Alfano v. Lynch

Filing

OPINION issued by William J. Kayatta , Jr., Appellate Judge; David H. Souter,* Associate Supreme Court Justice and Bruce M. Selya, Appellate Judge. Published. *Hon. David H. Souter, Associate Justice (Ret.) of the Supreme Court of the United States, sitting by designation. [16-1914].

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United States Court of Appeals
For the First Circuit
No. 16-1914
PETER ALFANO,
Plaintiff, Appellant,
v.
THOMAS LYNCH,
Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]

Before
Kayatta, Circuit Judge,
Souter, Associate Justice,*
and Selya, Circuit Judge.

David Milton, with whom Howard Friedman and Law Offices of
Howard Friedman, P.C. were on brief, for appellant.
Alexandra R. Hassell, with whom Douglas I. Louison and
Louison, Costello, Condon & Pfaff, LLP were on brief, for appellee.

February 1, 2017

_______________
* Hon. David H. Souter, Associate Justice (Ret.) of the Supreme
Court of the United States, sitting by designation.

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SELYA,

Circuit

Page: 2

Judge.

Date Filed: 02/01/2017

The

doctrine

of

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qualified

immunity shields from liability public officials, including police
officers,

whose

conduct

does

not

violate

clearly

federal statutory or constitutional rights.
not impenetrable, shield.

established

It is a strong, but

After careful consideration of the

record in this case, viewed in the light most favorable to the
plaintiff, we conclude that qualified immunity is not available:
given the state of the preexisting law, the unconstitutionality of
a police officer's actions in taking a person into protective
custody, handcuffing that person, transporting him to a police
station, and jailing him without probable cause to believe that he
is incapacitated should have been apparent.

Consequently, we

vacate the district court's entry of summary judgment in the
defendant's favor and remand the case for further proceedings
consistent with this opinion.
I.

BACKGROUND
Inasmuch as the court below resolved this case at the

summary judgment stage, we rehearse the facts in the light most
favorable to the nonmovant (here, the plaintiff), consistent with
record support.

See DePoutot v. Raffaelly, 424 F.3d 112, 114 (1st

Cir. 2005).
On the morning of July 11, 2014, plaintiff-appellant
Peter Alfano and two friends set out to attend a concert at the
Xfinity Center in Mansfield, Massachusetts.

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They travelled to

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Mansfield

on

a

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chartered

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bus

that

provided

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round-trip

transportation from downtown Boston to the concert venue.

The

threesome consumed beers both on the bus and at a tailgate party
upon their arrival.

All told, Alfano (by his own admission) drank

between six and eight beers over a span of some four to six hours.
When it came time for the concert to begin, Alfano and
his friends made their way to a security checkpoint at the entrance
of the amphitheater. Alfano was feeling the effects of the alcohol
that he had consumed, but he did not feel out of control.

As he

reached the checkpoint, two security guards asked him to step out
of the line and escorted him to a separate holding area on the
Xfinity

Center

property.

There,

Alfano

was

turned

over

to

defendant-appellee Thomas Lynch, a lieutenant from a neighboring
town's police department, who was working a security detail at the
Xfinity Center.

According to Lynch, the security guards told him

that they thought that Alfano might be incapacitated and, thus,
took him aside for further scrutiny.
Massachusetts

law

permits

police

officers

"incapacitated" persons into civil protective custody.

to

take

Mass. Gen.

Laws ch. 111B, § 8; see id. § 3 (specifying, as pertinent here,
that an "[i]ncapacitated" person is one who is both intoxicated
and, "by reason of the consumption of intoxicating liquor is
. . . likely to suffer or cause physical harm or damage property").
To evaluate whether Alfano was in fact incapacitated, Lynch —

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acting under color of state law — asked Alfano to perform a series
of field sobriety tests.
on these tests.
breathalyzer

The parties dispute how Alfano performed

They agree, however, that he refused to take a

test.

Following

that

refusal,

Lynch

handcuffed

Alfano and placed him in protective custody.
At first, Alfano was shackled to a bench.

