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Suit vs. police at Gillette Stadium expands

Protective custody at issue

Two more people joined a federal class-action lawsuit Monday against Foxborough police and its chief, contending that the department’s practice of putting Gillette Stadium eventgoers into protective custody when they are intoxicated violates state law.

The two bring the number of class representatives to four, in a process that could affect more than 1,000 people and take about two years to conclude, said Howard Friedman, one of the attorneys representing the plaintiffs.

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The civil suit, filed in September in US District Court in Boston, alleges that Foxborough police violated the constitutional rights of people who were placed in protective custody for being intoxicated, but not incapacitated. Detainees may be kept at a stadium holding facility for a period of time and are later brought to the Foxborough police station.

The complaint covers incidents at every Gillette event going back three years from the date of the complaint, Friedman said. Those affected are seeking unspecified monetary damages and to have the town of Foxborough’s policy align with state law.

Public intoxication has not been a criminal offense since the state statute was amended in 1971. Intoxicated people can, however, be held in protective custody if they are unconscious, in need of medical attention, likely to cause harm or damage to self or property, or disorderly, Friedman said at a media event in his Boston office introducing the two new plaintiffs.

“They’re taking into custody people who are simply intoxicated, and not a danger to property or person, and holding them far longer than they should,” Friedman said. “The idea of the statute is not to hold the person in custody.”

Douglas I. Louison, the Boston attorney defending the police department and Chief Edward O’Leary, said the town maintains that it is not violating anyone’s rights and that it is acting constitutionally.

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“There are many, many instances of vastly incapacitated individuals who are attending these events, who become intoxicated and then become dangerous to themselves and the public,” Louison said. “We’re finding that a lot of people come to these events with the mind and intent to become intoxicated. The problem is that it’s a slippery slope between intoxication and incapacitation.”

Michael Burgess, 42, one of the new plaintiffs and a police officer in another Massachusetts town, said he is frustrated and embarrassed by his experience last year, when he was taken into protective custody as he was making his way to the New England Country Music Festival. Burgess, who admitted he had been drinking before the concert, said he was handcuffed to a bench for six hours, even though he was not incapacitated.

“It’s hard for me with my position to go forward with this, but I feel very strongly about the way that the policies are wrong, the way people are being treated down there is wrong,” said Burgess, who did not identify himself as a police officer to Foxborough police.

The other new plaintiff, Lindsey Schmidt, 23, of Portland, Maine, attended the same country music event in August with friends. They were drinking at a Gillette parking lot, and as they made their way to the stadium, Schmidt said, she stumbled in her new cowboy boots and was placed in protective custody. She said she recited the alphabet to the officer and was not incapacitated.

“I was put into an area with other girls that were similar to me,” she said. “They were fine; they had been drinking, but they weren’t a danger to themselves or anyone else.”

Timothy Dutton of Scarborough, Maine, one of the two original plaintiffs, said Monday that he had organized a bus trip in August for 52 friends to see the Bruce Springsteen concert.

Dutton said he was taken into protective custody with another member of his party as they approached the stadium. Although he drank alcohol before the concert, Dutton said, he was not incapacitated.

“You go through a lot of public embarrassment, and people don’t want to come forward because of that,” Dutton said. “And I would just encourage them to do so.”

Katheleen Conti can be reached at kconti@globe.com. Follow her on Twitter @GlobeKConti.

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