Tenth Circuit Rules Officials Were Justified In Arresting and Criminally Charging 13-Year-Old For Burping In Class

300px-US-CourtOfAppeals-10thCircuit-Seal1We have been discussing the trend toward suspending and expelling students (and teachers) for comments that they make on social media (here and here and here and here and here and here and here). Teachers and administrators have been criminalizing juvenile conduct rather than dealing with such issues with the students and their teachers. Now the United States Court of Appeals for the Tenth Circuit has issued an opinion upholding one of the most ridiculous examples of the criminalization of our schools. The Tenth Circuit said that Albuquerque school officials and police were justified in ordering the arrest of 13-year-old boy who was burping in class. The Tenth Circuit ruled that the school officials and police officer were entitled to immunity for their excessive response to what was at worst a class clown.

The Tenth Circuit simply held that a New Mexico law prohibits anyone from interfering with the education process — an interpretation that would seem to allow any school prank or immature act from being charged as a crime.

In this case, you had a class clown in the seventh grade at Albuquerque’s Cleveland Middle School. The teacher, Margaret Mines-Hornbeck, reported to officer Arthur Acosta that the boy was disrupting the class by continually burping in class. The boy was taken to an administrative office. In addition to the burping incident, the child was also searched for possible drugs.  The assistant principal suspected the teen of involvement in a marijuana transaction and told him to remove his shoes and jeans, and flip the waistband of a pair of shorts he was wearing under his jeans. No drugs were found.

The son was then suspended for the remainder of the year which seems an absurd response in itself to such a juvenile act. Then, however, they proceeded to charge him criminally.

The provision itself is breathtakingly vague and could cover virtually any childish act. Subsection (D):

“No person shall willfully interfere with the educational process of any public or private 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 or private school.”

N.M. Stat. Ann. § 30-20-13(D). The Tenth Circuit readily embraced the virtually limitless scope of this crime:

We believe the text of N.M. Stat. Ann. § 30-20-13(D) manifests the New Mexico legislature’s intent to prohibit a wide swath of conduct that interferes with the educational process. The statute renders unlawful, inter alia, the commission of “any act which would . . . interfere with” or “disrupt” school functioning and, thereby, “interfere with the educational process.” N.M. Stat. Ann. § 30-20-13(D) (emphasis added). The common meaning of the word “any” is, inter alia, “one no matter what one” and “some no matter how great or small”). . . .

The ordinary meaning of these statutory terms would seemingly encompass
F.M.’s conduct because F.M.’s burping, laughing, and leaning into the classroom stopped the flow of student educational activities, thereby injecting disorder into the learning environment, which worked at cross-purposes with Ms. Mines- Hornbeck’s planned teaching tasks. More to the point, we cannot conclude that the plain terms of subsection (D) would have given a reasonable law-enforcement officer in Officer Acosta’s shoes fair warning that if he arrested F.M. for engaging in his classroom misconduct he (i.e., the officer) would be violating F.M.’s Fourth Amendment right to be free from an arrest lacking in probable cause.

What do you think?

Here is the decision: Tenth Circuit Opinion

82 thoughts on “Tenth Circuit Rules Officials Were Justified In Arresting and Criminally Charging 13-Year-Old For Burping In Class”

  1. @RB

    “Government bureaucracies and legislatures actually perform best with LESS money”

    So you say. Can you cite any data or research that actually supports this claim?

  2. @ThatThirstyRando

    While the report you cited does reveal that there is work to be done to improve the situation, it also reveals that 4 of 5 American High School graduates are able to read at a adequate or better level. So lets do what is necessary and effective to move more of those in the Unable-to-Read group into the the Able-to-Read group, but let’s not paint a picture that falsely implies that the system is a miserable failure. Nothing you’ve cited here refutes my claim that a majority – more than a simple majority – of the nation’s schools are providing an education to their students that rates adequate or above. If this were not true then we should see rates of illiteracy significantly higher than those you cited. That 14 percent of adults can’t read also means that 86% can. That 21 of adults read below a 5th grade level also means that 79% read above a 5th grade level. That 19 percent of high school graduates can’t read means that 81% can. I concede that the data you cite indicates that we need to implement programs and policies that will improve schools, but these same numbers do not mean that the majority of schools in this country are failing at educating their students.

    By the way please provide a link to the study you cited. I’d like to examine it for myself.

  3. @Randy

    Well, if you taught in predominantly white schools, you probably did not encounter a lot of the savagery and violence. But for those less fortunate teachers:

    For instance, in Paterson, NJ, a first-grade teacher became the focus of a witch hunt for using a social network as a coping mechanism. While decompressing, she vented on her Facebook page,

    “I’m not a teacher — I’m a warden for future criminals!” Despite her forewarning being statistically credible, the blatant disrespect to the PC gods resulted in her termination. Political correctness is another untaught skill that must be mastered by teachers who want to survive inner-city schools.


    Squeeky Fromm
    Girl Reporter

  4. @Squeaky

    “Teachers have enough problems trying to keep order, and they need a broad law to cover all sorts of disruptive behavior.”

