during the 10 previous year, or deleting laws that are no longer in effect. 11 When the officers receive these yearly updates, they are 12 "supposed to remove" those pages that have become outdated and 13 insert into the booklet, in their stead, the substitute pages 14 reflecting the current law. The booklet is unannotated, i.e., 15 without interpretations, case law, or the like. When the backup 16 officer arrived, he gave Novarro a copy of this version of the 17 Penal Law, because Novarro had left his own copy in his office. 18 After consulting the booklet, Novarro issued Amore an 19 appearance ticket. Novarro then released Amore from custody. 20 The appearance ticket required Amore to appear in Ithaca City6 1 Court to answer a charge of "loitering" in violation of New York 2 Penal Law § 240.35(3). 3 Novarro then had Amore formally charged with a 4 violation of that offense. Accusatory Instrument, No. 01-13431 5 (Ithaca City Ct. Oct. 19, 2001). 6 Some time later, the city prosecutor informed Novarro 7 that Amore had moved to dismiss the charge against him based on 8 People v. Uplinger, a 1983 ruling by the New York Court of 9Appeals holding, in a memorandum decision, that the loitering 10 statute pursuant to which Amore had been arrested, N.Y. Penal Law 11 § 240.35(3), was unconstitutional. The city prosecutor told 12 Novarro that she therefore could not continue the prosecution. 13 It is undisputed that Novarro was unaware that the statute had 14 been held to be unconstitutional prior to this conversation. 15 On November 7, 2001, the prosecutor, as she had told 16Novarro she would, moved to dismiss the charge against Amore 17 based on Uplinger. The Ithaca City Court granted the motion on 18 that basis. The court observed that it was "puzzling" that the 19 statute continued to be published in the McKinney's Consolidated 20 Laws of New York Annotated -- an annotated compendium of New York 21 statutes that is separate from, and more formal and complete 22 than, the unannotated booklet provided to Novarro and other 23 officers by the police academy -- to the present day "as if it is 24 still a viable statute." People v. Amore, No. 01-36459 (Ithaca 25 City Ct. Nov. 15, 2001). "It is hard to understand why the7 1 Legislature would continue this statute on the books, given that 2 it is now close to 20 years since it was determined to be 3 unconstitutional." Id. 4 Some two and one-half years later, on February 12, 5 2004, Amore filed a complaint in the United States District Court 6 for the Northern District of New York against Novarro and the 7 City of Ithaca for damages pursuant to 42 U.S.C. § 1983. His 8 claims against Novarro were for false arrest, malicious 9prosecution, abuse of process, and violation of his right to 10 equal protection. His claims against the city were made pursuant 11 to Monell v. Department of Social Services, 436 U.S. 658 (1978), 12 for failure to train city employees and for maintaining an 13 improper policy, custom or practice of permitting officers to 14 make arrests under the unconstitutional statute. 15 The defendants moved to dismiss the complaint. Amore 16 opposed the motion, filing a cross-motion for partial summary 17 judgment on the issue of liability. 18 On March 28, 2008, the district court denied Amore's 19 cross-motion for summary judgment with respect to all claims, 20 and, treating the defendants' motion as a motion for summary 21 judgment, granted the defendants' motion in part and denied it in 22 part. The district court granted the motion on the malicious 23prosecution, abuse of process, and equal protection claims 24 against Novarro, and the maintenance of an improper policy or 25 custom claim against the city. See Amore v. City of Ithaca, No.Not available on WestLaw. 5The district court made these remarks concerning the 6 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. 8 1 04 Civ. 176, 2008 U.S. Dist. LEXIS 26035, *10-*13, *21-*22 2 (N.D.N.Y. Mar. 28, 2008).None of those claims are at issue on 5 3 this interlocutory appeal. 4 The district court denied summary judgment on the false 5 arrest claim, however. See id. The court reasoned that Novarro 6 lacked probable cause to arrest Amore under section 240.35(3) 7 because the New York Court of Appeals had declared that statute 8 unconstitutional in Uplinger. Id. at *14-*16. 