He was later

transported to the Mansfield police station (some miles away) and
confined in a holding cell.
released.

Roughly five hours later, he was

By that time, the concert was over.
The matter did not end there.

sued in the federal district court.1

In July of 2015, Alfano

His complaint alleged, in

substance, that Lynch lacked probable cause to take him into
protective custody and, accordingly, abridged his Fourth Amendment
right against unreasonable seizures.

After a course of pretrial

discovery, Lynch moved for summary judgment on qualified immunity
grounds.

Over Alfano's opposition, the district court granted

Lynch's motion.

See Alfano v. Lynch, No. 15-12943, 2016 WL

2993615, at *3 (D. Mass. May 23, 2016).

The court held that the

law was not clearly established as to the need for probable cause.
See id.

This timely appeal ensued.

1

Alfano brought suit pursuant to 42 U.S.C. § 1983, which
furnishes a cause of action against any person who, while acting
under
color
of
state
law,
transgresses
someone
else's
constitutional rights. See Kalina v. Fletcher, 522 U.S. 118, 123
(1997).
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II.

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ANALYSIS
We review the district court's entry of summary judgment

de novo.

See DePoutot, 424 F.3d at 117.

Summary judgment is

appropriate only when the record reflects no genuine issue as to
any material fact and discloses that the moving party is entitled
to judgment as a matter of law.

See Fed. R. Civ. P. 56(a);

Schiffmann v. United States, 811 F.3d 519, 524 (1st Cir. 2016).
"[Q]ualified immunity shields government officials 'from
liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights of
which a reasonable person would have known.'"

Matalon v. Hynnes,

806 F.3d 627, 632-33 (1st Cir. 2015) (quoting Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982)).

The doctrine's prophylactic sweep is

broad: it leaves unprotected only those officials who, "from an
objective standpoint, should have known that their conduct was
unlawful."

MacDonald v. Town of Eastham, 745 F.3d 8, 11 (1st Cir.

2014) (quoting Haley v. City of Bos., 657 F.3d 39, 47 (1st Cir.
2011)).

Put another way, the doctrine protects "all but the

plainly incompetent or those who knowingly violate the law."
Malley v. Briggs, 475 U.S. 335, 341 (1986).
The
pavane.

qualified

immunity

analysis

entails

a

two-step

See Matalon, 806 F.3d at 633 (citing Pearson v. Callahan,

555 U.S. 223, 232 (2009)).

The first step requires an inquiring

court to determine whether the plaintiff's version of the facts

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makes out a violation of a protected right.

See id.

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The second

step requires the court to determine "whether the right at issue
was 'clearly established' at the time of defendant's alleged
misconduct."

Id. (citation omitted).

These steps, though framed sequentially, need not be
taken in order.

See Pearson, 555 U.S. at 236.

A court "may alter

the choreography in the interests of efficiency," defer the first
step, and proceed directly to the second step.
at 633.

Matalon, 806 F.3d

Because that path seems the most efficacious here, we

focus initially on the second step, that is, whether the right at
issue was clearly established when Lynch confronted Alfano.
The "clearly established" analysis has two sub-parts.
See MacDonald, 745 F.3d at 12.

The first sub-part requires the

plaintiff

"controlling

to

identify

either

authority"

or

a

"consensus of cases of persuasive authority" sufficient to send a
clear signal to a reasonable official that certain conduct falls
short of the constitutional norm.

Wilson v. Layne, 526 U.S. 603,

617 (1999); see Limone v. Condon, 372 F.3d 39, 45 (1st Cir. 2004)
(asking "whether the state of the law at the time of the putative
violation afforded the defendant fair warning that his or her
conduct was unconstitutional").

The second sub-part asks whether

an objectively reasonable official in the defendant's position
would have known that his conduct violated that rule of law.

See

Wilson v. City of Bos., 421 F.3d 45, 57-58 (1st Cir. 2005).

The

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question

is

plaintiff's

not

whether

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the

constitutional

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official

rights

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actually

but,

abridged

the

rather,

whether

the

official's conduct was unreasonable, given the state of the law
when he acted.

