The lawsuit, filed in 2012 against the town and Police Chief Edward T. O’Leary, alleges that the practice by Foxborough police of placing intoxicated, but not incapacitated, people into protective custody violates state law and the Fourth Amendment’s prohibition of unreasonable searches and seizures.

Lawyers for both sides jointly requested a trial date be set on or after Sept. 14, after US District Court Judge Douglas P. Woodlock recently denied motions from both parties asking him to rule in their favor without a jury trial.

A federal case challenging the constitutionality of the way Foxborough police officers handle intoxicated eventgoers at Gillette Stadium could go to trial in September.


Public drunkenness stopped being a crime in Massachusetts after state law was amended in 1971. Police officers, however, may take intoxicated people into protective custody if they are determined to be unconscious, in need of medical attention, disorderly, or likely to cause harm to self or property.

Douglas I. Louison, a Boston lawyer defending the town and O’Leary, said his clients deny the allegations that police working Gillette Stadium events violated anyone’s civil rights or acted unconstitutionally.

Previous attempts by the town to issue fines for public intoxication in response to the frequent number of incidents stemming from Gillette Stadium events have been rejected by the state attorney general’s office.

Although filed as a class-action lawsuit that would have covered incidents at the stadium dating back three years from the date of the filing, and potentially affected more than 1,000 people, the case has not been certified as such by the court, said David Milton, one of the Boston lawyers representing the three plaintiffs in the lawsuit. A fourth plaintiff was originally involved, but has withdrawn for personal reasons, Milton said.

The remaining plaintiffs — Maine residents Paul Weldner and Lindsey Schmidt , and Michael Burgess of Massachusetts — were taken into protective custody by police at three separate concerts at Gillette Stadium in 2011 and 2012. All three said that they drank alcohol before the start of the concerts, but were not incapacitated.


Weldner was part of a group of about 50 people from Portland who traveled together on a bus to see Bruce Springsteen perform on Aug. 18, 2012, according to court records. On his way to the stadium entrance, Weldner tripped while trying to avoid the crowded sidewalk. Two police officers then placed him into protective custody, where he was held for 6½ hours, according to the suit.

Schmidt was put into protective custody after stumbling in her new cowboy boots on her way to the New England Country Music Festival on Aug. 25, 2012, and was held for more than three hours, according to court records.

Burgess, a police officer in another Massachusetts town, was placed in protective custody as he made his way to the New England Country Music Festival on Aug. 27, 2011. A police officer approached and asked Burgess whether he had been drinking, then had him blow into an alcohol-screening machine. Burgess was held for about nine hours, according to the lawsuit.

They are seeking unspecified monetary damages, and to have the town’s policy align with state and federal constitutional law, Milton said.

In addition to setting the date for the trial in Boston’s federal court, Woodlock will also determine its parameters.


The plaintiffs’ attorneys believe there should be one trial that would take about 10 days; lawyers for the town and police chief believe it should be a two-phase trial, taking a total of seven days.

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

Clarification: An earlier version of this story included a reference that made it unclear when the trial would start. The trial is expected to begin on Sept. 14 or later.