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U.S. Supreme Court won't consider boy's case of fake burping

By
Allen Cone
Neil Gorsuch, now sworn in as a U.S. Supreme Court justice, dissented in the 10th Circuit U.S. Court of Appeals' decision favoring an Albuquerque officer Arthur Acosta's arrest of a teen in gym class for excessive burping on purpose. File Photo by Pete Marovich/UPI
Neil Gorsuch, now sworn in as a U.S. Supreme Court justice, dissented in the 10th Circuit U.S. Court of Appeals' decision favoring an Albuquerque officer Arthur Acosta's arrest of a teen in gym class for excessive burping on purpose. File Photo by Pete Marovich/UPI | License Photo

May 15 (UPI) -- The U.S. Supreme Court on Monday refused to hear a New Mexico mother's appeal of her son's arrest for disrupting his seventh-grade gym class with fake burps.

The justices declined the petition on the decision of the 10th U.S. Circuit Court of Appeals in Denver in favor of Albuquerque police officer Arthur Acosta that granted him qualified immunity in the 2011 arrest.

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In July, Judge Neil Gorsuch dissented in that case as a member of the appeals court, writing "trading fake burps for laughs in gym class" was going "a step too far." Quoting Charles Dickens' line in Oliver Twist, Gorsuch said the law can be "a ass -- a idiot."

Gorsuch, who joined the Supreme Court last month, had no role in considering or deciding the case when it came before the high court.

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In 2011, the 13-year-old student, identified as F.M. in court papers, burped during his physical education class, encouraged by fellow students.

Acosta, a school resource officer, arrested the boy on a charge of misdemeanor offense of interfering with the educational process. He was handcuffed and taken to juvenile detention.

He later received a one-day suspension from school.

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The mother, identified as A.M. in court papers, sought monetary damages from Acosta, claiming unlawful arrest and excessive force in violation of the U.S. Constitution's Fourth Amendment.

In the civil rights suit, Acosta claimed qualified immunity. The appeal courts said Acosta's arrest was warranted because of the broad wording of a state law against disrupting the educational process.

In the mother's Supreme Court appeal, she said criminalizing "everyday acts of misbehavior" pushes kids out of school and teaches them that there is no limit to the power of the state to arrest them.

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In the petition's opening introductory paragraph, her lawyer Joseph P. Kennedy quoted the statement from Gorsuch's dissent: "Judge Gorsuch summed up his dissent and his summary serves as an apropos theme of this petition: 'I don't believe the law happens to be quite as much of a ass.' "

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