See Amsden v. Moran, 904 F.2d 748, 751-52 (1st

Cir. 1990).
The first sub-part of this analysis "must be undertaken
in light of the specific context of the case, not as a broad
general proposition." Brosseau v. Haugen, 543 U.S. 194, 198 (2004)
(per curiam) (citation omitted).
established

law

must

not

be

In other words, the clearly

gauged

at

too

high

a

level

of

generality; instead, it must be "particularized" to the facts of
the case.

Anderson v. Creighton, 483 U.S. 635, 640 (1987).

so, there is no requirement of identicality.

Even

In arguing for

clearly established law, a plaintiff is not required to identify
cases

that

address

the

characterizes his case.

"particular

factual

scenario"

Matalon, 806 F.3d at 633.

that

"[G]eneral

statements of the law are not inherently incapable of giving fair
and clear warning" to public officials, United States v. Lanier,
520 U.S. 259, 271 (1997); rather, the existence of fair and clear
warning depends on whether, "in the light of pre-existing law" the
unconstitutionality

of

the

Anderson, 483 U.S. at 640.

challenged

conduct

is

"apparent,"

In the last analysis, it is enough if

the existing precedents establish the applicable legal rule with
sufficient clarity and specificity to put the official on notice

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that his contemplated course of conduct will violate that rule.
See Matalon, 806 F.3d at 633 (citing Hope v. Pelzer, 536 U.S. 730,
741 (2002)).
In applying the test for clearly established law, the
focus must be on federal precedents.
U.S. 183, 193-95 (1984).

See Davis v. Scherer, 468

Courts may consider state precedents,

though, to the extent that they analyze the relevant federal issue.
See Wilson, 421 F.3d at 56-57; Starlight Sugar, Inc. v. Soto, 253
F.3d 137, 143-44 (1st Cir. 2001).
Here, the initial question reduces to whether — as of
the parties' encounter in July of 2014 — controlling and persuasive
precedent provided fair and clear notice that the Fourth Amendment
requires probable cause before a police officer, acting under a
state protective custody statute, can take an individual into
protective custody, handcuff the individual, transport him to a
police station, and confine him in a jail cell.

See Layne, 526

U.S. at 617; Limone, 372 F.3d at 45. We turn next to that question.
It is hornbook law that the Fourth Amendment requires
probable cause to place an individual under arrest.
Florida, 470 U.S. 811, 816 (1985).

See Hayes v.

The proper approach, though,

is a functional one: for decades, controlling precedent has made
pellucid that the probable cause requirement extends to certain
types

of

attributes

custody
that

that,
are

though

short

characteristic

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of

of
an

an

arrest,

arrest.

possess
See

id.

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(explaining that police must have probable cause to effect seizures
that are "sufficiently like arrests"); Dunaway v. New York, 442
U.S. 200, 212-13, 216 (1979) (holding that probable cause was
required where petitioner's detention, though not styled as an
arrest,

"was

in

important

traditional arrest").

respects

indistinguishable

from

a

Following this logic, the Court — in the

absence of express judicial authorization — has insisted upon
probable cause when, for example, officers eschew an arrest but
detain an individual and transport him to a police station against
his will.

See Kaupp v. Texas, 538 U.S. 626, 630-31 (2003) (per

curiam); Hayes, 470 U.S. at 816.

In a similar vein, this court

has

when

required

probable

cause

a

detention

included

"characteristics ordinarily associated with an arrest," such as
being placed in handcuffs and "involuntarily transported . . . to
an official holding area some distance from the place of the
original stop."

United States v. Acosta-Colon, 157 F.3d 9, 15

(1st Cir. 1998).
Of particular pertinence for present purposes, we have
left no doubt that the Fourth Amendment requires officers acting
under a civil protection statute to have probable cause before
taking an individual into custody of a kind that resembles an
arrest.
curiam),

In Ahern v. O'Donnell, 109 F.3d 809 (1st Cir. 1997) (per
we

considered

the

Fourth

Amendment

implications

of

actions taken under a Massachusetts civil protection statute that

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allows a police officer to restrain and seek hospitalization of an
individual when he has reason to believe that the failure to do so
"would create a likelihood of serious harm by reason of mental
illness."

