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Home » Criminal Law » Albuquerque 7th Grader Can’t Escape Legal Ramification of Burping

Albuquerque 7th Grader Can’t Escape Legal Ramification of Burping

kid covering his mouth after burp with police car in backgroundA recent ruling by a federal appeals court in New Mexico should serve as a warning to teen troublemakers across the nation. The case, dating back to 2011, involved a student attending Cleveland Middle School in Albuquerque, who was arrested for burping in class. His parents were quick to press charges against the officer and administrators responsible for their son’s oddly harsh punishment. Now, five years later, that lawsuit has crashed and burned. Many people are wondering why.

Kids (and adults) have been fake burping for at least as long as TV has been around, and probably longer. It’s a phenomena that should surely be familiar to anyone who works with kids K-12. The ubiquity of fake burping might lead one to reasonably assume teachers and school administrators know how to handle situations involving it. One might further assume that the proper response to disruptive fake burping does not involve the police department. New Mexico’s government apparently assumes differently.

The Rundown:

In May of 2011, our criminal burper (who remains publicly anonymous, along with his parents) was in P.E. class with his fellow seventh-graders at Cleveland Middle School. He was probably bored, a condition that tends to affect students, and began fake burping over and over again. This behavior was viewed as disruptive by the P.E. teacher, who promptly exiled the burping student into the hall — an evidently ineffective solution. The serial burper persisted, guerrilla style, peeking into the classroom at opportune moments to loose his unstoppable parade of fake burps.

At this point, the school resource officer, Arthur Acosta, was summoned.

The officer asked the burper if his teacher’s accusations were true.

The burper denied everything.

Arthur Acosta wouldn’t have it.

The burping kid was escorted to a chair in the main office while Officer Acosta went to his cruiser, returning minutes later with his police computer. He informed the seventh-grade burper that he was under arrest for violating a “school disruption law.”

Cleveland Middle School’s principal was in time with Officer Acosta, suspending the burping kid and leaving Acosta free to drag him off to the clink. The whole song and dance was honored: there was a pat-down, a handcuffing, a back-of-the-cop-car seating. And, of course, the principal also called the kid’s mom, or at least, he tried.

When the mother did find out where her kid was and why, presumably when she tried and failed to pick him up from school, she was pretty upset. She sued the principal, the assistant principal, and Officer Arthur Acosta on the grounds of a false arrest and civil rights violation, a case which wound up involving five years of litigation and, as we now know, ultimately failed. If she was upset then, imagine how pissed she is now.

There’s no law against arresting someone for burping.

That’s basically what the judges ended up ruling. But let’s flip through the legal specifics of the case, from the beginning:

Officer Acosta arrested the burping middle schooler for committing the misdemeanor crime of disrupting school:

“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.”

So the kid, by incessantly fake burping among his fellow students, who were trying to further their physical education, willfully interfered with the education process at Cleveland Middle School. He might just be a kid, but that law doesn’t start with “no adult” — it says “no person.” Kids are people, so Officer Acosta evidently believed: A) this law applied to the burping kid, and B) laws are to be followed to the letter, and furthermore, that reasonable discretion is for the weak.

The burping kid’s mom, not on the same page as Officer Acosta, filed a lawsuit against him and the two school administrators that claimed her son had his constitutional rights violated pursuant to civil rights statute, 42 U.S.C. section 1983.

It’s so, so hard for regular people to successfully press charges against public officials for any reason. The burden of proof falls on the plaintiff, and that burden is massive. The burping kid’s mom had to prove under no uncertain terms that a “clearly established law” was violated. And, go figure, public officials who face lawsuits like this are pretty much guaranteed to use their “qualified immunity”, which protects public officials from facing charges if a “reasonable official” would have believed their actions weren’t illegal. Put differently: public officials don’t face charges if other public officials say they shouldn’t, which few exceptions.

The burping kid burped too much. He made the teacher unable to teach and the students unable to learn. According to Officer Acosta and the school administrators’ defense, the seventh-grade burper brought the education process to a grinding halt. His teacher and peers were a helpless orchestra, and he conducted them like an evil, burping Beethoven. It had to be stopped.

The federal district court agreed. They ruled in favor of Officer Acosta and the rest, leaving the burper’s mom to accept the conclusion or appeal.

She appealed, this time specifically targeting Arthur Acosta. The U.S. Court of Appeals for the 10th Circuit shot her down once more, claiming that there was “arguable probable cause” when Officer Acosta took the burper into custody. Two out of the three judges ruled in favor of Officer Acosta, declaring righteously that there’s no law specifically forbidding officers from arresting burping people.

But what about the judge who disagreed? Well, that’s Judge Neil Gorsuch — he tried to tell the other judges that there was, in fact, legal precedent for pressing charges similar to those the burping kid’s mom was pressing on Officer Acosta. He cited a 1974 case, State v. Silva, which concluded with the ruling that trivial interference isn’t a crime. According to this precedent, there has to be evidence that the burping kid committed “a more substantial, more physical invasion” of Cleveland Middle School’s education process.

The other judges said Gorsuch was wrong because Silva v. State involved a college instead of a middle school. Despite Gorsuch’s insistence that the language in either case was identical in spite of that technical difference, his dissent was quelled.

False Arrests and Civil Injustices

It’s really a sad story — who knows how much time and money the burping kid’s family relinquished over the course of litigation, trying to prove something that really shouldn’t have to be proved. And they lost. The situation is unfortunate, but it happens all the time.

At Turner Law Offices, P.C., our team of attorneys has years of experience working with clients across a wide range of cases involving false arrests and civil injustices, including those involving juveniles. Whether you’re the victim of such crimes or accused of committing them, your best course of action always starts with seeking out legal representation you can trust. The sooner you start, the better your chances, so don’t wait! Call today, or go online to set up your free initial consultation, and meet with a skilled lawyer who’s ready and waiting to guide you toward the justice you deserve.

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