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Burp arrest of 7th-grader upheld by fed appeals court

Copyright © 2016 Albuquerque Journal

Can a school police officer arrest a middle school student for burping in class on purpose?

A federal appeals court says yes, based on state law that prohibits anyone from interfering in the educational process of a public school.

The 10th Circuit Court of Appeals in Denver said district judges were correct in granting summary judgment to two Cleveland Middle School officials and a police officer involved in the arrest of a seventh-grader after his burping disrupted a class. The ruling dismissed claims of excess force and unlawful arrest brought by the student’s mother against the three.

The court, in a split decision, ruled that Principal Susan LaBarge, Assistant Principal Ann Holmes and school police officer Arthur Acosta were entitled to qualified immunity. Qualified immunity protects government officials from civil damages as long as their conduct does not violate clearly established constitutional rights. Quoting an earlier case, the court noted the doctrine, “Put simply … protects all but the plainly incompetent or those who knowingly violate the law.”

The appeals court resolved two lawsuits assigned to different judges involving the same student, F.M., for the May 2011 burping arrest and a subsequent strip search at school in November that yielded no drugs but turned up prohibited items including a red bandanna in a backpack and a belt buckle with a marijuana leaf decoration.

In the first instance, F.M., then 13, was sent to the hall to sit during a physical education class after he emitted fake burps and ignored the physical education teacher who ordered him to stop. In the hall, he continued to lean into the doorway and burp and laugh, prompting the teacher to call the school resource officer. Acosta, the officer, escorted the boy to administrative offices and then to his police unit, where F.M. was handcuffed and taken to the juvenile detention center.

Acosta said he had probable cause to arrest F.M. for violating a state statute that says no one may “willfully interfere with the educational process of any public … school by committing, threatening to commit or inciting others to commit any act which would disrupt, impair, interfere with or obstruct the lawful mission, processes, procedures or functions of a public … school.”

The boy’s attorneys at the Kennedy Law Firm argued that the statute never envisioned the degree of punishment he received. The middle schooler, they said, was being a class clown at worst, engaging in behavior that for generations would have resulted in after-school detention, writing lines or calling in his parents.

But the court said the text demonstrates the Legislature’s intent “to prohibit a wide swath of misconduct that interferes with educational conduct.”

Judge Neil Gorsuch wrote a four-page dissent, disagreeing “respectfully” with Chief Judge Timothy Tymkovich and the opinion’s author, Judge Jerome Holmes.

“If a seventh-grader starts trading fake burps for laughs in gym class, what’s a teacher to do? Order extra laps? Detention? A trip to the principal’s office? Maybe. But then again, maybe that’s too old school. Maybe today you call a police officer,” he wrote. He said that although his colleagues suggest the law permits the handcuffs and trip to juvenile detention, Gorsuch remains “unpersuaded.”

The New Mexico Court of Appeals, he said in the dissent, “long ago alerted law enforcement” that the language the officer relied upon for the F.M.’s arrest does not criminalize noises or diversions that merely disturb order in a classroom.

Quoting Charles Dickens, he said, “Often enough, the law can be `a ass — an idiot’ and there is little we judges can do about it, for it is (or should be) emphatically our job to apply, not rewrite, the law enacted by the people’s represenatives.” Gorsuch said he admired his collagues for reaching a result they no doubt “dislike but believe the law compels.”

Meanwhile, the majority also cited case law in finding that Holmes, the assistant principal, had reasonable grounds to believe a search of F.M. and four other students in a separate incident months after the burping arrest would reveal evidence of wrongdoing after she had received a report of seeing him involved in what looked like a drug exchange on school grounds.