When Fake Burps Have Real Consequences

Cleveland Middle School in Albuquerque, New Mexico, “is known for high quality programs, exceptional teachers, a superior learning environments, and strong parental and community support,” according to its website. “High quality” should probably be hyphenated there and “a superior” most definitely should not have the indefinite article (“a”) there, but let’s not make a federal case out of small mistakes like that. That would be unnecessary. It’s not like either error is a serious one, like, say, murder, arson, grand theft auto, or pretending to burp in gym class.

Okay, to be fair, that last item shouldn’t be on the list — middle schoolers fake burps all the time, and if you know any middle schoolers, it is probably one of the less-offensive things they do. But in May of 2011, Cleveland Middle School thought otherwise. 

A 13-year-old boy, known only to us as “F.M.,” was a seventh-grader at the time, when this happened, per the Guardian:

According to the school, the boy was in physical education class when his teacher said he began making other students laugh with fake burps. The teacher sent him to the hallway, where he continued burping and leaning into the entranceway to the classroom so the students could hear.

That’s kind of funny but it’s also very disruptive, and as one would expect, the child was about to get into a lot of trouble. He’d almost certainly be destined for the principal’s office, his parents would likely get a phone call, he’d be given detention or similar. But for some reason, the phys ed teacher asked Arthur Acosta, the police officer assigned to the school, for help. And the officer determined that this wasn’t a matter for the principal — it was something the justice system needed to deal with. Under New Mexico law, “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.” And in the officer’s view, faking burps from the hallway after being kicked out of class for faking burps in the gym was an “act which would disrupt [ . . . ] the lawful [ . . . ] functions of a public [ . . . ] school.”

So the officer placed the 13-year-old burper under arrest. Per a latter court decision (pdf), the officer “drafted the necessary incident report” as the school tried, but failed, to reach F.M.’s mother via phone. Then the officer and the prankster made their way out of school. The court’s decision shares some details (and I’ve cleaned up a lot of internal citations to make this more readable):

After completing his paperwork, Officer Acosta said to F.M., “Let’s go to the car.” F.M. responded, “Okay,” and walked to Officer Acosta’s patrol car without incident. Although he had not “laid a finger on [F.M.] . . . up to th[at] point,” Officer Acosta told F.M. when they reached the vehicle that he would be performing a pat-down search “per APD policy.” F.M. indicated that he had no weapons or contraband on his person, and Officer Acosta found neither during the pat-down search. At that point, Officer Acosta handcuffed F.M., placed him in the patrol car, and drove him to the juvenile detention center. 

Ridiculous? Sure. So F.M., via his mother, sued. The argument, as their lawyers articulated, was simple: “criminalizing of the burping of a thirteen-year-old boy serves no governmental purpose. Burping is not a serious disruption, a threat of danger was never an issue.” And while that’s very clearly true, it didn’t matter much. F.M. lost his case. As the appellate court noted in their decision (the pdf linked above), the officer was entitled, by law, to something called “qualified immunity.” Basically, as the court explained, government officials are protected from liability from the things they do while doing their jobs, and that’s rather expansive; the court cited another case which stated that “qualified immunity protects ‘all but the plainly incompetent or those who knowingly violate the law. And while arresting a kid for fake burps is colossally stupid, it doesn’t make the officer plainly incompetent nor the arrest illegal (knowingly or otherwise).

The law that F.M violated was a petty misdemeanor and the district attorney decided not to charge him anyway. But the school still reprimanded him — F.M. was suspended for the rest of the school year. His mother didn’t give up the fight, though. In 2017, six years after the belching ceased, she petitioned the U.S. Supreme Court to hear the case. The Court declined.

Bonus fact: Instead of arresting teenage in-school pranksters, maybe schools should instead assign them more homework? That is basically what happened at Frederick Douglass High School in Baltimore, Maryland in the 1920s.  One student, “as punishment for a prank he had pulled” was given an independent study project: “the school’s principal made him read the U.S. Constitution.” And it worked. That quote comes from a biography of Supreme Court Justice Thurgood Marshall, now published on the U.S. Courts’ official website

From the Archives: Where Coke and Pepsi Compete for Burps: Perhaps F.M. should have transferred to a school in Chamula, Mexico?