9 The district court conceded that such a situation 10 presents a "difficult choice" for a police officer because "[a] 11 common sense reading of [§ 240.35(3)] would place [Amore's] 12 actions squarely within the purview of [that provision]." Id. at 13 *20-*21. It also acknowledged that "Novarro would have had to 14 conduct legal research or seek expert advice in order to discover 15 the statute's invalidity." Id. at *21.The court concluded 6 16 nonetheless that Novarro was not entitled to qualified immunity 17 with respect to the false arrest claim because Amore's "right to 18 be free from unlawful arrest under § 240.35(3) was clearly 19 established at the time that he was arrested." Id. at *15. In 20 the court's view, in light of Uplinger, it was objectively 21 unreasonable for Novarro to believe that the arrest was lawful,The district court also concluded that there were triable 7 issues of fact as to whether Novarro had probable cause to arrest Amore for disorderly conduct under N.Y. Penal Law § 240.20 or second-degree harassment under N.Y. 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. We note that the attorney for Novarro and the attorney 8 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. 9 1 because courts "must at least hold [public] officials to a basic 2 standard of awareness where the state's highest court has 3pronounced a statute facially unconstitutional."Id. at *16. 7 4 The district court also denied the motion for summary 5 judgment on the failure-to-train claim against the city. The 6 court based its decision on evidence submitted by Amore to the 7 effect that the city knew that its police officers operating in 8 Stewart Park would encounter individuals soliciting and engaging 9 in sex. See id. at *18-*19. At argument before this Court, the 10 parties represented that the failure-to-train claim against the 11 city was still pending. It is therefore not before us on this 12 appeal.8 13 On June 9, 2008, the district court denied Amore's 14 motion to reconsider the denial of his motion for summary 15 judgment on the false arrest claim. See Amore v. City of Ithaca,10 1 No. 04 Civ. 176, 2008 U.S. Dist. LEXIS 45328 (N.D.N.Y. June 9, 2 2008). 3 On June 17, 2008, the defendants petitioned the 4 district court for leave to appeal from the March 28, 2008 5memorandum opinion and order. The district court denied leave to 6 appeal.On October 1, 2008, we concluded that we had 7 jurisdiction over the March 28 memorandum opinion and order to 8 the extent that it denied Novarro qualified immunity on the false 9 arrest claim, and directed the Clerk of the Court to issue a 10 briefing schedule for an appeal on the qualified immunity 11 question. 12 The sole question on appeal, then, is whether Novarro 13 is entitled to qualified immunity on the false arrest claim. 14 DISCUSSION 15 I. Jurisdiction and Standard of Review 16 "As a general rule, the denial of summary judgment is 17 not immediately appealable." Finigan v. Marshall, 574 F.3d 57, 18 60 n.2 (2d Cir. 2009) (citing 28 U.S.C. § 1291). "The collateral 19 order doctrine, however, allows review of a district court's 20 denial of summary judgment on the ground that the movant was not 21 entitled to qualified immunity to the extent that the district 22 court has denied the motion as a matter of law." Id. (internal 23 quotation marks omitted). 24 Our jurisdiction is limited such that we may only 25 review Novarro's assertion of qualified immunity based on11 1 "stipulated facts, facts accepted for purposes of the appeal, or 2 the plaintiff's version of the facts that the district court 3 deemed available for jury resolution." Kelsey v. County of 4 Schoharie, 567 F.3d 54, 60 (2d Cir. 2009) (internal quotation 5marks omitted). While "we must examine whether a given factual 6 dispute is 'material' for summary judgment purposes, we may not 7 review whether a dispute of fact identified by the district court 8 is 'genuine.'" Jones v. Parmley, 465 F.3d 46, 55 (2d Cir. 2006) 9 (internal quotation marks omitted). 10 Summary judgment should be granted where "there is no 11 genuine issue as to any material fact and . . . the movant is 12 entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). 13 The court construes all evidence in the light most favorable to 14 the non-moving party, drawing all inferences and resolving all 15 ambiguities in his favor. See, e.g., LaSalle Bank Nat'l Ass'n v. 16Nomura Asset Capital Corp., 424 F.3d 195, 205 (2d Cir. 2005). We 17 review the district court's denial of summary judgment on 18 qualified immunity grounds, as in other contexts, de novo. See, 19 e.g., Moore v. Andreno, 505 F.3d 203, 208 (2d Cir. 2007). 