Id. at 816 (quoting Mass. Gen. Laws ch. 123, § 12(a)).

Observing that "involuntary hospitalization is no less a loss of
liberty than an arrest," we held that the Fourth Amendment's
safeguards against unreasonable seizures extended to protective
custody on mental health grounds.

Id. at 817.

Our holding in Ahern is not an outlier but, rather,
reflects clearly established law.

It comports with substantially

identical holdings in other circuits.

See, e.g., Cantrell v. City

of Murphy, 666 F.3d 911, 923 & n.8 (5th Cir. 2012); Roberts v.
Spielman, 643 F.3d 899, 905 (11th Cir. 2011); Bailey v. Kennedy,
349 F.3d 731, 739 (4th Cir. 2003); Monday v. Ouellette, 118 F.3d
1099, 1102 (6th Cir. 1997); Pino v. Higgs, 75 F.3d 1461, 1467-68
(10th Cir. 1996); Sherman v. Four Cty. Counseling Ctr., 987 F.2d
397, 401 (7th Cir. 1993); Glass v. Mayas, 984 F.2d 55, 58 (2d Cir.
1993); Maag v. Wessler, 960 F.2d 773, 775-76 (9th Cir. 1991) (per
curiam).2

2

Our decision in Veiga v. McGee, 26 F.3d 1206, 1214 (1st Cir.
1994), is not at odds with this line of cases.
Although that
decision did assess whether officer defendants acted reasonably
under Mass. Gen. Laws ch. 111B, §§ 3, 8, it did not assess the
level of suspicion required to take an individual into custody
thereunder.
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To be sure, the scenario presented in Ahern is not
entirely congruent with the scenario faced by Lynch.
however,

the

parallels

are

close

enough

to

have

In our view,
afforded

a

reasonable officer in Lynch's position fair and clear warning that
his conduct was unconstitutional.

See Hope, 536 U.S. at 741

(explaining

the

that,

in

determining

existence

of

clearly

established law, cases with identical facts are not required);
Limone, 372 F.3d at 48 (similar).

In other words, given the

controlling and persuasive precedents and the notice that those
precedents provided, the unlawfulness of Lynch's actions should
have been apparent to him.
first

sub-part

of

the

No more was exigible to satisfy the

"clearly

established"

analysis.

See

Anderson, 483 U.S. at 640.
The Tenth Circuit reached the same conclusion in Anaya
v. Crossroads Managed Care Systems, Inc., 195 F.3d 584 (10th Cir.
1999).

There, the court — relying on much the same consensus of

cases assembled in Ahern — held that it was clearly established
that the Fourth Amendment required probable cause to take an
allegedly incapacitated individual into protective custody under
a municipal civil protection policy.3

See id. at 590-91, 594.

The

court found the analogy between inebriated persons and the mentally

3

The municipal policy at issue in Anaya was substantially
similar to the Massachusetts statute under which Lynch was acting.
Compare Anaya, 195 F.3d at 589 (quoting Trinidad, Colo. Police
Dept. Order 95-04) with Mass. Gen. Laws ch. 111B, §§ 3, 8.
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ill compelling: it observed that "the context of protecting the
public from the mentally ill is directly analogous to that of
protecting the public from the intoxicated."

Id. at 594-95.

Anaya,

probable

then,

buttresses

the

view

that

the

cause

requirement for effecting seizures of incapacitated persons was
clearly established at the time Alfano and Lynch crossed paths.
Because no Massachusetts reported cases analyze whether
and to what extent the Fourth Amendment requires probable cause to
take an individual into protective custody under the relevant
statute, we could end our analysis here.

See Scherer, 468 U.S. at

193-95; Starlight Sugar, 253 F.3d at 143-44.

