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Read Neil Gorsuch’s Epic Dissent in a Case Where a 13-Year-Old Was Arrested for Burping in School

Trump's Supreme Court pick isn't a fan of stupid teen arrests.

GorsuchBill Clark/CQ Roll Call/NewscomNeil Gorsuch, President Trump's pick to replace the late Associate Justice Antonin Scalia on the Supreme Court, once dissented in a ridiculous 10th Circuit Court of Appeals case that involved the arrest of a 13-year-old for burping in school.

The majority upheld the school's decision to call the cops and have the teenager arrested for making fake burping noises while in gym class. Gorsuch, however, was not persuaded that the law permitted the state to intervene in such a trivial disciplinary matter.

The case was A.M. v. Holmes. According to The Washington Post's summary of the case, a seventh grader "generated several fake burps, which made the other students laugh and hampered class proceedings." The gym teacher called the school resource officer, who then arrested the teen. The teen's mother sued the officer and school officials on grounds that her son had been unlawfully arrested. The court sided with the school, but Gorsuch dissented:

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 thirteen 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 ninety-four pages explaining why they think that's so. Respectfully, I remain unpersuaded...

Often enough the law can be "a ass — a idiot," Charles Dickens, Oliver Twist 520 (Dodd, Mead & Co. 1941) (1838) — and there is little we judges can do about it, for it is (or should be) emphatically our job to apply, not rewrite, the law enacted by the people's representatives. Indeed, a judge who likes every result he reaches is very likely a bad judge, reaching for results he prefers rather than those the law compels. So it is I admire my colleagues today, for no doubt they reach a result they dislike but believe the law demands — and in that I see the best of our profession and much to admire. It's only that, in this particular case, I don't believe the law happens to be quite as much of a ass [sic] as they do. I respectfully dissent.

Over-criminalization of inappropriate kid behavior in K-12 schools is actually a huge national problem, as Tyler Kotesky and I pointed out in our recent feature for the print edition of Reason magazine, "Why Are Cops Putting Kids in Cuffs?" Over the past several decades schools have increasingly hired school resource officers to enforce discipline, which has resulted in more and more misbehaving teens being sent to jail instead of the principal's office. This is a problem, because kids are much less likely to finish school, go to college, and become productive members of society after exposure to the criminal justice system.

It's a problem mostly in need of legislative solutions, so Gorsuch's inclusion on the Supreme Court probably won't make much of a difference. But it's encouraging to know that if a school zero tolerance case came before the Court, Gorsuch would be more likely to defend teenagers' rights and push back against creeping criminalization of normal kid behavior.

For more on Gorsuch, watch Reason TV's interview with Georgetown University Law Professor Randy Barnett.

Photo Credit: Bill Clark/CQ Roll Call/Newscom

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  • Fist of Etiquette||

    Seems like he dissented because the majority were ruling based on law, and it allowed him to make his point without altering the outcome. Still, not bad.

  • Zunalter||

    Cynicism for 500 Alex.

  • Libertymike||

    Truth for liberty.

  • Crusty Juggler - #2||

    He destroyed that dissent!

  • Libertymike||

    Did he?

    Seems to me he forgot Madison's expectation, rooted in the principles undergirding the revolution, that judges are to be "an impenetrable bulwark against every assumption of power in the legislative or executive".

    Actually, his dissent is hollow and feeble.

  • Not a True MJG||

    Can I see it in video or GIF form?

  • Juvenile Bluster||

    Dammit Robby. You made a post making libertarian points without a "to be fair" in sight. You want to infuriate the commentariat or something?

  • ||

    I was just thinking the same thing. Good show Robby.

  • SRVolunteer||

    Epic?

  • ||

    When you were raised on 140 characters or less and the memory hole prevents you from remembering political history past the last 12 days, two whole paragraphs that use the phrase 'old school' is epic, yes.

  • Fist of Etiquette||

    Look, do you old farts want to bring Millennials to libertarianism or do you want to keep it to your old, baby boomer selves? The language must be tailored not to the choir but to the prospective converts.

  • marie||

    Old farts? No. Fake farts in gym class.

  • Longtobefree||

    That would be a felony, not a misdemeanor.

  • ||

    Balko had a decent piece on Gorsuch yesterday as well-

    In Gorsuch, Trump gave Democrats a gift. They should take it.

    This part I did not like about Gorsuch-

    Gorsuch also has generally favored granting qualified immunity to police officers when they're sued for alleged constitutional violations. Here, he's no different from most other federal judges, and he has at least on occasion strayed, such as when he strongly argued against affording qualified immunity to a police officer who cuffed and arrested a 13-year-old for burping in class.
  • Libertymike||

    Which underscores my point above that his dissent is feeble. He admires his brethren in black for rubber stamping cuffing the 7th grader for burping - how courageous.

