          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.
            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


                                   - 2 -
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 —


                                   - 3 -
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).


                                 - 4 -
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


                                   - 5 -
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


                                  - 6 -
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


                                            - 7 -
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.


                                    - 8 -
(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


                                     - 9 -
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.


                              - 10 -
               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.


                                        - 11 -
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"


                                    - 12 -
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


                                    - 13 -
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).



                                    - 14 -
           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.


                                  - 15 -
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.




                                  - 16 -
            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




                                          - 17 -
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.




                              - 18 -