20 II. Qualified Immunity 21 Qualified immunity is an affirmative defense designed 22 to "protect[] the [defendant public] official not just from 23 liability but also from suit . . . thereby sparing him the 24 necessity of defending by submitting to discovery on the merits 25 or undergoing a trial." X-Men Sec., Inc. v. Pataki, 196 F.3d 56,12 1 65 (2d Cir. 1999). Government officials are entitled to 2 qualified immunity "insofar as their conduct does not violate 3 clearly established statutory or constitutional rights of which a 4 reasonable person would have known." Harlow v. Fitzgerald, 457 5 U.S. 800, 818 (1982). "A police officer who has an objectively 6 reasonable belief that his actions are lawful is entitled to 7 qualified immunity." Okin v. Village of Cornwall-On-Hudson 8 Police Dep't, 577 F.3d 415, 433 (2d Cir. 2009). 9 "The central purpose of affording public officials 10 qualified immunity from suit is to protect them 'from undue 11 interference with their duties and from potentially disabling 12 threats of liability.'" Elder v. Holloway, 510 U.S. 510, 514 13 (1994) (quoting Harlow, 457 U.S. at 806). The qualified immunity 14 defense is supposed to "provide[] ample protection to all but the 15plainly incompetent or those who knowingly violate the law." 16Malley v. Briggs, 475 U.S. 335, 341 (1986). 17 In order to overcome a qualified immunity defense, a 18 plaintiff must demonstrate that "[t]aken in the light most 19 favorable to the [plaintiff,] . . . the facts alleged show [that] 20 the officer's conduct violated a constitutional right," and that 21 the right allegedly violated was "clearly established." Saucier 22 v. Katz, 533 U.S. 194, 201 (2001), overruled in part on other 23 grounds, Pearson v. Callahan, 129 S. Ct. 808 (2009). "For a 24 constitutional right to be 'clearly established' for purposes of 25 determining whether an officer is entitled to qualified immunity, 26 the 'contours of the right must be sufficiently clear that a13 1 reasonable official would understand that what he is doing 2 violates that right.'" Mollica v. Volker, 229 F.3d 366, 370 (2d 3 Cir. 2000) (quoting Anderson v. Creighton, 483 U.S. 635, 640 4 (1987)); see also Saucier, 533 U.S. at 202 ("The relevant, 5 dispositive inquiry in determining whether a right is clearly 6 established is whether it would be clear to a reasonable officer 7 that his conduct was unlawful in the situation he confronted."). 8 Thus the inquiry into whether it was objectively 9 reasonable for an officer to believe that his conduct did not 10 violate a constitutional right has been viewed as part of the 11 inquiry into whether the constitutional right allegedly violated 12 was "clearly established." See Harlow, 457 U.S. at 818 13 ("Reliance on the objective reasonableness of an official's 14 conduct[] [is] measured by reference to clearly established 15 law . . . ."); Okin, 577 F.3d at 433 n.11 ("Saucier makes it 16 clear that the 'objectively reasonable' inquiry is part of the 17 'clearly established' inquiry."). We have, however, sometimes 18 framed the "objectively reasonable" inquiry as separate from the 19 "clearly established" inquiry. See, e.g., Cornejo v. Bell, 592 20 F.3d 121, 128 (2d Cir. 2010) ("[Q]ualified immunity . . . is 21 sufficient to shield executive employees from civil liability 22 under § 1983 if either (1) their conduct did not violate clearly 23 established rights of which a reasonable person would have known, 24 or (2) it was objectively reasonable to believe that their acts 25 did not violate these clearly established rights." (internal 26 quotation marks and alterations omitted)). Whether theFor several years, under Saucier, courts were required to 9 address first whether taken in the light most favorable to the plaintiff, 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 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."). 14 1 "objectively reasonable" inquiry is framed as part of the 2 "clearly established" inquiry, or apart from it, does not affect 3 the outcome of the qualified immunity analysis here.9 4 III. Novarro's Qualified Immunity 5 We assume here, not without reason, that when Novarro 6 arrested Amore he violated a constitutional right of Amore not to 7 be arrested for activity made criminal by section 240.35(3), 8 which had been held unconstitutional by the New York Court of 9Appeals. Cf. Lemon v. Kurtzman, 411 U.S. 192, 207-08 (1973) 10 (plurality opinion) (indicating that a statute is a legal basis 11 for arrest only "[u]ntil judges say otherwise"). And the broad 12 right not to be arrested pursuant to an unconstitutional statute 13may well be considered clearly established. But the question 14 here is whether the right not to be arrested under this statute 15 was clearly established, that is, whether it was objectively 16 reasonable for Novarro to fail to realize that the statute he was 17 attempting to enforce against Amore had been held to be 18 unconstitutional by the New York Court of Appeals. See Okin, 577 19 F.3d at 433 n.11 (framing inquiry as whether "the law was clearly 20 established . . . for the particular context in which [theCf. Gilbert & Sullivan, Pirates of Penzance: 10 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 1 challenged conduct] occurred"). "A policeman's lot is not so 2 unhappy that he must choose between being charged with 3 dereliction of duty if he does not arrest when he has probable 4 cause, and being mulcted in damages if he does." Pierson v. Ray, 5 386 U.S. 547, 555 (1967).10 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, 9we 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. See Conn. ex rel. Blumenthal v. Crotty, 346 F.3d 84, 13 105 (2d Cir. 2003) ("Officials charged with enforcing a statute 14 on the books . . . are generally entitled to rely on the 15presumption that all relevant legal and constitutional issues 16 have been considered and that the statute is valid."); see also 17 id. at 102 ("In order to determine whether [the defendant] may 18 prevail, we consider many factors, but rely primarily on one 19 factor as particularly persuasive: that the challenged conduct 20 involved enforcement of a presumptively valid statute."); Vives 21 v. City of New York, 405 F.3d 115, 117 (2d Cir. 2005)16 1 (distinguishing Crotty from "case which did not involve state 2 officials acting under the color of a properly-enacted statute") 3 (emphasis in original); Grossman v. City of Portland, 33 F.3d 4 1200, 1209 (9th Cir. 1994) ("[C]ourts have continued to adhere to 5 the central principle . . . [that] where a police officer has 6probable cause to arrest someone under a statute that a 7 reasonable officer could believe is constitutional, the officer 8 will be immune from liability even if the statute is later held 9 to be unconstitutional."); Shero v. City of Grove, Okl., 510 F.3d 10 1196, 1204 (10th Cir. 2007) (referring to reliance on statute as 11 "extraordinary circumstance[]" that could "so prevent[] the 12 official from knowing that his or her actions were 13 unconstitutional that he or she should not be imputed with 14 knowledge of a clearly established right"). 15 We noted some years ago that: 16 [I]t has long been clearly established that 17 an arrest without probable cause is a 18 constitutional violation. Nonetheless, the 19 arresting officer is entitled to qualified 20 immunity as a matter of law if the undisputed 21 facts and all permissible inferences 22 favorable to the plaintiff show either (a) 23 that it was objectively reasonable for the 24 officer to believe that probable cause 25 existed, or (b) that officers of reasonable 26 competence could disagree on whether the 27 probable cause test was met.

28 Robison v. Via, 821 F.2d 913, 921 (2d Cir. 1987) (citations 29 omitted). 30 Similarly here, we assume that it is clearly 31 established that an arrest under a statute that has been"In analyzing § 1983 claims for unconstitutional false 11 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 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. 17 1 authoritatively held to be unconstitutional is ordinarily a 2 constitutional violation. And it is clear that Amore was 3 sufficiently detained for him to have been "arrested" for 4 purposes of bringing this false arrest claim,and that the 11 5 statute under which he was arrested had been held by the New York 6 Court of Appeals to be unconstitutional. But the question is 7 whether it was nonetheless objectively reasonable for Novarro, as 8 the arresting officer, to have believed that the statute in 9 question remained fully in force and that his arrest wasIn Robison, it should be noted, we framed the 12 "objectively reasonable" inquiry as separate from the "clearly established" inquiry. Robison, 821 F.2d at 921. As noted in the text, supra, whether the inquiries are so framed, or whether the former inquiry is encompassed within the latter, has no bearing on the resolution of the qualified immunity issue. "'Deviate sexual intercourse'" meant "'sexual conduct 13 between persons not married to each other consisting of contact 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 Section 130.00). 18 1 therefore not a violation of Amore's constitutional rights. Cf. 2 id. (focusing inquiry on "the particular facts of the case"). If 3 it was objectively reasonable for Novarro to believe that the 4 statute in question was valid, then arrest under this particular 5 unconstitutional statute in the circumstances presented here was 6 not a clearly established constitutional violation for purposes 7 of qualified immunity.12 8 Section 240.35(3) made it a crime to loiter "in a 9public place for the purpose of engaging, or soliciting another 10 person to engage, in deviate sexual intercourse or other sexual 11 behavior of a deviate nature."Uplinger, 58 N.Y.2d at 937, 447 13 12 N.E.2d at 62. In that 1983 decision, the New York Court of 13Appeals declared the provision unconstitutional. The court 14 explained that "[t]he object of the loitering statute is to 15punish conduct anticipatory to the act of consensual sodomy. 16 Inasmuch as the conduct ultimately contemplated by the loitering 17 statute may not be deemed criminal, we perceive no basis upon 18 which the State may continue to punish loitering for that 19purpose." Id., 58 N.Y.2d at 938, 447 N.E.2d at 63; see alsoIndeed, the provision was enforced as recently as April 14 6, 2010, by the New York City Parks Department, when the Parks Department issued two summonses for violations of the 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 15 York statutes, the legislature amended N.Y. Penal Law § 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 otherwise remained unchanged. To be sure, McKinney's Consolidated Laws of New York 16 Annotated contains a reference to the fact that § 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 19 1 People v. Onofre, 51 N.Y.2d 476, 485, 415 N.E.2d 936, 938-39 2 (1980) (invalidating "consensual sodomy" statute prohibiting 3 "deviate sexual intercourse" on constitutional privacy and Equal 4 Protection grounds because the statute "reach[ed] noncommercial, 5 cloistered personal sexual conduct of consenting adults and . . . 6permitt[ed] the same conduct between persons married to each 7 other without sanction"). 8 "Despite judicial invalidation, the State of New York 9 has not formally repealed [section 240.35(3)]." Casale v. Kelly, 10 257 F.R.D. 396, 401 (S.D.N.Y. 2009).At the time Novarro 14 11 arrested Amore -- and to this day-- section 240.35(3), despite 15 12 Uplinger's 1983 holding that the section is unconstitutional, has 13 continued to be published in official versions of the New York 14 Penal Law. See N.Y. Penal Law § 240.35(3) (2010). Indeed, 15WestLaw and Lexis sites continue to include the text in their 16 services.16similar references. But 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. See footnote 15, supra. 17The United States District Court for the Southern 18 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 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. 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. 20 1 More than two years after Amore's arrest for violating 2 section 240.35(3), the New York State legislature amended the 3 wording of this very section,thus treating section 240.35(3) 17 4 as though it were fully in effect despite the holding of the New 5 York Court of Appeals two decades previously that the section was 6 unconstitutional.18 7 In determining whether an officer is entitled to 8 qualified immunity, "[t]he question is not what a lawyer would 9 learn or intuit from researching case law, but what a reasonable 10 person in a defendant's position should know about the 11 constitutionality of the conduct." Young v. County of Fulton,In order for his conduct to be immune, Novarro also had 19 to have an objectively reasonable belief that Amore had violated the statute. That subject is discussed in Section IV., infra. 21 1 160 F.3d 899, 903 (2d Cir. 1998). It is undisputed that: 2 Novarro did not know that section 240.35(3) was unconstitutional; 3 he had not received instruction or information on the 4 constitutionality of the statute; and he was relying on an 5 accurate, if unannotated, copy of the New York Penal Law when he 6 arrested Amore. We cannot say that Novarro's arrest of Amore was 7 objectively unreasonable under these circumstances, where he had 8 every reason to believe that the statute of arrest was valid and 9 in effect.Amore has not pointed us to any cases that compel a 19 10 contrary conclusion, nor are we ourselves aware of one. 11 There are, to be sure, judicial dicta suggesting that 12 an officer's entitlement to rely on a statute expires when a 13binding court decision declares the statute unconstitutional. 14 See Michigan v. DeFillippo, 443 U.S. 31, 38 (1979) (state 15 officials "are charged to enforce laws until and unless they are 16 declared unconstitutional"); Vives, 405 F.3d at 117 ("We have 17 held that absent contrary direction, state officials are entitled 18 to rely on a presumptively valid state statute until and unless 19 the statute is declared unconstitutional.") (internal quotation 20 marks, ellipses, and alterations omitted); Crotty, 346 F.3d at 21 102 ("[U]ntil judges say otherwise, state officers have the power 22 to carry forward the directives of the state legislature") 23 (internal quotation marks and ellipsis omitted); see also Gann v. 24 Cline, 519 F.3d 1090, 1092 (10th Cir. 2008) ("A plaintiff can22 1 demonstrate that a constitutional right is clearly established by 2 references to cases from the Supreme Court, the [federal Circuit 3 in which the case arose], or the weight of authority from other 4 circuits.") (internal quotation marks omitted). But these 5 statements were uttered in the course of granting qualified 6 immunity or, in DeFillippo, ruling in favor of the police 7 officers on a motion to suppress. None of them suggested that if 8 a statute has been held unconstitutional, adherence to it by a 9 law enforcement official is, ipso facto, unreasonable 10 irrespective of the circumstances. That is not the law. 11 We conclude that Novarro's reliance on New York Penal 12 Law Section 240.35(3) in arresting Amore was objectively 13 reasonable. 14 IV.Whether Novarro Had Arguable Probable Cause to Arrest 15 Amore under Section 240.35(3) 16 Amore argues that even if it was reasonable for Novarro 17 to rely on section 240.35(3), his apprehension of Amore was a 18 false arrest because it was not supported by probable cause. And 19Amore contends that Novarro is not entitled to qualified immunity 20 because he did not have even "arguable probable cause" for the 21 arrest. 22 "The existence of probable cause to arrest constitutes 23 justification and is a complete defense to an action for false 24 arrest, whether that action is brought under state law or under 25 § 1983." Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996) 26 (internal quotation marks and citation omitted). Probable cause 27 exists if at the time of the arrest "the facts and circumstances23 1 within th[e officer's] knowledge and of which [he] had reasonably 2 trustworthy information were sufficient to warrant a prudent man 3 in believing that the [suspect] had committed or was committing 4 an offense." Beck v. Ohio, 379 U.S. 89, 91 (1964); accord, 5 Zellner v. Summerlin, 494 F.3d 344, 369 (2d Cir. 2007). 6 In determining whether an officer is entitled to 7 qualified immunity for a false arrest claim in the absence of 8 probable cause, we examine whether there was "arguable probable 9 cause." Walczyk v. Rio, 496 F.3d 139, 163 (2d Cir. 2007). 10 "Arguable probable cause exists if either (a) it was objectively 11 reasonable for the officer to believe that probable cause 12 existed, or (b) officers of reasonable competence could disagree 13 on whether the probable cause test was met." Id. (internal 14 quotation marks omitted). In deciding whether an officer's 15 conduct was "objectively reasonable" for purposes of qualified 16 immunity, we look to the information possessed by the officer at 17 the time of the arrest, but "we do not consider the subjective 18 intent, motives, or beliefs" of the officer. Crotty, 346 F.3d at 19 106. 20 At the time of Amore's arrest, section 240.35(3) on its 21 face prohibited "[l]oiter[ing] . . . in a public place for the 22 purpose of engaging, or soliciting another person to engage, in 23 deviate sexual intercourse or other sexual behavior of a deviate 24 nature . . . ." N.Y. Penal Law § 240.35(3) (pre-2003 amendment 25 text)); see also Uplinger, 58 N.Y. 2d at 937, 447 N.E. 2d at 62. 26Amore does not dispute that the sexual act he offered to perform24 1 on Novarro would have been treated under the statute as "sexual 2 behavior of a deviate nature." 3 Amore argues instead that the facts could as easily 4 support a theory that Novarro solicited him, not the other way 5 around. But in all the versions of the interaction between Amore 6 and Novarro reflected in the record, it is Amore who initiates 7 the conversation with Novarro and who proposes a sexual 8 interaction. 9 We therefore disagree with Amore's insistence that the 10 several versions of the event are materially "inconsistent." 11Appellee's Br. 14. On the undisputed facts Novarro had at least 12 arguable probable cause to believe that Amore was 13 "[l]oiter[ing] . . . in a public place for the purpose of 14 engaging, or soliciting another person to engage, in deviate 15 sexual intercourse or other sexual behavior of a deviate 16 nature . . . ."

17 V. Disorderly Conduct; Harassment 18 Because we conclude that Novarro is entitled to 19 qualified immunity for arresting Amore pursuant to N.Y. Penal Law 20 § 240.35(3), we decline to reach Novarro's argument that he is 21 entitled to qualified immunity because there was arguable 22 probable cause to arrest Amore for disorderly conduct or 23 harassment. 24 CONCLUSION25 1 For the foregoing reasons, we reverse the district 2 court's denial of Novarro's motion for summary judgment, and 3 remand the cause with instructions to the district court to grant 4 the motion, thereby dismissing the false arrest claim.