Judge Gorsuch’s dissent in the case of a 13-year-old arrested for making fake burps in class
President Trump on Tuesday night nominated the ultraconservative Colorado federal appeals court judge Neil Gorsuch for the Supreme Court to fill the vacancy left by the 2016 death of Justice Antonin Scalia (and kept open by the Republican refusal to consider President Barack Obama’s nominee, Merrick Garland).
Gorsuch’s record will be scrutinized in the coming weeks as the Senate undergoes a formal confirmation process even as Democrats are being urged by Trump critics to do everything they can to block the nomination.
The federal appeals court on which he has sat for 10 years has heard a number of education-related cases, including an unusual one in which he was the lone dissent. It was about a 13-year-old seventh grader who was arrested at school after his physical education teacher took exception to fake burps he was generating during class, which disrupted instruction. Gorsuch’s reasoning on the case reveals something about how he thinks about criminal justice issues.
Here are the basic facts of A.M. vs. Holmes, decided in July 2016 by the 10th Circuit U.S. Court of Appeals in Denver (and you can see the entire court decision below):
On May 19, 2011, a physical education teacher at Cleveland Middle School (CMS) in Albuquerque named Margaret Mines-Hornbeck sought assistance over her school-issued radio. A student, referred to as F.M. in the case to shield the child’s identity, was a 13-year-old seventh grader who, the court order said, “had generated several fake burps, which made the other students laugh and hampered class proceedings.” He was arrested by a school police officer for disrupting the education process and suspended from school.
The boy’s mother sued two school officials and the police officer, claiming her son had been subject to unlawful arrest and excessive force. The appellate court upheld a decision by district court judges in support of the school officials and the officer. But Gorsuch wrote a dissent. This is what he said:
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. And maybe today the officer decides that, instead of just escorting the now compliant thirteen year old to the principal’s office, an arrest would be a better idea. So out come the handcuffs and off goes the child to juvenile detention. My colleagues suggest the law permits exactly this option and they offer ninety-four pages explaining why they think that’s so. Respectfully, I remain unpersuaded.The simple fact is the New Mexico Court of Appeals long ago alerted law enforcement that the statutory language on which the officer relied for the arrest in this case does not criminalize “noise[s] or diversion[s]” that merely “disturb the peace or good order” of individual classes. State v. Silva, 525 P.2d 903, 907 (N.M. Ct. App. 1974). Instead, the court explained, the law requires “a more substantial, more physical invasion” of the school’s operations — proof that the student more “substantially interfered” with the “actual functioning” of the school. Id. at 907-08. What’s more, other state courts have interpreted similar statutes similarly. They’ve sustained criminal convictions for students who created substantial disorders across an entire school. See, e.g., State v. Wiggins, 158 S.E.2d 37, 42-44 (N.C. 1967); State v. Midgett, 174 S.E.2d 124, 127-28 (N.C. Ct. App. 1970). But they’ve also refused to hold students criminally liable for classroom antics that “momentarily divert[ed] attention from the plannedJudge Gorsuch’s dissent in the case of a 13-year-old arrested for making fake burps in class - The Washington Post: