Police, The Fourth Amendment, Qualified Immunity

Criminalizing childhood — class clown goes to jail

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Preliminary note added on edit:  the linked version of this opinion published at the GOOGLE Scholar database leaves off the excellent dissent.  Here is a link to a version of the opinion that includes the dissenting opinion:  https://www.ca10.uscourts.gov/opinions/14/14-2066.pdf

Case:   AM v. Holmes, Court of Appeals, 10th Circuit 2016

Short version:  Tenth Circuit says it is okay for police to arrest and handcuff a child for burping and laughing in class.

Longer Version:

On May 19, 2011, CMS physical-education teacher Margaret Mines-Hornbeck placed a call on her school-issued radio to request assistance with a student. Officer Acosta, the school resource officer, responded to the call. As he approached the designated classroom, he saw a student—later identified as F.M., who was then thirteen years old and in the seventh grade—sitting on the hallway floor adjacent to the classroom while Ms. Mines-Hornbeck stood in the hallway near the classroom door. Other students were peering through the doorway.

Ms. Mines-Hornbeck explained that F.M. had generated several fake burps, which made the other students laugh and hampered class proceedings. After F.M. ignored her requests to stop making those noises, Ms. Mines-Hornbeck ordered him to sit in the hallway. F.M. nominally complied, but once he was situated in the hallway, he leaned into the classroom entranceway and continued to burp and laugh. This obliged Ms. Mines-Hornbeck to “hav[e] to deal with [F.M.] repeatedly” and rendered her unable to continue teaching the class. Ms. Mines-Hornbeck told Officer Acosta that she “need[ed] [F.M.] removed from [t]here” because she could not control F.M.

At some point during Ms. Mines-Hornbeck’s conversation with Officer Acosta, F.M. interjected, saying, “That didn’t happen. No, that’s not true.” Nonetheless, based on what he had observed, Officer Acosta asked F.M. to come with him. F.M. cooperated; he accompanied Officer Acosta to CMS’s administrative office and waited in a chair while Officer Acosta retrieved a computer from his patrol car.

Officer Acosta then informed F.M. that, “[b]ecause of the disruptions [he] saw,”  he would be arresting F.M. for interfering with the educational process in violation of N.M. Stat. Ann. § 30-20-13(D),[3] which is a petty misdemeanor offense. Once again, F.M. stated that he had done nothing wrong. However, Officer Acosta did not “go into great detail with [F.M.],” which is to say that he did not invite further discussion of F.M.’s version of events. Aware that he possessed complete discretion concerning whether to arrest F.M. or issue a citation, Officer Acosta believed that he had a legitimate basis to arrest (i.e., probable cause) based on (1) Ms. Mines-Hornbeck’s statement that F.M.’s (fake) burping and other specified misconduct prevented her from controlling her class, and (2) his observation that, when he responded to Ms. Mines-Hornbeck’s call, “there was no more teaching going on,”  because Ms. Mines-Hornbeck was monitoring F.M. in the hallway. Officer Acosta thus drafted the necessary incident report, leaving F.M. outside the administrative office. He did not place F.M. in handcuffs at that point because F.M. posed no flight risk and “was not combative.”

When Officer Acosta advised Ms. LaBarge of his plan to arrest F.M., Ms. LaBarge prepared a disciplinary referral slip that denoted “Police or Outside Agency” action and imposed a one-day suspension to be served May 20, 2011. She gave Officer Acosta “the duplicate . . . Parent/Student copy” of the referral slip.  Meanwhile, pursuant to school policy, Ms. LaBarge’s administrative assistant attempted to notify A.M. She called the two telephone numbers listed in F.M.’s enrollment records, but to no avail: the first number had been disconnected, and the second number lacked a functioning voicemail account.

After completing his paperwork, Officer Acosta said to F.M., “Let’s go to the car.” Id. at 295. F.M. responded, “Okay,” and walked to Officer Acosta’s patrol car without incident. Id. 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.” Id. 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.

F.M. was booked into the detention center at approximately 1:30 p.m. As Officer Acosta expected, a detention-center staff member completed F.M.’s risk assessment instrument before releasing F.M. to the custody of A.M. at around 2:30 p.m. Shortly thereafter, A.M. visited Ms. LaBarge at CMS to discuss F.M.’s suspension. By both accounts, the conversation was unproductive. . . .

