Dear Dawg: this kid keeps burping in my classroom. Can I have him arrested?

It took the 10th Circuit Court of Appeals 94 pages to conclude that Officer Acosta did nothing wrong when he arrested a middle school kid for “fake burping” and other such activities that disrupted a P.E. class in Albuquerque.  The court’s majority could not quite bring itself to conclude that “fake burping” gave the officer “probable cause” to arrest this class clown.  But they held that the cop had “arguable probable cause” which was enough to provide immunity to the officer.  He may have violated the law—but he didn’t violate “clearly established” law. Thus no personal liability.

This all started when P.E. teacher Mines-Hornbeck got frustrated with F.M. for “fake burping” and otherwise calling attention to himself during class.  The opinion does not tell us why the teacher did not send the student to the office, but you have to wonder. Instead, she put him in the hallway. When the boy continued to lean into the classroom and burp, she called in the heavy artillery.

Officer Acosta promptly arrived, took the perp away and eventually arrested and handcuffed him.

Just imagine the conversation down at juvie:

“What are you in here for?” 

“I burped in class.”

“I didn’t know you could get arrested for that!”

“Well…I did it more than once. And on purpose.”


The statute relied on by the officer made it a criminal offense for anyone to “willfully interfere with the educational process of any public…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…school.”

We are sure that this would apply to a bomb threat, a loudspeaker blaring into classrooms, cutting off the power supply to the school and other such disruptive activities. Now we know that it also applies to burping. Or at least it “arguably” applies to “fake” burping.

Texas has a similar law entitled Disruption of Classes, but our legislature made sure that it did not apply to 7th graders burping in class. It says:

A person other than a primary or secondary grade student enrolled in the school commits an offense if…..  T.E.C. 37.124 emphasis added.

Thus the Texas statute specifies that Disruption of Classes is a criminal offense if done by someone other than a student. If it is done by a student, it should be dealt with via student disciplinary proceedings, rather than a criminal charge.

As usual with long court opinions like this one, the dissent is shorter, and more fun.   Here’s what dissenting Judge Gorsuch had to say:

If a 7th 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 13-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 94 pages explaining why they think that’s so.  Respectfully, I remain unpersuaded.

The case is A.M. v.  Holmes, decided by the 10th Circuit Court of Appeals on July 25, 2016.  We found it at 2016 WL 3999756.


File this one under: STUDENT DISCIPLINE