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Column: The Heavy Hand of Dead Statutes on Constitutional Rights (New York Law Journal)

By Christopher Dunn

When courts declare laws unconstitutional, the sound of pages being torn out of statutory compilations is rarely heard. Rather, these laws often remain “on the books,” sometimes for decades, because legislatures fail to repeal them.

In these circumstances, difficult questions can arise when civil rights plaintiffs sue over subsequent enforcement of unconstitutional, unrepealed statutes. When suits seek damages against government officials personally, the officials can argue they should not be liable for simply enforcing legal provisions they saw in official statutory compilations. And when suits seek relief against municipalities or other local governments, those defendants can argue they should not be held responsible because it is their duty to enforce state laws unless they are repealed or until a court enjoins the specific government entities from further enforcement.

The courts have rarely confronted the problems presented by unrepealed, unconstitutional laws. Recently, however, the Second Circuit for the first time addressed the personal liability of officials sued for enforcing such laws in a case that reveals the threat these dead statutes pose to constitutional rights. That case also touched upon municipal liability for enforcement of unconstitutional state laws, an issue the Court had never addressed until two years ago.

A Constitutional Liability Primer

Before turning to the Second Circuit’s rulings, a short primer on constitutional liability and qualified immunity may be useful. The Civil Rights Act of 1871, as codified at 42 U.S.C. § 1983 (commonly referred to as “section 1983”) authorizes individuals to sue government officials and governments themselves (in the form of states and local governmental entities) for violations of their constitutional rights. When a government official is sued personally (as opposed to in his or her “official capacity,” which is treated as a suit against the government itself) and the plaintiff seeks monetary damages, the official can assert a “qualified immunity” defense to the damage claims. Under well-established law, the official is immune from suit if he or she can demonstrate that the constitutional right at issue was not “clearly established” at the time of the alleged violation.

Typically, a qualified-immunity defense would be summarily rejected in the face of an earlier, authoritative ruling declaring unconstitutional similar action by a government official. And that approach extends to the situation in which the prior ruling declared the earlier action to be unconstitutional because the statute upon which the action was based was unconstitutional. Thus, for example, a New York Court of Appeals ruling declaring a New York penal law provision unconstitutional would preclude a qualified-immunity claim asserted by a police officer who subsequently arrested someone for violating the same penal law provision.

As for lawsuits against municipalities and other local government entities, the standards are different. Qualified immunity defenses are not available, so whether the right at issue was “clearly established” is irrelevant; rather, the question is simply whether the action taken against the plaintiff was unconstitutional. That question, however, that is not the only one, as municipalities cannot be held liable under section 1983 merely because an employee violates a constitutional right, as respondeat superior is not sufficient. Instead, a plaintiff must meet a much higher standard, typically by showing that the official who acted was a high-level “policymaker” or that the violation was part of a broad pattern or practice, which might include, for instance, a municipality’s practice of failing to train employees to avoid plainly evident unconstitutional actions.

Finally, states cannot be sued at all under section 1983. Thus, in a case where the government official is entitled to qualified immunity and the higher standards for municipal liability cannot be met, the plaintiff will have no judicial recourse for an undisputed violation of his or her constitutional rights. When one injects an unrepealed, unconstitutional statute into the mix, the situation becomes even more difficult for civil rights plaintiffs.

Unrepealed Unconstitutional Statutes and Qualified Immunity

This past June the Second Circuit squarely addressed for the first time the impact of an unrepealed, unconstitutional statute on the personal liability of government officials sued for violations of constitutional rights. Amore v. Nvarro arose out of the October 2001 arrest of plaintiff Joseph Amore in a public park in Ithaca, New York after he had proposed a consensual sexual act with the defendant Andrew Novarro. Novarro turned out to be a police officer, and he charged Amore with loitering for the purpose of a deviant sexual act in violation of penal law section 240.35(3).

Nearly 20 years before the arrest, the New York Court of Appeals had declared section 240.35(3) to be unconstitutional. The New York State Legislature, however, had not subsequently repealed the law, and the police officer was unaware of the Court of Appeals’s ruling. Moreover, as the Second Circuit explained, he had reason to believe the section remained in effect:

Novarro testified, and it is not disputed in the briefing of this appeal, that the New York police academy he had attended issues a copy of the New York Penal Law to every officer, and that most officers carry a copy of it with them on duty. . . . The Ithaca Police Department furnishes each of its officers with yearly updates consisting of a stack of substitute pages reflecting new laws that have been enacted during the previous year, or deleting laws that are no longer in effect. When the officers receive these yearly updates, they are “supposed to remove” those pages that have become outdated and insert into the booklet, in their stead, the substitute pages reflecting the current law. The booklet is unannotated, i.e., without interpretations, case law, or the like. When the backup officer arrived, he gave Novarro a copy of this version of the Penal Law, because Novarro had left his own copy in his office.