  • ||

    But....he doesn't admire his brethren for this, in fact as he states "My colleagues suggest the law permits exactly this option and they offer ninety-four pages explaining why they think that's so. Respectfully, I remain unpersuaded..."

    Doesn't that mean he DOES NOT believe cuffing a 7th grader was the right thing to do?

  • The Hyperbole||

    So it is I admire my colleagues today, for no doubt they reach a result they dislike but believe the law demands — and in that I see the best of our profession and much to admire.

  • Juice||

    yeah...I don't like this guy.

    I hope he's rejected and Trump tries with someone with some sense of what liberty means.

  • Libertymike||

    Regarding the basis upon which his fellow federal hacks he wrote, "and in that I see the best in our profession and much to admire."

    Yes, its good that he dissented. But let us not regard his dissent as an anthem to liberty or courage or original thinking. He's supposed to rule the way he did.

    Another thing, if Trump really wants to drain the swamp, why choose a judge who has spent the vast majority of his life in the public sector?

    One more thing: Why go with somebody with the Ivy pedigree? It would appear that by doing so, Trump is actually betraying his base who do not cotton to Ivy types.

  • ||

    I agree with you in that I would prefer to see an angrier justice in terms of pushing back against authoritarianism. However, I think Gorsuch may be more of an originalist than Scalia was.

    As far as being in public service so much I have no problem with this since he will be first SCOTUS in a long time who is NOT from the east coast.

    And as far as his Ivy League pedigree? Meh. He did go spend time at Oxford which was cool.

    What would you have preferred?

  • Libertymike||

    If you are asking about individuals, Judge Napolitano, Randy Barnett, Tom Woods, Stephen Kinsella, Alex Kosinski and Clint Bolick come to mind. The latter two are current judges, but they do have strong libertarian leanings. I know that you know about Bolick and Kosinski.

    Another guy I would prefer is Butler Shaffer. He can be found at LewRockwell.com. He has been a law professor for quite some time and, like Tom Woods, is an an-cap. Woods would be better because he is about 30 years younger than Shaffer though Shaffer is a superb writer.

    As for the Ivy pedigree, I would purposefully avoid naming anybody with that background. Haven't the Ivy types caused enough damage?

  • ||

    Judge Nap for sure, Barnett too. Woods, Kinsella, Kozinski and Bolick would be a much tougher sell to all spectrums of the GOP.

    Don't know much about Shaffer.

    Ultimately for Trumps first big decision out of the gate, I think from a liberty perspective -yes, Gorsuch is not perfect- but we could've done a whole hell of a lot worse. I think he's unquestionably qualified and at only 49 he will be on the bench for a long time. I agree with you that we need a non-Ivy league person on the bench but again, we could've done a whole lot worse.

  • We are all Sloopy's mom (RBS)||

    Another guy I would prefer is Butler Shaffer. He can be found at LewRockwell.com.

    This explains so much.

  • ant1sthenes||

    Regarding the basis upon which his fellow federal hacks he wrote, "and in that I see the best in our profession and much to admire.

    As opposed to starting from the desired outcome and rationalizing backwards to legally excuse it?

  • Luxferia||

    Which underscores my point above that his dissent is feeble. He admires his brethren in black for rubber stamping cuffing the 7th grader for burping - how courageous.

    I wouldn't put much stock in Gorsuch's "admiration" line. This is just how most federal appellate judges write dissents. He has to go to work with these people. He sees them everyday and attends social gatherings with their families. Opining that "the majority is effin moronic" tends to dry up streams of communication pretty quickly.

    It seems pretty hollow to me to concede that Gorsuch got the answer right but just didn't do so with as much gusto as you might have.

  • Deven||

    Yeah I have to agree with that. Calling your co-workers a bunch of assholes generally doesn't work out well for you or your ideas in the long run.

  • Luxferia||

    I also suspect that Gorsuch's tone was not an accident. By crediting the majority for reaching the outcome they believe is required, Gorsuch impliedly suggests that the majority knows it reached an unjust result. His dissent then gives them a roadmap for reversing course in the future. In effect, he is stating that "We all think this is over-the-top. You (the majority) probably want to reach a different conclusion but feel compelled to hold otherwise. Here's how you do it." This is an effective persuasion trick because it appeals to the better angels of their graces: it gives them a legal framework through which they can reach an outcome that seems more appropriate.

    This approach is much, much more alluring than calling someone a slaver and dissenting with strident language.

