Kevin Daley, DCNF

Before his ascent to the Supreme Court, Justice Neil Gorsuch was well known in legal circles as a keen mind, pithy writer, and vigorous defender of fake belching.

As a judge on the 10th U.S. Circuit Court of Appeals, Gorsuch wrote one of his few dissents in a 2015 case involving a middle school student who was arrested for making fake burping noises during gym class. In a 2-1 decision, the 10th Circuit ruled that the student’s mother could not bring a suit against the police officer who executed the arrest. She is now asking the Supreme Court to take the case, and the justices could announce a decision on her petition as soon as Monday.

The incident occurred in New Mexico in 2011, when the unnamed student incited disorder among fellow students by unleashing a torrent of fake belches. Unable to regain control of the class, the gym teacher asked school officials to intervene and help reestablish order. A police officer came to the gym, handcuffed the student, and took him to a juvenile detention facility where he remained for several hours.

Gorsuch thought this was, perhaps, a bit much:

If a seventh-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.

Though disturbed by the facts of the case, the 10th Circuit ruled the officer was entitled to qualified immunity, which generally protects police from civil suits when they are acting in their official capacity. The student’s mother argues the officer’s behavior is not protected because the arrest was unconstitutional and because an earlier New Mexico Court of Appeals decision notified the officer that arresting students for such behavior was unlawful.

Gorsuch will likely recuse himself from any involvement in the case.

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