We think it useful

to note, however, that a decision of the state's highest court,
the

Massachusetts

result

to

which

Supreme
the

Judicial

federal

cases

Court

(SJC),

unambiguously

confirms
point.

the
In

Commonwealth v. O'Brien, 750 N.E.2d 1000 (Mass. 2001), the SJC
stated (apparently as a matter of state law) that "[t]o take
someone into protective custody, officers need . . . probable cause
to believe that the person is 'incapacitated' within the meaning
of [the protective custody statute]."

Id. at 1007.

To be sure, other Massachusetts courts have been more
recondite.

The Massachusetts Appeals Court, for example, has

authored Janus-like decisions that appear to face in conflicting
directions.

Compare Commonwealth v. Nickerson, 948 N.E.2d 906,

913 (Mass. App. Ct. 2011) (suggesting that "reasonable suspicion"

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standard applies), with Commonwealth v. Thomas, 902 N.E.2d 433, at
*1 (Mass. App. Ct. 2009) (unpublished table opinion) (stating that
"probable cause" standard applies) and Commonwealth v. Silva, 824
N.E.2d 487, at *2 n.3 (Mass. App. Ct. 2005) (unpublished table
opinion) (same) and Commonwealth v. St. Hilaire, 686 N.E.2d 1045,
1048 (Mass. App. Ct. 1997) (interpreting state precedent to mean
that probable cause "is ordinarily the standard to be applied in
protective custody cases").

We regard these decisions as being of

little consequence because none of them purports to analyze the
question in Fourth Amendment terms and because the SJC (which has
been crystal clear on the issue) is the ultimate arbiter of
Massachusetts law.
to

precedents

from

Federal courts of appeals typically look only
the

United

States

Supreme

Court,

federal

appellate courts, and the highest court of the state in which a
case

arises

established.

to

gauge

whether

a

particular

right

is

clearly

See, e.g., Hill v. Crum, 727 F.3d 312, 322 (4th Cir.

2013); Lederman v. United States, 291 F.3d 36, 47-48 (D.C. Cir.
2002); Neague v. Cynkar, 258 F.3d 504, 507 (6th Cir. 2001); Jenkins
ex rel. Hall v. Talladega City Bd. of Educ., 115 F.3d 821, 826 n.4
(11th Cir. 1997) (en banc).
To say more about the clearly established nature of the
law would be to paint the lily.

We hold that, in July of 2014,

controlling and persuasive authority combined to give a reasonable
officer fair and clear warning that the Fourth Amendment required

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probable cause to take an individual into protective custody,
handcuff him, transport him to a police station miles away, and
confine him in a jail cell.4
This holding does not end our odyssey.

Concluding, as

we do, that the probable cause requirement is clearly established,
what remains to be done "reduces to the test of objective legal
reasonableness."
1998).

Our

Camilo-Robles v. Hoyos, 151 F.3d 1, 6 (1st Cir.

resolution

of

this

point

turns

on

whether

an

objectively reasonable officer would have believed he had probable
cause to take Alfano into protective custody within the meaning of
the relevant protective custody statute.
we

must

consider

whether

Lynch's

To make this judgment,

decision

to

deem

Alfano

incapacitated, take him into protective custody, handcuff him,
transport him to the police station, and confine him in a jail
cell was the kind of decision (whether or not correct) that a
reasonable officer standing in Lynch's shoes would have reached.
See id. at 7.

4

It is critical to our holding that Alfano was subjected to
a deprivation of liberty that resembled an arrest. We take no view
as to whether something less than probable cause might justify a
briefer, less intrusive detention under the Massachusetts
protective custody statute. See Commonwealth v. McCaffery, 732
N.E.2d 911, 914 (Mass. App. Ct. 2000); cf. Terry v. Ohio, 392 U.S.
1, 30-31 (1968) (requiring only reasonable suspicion for a brief
investigatory stop).

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For probable cause to have existed, the facts known to
Lynch would have had to "give rise to a reasonable likelihood,"
Cox v. Hainey, 391 F.3d 25, 31 (1st Cir. 2004), that Alfano was
both intoxicated and incapacitated (that is, apt to harm himself,
to harm someone else, or to damage property),5 see Mass. Gen. Laws
ch. 111B, § 3.

