CA10: Handcuffing and jailing an inebriated man as “incapacitated” violated the 4A and no QI

By John Wesley Hall
Law Offices of John Wesley Hall

Feb 5, 2017

Plaintiff showed up at a concert at the Xfinity Center in Boston inebriated, but not so drunk he didn’t know what he was doing. Security separated him from the incoming line into the hands of the defendant, an off-duty officer working security there. He decided to handcuff defendant and take him in as “incapacitated.” Despite “Janis-like” state cases on detentions like these, federal case law is clear: Defendant was not a danger to himself or others, and he could not be jailed just because he was suspected to be “incapacitated,” which he wasn’t. No probable cause so no qualified immunity. Alfano v. Lynch, 2017 U.S. App. LEXIS 1794 (1st Cir. Feb. 1, 2017):

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. See id. at 590-91, 594. The court found the analogy between inebriated persons and the mentally 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, 434 Mass. 615, 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, 79 Mass. App. Ct. 642, 948 N.E.2d 906, 913 (Mass. App. Ct. 2011) (suggesting that “reasonable suspicion” standard applies), with Commonwealth v. Thomas, 73 Mass. App. Ct. 1127, 902 N.E.2d 433, at *1 (Mass. App. Ct. 2009) (unpublished table opinion) (stating that “probable cause” standard applies) and Commonwealth v. Silva, 63 Mass. App. Ct. 1108, 824 N.E.2d 487, *2 n.3 (Mass. App. Ct. 2005) (unpublished table opinion) (same) and Commonwealth v. St. Hilaire, 43 Mass. App. Ct. 743, 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, 351 U.S. App. D.C. 386 (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 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.