Guy who may have been drunk before an Xfinity Center concert will get to sue cop who threw him into a lockup for several hours

A federal appeals court today ordered a trial on a lawsuit by a man who wasn't just barred from a country-music concert at Xfinity Center but put into protective custody at the local police station for several hours.

A federal judge had dismissed Peter Alfano's suit against Franklin Lt. Thomas Lynch, arguing that Lynch was protected by "qualified immunity" because he was acting as an agent of the government and acting reasonably when he ordered Alfano locked up after failing one of three field-sobriety tests and refusing to take a breath test.

But in an opinion released today, the US Court of Appeals for the First Circuit in Boston said Alfano raised good enough constitutional questions to warrant a trial to determine whether Franklin Lt. Thomas Lynch violated Alfano's Fourth Amendment right against "unreasonable seizure."

Alfano and a couple of friends took a bus from Boston to Mansfield on July 11, 2014 for a Jason Aldean concert.

Alfano acknowledged downing six to nine beers on the bus trip and during a tailgating session before the concert. And he admitted that when Xfinity Center security pulled him out of line and brought him to Lynch, working a security detail, he failed the first of three "field sobriety" tests - standing on one leg.

But Alfano said he passed the other two tests - reciting the alphabet backwards and following Lynch's moving finger. Lynch ordered him held in protective custody at the Mansfield police station - several miles away - after Alfano refused to take a breath test.

In its ruling, the appellate court said Lynch required probable cause to order Alfano taken away and locked up, and that under Massachusetts law, he had to prove that Alfano was not just intoxicated, but "incapacitated," that is, a threat to himself or others.

Based on the evidence before it, the court ruled Lunch did not prove that to a degree that would warrant keeping Alfano away from a jury.

The court noted that after realizing he would not be making a return trip on the bus, Alfano had arranged alternate transportation back to Boston - so even if drunk he would not prove a menace to other people on the road. And while Alfano and Lynch gave significantly different accounts of Alfano's behavior, the court said Alfano should get to make a case to a jury that he was not threatening in any way and was far from being so drunk he would prove a threat to his own safety.

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.