A gay male who flirted with an undercover police officer in an adult video store was arrested for prostitution after the undercover officer said they could engage in oral sex for money. The plaintiff agreed with this arrangement, kind of, but then he quietly decided against it as they walked out of the store together. The charge against plaintiff was dropped. He sued for false arrest. The district court said the case can go to trial, but the Court of Appeals reverses and says the officer has qualified immunity.
The case is Pinter v. City of New York, a summary order decided on November 18. The Second Circuit goes into detail about how these guys flirted with each other in the store, and in determining whether plaintiff has a false arrest claim, it analyzes the alleged agreement for oral sex with the precision of a business transaction. It seems that plaintiff was looking over some adult videos when the undercover cop smiled at him. They began talking and plaintiff mentioned that he liked oral sex. Undercover said his car was nearby. They left the store together and that's when undercover said he'd pay Pinter money for oral sex. Pinter by this point silently decides he wants nothing to do with the undercover cop but by coincidence they head in the same direction: Pinter to his apartment and undercover to his car.
Funny thing about false arrest. The police can get it wrong and you still can't sue. Even if the police miscalculated, if they did so in good faith and had reason to believe that a crime was underway, they cannot be sued under qualified immunity. Criminal charges were dropped against Pinter, but the Court of Appeals (Cabranes, Winter and McLaughlin) says the district court should have dismissed the false arrest and malicious prosecution claims.
Like I said, the Court of Appeals looks at the oral sex for money deal like a Wall Street transaction. That's because the district court said that Pinter may have a claim because he and the undercover began talking about sex before the undercover offered to pay Pinter. Here's part of the analysis (the undercover cop is referred to as UC31107):
We do not think the apparent existence of an “agreement for sex gratis” prior to UC 31107’s
offer of monetary compensation has nearly the impact that the District Court suggests. First, prior to UC 31107’s offer, neither party had yet explicitly stated an interest in engaging in sexual activity with the other. Second, and of more significance, when UC 31107 offered Pinter the cash, both Pinter and the undercover officer had already expressed to each other a specific desire to perform oral sex. Following UC 31107’s monetary offer and Pinter’s seeming compliance, UC 31107 could have reasonably believed that Pinter had agreed to be compensated in exchange for allowing UC 31107 to act on his desire to perform oral sex on Pinter.
Other evidence also supports qualified immunity for the officer. Read this closely. It tells us that false arrest claims are hard to pursue and that qualified immunity provides police officers with a generous standard in seeking summary judgment. The Court also makes an assumption about gay men and why they enter adult video stores.
it was not plainly irrational or incompetent for UC 31107 to assume that Pinter visited the adult section of Blue Door in search of sexual gratification of one kind or another. Second, Pinter left the store with UC 31107 and without having purchased any adult videos. Third, as they left the store, Pinter accompanied UC 31107 on a walk towards UC 31107’s car—the place where the sex act was to occur. At this point UC 31107 had no way of knowing that Pinter had privately decided not to pursue any sexual activity with UC 31107, and that he was merely headed in the same direction as UC 31107. Nothing in Pinter’s behavior or conversation could reasonably lead UC 31107 to conclude, in the circumstances presented, that Pinter was not interested in receiving money for sexual activity. Finally, on their brief walk together following the mention of money for sex, the pair continued to flirt with one another—even if at UC 31107’s instigation—and struck up an intimate sexual conversation. Putting all of these facts together, we do not think that it was unreasonable or incompetent for UC 31107 to have assumed that Pinter intended to engage in oral sex with him in return for financial compensation.