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 Judge. The doctrine of qualified 

immunity shields from liability public officials, including police 

officers, whose conduct does not violate clearly established 

federal statutory or constitutional rights. It is a strong, but 

not impenetrable, shield. 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. They travelled to 
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Mansfield on a chartered bus that provided 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 to take 

"incapacitated" persons into civil protective custody. 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. The parties dispute how Alfano performed 

on these tests. They agree, however, that he refused to take a 

breathalyzer 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. Roughly five hours later, he was 

released. By that time, the concert was over. 

The matter did not end there. In July of 2015, Alfano 

sued in the federal district court.1 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. 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 qualified immunity analysis entails a two-step 

pavane. 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. 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. Matalon, 806 F.3d 

at 633. 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 to identify either "controlling 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 not whether the official actually abridged the 

plaintiff's constitutional rights but, 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). In other words, the clearly 

established law must not be 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). Even 

so, there is no requirement of identicality. In arguing for 

clearly established law, a plaintiff is not required to identify 

cases that address the "particular factual scenario" that 

characterizes his case. Matalon, 806 F.3d at 633. "[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 challenged conduct is "apparent," 

Anderson, 483 U.S. at 640. 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. See Davis v. Scherer, 468 

U.S. 183, 193-95 (1984). 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. See Hayes v. 

Florida, 470 U.S. 811, 816 (1985). 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 custody that, though short of an arrest, possess 

attributes that are characteristic of an arrest. 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 respects indistinguishable from a 

traditional arrest"). 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 required probable cause when 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. In Ahern v. O'Donnell, 109 F.3d 809 (1st Cir. 1997) (per 

curiam), 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. In our view, 

however, the parallels are close enough to have 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 that, in determining the 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. No more was exigible to satisfy the 

first sub-part of 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, then, buttresses the view that the probable 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 Supreme Judicial Court (SJC), confirms the 

result to which the federal cases unambiguously point. 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. Federal courts of appeals typically look only 

to precedents from the United States Supreme Court, federal 

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

case arises to gauge whether a particular right is clearly 

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

1998). Our 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. To make this judgment, 

we must consider whether Lynch's 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 cause inquiry) Alfano's supportable 

version of the facts. See id. at 24-25. 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. See Veiga v. McGee, 26 F.3d 1206, 1210 (1st Cir. 

1994). 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. See Morelli, 552 F.3d at 

24-25. 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. It 

follows that — contrary to the district court's view — the 
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qualified immunity defense was not available to Lynch. 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. Costs shall be taxed in 

Alfano's favor. 

So ordered.