After consulting the booklet, Novarro issued Amore an appearance ticket [charging him with violating the section].

Once the criminal case was dismissed, Amore sued the officer and the City of Ithaca, relying on the Court of Appeals’s decision invalidating section 240.35(3). The District Court denied the officer’s qualified-immunity defense, and that issue went up to the Second Circuit on an interlocutory appeal.

The Second Circuit reversed. With respect to its qualified-immunity analysis, the court premised its analysis on the assertion — supported entirely by cases in which the underlying statute had not been declared unconstitutional — that “we generally extend qualified immunity to an officer for an arrest made pursuant to a statute that is ‘on the books’ so long as the arrest was based on probable cause and that the statute was violated.” Though it assumed an arrest under a statute authoritatively declared unconstitutional is ordinarily a constitutional violation and though the subjective state of mind of the officer is supposed to be irrelevant to qualified-immunity analysis, the court nonetheless held that it needed to determine whether it was “objectively reasonable for Novarro . . . to have believed that the statute in question remained fully in force.” And because the statute remained in official compilations and because the officer had relied on such a compilation, the court concluded he was entitled to immunity.

The court’s language and analysis threatened to create a broad categorical exception for constitutional violations entailing enforcement of statutes declared unconstitutional yet not repealed. In response, the plaintiff and public-interest organizations acting as amicus curiae requested that the entire Second Circuit take up the issue. Amici pointed out, for instance, that anti-miscegenation laws remained on the books in two southern states for more than 30 years after the United States Supreme Court declared such statutes unconstitutional in Loving v. Virginia and that under the court’s analysis officials might have been entirely immune for denying marriage licenses to inter-racial couples until the statutes’ official repeal just over 10 years ago.

On October 12 the full Court denied the request for en banc review, but the panel issued an amended opinion. Though it rejected the contention that qualified immunity should never be available for enforcement of unrepealed, unconstitutional statutes, the panel qualified its general analysis with the statement that “[w]e accept that it is the unusual case where a police officer’s enforcement of an unconstitutional statute will be immune.” Consistent with this, it essentially narrowed its ruling “to the particular facts of the case,” concluding that qualified immunity remained appropriate here because, under those facts, “the defendant acted deliberately and rationally in seeking to determine the then-valid, applicable and enforceable law.”

Unrepealed, Unconstitutional Statutes and Municipal Liability

One of the implications of broadening qualified immunity shielding individual officials from liability for constitutional violations is that the availability of liability against local governments becomes all the more important, as those entities become the sole source for judicial remedies. Indeed, in the Amore case amici highlighted the relative difficulty in establishing municipal liability as a reason for the court to revisit its qualified-immunity analysis. In the amended opinion issued two weeks ago, the panel stated that the difficulty of establishing municipal liability “has no bearing on our decision here.” Nevertheless, it added a new paragraph that commented favorably on the merits of the municipal-liability claim (which was not before it), stating that its qualified-immunity ruling “does not detract, of course, from Amore’s remaining failure-to-train claim against the City of Ithaca; indeed the facts upon which it is based may tend to support such a claim.”

Notwithstanding this nod to municipal liability, that path to relief is actually far more complicated than the Court acknowledged, as is evident from the Court’s 2008 decision in Vives v. City of New York, the first time the Second Circuit expressly considered arguments that municipalities could not be subject to judicial relief for enforcing state laws, including state laws that were indisputedly unconstitutional. Vives arose out of the arrest of a Manhattan man who, after mailing a set of religious materials to a candidate running for public office, was arrested and charged with violating a penal law provision that criminalized mailings intended to “annoy” or “alarm.” After the District Court declared the provision unconstitutional and after the Second Circuit ruled that the arresting officers were entitled to qualified immunity, the issue left in the case was whether New York City could be subject to damages and injunctive relief for its enforcement of the unconstitutional statute, with the city arguing that it could not be held liable for its enforcement of the statute because, it contended, when enforcement of state law is at issue the state that must be viewed as the actor behind the statute, not local agents actually doing the enforcement.

In a convoluted opinion that shed more light on the difficulty of the issue rather than on its resolution, the court essentially held that municipalities could not be held liable if they merely had a general policy of enforcing state law but could be held liable if they had a policy or practice of enforcing the specific state law at issue. Having halted enforcement of the statute, the city on remand settled the case in light of NYPD training materials that showed the city had trained officers to arrest for annoying or alarming mailings.

Looking Forward

The Second Circuit’s revision of its ruling in Amore narrows, at least for now, the threat that unrepealed, unconstitutional statutes pose to constitutional rights. Nonetheless, these laws remain a serious problem, both for civil rights plaintiffs and for government officials charged with enforcing the law. Happily, there is a ready solution: State legislatures must assume their constitutional responsibility and promptly repeal statutes that are declared unconstitutional.

Christopher Dunn is the associate legal director of the New York Civil Liberties Union.

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