  • The artist known Dunphy||

    I think Gorsuch sounds pretty damn good and I am in full agreement that the overuse of cops and criminal treatment of garden variety student hijinx in schools is a bad thing

    On the one hand, burping warrants an arrest! On the other, violent assaults and trespass like has occurred at Milo events are given a pass by college administrators who embolden violent thugs and vilify free speech

  • Deven||

    I've noticed Reason is fairly quiet overall on Milo.

    I think they secretly like him but don't want their cocktail party friends to know.

  • Deven||

    I've noticed Reason is fairly quiet overall on Milo.

    I think they secretly like him but don't want their cocktail party friends to know.

  • Wizard4169||

    Yeah, things seem to be totally upside down these days. School kids are treated like adult criminals for even trivial misbehavior, while college students (most of whom are, legally at least, adults) are treated like children.

  • phenryinohio||

    The fact that this was even in court makes one gag.

    My gym teacher would have done one of two things. Both probably. Made the boy run laps until he puked or insulted him so completely the boy peed his pants. Then his parents would have punished him for being a twit.

    My dads school. Well it would have been worse. Court? What court? You're still alive aren't you?

  • esteve7||

    I know we are a lost cause when a victory is having a judge not think we should arrest middle-schoolers for goofing off in PE

  • Half-Virtue, Half-Vice||

    Lost cause indeed, but Liberty is as good a hill as any to die on.

  • Mickey Rat||

    It was in dissent, so it was not an actual victory, just a moral one.

  • Mickey Rat||

    It was in dissent, so it was not an actual victory, just a moral one.

  • Mickey Rat||

    It was in dissent, so it was not an actual victory, just a moral one.

  • esteve7||

    3x the squirrelz

  • straffinrun||

    Thin skinned union protected govt worker uses clueless union protected government worker to stop a child from making kids laugh. Blech.

  • esteve7||

    Will this be reason soon? With their "don't condemn the terrorists without condemning the free speech advocates" senior writers, and refusing to cover police abuse of an elderly nurse aiding a semi-conscious child

    http://www.gifbin.com/bin/0520.....ed-gif.gif

  • Bill Dalasio||

    If I knew of a good libertarian comments section to hang out in, I'd consider moving.

  • Private Chipperbot||

    Tonio was working on something. Not that anyone cares, but I'm out as soon as there is a landing spot.

  • Juice||

    There's the Libertarian Institute, but they don't have very many posts and almost no comments. We can make that a new home. It's Scott Horton and Will Grigg and they're no cosmos. Some commenters here wouldn't appreciate that it also includes Sheldon Richman, but screw them. We'll have to talk them into having a blog format closer to Hit and Run too.

  • Derpetologist||

    breaking: another nation of hateful, Islamophobic bigots bans immigrants from Muslim-majority countries.

    That nation? Kuwait.

    "The Kuwaiti Government has asked would-be migrants from the five banned nations not to apply for visas, as Kuwait City is worried about the possible migration of radical Islamic terrorists."

    ISLAMOPHOBES!

  • Juice||

    At least they picked the right countries.

  • Derpetologist||

    Everyday Feminism on Christian Privilege. Refusing to bake a cake is not one of them.

    Some choice bits:

    "That means that American Christians – even those who aren't particularly religious – can openly express their faith, while people affiliated with other religions or no religion are othered and marginalized for practicing theirs."

    "Many Americans never learn anything about Islam – and then what they do learn is based on Islamophobic lies spread by biased media."

    "People Don't Usually Appropriate and Trivialize Sacred Symbols of Your Religion"

    That one doesn't even pass the laugh test.

  • Pat (PM)||

    "People Don't Usually Appropriate and Trivialize Sacred Symbols of Your Religion"

    But when they do, they get government grants for it.

    And, you know, you don't murder them afterwards.

  • The Fusionist||

    I'm not whining, but the world she lives in seems nicer than mine

    "1. You Get Time Off for Your Major Religious Holidays"

    Like today, the Feast of the Presentation of the Lord, when all office buildings are basically deserted.

    "2. You Can Wear Symbols of Your Religion Without Being Stereotyped as Dangerous"

    Unless I wear them around feminists.

    "3. If You're Tried in Court, You're Likely to Be Judged by a Jury That Shares Your Faith"

    Sure, plus some Baptists and AME.

    "4. Politicians Who Create and Uphold Laws Are Likely to Share Your Faith"

    Don't remind me.

    "5. Politicians Who Share Your Faith Can Base Decisions on Their Religion"

    Sure, but they don't.

    "6. You Aren't Asked to Speak on Behalf of Your Entire Faith"

    Not outside of H&R.

    "7. You Can Go Without Knowing About Other Faiths Without Consequence"

    I'm not sure the various terror victims would agree with that.