    You were a teacher? I taught for 22 years. You are wrong. Teachers don’t need such draconian laws to handle discipline in their classroom. I never once needed any help of this sort. Not a single teacher I ever knew – and I interacted with well over a thousand teachers in my career – ever needed help for such an absurd law. This law is a egregious overreach. This law is more befitting a nation ruled by thugs and dictators than a nation that values liberty.

    By the way what is your evidence that discipline is such an enormous problem that teachers need laws like this one to help them manage their classrooms?

    After having read the comment upthread by Autumn I have to wonder if I am not being pranked here?

  5. This is an outrageous decision and a terrible injustice. We hold children to a different standard for a reason. We had something like this happen in NE PA and it turned out the judges were taking bribes from local prisons. The Judges went to prison but not before at least one child committed suicide.

  6. @PaulCS

    You said:”Autumn – the administration was right. You humiliate the student outside the classroom, not inside.”

    Huh??? If you humiliate the kid outside the class, then how could the other kid’s record it on cellphone??? And put it on youtube??? Where’s the fun in that???

    Squeeky Fromm
    Girl Reporter

  7. Having read through the decision, I have one question: Where does the court uphold criminal charges against the child as suggested in the title of this post? I find the court upholding grants of qualified immunity, searches, and an arrest, but I cannot find anywhere in the opinion where the court upholds criminal charges. In fact, the decision has no reference whatsoever to any charges against F. M. at any time unless I am missing something in my reading.

    Simply because the child was arrested (which I agree is ridiculous for merely disrupting class) does not automatically mean the child was subsequently charged by the state.

  8. The boy was suspended for the rest of the year — it was May — for burping in PE class. The drug search happened the following November. He had a belt buckle with a picture of a marijuana leaf, but no drugs.

  9. I agree with Darren that this fell under “stupid stuff” for the police department and the school.

    In the worst case scenario, this child was harassing and bullying the teacher, making it impossible for him to say a word or teach a syllable to the class, as well as dealing drugs on the side. In that case, the drugs would be a criminal offense, and the child should not be arrested for anything other than a legitimate criminal offense. No drugs, no arrest. If he was so disruptive, routinely, in class that the teacher was unable to teach the class, then there is a process for that behavior – warning, teacher conference, suspension, expulsion. You don’t arrest kids for that. Try to reach them about their future, absolutely. If it’s interfering with the class on a daily basis and no one is learning anything, then eventually he’ll lose his place in school. I would hope for a “Stand and Deliver” intervention before them, but maybe he wouldn’t even have listened to Kemo.

    Now this cop gets to be labeled as the guy who arrested a 13 year old for burping. How much money has the school district spent on the lawsuit and all the appeals?

    I agree that discipline needs to be recalibrated. As it is, many teachers do not have the means to take control of their classrooms, kids laugh off being sent to the principal, and paradoxically schools are taking major disciplinary action for kids who pretend their fingers are laser blasters. And too many parents enable their kids to act up rather than disciplining their own kids and dealing with issues.

  10. If you are a kid in school and you or a friend gets treated like dirt by some Principal then get some revenge. Take three cherry bombs or M-80s and thread the fuses together. Attach a lit cigarette to the fuse so that when it burns down it will light the fuse. Put it in the Principal’s mailbox out in front of his home. Drop dog poop all over the porch and front steps. Watch from a distance and make a video. When he comes running out to see what blew up he will slip and slide in the poop and go down on his rear to the sidewalk and have poop all over his clothes. The next day or two send him a note telling him not to pull this offensive behavior on another kid again.

  11. @mary

    you must not be in education. things have gotten so out of whack – handling discipline issues that disrupt the entire class used to be handled by sending the kid to the assistant principal (I know cause I spent a LOT of time in her office in elementary school). Now teachers are on their own. The principals are afraid of getting sued and make the teachers deal with it. Administrators making the big bucks and not doing anything. Undermining teachers actually!

    A friend of mine was teaching high school biology — a first year teacher in the next room came into his classroom and pleaded for help. A young, big thug was being disruptive and she felt threatened and didn’t want to call the office as she felt it would reflect badly on her.

    My friend went over and got the kid – had him stand in the back of the class room with his hands spread out a book in each palm. Then he went back to teaching his lesson.

    The next day the principal showed up with the boy and his parents, interrupted his class and made him apologize in FRONT of the entire class. Lesson learned that day? Teachers have 0 authority. Kidz rule.

    My friend left the teaching profession after that semester ended. Damn shame as he was such a live wire he really connected with the kids. Now he’s working with computers, making more $$ and is a happy person.

    1. Autumn – the administration was right. You humiliate the student outside the classroom, not inside.

  12. What was the probable cause for strip searching the student following the burping incident. Have to wonder why there has been no law suit on that question.

  13. @PatricParamedic

    Excellent post on the emails. We all know she deleted those 30K emails to avoid FOIA.

    But even FOIA does not apply to Crooked Hillary.

    Obama has put her emails regarding the the TPP on ice. They will not be released until after the election! The Demoncrats are thoroughly corrupt – how much more evidence do people need??

  14. Speaking of the emission of digestive gases ….
    I once heard an airline flight attended explain that, when she had to “emit,” she would walk up and down the aisle. She called it “crop dusting.”

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