Middle Schooler Arrested For Burping Appeals — Armed With Gorsuch Dissent

A case about school discipline might be heading to the Supreme Court — but the court's newest justice would likely recuse himself from the case. Neil Gorsuch wrote a cutting dissent when the case came before his appellate court, and his words are now being used by the plaintiff's lawyer.

In 2011, a seventh-grader (known as F.M. in court documents) was interrupting his gym class with fake burps. The antics were amusing his classmates, and his teacher was struggling to maintain control of the class. She called for back up, in the form of a police officer assigned to the school.

According to court documents (published by the Washington Post), Officer Arthur Acosta arrived on the scene, and asked F.M. to come with him. The boy complied. Then Officer Acosta informed F.M. that he would be arresting him for the disruptions. F.M. was handcuffed and taken to a juvenile detention center, where he spent about an hour. He also received a one-day suspension from school following the incident.

F.M.'s mother, referred to in court documents as A.M., filed a lawsuit against two school officials and the police officer, alleging that her son's civil rights were violated by the arrest and the use of handcuffs. The complaint said that the defendants "should have known that burping was not a crime" and that "no force was necessary" in assisting with the arrest.

The 10th Circuit U.S. Court of Appeals upheld a decision from the lower court in support of the the school officials and the officer. But, Neil Gorsuch, who was on the federal appeals court at the time, wrote a spirited dissent. It concluded:

"Often enough the law can be 'a ass — a idiot,' Charles Dickens, Oliver Twist 520 (Dodd, Mead & Co. 1941) (1838) — 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 representatives. Indeed, a judge who likes every result he reaches is very likely a bad judge, reaching for results he prefers rather than those the law compels. So it is I admire my colleagues today, for no doubt they reach a result they dislike but believe the law demands — and in that I see the best of our profession and much to admire. It's only that, in this particular case, I don't believe the law happens to be quite as much of a ass as they do. I respectfully dissent."

Now, the boy's mother is again appealing — this time, to the Supreme Court. According to reporting from the Associated Press, the court could decide as early as Monday whether to take up the case.

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