United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON DEFENDANT’S MOTION FOR
RICHARD G. STEARNS UNITED STATES DISTRICT JUDGE
11, 2014, plaintiff Peter Alfano was taken into protective
custody by Thomas Lynch, a Town of Franklin police
lieutenant. At the time, Lt. Lynch was working a private
security detail at the Xfinity Center, a concert venue in
Mansfield, Massachusetts. Alfano claims that Lynch detained
him without probable cause in violation of his Fourth
Amendment right to be free from unlawful seizure by State
officials. Alfano seeks damages pursuant to the
Federal Civil Rights Act, 42 U.S.C. § 1983. Before the
court is Lynch’s motion for summary judgment, or in the
alternative, for an award of qualified immunity.
material undisputed facts, taken in the light most favorable
to Alfano as the nonmoving party, are as follows. On July 11,
2014, Alfano and two friends, Jordan Pekor and Jonathan
Pekor, set out to the Xfinity Center to attend a country
music concert. The event drew some 20, 000 fans, many of whom
(like Alfano and his friends) were drinking, some heavily. In
anticipation of a boisterous crowd, concert organizers had
hired a contingent of off-duty police officers and private
security guards to maintain order. The police detail was
commanded by Mansfield Police Chief Ronald Sellon. Over the
course of the evening, officers arrested twelve individuals
and took another fifty-one persons, among them Alfano, into
protective custody. One officer was seriously injured while
making an arrest.
Lynch was initially assigned to patrol the entrance to the
Xfinity Center. Because of the number of persons detained for
public intoxication, he was sent to assist officers guarding
the holding area at the rear of the Center. Alfano and the
Pekors arrived at the Center on a charter bus from
Boston’s South Station. During the bus ride, Alfano and
the Pekors drank beer. They continued to drink in the parking
lot of the Xfinity Center while waiting for the concert to
begin. Alfano testified that he consumed between six and nine
alcoholic drinks during the day. Dep. of Peter Alfano, Dkt. #
18-1 at 5-9.
Alfano attempted to enter the Center with the Pekors to take
his seat, he was denied entry at the security checkpoint. Two
private security guards escorted him instead to the holding
area. There Lt. Lynch spoke with Alfano for ten
to fifteen minutes. Alfano appeared to be steady on his feet,
and answered Lynch’s questions in a normal voice.
Alfano acknowledged to Lynch that he had been drinking. Lynch
administered three field sobriety tests. Alfano failed the
one-leg stand. Lynch asked Alfano to take a Breathalyzer
test. Alfano refused. Lynch then placed Alfano into
protective custody. See Mass. Gen. Laws ch. 111B.
Alfano was eventually transferred to a holding cell at the
Mansfield police station. He was released later that night
into the custody of the Pekors.
filed this Complaint in the District of Massachusetts on July
13, 2015. The sole count of Alfano’s Complaint alleges
a violation of his Fourth Amendment right against
unreasonable seizure. Discovery concluded on March 25, 2016.
On April 22, 2016, Lynch moved for summary judgment claiming,
inter alia, a defense of qualified immunity.
judgment is appropriate where “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a). The
moving party bears the burden of showing the absence of a
genuine issue as to any material fact. Adickes v. S. H.
Kress & Co., 398 U.S. 144, 157 (1970).
Protective Custody Statute (PCS), Mass. Gen. Laws ch. 111B,
permits officers to take into custody persons who, “by
reason of the consumption of intoxicating liquor, ” are
“(1) unconscious, (2) in need of medical attention, (3)
likely to suffer or cause physical harm or damage property,
or (4) disorderly.” Id., § 3. See
Commonwealth v. St. Hilaire, 43 Mass.App.Ct. 743, 747
(1997) (“[D]efendant’s intoxication, his need of
medical attention, and the danger he presented to himself [by
his belligerent behavior] place [him] squarely within the
definition of an ‘incapacitated person’”).
By statutory declaration, the seizure of an
“incapacitated” person is not an arrest, although
it does amount to a seizure for Fourth Amendment purposes.
See Commonwealth v. O’Connor, 406 Mass. 112,
120 n.7 (1989).
single-count Complaint is framed on the proposition that,
under the PCS, police must have probable cause to believe
that a person is incapacitated before initiating custody.
Compl. ¶¶ 11, 25; Pl.’s Mem. - Dkt. # 19 at
6. Because this is an undecided issue under Massachusetts
law, the Complaint will be dismissed on grounds of qualified
qualified immunity inquiry . . . allows . . . for the
inevitable reality that ‘law enforcement officials
will in some cases reasonably but mistakenly conclude
that [their conduct] is [constitutional], and . . . that . .
. those officials - like other officials who act in
ways they reasonably believe to be lawful - should not be
held personally liable.’” Hegarty v.
Somerset Cty., 53 F.3d 1367, 1373 (1st Cir. 1995),
quoting Anderson v. Creighton, 483 U.S. 635, 641
(1987) (emphasis in original). “The qualified immunity
standard ‘gives ample room for mistaken
judgments’ by protecting ‘all but the plainly
incompetent or those who knowingly violate the
law.’” Rivera v. Murphy, 979 F.2d 259,
263 (1st Cir. 1992), quoting Hunter v. Bryant, 502
U.S. 224, 229 (1991) (per curiam).
overcome a defense of qualified immunity, the right alleged
to have been violated must have been “clearly
established” at the time of the alleged violation.
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). To
be clearly established, “[t]he right in question . . .
cannot be simply a generalized right, like the right to due
process. . . . It must be clearly established in a
‘particularized’ sense, so that ‘the
contours of the right’ are clear enough for any
reasonable official in the defendant’s position to know
that what the official is doing violates that right.”
Danese v. Asman, 875 F.2d 1239, 1242 (6th Cir.
1989), quoting Anderson, 483 U.S. at 640. As a rule,
a right becomes “clearly established” when it is
enunciated by a court of controlling authority in the
defendant’s jurisdiction in a case sufficiently similar
in its facts “that a reasonable officer could not have
believed that his actions were lawful.” Wilson v.
Layne, 526 U.S. 603, 617 (1999). While there are
instances in which a court might benefit both the police and
the general public by “[d]eciding the constitutional
question before addressing the qualified immunity question,
” id. at 609, there are also cases “in
which a court will rather quickly and easily decide that
there was no violation of clearly established law before
turning to the more difficult question whether the relevant
facts make out a constitutional question at all.”
Pearson v. Callahan, 555 U.S. 223, 239 (2009). This
is one of those cases.
Supreme Judicial Court has yet to make a definitive
determination whether police require probable cause to
“seize” an incapacitated person under the PCS, or
may act on the more lenient standard of reasonable belief.
See O’Connor, 406 Mass. at 120 n.6 (1989)
(“We need not decide whether any lesser standard would
be acceptable under Mass. Gen. Laws ch. 111B, § 8, than
probable cause to believe a person is incapacitated. . . . In
Commonwealth v. Tomeo, 400 Mass. 23 (1987), where
the defendant did not challenge the validity of G.L. c. 111B,
§ 8, we discussed the statute in terms of the
officer’s reasonable belief that the defendant was a
risk to his own safety and the safety of others (id.
at 24) and an officer’s reasonable belief that his
safety required that he search an incapacitated person
(id. at 25.”)). See also Ringuette v. City
of Fall River, 888 F.Supp. 258, 265 (D. Mass. 1995)
(Saris, J.) (“[E]ven if the standard were the higher
one of probable cause, as suggested by
O’Connor, the police seizure would pass
muster.”). While it is true that in Commonwealth v.
O’Brien, 434 Mass. 615, 622 (2001) (cited by
Alfano), the ...