Is fake burping in gym class enough to get a seventh-grader arrested? Yes, according to a federal appeals court, which granted immunity to school officials sued by the kid’s family after the 13-year-old was hauled off to juvenile detention in handcuffs.
The officer’s action was based on a New Mexico misdemeanor law that makes disrupting school activities a crime. In a 94-page opinion, the court backed the arrest, saying the law didn’t forbid arresting someone for burping.
One judge on the panel wrote a pungent, four-page dissent explaining why that reasoning is wrong. But determining the correct outcome here is a little tricky. The arrest was clearly absurd. Yet it isn’t clear that the remedy for every stupid arrest is a federal lawsuit.
The incident behind the case took place in May 2011. It began when a student at the Cleveland Middle School in Albuquerque – known in court documents as F.M. – interrupted physical education class by fake burping repeatedly. (You can’t make this stuff up.) The teacher sent F.M. into the hall, but he continued to interrupt by poking his head back into the classroom and burping some more.
In more innocent times, this might have merited a trip to the principal’s office. Instead, the teacher called the “school resource officer,” Arthur Acosta, an officer in the Albuquerque Police Department assigned to the school.
F.M. denied burping – some things never change – but Acosta brought him to the school’s office and made him sit in a chair while he went to get his computer from his car.
When Acosta returned, he told F.M. that he was placing him under arrest for committing the misdemeanor of violating New Mexico’s school disruption law, which says:
“No person shall willfully interfere with the educational process of any public or private school by committing or 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 or private school.”
The officer told the school principal, who suspended F.M. for the day and called F.M.’s mother, though without reaching her. The officer then brought F.M. to his police car, patted him down, handcuffed him, and took him to the juvenile detention facility.
F.M. was released later that afternoon into his mother’s custody.
If you’re steaming at this point in the story, you’re not alone. F.M.’s mother sued the principal, an assistant principal and the police officer. The basis for her claim was false arrest in violation of F.M.’s constitutional rights pursuant to the civil rights statute, 42 U.S.C. section 1983.
A section 1983 suit in vindication of constitutional rights is a special legal beast. To proceed against a public official, a plaintiff needs to show that the official acted in violation of clearly established law. Almost all officials sued under section 1983 assert what is called “qualified immunity.” That means if their actions were in line with what any reasonable official would have believed lawful, the suit ends.
The defense raised by the police officer and principals was simple. The New Mexico law under which F.M. was arrested makes it a crime to disrupt school procedures. F.M.’s burping disrupted class to the point where teaching and learning could no longer occur. It was therefore reasonable to arrest him pursuant to the law.
A federal district court found in favor of the school officials and police officer. The mother’s appeal focused on the police officer alone.
The U.S. Court of Appeals for the 10th Circuit again held for the officer. It said that the arrest of the student counted as “arguable probable cause.” In particular, the three-judge panel held 2-1 that it wasn’t clearly established under the state law that you couldn’t arrest a child for burping in class.
Here things got a little technical. The panel said there was no case on file explicitly interpreting the law to exclude such petty interruptions.
In his stinging dissent, Judge Neil Gorsuch pointed out that there was a precedent dating back to 1974, State v. Silva, holding that trivial interference doesn’t count as a crime, and that there must be “a more substantial, more physical invasion” of school operations as well as proof that the student more “substantially interfered” with the “actual functioning” of the school.
The panel replied formalistically that the Silva case was interpreting a different statute, one that governs colleges rather than schools. Gorsuch rejoined that the language in the two laws was identical, and it should make no difference that the case was about the college statute rather than the school statute.
On the whole, I think Gorsuch got the better of the legal argument. But the panel’s judgment had some logic behind it, too: the desire not to make a school dispute into a federal case.
The deeper question is how to resolve incidents of official overreach like this one. The appeals panel was trying to keep the issue out of the courts altogether. Gorsuch wanted the court to resolve it.
Perhaps the best outcome is for the case to get enough publicity that such episodes don’t recur.
Noah Feldman, a Bloomberg View columnist, is a professor of constitutional and international law at Harvard.