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Lawrence Harmon

Foxborough’s drinking problem

 Kenny Chesney fans raise beer bottles to the singer at an August concert in Foxborough.

MATTHEW J. LEE/GLOBE STAFF

Kenny Chesney fans raise beer bottles to the singer at an August concert in Foxborough.

Game days and concerts at Gillette Stadium in Foxborough unearth some sloppy drunks. That is not sufficient cause, however, for police officers to get sloppy with the law when dealing with intoxicated people.

The Town of Foxborough and its police chief, Edward T. O’Leary, face a civil rights class action suit for “establishing a policy causing police officers to unlawfully take and hold people in protective custody.’’ Four plaintiffs — including a physician and an off-duty police officer — claim they were unjustifiably confined in a holding compound connected to the stadium. The suit also alleges that more than 1,000 people have been subjected to similar treatment by the Foxborough Police.

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It’s not illegal to be intoxicated in Massachusetts. In 1971, the Legislature decriminalized public drunkenness, replacing it with the more beneficent concept of protective custody. Police were instructed to look beyond intoxication for signs of incapacitation, which the statute defined as someone who is in need of medical help, disorderly, or likely to cause physical harm or damage property. In such cases, police are authorized to detain subjects for up to 12 hours. But the mere act of being intoxicated is not sufficient reason for detention.

Foxborough, by virtue of its 68,000-seat stadium, is in a class by itself when trying to cope with drunks. Many in this town still have vivid memories of the Patriots games of the 1970s and ’80s when the stands took on the feel of slaughterhouse battles during World War I. Subsequent crackdowns on drunken louts went a long way toward restoring order. But Foxborough remains deeply wary of drunks. So wary, at times, that it clouds the judgment of the police and town officials.

In March 2011, Foxborough Town Meeting — buoyed by the support of Police Chief O’Leary — approved a $200 fine for public drunkenness. But the attorney general’s office immediately shot down the bylaw, citing its conflict with the 1971 state statute. It was clear that the Town Meeting was overreaching.

The town looks to be overreaching again. The suit alleges that Foxborough police are instructed “to take people into protective custody if they appeared to be intoxicated by alcohol, even if they were not incapacitated.’’ For one plaintiff, stumbling in her cowboy boots opened the door to detention. The suit also cites suspiciously high numbers of detainees, such as the 467 people placed in protective custody during the New England Country Music Festival last August. That’s a lot of incapacitated people, even for a Kenny Chesney concert.

Last year, a police officer observed concertgoer Michael Burgess stumble and asked him to take a Breathalyzer test. Burgess, an off-duty Concord police officer, had been partying and tossing horseshoes with friends in the parking lot prior to being confronted by the officer. Burgess complied with the request, which revealed a blood alcohol level above .10 — the legal standard for intoxication under the protective custody statute. Burgess found himself handcuffed to a bench in a holding compound at Foxborough Stadium for six hours before being taken to the police station, where he was finally allowed to make a phone call.

Four plaintiffs claim they were unjustifiably confined in a holding compound connected to the stadium.

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Burgess admits he was drinking but vigorously denies he was incapacitated. And he’s disappointed that he wasn’t provided a chance to perform any of the common coordination tests that he routinely offers people whom he suspects are drunk and may be in need of protective custody.

Some concertgoers, such as Maine physician Timothy Dutton, charter buses to Foxborough, which removes the potential danger of driving under the influence. Last August, Dutton spent an evening in the stadium lockup instead of in his seat at a Bruce Springsteen concert. According to the suit, officers refused to release him from custody even when a breath test indicated that he was not intoxicated.

Attorney Douglas Louison, who is representing Foxborough, said the town will aggressively fight the suit and defend its “lawful constitutional procedure’’ for placing people into protective custody.

Places of public entertainment would be more enjoyable for everyone if some people didn’t feel the need to drink to the point of intoxication. But drunkenness alone is not a crime. The police and people of Foxborough don’t have to like it. They must accept, however, that depriving someone of their freedom for scant cause is a lot more dangerous to a society than a bunch of lurching drunks.

Lawrence Harmon can be reached at harmon@globe.com.
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