10th Circuit OKs School Arrest & Strip Search

DENVER (CN) —The 10th Circuit ruled that a school police officer and two school employees have qualified immunity in a series of civil lawsuits which arose from the arrest and strip-searching of an Albuquerque middle-schooler.

The Cleveland Middle School student, F.M., was sent out of class for pretending to burp and making his classmates laugh. When F.M. ducked his head around the classroom door and pretended to burp again, his P.E. teacher requested help with the disruptive student.

Albuquerque police Officer Arthur Acosta responded, and on finding the teacher standing outside the classroom supervising the student, arrested the seventh-grader for "interfering with the educational process," a petty misdemeanor. Acosta patted the boy down and handcuffed him before taking him to a juvenile detention center for processing.

In a separate incident the next school year, F.M. was among five students seen engaged in what might have been selling and buying marijuana. All five students were brought to a conference room in the school's front office and asked to remove their shoes and empty their pockets.

When F.M. was found to be carrying $200 in cash, and to be wearing "numerous layers of clothing ... including a long-sleeved athletic shirt, a short-sleeved shirt layered over the first shirt, a pair of jeans, two pairs of athletic shorts, and boxer-shorts underwear," he was asked to remove outer layers of clothing. No marijuana was found in the search, according to the 2-1 July 25 ruling by 10th Circuit Judge Jerome Holmes.

The student's mother filed several lawsuits against the school and its employees, including Acosta, school principal Susan Labarge, and assistant principal Ann Holmes.

Each of these defendants claimed qualified immunity from civil prosecution, and the 10th Circuit affirmed.

Judge Holmes's 94-page ruling skirts the issue of whether the 2011 arrest of the middle-schooler was justified, and acknowledges the mother's assertion that "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."But Holmes said the school employees and police officer were acting within reasonable parameters in both incidents. He cited Malley v. Briggs (475 U.S. 335, 341 (1986)): "Put simply, qualified immunity protects 'all but the plainly incompetent or those who knowingly violate the law.'"

In a brief, colorful dissent, 10th Circuit Judge Neil Gorsuch cites Charles Dickens' "Oliver Twist," in which a judge admonishes Mr. Micawber that the law thinks a man should control his wife. Micawber responds: "If the law thinks that, then the law is a ass, a idiot."

Gorsuch's final paragraph confounds paraphrase. Here it is:

"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 as they do. I respectfully dissent."

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit