## Facts

- In October 2001, Andrew Novarro, an undercover Ithaca police officer, was monitoring a public park for drug activity.
- Joseph Amore approached Novarro and offered to perform a sexual act; Amore did not know Novarro was an officer.
- Novarro identified himself, requested and received Amore’s identification, and arrested/charged him for “loitering for the purpose of deviate sexual activity.”
- Novarro relied on New York Penal Law § 240.35(3), which on its face prohibited loitering in a public place for the purpose of soliciting “deviate” sexual behavior.
- Years earlier, the New York Court of Appeals had declared § 240.35(3) unconstitutional, but the provision was never repealed and continued to appear in published compilations of the Penal Law.
- Novarro stated he did not know the statute had been invalidated and located the provision in a Penal Law booklet while making the arrest.
- The charge against Amore was dismissed because the statute was unconstitutional.
- Amore sued under 42 U.S.C. § 1983; the district court dismissed all claims except false arrest against Novarro and denied qualified immunity at summary judgment.
- Novarro took an interlocutory appeal limited to qualified immunity on the false-arrest claim.

## Issues

1. Whether a reasonable officer would have known it was unlawful to arrest someone under a statute previously declared unconstitutional when the statute remained published as current law and the officer was unaware of the invalidation.
2. Whether, on these facts, the officer was entitled to qualified immunity from a § 1983 false-arrest claim.

## Decision

- The Second Circuit reversed the denial of summary judgment.
- The court held Novarro was entitled to qualified immunity on the § 1983 false-arrest claim.
- The court remanded with instructions to grant summary judgment for Novarro on qualified-immunity grounds.

## Legal Principles

- Qualified immunity protects an officer unless (1) the plaintiff’s right was not clearly established at the time, or (2) it was objectively reasonable for the officer to believe the conduct was lawful.
- The “clearly established” inquiry is specific to the context; a general right (freedom from arrest without probable cause) does not alone resolve whether the unlawfulness would have been apparent to a reasonable officer in the situation.
- An officer’s reliance on a statute that remains on the books and is published as effective law can be objectively reasonable, even if a court previously held the statute unconstitutional, when that invalidation is not evident from sources reasonably available to the officer.
- Qualified immunity applies to reasonable mistakes of law by officers who are not plainly incompetent and do not knowingly violate the law.

## Conclusion

The court ruled that, although arrest under a judicially invalidated statute is unconstitutional, an officer may still receive qualified immunity when the statute remains published as current law and nothing in the materials reasonably consulted by the officer would have made the statute’s invalidity clear.


Amore v. Novarro, 624 F.3d 522 (2d Cir. 2010)