This firm today filed a petition to the United States Supreme Court in A.M. v. Acosta, a case in which a 13-year-old middle school student in Albuquerque, New Mexico was detained by police and transported in handcuffs to the juvenile detention center for burping audibly during his gym class.

The burping at issue has been described as “generating burps” in exchange for laughs from classmates:

You know, when we were kids, I remember you’d have these burping contests, for lack of a better word . . . that’s what he was doing, his teacher explained.

The other students apparently thought the burping was hilarious. They egged the child on until his teacher ordered him to sit outside, which he did. In any reasonable society, that should have been the end of it.

But not so in this case. The teacher called a police officer on his handheld radio. That officer arrived on scene, patted the child down, handcuffed and arrested him, and hauled him off to the detention center so that he could be criminally prosecuted for his mischief.

This brings up a disturbing trend, sometimes referred to as the “school-to-prison pipeline,” where children-often children with disabilities who would benefit immensely from education and counseling services-are funneled out of school and into the criminal justice system for conduct that used to be considered routine horseplay. This law enforcement response originated with the implementation of zero tolerance policies in the 1990s that gained traction after two students at Columbine High School gunned down their teachers and classmates in 1999.

Zero tolerance policies have eroded old-fashioned common sense in differentiating between conduct that is actually dangerous and conduct that cannot justifiably be treated as criminal. The schools are now crawling with police officers, and the whole spectrum of childhood behavior, from weapon possession to writing on desks (and burping, apparently) can result in a law enforcement response.

The arrest of a child carries far-reaching consequences. His education is disrupted in a humiliating way. He now has a juvenile record, and he’s statistically more likely to drop out of school. And the other students are affected as well; the threat of criminal prosecution for ordinary misbehavior saturates the entire classroom. The kids are taught, as an unfortunate early lesson in civics, that there is no discernible limit to the arbitrary power of the State.

A majority panel of the Tenth Circuit Court of Appeals has affirmed the dismissal of the child’s lawsuit. Much has been written recently about Judge Gorsuch, the incisive, colloquial, originalist that has been recently nominated to fill Justice Scalia’s seat on the United States Supreme Court. Whatever political differences one may have with Judge Gorsuch, he is an eminently skilled writer, and his succinct five paragraph dissent to the panel’s 94 page opinion is worth reading.

The Supreme Court is under no obligation to accept the case. It may do so if it considers the issue to be of national importance.

The full petition for certiorari can be viewed by clicking the link at the top of this post.

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