A Middle Schooler is Arrested for Burping During Class

By: Alex Lindvall

That title is not an exaggeration.  A thirteen-year-old middle school student was arrested for (fake) burping during gym class.  If it sounds ridiculous, that’s because it is.  But it doesn’t end there.  The 10th Circuit Federal Court of Appeals approved of the middle schooler’s arrest in a 94-page opinion.


On May 19, 2011, a police officer was called to Cleveland Middle School in Albuquerque, New Mexico.  A middle school student, F.M. (courts identify minors by their initials to preserve their anonymity), and his teacher were standing in the school’s hallway.  This middle school student, as it turns out, had a special talent: he could burp on command.  The gym teacher explained to the officer 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 the noises, the gym teacher ordered F.M. to sit in the hallway.  Undeterred, “he leaned into the classroom entranceway and continued to burp and laugh.”

After hearing the teacher’s account, the officer arrested F.M. for violating N.M. Stat. Ann. § 30-20-13(D), which reads: “No person shall willfully interfere with the educational process of any…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…school.”

The school Principal gave the police officer the “okay” to arrest F.M.  He was then handcuffed, placed in the back of a squad car, and taken to a juvenile detention center.

Seriously . . . ?

If this seems unreasonable to you, you are not alone.  To quote the case’s dissenting Judge:  “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.”

A Bigger Point.

This case, while entertaining, illustrates a larger trend in this country — a trend toward “overcriminalization.”  American politicians have been using the “getting-tough-on-crime” platform for decades.  They use it because it works.  Can you think of a politician who has run a successful campaign with a “decriminalization” platform?  Me neither.  As a result, politicians pass more and more laws that have no business being “on the books.”

Massachusetts, for example, criminally punishes those who frighten pigeons from their nest (Mass. Gen. Law Ann. Ch. 266, 132).  Spitting in public places is a misdemeanor in Virginia (Va. Code Ann. 18.2-322).  Anonymously sending “suggestive” messages is punishable by a three-year prison sentence in South Carolina (S.C. Code Ann. 16-15-250).  It is illegal to buy vibrating sex toys in Alabama (Ala Code 13A-12-200.2).  You get the idea.

The State depriving a citizen of life or liberty is the most serious action the government can take.  Criminal sanction, therefore, should be reserved for the most serious, harmful behaviors — those that warrant forcibly removing someone from society.  Burping in gym class does not qualify.