    "8. Your Community Can Build and Attend a Place of Worship Without Being Targeted for Violence"

    Sure, in the United States. There are other countries, you know.

  • The Fusionist||

    "9. People of Your Faith Who Commit Acts of Violence Aren't Said to Represent Your Entire Faith"

    Not by sane people.

    "10. You Can Expect Your Children to Have Many Teachers Who Share Your Faith"

    If you pay the extra tuition.

    "11. You're Not Pressured to Celebrate Another Religion's Holidays"

    Or my own.

    "12. You Can 'Evangelize' to Others About Your Faith Without Being Accused of Trying to 'Radicalize' People"

    Our own Pope seems suspicious of "proselytism."

    "13. You Can Express Your Faith Without People Trying to 'Save' You From Your Religion"

    And she proceeds to mention feminists trying to save her from Christianity.

    "14. Your Faith Isn't Reduced to Only the Most Violent Passages of Your Holy Book"

    Depends on who's talking.

    "15. People Don't Usually Appropriate and Trivialize Sacred Symbols of Your Religion"

    Heh, heh, that never happens.

  • What about Sloopy's mom?||

    "1. You Get Time Off for Your Major Religious Holidays"

    We get 7 January off?

  • AlmightyJB||

    So you celebrate the Charlie Hebdo massare? Or is it the Chrysler bailout?

  • John Titor||

    If You're Tried in Court, You're Likely to Be Judged by a Jury That Shares Your Faith

    Don't break any laws in Utah Eddie, you'll get the electric chair.

  • JJ||

    Dean Ulich: Frankly, I'm not too wild about this next even but it has become a tradition here at Adams: The Belching Contest.
    [the crowd cheers]
    Dean Ulich: First up, Frederick W. Palowakski.
    Ogre: [grunting] It's "Ogre" you asshole!
    Dean Ulich: "Ogre, you asshole.", uh "Ogre".

  • straffinrun||

    Always bet on Booger.

  • Bra Ket||

    "It's a problem mostly in need of legislative solutions,..."

    This is a kind of statement I tend to categorically not like.

  • The Last American Hero||

    If I hear not allowed much longer, I am going to get angry.

  • JayU||

    The suit was actually about that incident and an incident where the kid was searched at school months later.

    They shouldn't have combined those two things. The precedent is clear that kids in public school don't have all the rights of adults out of school. So schools can search you without a warrant.

    Getting arrested for being a class clown though? That's ridiculous.

  • MikeP2||

    "Getting arrested for being a class clown though?"

    Hard to know without background. Was the burping the only thing, or did the kid lash out at the teacher. Perhaps the teacher didn't emphasize that to avoid getting the kid in too much trouble, but needed the help of the resource officer to control the situation. Perhaps the kid kept getting physical and the resource officer was concerned about liability issues and getting in trouble for restraining and called the leos.
    I don't know.

    I have a middle school son and I've seen peers of his who were ticking time bombs. Kids with serious emotional problems who would just friggin lose it in class. hit, scream, throw things, etc, etc.

    Not all of these stories are ridiculous and there have certainly been some where the full backstory was not told. Where the teachers, etc, were not emphasizing specific issues to avoid causing too much punishment on the kid. You'd be surprised how many teachers have taken a punch while dealing with a problem kid and not reported it to avoid the 'assault' charges.

  • JayU||

    You can follow the trail of links to read the description from the actual court filings.

    The kid was burping and the teacher asked them to go out into the hall. The kid complied, then continued doing it by opening the door and burping through the open door from the hallway.

    Rude. But not worthy of sending a 13 year old to prison over.

  • AlmightyJB||

    If you're arresting children for acting like children you need your ass kicked.

  • Vitae Drinker||

    Does the hair even libertarian, bro?

  • TGoodchild||

    Me thinks the author and those with whom he agrees are not familiar with the level of antagonism and maladjusted behavior our school teachers are facing, particularly in inner-city districts. Granted, most of these problem students' behavioral problems stem from an absence of a father in the home - a problem fundamental to other, more serious social concerns - but the practical alternative is to make the teachers and other staff physically responsible for these budding wards of the state. They are not only not trained to do that (or physically capable), they are also not paid to do so.

  • Sopatt||

    "This is a problem, because kids are much less likely to finish school, go to college, and become productive members of society after exposure to the criminal justice system." This sentence in context seems to be intended to imply causality but i only denotes correlation. My gut says it's not exposure to the criminal justice system is not the cause of the reduced "success rate" (to paraphrase) but rather that both statistics have a common [behavioral] cause that leads to both effects.

  • movie||

  • movie||

  • Choey||

    When I was in school, 60 years ago, a scowling look from the coach would have easily taken care of the problem.

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