This is a fact-specific determination: a qualified

immunity defense cannot prevail unless the officer's conduct can
be justified in light of the facts.

See Morelli v. Webster, 552

F.3d 12, 24 (1st Cir. 2009).
Given that the district court resolved the qualified
immunity question at summary judgment, we must take as true (for
purposes

of

our

probable

version of the facts.

cause

inquiry)

See id. at 24-25.

Alfano's

supportable

By "supportable," we

mean that we give credence only to facts that derive support from
affidavits or other materials of evidentiary quality contained in
the summary judgment record.

See Garside v. Osco Drug, Inc., 895

F.2d 46, 49-50 (1st Cir. 1990).
On Alfano's supportable version of the facts, Lynch took
him into protective custody after Alfano was denied admission to

5

For the sake of completeness, we note that the Massachusetts
protective custody statute limns a trio of other grounds for
finding a person incapacitated.
See Mass. Gen. Laws ch. 111B,
§ 3 (specifying that an intoxicated person may also be
incapacitated if he is unconscious, in need of medical attention,
or disorderly).
Lynch does not claim that any of these other
grounds has relevance here.
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the concert and brought to Lynch, who administered three field
sobriety tests and unsuccessfully requested that Alfano agree to
a breathalyzer test.

Alfano admits that he failed the first field

sobriety test (the one-leg stand) but maintains that he passed the
second and third tests (which involve, respectively, reciting the
alphabet and carrying out a horizontal gaze nystagmus exercise).
In his view, these test results revealed only what Lynch already
knew: that Alfano had been drinking and was under the influence of
alcohol.
Alfano explains that he refused a breathalyzer test
because he had already arranged bus transportation back to Boston
and would not be operating a motor vehicle.

He adds that Lynch —

who had been told that Alfano was travelling by bus — had no reason
to think that he was planning to drive.
Alfano insists that he was walking normally, steady on
his feet (not stumbling, swaying, or lurching), and speaking
clearly and in conversational tones.

He asserts that he responded

to Lynch's questions in an alert and coherent manner; that he was
generally

cooperative

and

well-mannered

throughout

his

interactions with Lynch and other security personnel; and that he
was in no visible distress.

The record, viewed favorably to

Alfano, contains no facts indicating that Alfano was likely to
harm himself, injure another person, or damage property.

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The short of it is that Lynch may well have had probable
cause to believe that Alfano was intoxicated.

Here, however,

Lynch's reasons for placing Alfano into protective custody did not
extend beyond probable cause to think that Alfano was intoxicated,
and intoxication alone is not sufficient to warrant a finding of
incapacitation.
1994).

See Veiga v. McGee, 26 F.3d 1206, 1210 (1st Cir.

The summary judgment record, construed in the light most

favorable to Alfano, simply does not support a conclusion that
Lynch

had

adequate

reason

to

believe

that

Alfano,

though

intoxicated, was likely to harm himself or anyone else or to damage
property.

See, e.g., Nickerson, 948 N.E.2d at 913 (finding no

incapacitation

when

defendant

appeared

intoxicated

but

was

otherwise able to "converse coherently" and "relate appropriately"
with police).
That

ends

this

aspect

of

the

matter.

We

readily

acknowledge that Lynch's version of the facts differs in many
respects from Alfano's account.

Those factual disputes, however,

must await resolution at a trial; at the summary judgment stage,
it is Alfano's version that controls.
24-25.

See Morelli, 552 F.3d at

On that version, a rational jury would have no choice but

to find that Lynch's determination of incapacitation was made
without probable cause and was objectively unreasonable.
follows

that

—

contrary

to

the

district

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court's

view

—

It
the

Case: 16-1914

Document: 00117112905

Page: 18

Date Filed: 02/01/2017

qualified immunity defense was not available to Lynch.

Entry ID: 6066590

See id. at

25.
III.

CONCLUSION
We need go no further. For the reasons elucidated above,

we vacate the entry of summary judgment and remand for further
proceedings consistent with this opinion.
Alfano's favor.

So ordered.

- 18 -

Costs shall be taxed in