Justice Neil Gorsuch.

(Photo: Diego M. Radzinschi/ALM)


Justice Neil Gorsuch may face his first recusal when the justices in May take up a petition that involves—and features prominently—one of his most famous dissents: the case of the burping 13-year-old student.

Gorsuch, formerly a judge on the U.S. Court of Appeals for the Tenth Circuit, in July wrote a dissent in A.M. v. Holmes. His colleagues in that case voted in support of immunity over the arrest of a student in New Mexico for allegedly disrupting a physical education class.

Gorsuch notably borrowed from a Charles Dickens line in “Oliver Twist.” The law, he said then, quoting Dickens, can be “a ass—a idiot.” But Gorsuch did not think, he said in the student’s case, that the law was as much of an “ass” as his two colleagues seemed to believe.

The 13-year-old—who would have prevailed under Gorsuch’s view—and his mother want the Supreme Court to revive the claims rooted in the May 2011 arrest of the boy at school. Their high-court petition is scheduled for the justices’ May 11 conference.

The boy’s lawyer, Joseph Kennedy of Albuquerque, New Mexico’s Kennedy, Kennedy & Ives, wastes no time in relying on the Gorsuch dissent. In the petition’s opening introductory paragraph, Kennedy quotes this 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.”

The case started back in 2011, when a physical education teacher at an Albuquerque middle school called for help over her school-issued radio. A 13-year-old seventh grader “had generated fake burps, which made the other students laugh and hampered class proceedings,” according to the panel decision. After the boy ignored her requests to stop, the teacher ordered him to sit in the hallway. There, he leaned into the classroom entrance way and continued to burp. She called for help.

A school resource officer asked the boy to accompany him to the school administrative office. He told the boy that he was arresting him for interfering with the educational process—a petty misdemeanor offense under New Mexico law. The officer handcuffed the teen and drove him to juvenile hall.

The boy’s mother sued, alleging violation of her son’s civil rights because of the arrest and a subsequent strip search in an unrelated incident. The divided Tenth Circuit panel affirmed qualified immunity for the officer and school officials on all claims.

Gorsuch, writing in dissent, said: “The simple fact is the New Mexico Court of Appeals long ago alerted law enforcement that the statutory language on which the officer relied for the arrest in this case does not criminalize ‘noise[s] or diversion[s]’ that merely ‘disturb the peace or good order’ of individual classes.” Any reasonable officer, Gorsuch wrote then, should have known that “arresting a now compliant class clown for burping was going a step too far.”

In the high court, the boy’s counsel, Kennedy, argues: “The petition argues simply that the state interest is obvious—childhood conduct that disturbs the peace of a school session is not criminal and children should be kept out of juvenile detention when possible. When the state interest against arresting children is balanced with the liberty interest of the child, the unconstitutionality of the arrest is obvious.”

Albuquerque assistant city attorney Kristin Dalton, representing Officer Arthur Acosta, asked the justices not to take the case.

“While the facts underlying petitioner’s claims may be of interest because they are somewhat unique, the legal issue involved is nothing more than the application of New Mexico law to the qualified immunity analysis,” she wrote. “The Tenth Circuit’s application of qualified immunity was not irregular; rather, it utilized long-settled law.”

Gorsuch hasn’t yet recused in any matter at the high court. He faced, however, an early test: Whether to recuse in a case in which Hogan Lovells partner Neal Katyal—who advocated for Gorsuch during his confirmation proceedings—was arguing. Gorsuch did not step down.

Gorsuch has declined to participate—as is normal—in ruling on matters in which he did not hear argument.

Justices regularly recuse in cases they touched in earlier parts of their career. Justice Sonia Sotomayor, for instance, has recused in some matters related to her service on the Second Circuit.

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Contact Marcia Coyle at mcoyle@alm.com. On Twitter: @MarciaCoyle