F.M. served his suspension and did not return to CMS for the remainder of the 2010-11 school year. Not surprisingly, the story of his arrest garnered some publicity. A.M. “spoke publicly” about the incident and “provided interviews to local news media.”  According to Officer Acosta, news coverage of F.M.’s arrest “was on the airways quite a bit,” much to the chagrin of school administrators.

. . .


On November 30, 2011, A.M. filed a lawsuit in New Mexico state court against Ms. LaBarge, Ms. Mines-Hornbeck, and Officer Acosta. A.M. alleged in the complaint that the defendants deprived F.M. of his civil rights by arresting him in May 2011 under N.M. Stat. Ann. § 30-20-13(D) and by handcuffing him while effecting the arrest—asserting Fourth Amendment violations as to both claims. Notably, A.M. opined that a reasonable officer “should have known that burping was not a crime” and that “no force was necessary” to facilitate the arrest. . . .

. . .

In the present case, Officer Acosta contends that he had probable cause to arrest F.M. for violating N.M. Stat. Ann. § 30-20-13(D), which provides, in pertinent part: “No person shall willfully interfere with the educational process of any public . . . 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 . . . school.”[5] Officer Acosta alleges that he based his decision to arrest on two factors: (1) Ms. Mines-Hornbeck’s statement that F.M.’s (fake) burping and other specified misconduct prevented her from controlling her class, and (2) his observation that, when he responded to Ms. Mines-Hornbeck’s call, “there was no more teaching going on,” because Ms. Mines-Hornbeck was monitoring F.M. in the hallway. In sum, Officer Acosta asserts that F.M.’s behavior constituted an obvious and willful interference with the educational process—as described by the statute—and that his (Officer Acosta’s) recognition of the interference supplied him with the requisite probable cause to arrest F.M.

However, in the qualified-immunity context, Officer Acosta’s commission vel non of a constitutional violation need not be the focus of our inquiry. This is because A.M. “must demonstrate on the facts alleged both that [Officer Acosta] violated [F.M.’s] constitutional . . . rights, and that the right was clearly established at the time of the alleged unlawful activity.” Riggins, 572 F.3d at 1107 (emphases added). We elect to center our analysis on the clearly-established-law question.

. . .


We conclude that A.M. has not demonstrated that, under extant clearly established law, a reasonable officer in Officer Acosta’s position would have had fair warning that he lacked probable cause to arrest F.M. for interfering with the educational process in violation of N.M. Stat. Ann. § 30-20-13(D). Put another way, in our view, such an officer could have reasonably believed—even if mistakenly—that the officer possessed probable cause under section 30-20-13(D) to arrest F.M.

. . .

A.M. insists that Officer Acosta’s arrest of F.M. for his burping and other horseplay in Ms. Mines-Hornbeck’s classroom violated clearly established law because F.M.’s conduct patently did not rise to the level of seriousness envisioned by N.M. Stat. Ann. § 30-20-13(D) and “no case [was] necessary to alert him [i.e., Officer Acosta] to this fact.” In this regard, A.M. reasons, “At worst, F.M. was being a class-clown and engaged in behavior that would have subjected generations of school boys to an after-school detention, writing lines, or a call to his parents.” Id. at 42. Moreover, A.M. contends that, when the provisions of section 30-20-13 are read as a whole, “it is clear that the New Mexico legislature contemplated” that the statute’s provisions would only be violated “by actions which impede the overall public function of the school, and not a classroom in the school.” Reply Br. (14-2183) at 15; see Aplt.’s Opening Br. (14-2183) at 40 (“Any reasonable officer would understand that Section 30-20-13(D) is targeted at criminalizing the intentional act of disrupting the overall operation of a school.”).

. . .

Here, F.M. was not merely speaking in a conversational tone (e.g., voicing a concern or criticism to the teacher or sharing a joke with a fellow student); instead, he was repeatedly fake-burping, laughing, and (later) leaning into the classroom. And the effect of his conduct was not merely to disturb the good order of Ms. Mines-Hornbeck’s classroom; rather, it was to bring the activities of that classroom to a grinding halt. In these circumstances, a reasonable officer in Officer Acosta’s position. .  could have believed that F.M. was doing more in the school context than disturbing the peace. More to the point, such an officer could have believed—even if mistakenly so—that he possessed probable cause under section 30-20-13(D) to arrest F.M. for interfering with or disrupting the educational process.


Written by Burgers Allday

July 30, 2016 at 6:26 am

Posted in Uncategorized

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