One issue which has began to largely split conservatives has been criminal justice reform. On one hand, leaders like Rand Paul and Marco Rubio have advocated for sentencing reform and the lessening of mandatory minimums. However, others, like President Trump have seemed to take a different approach, Trump has long advocated for increasing “stop and frisk” and remaining tough on crime.

Neil Gorsuch has been a judge on the 10th Circuit of the US Court of Appeals for over 10 years. During his tenure, he has authored over 120 important opinions. In looking through his past rulings, it is possible to gain a sense of how he is likely to rule on cases, should he be confirmed to fill the seat on the US Supreme Court which was held by the late Justice Antonin Scalia until his death last February.

In the case A.M. vs. Holmes, a student who was referred to as “A.M.” in the case, was arrested after his teacher for physical education took issue with “fake burps” which he had been making in class, the Washington Post summarizes, “He was arrested by a school police officer for disrupting the education process and suspended from school.”

In response to this situation, the mother of the child filed a federal lawsuit against two school officials and the police officer at the school for the arrest. However, a federal district court ruled against the child’s family, while the federal appeals court which Gorscuch sat on ruled the same way.

“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. My colleagues suggest the law permits exactly this option and they offer ninety-four pages explaining why they think that’s so. Respectfully, I remain unpersuaded.

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. State v. Silva, 525 P.2d 903, 907 (N.M. Ct. App. 1974). Instead, the court explained, the law requires “a more substantial, more physical invasion” of the school’s operations — proof that the student more “substantially interfered” with the “actual functioning” of the school. Id. at 907-08. What’s more, other state courts have interpreted similar statutes similarly. They’ve sustained criminal convictions for students who created substantial disorders across an entire school. See, e.g., State v. Wiggins, 158 S.E.2d 37, 42-44 (N.C. 1967); State v. Midgett, 174 S.E.2d 124, 127-28 (N.C. Ct. App. 1970). But they’ve also refused to hold students criminally liable for classroom antics that “momentarily divert[ed] attention from the planned classroom activity” and “require[d] some intervention by a school official.” In re Jason W., 837 A.2d 168, 174 (Md. 2003). Even when the antics required a teacher to leave her class for several minutes, In re Brown, 562 S.E.2d 583, 586 (N.C. Ct. App. 2002), or otherwise “divert[ed] the teacher or the principal from other duties for a time,” P.J.B. v. State, 999 So. 2d 581, 587 (Ala. Crim. App. 2008) (per curiam). See also, e.g., S.L. v. State, 96 So. 3d 1080, 1083-84 (Fla. Dist. Ct. App. 2012). Respectfully, I would have thought this authority sufficient to alert any reasonable officer in this case that arresting a now compliant class clown for burping was going a step too far.

[…]Silva expressly held that this language does not criminalize conduct that disturbs “merely the peace of the school session” but instead requires proof that the defendant more substantially or materially “interfere[d] with the actual functioning” of the school. 525 P.2d at 907. Neither do my colleagues offer any reason why a reasonable officer could have thought this same language carried an entirely different meaning when applied to public school burps rather than college sit-ins — and the parties supply none. Cf. Smith v. City of Jackson, 544 U.S. 228, 233 (2005) (“[W]hen Congress uses the same language in two statutes having similar purposes, … it is appropriate to presume that Congress intended that text to have the same meaning in both statutes.”).

[…]disciplining children who temporarily distract classmates and interrupt lessons “is simply part of [traditional] school activity” and part of its “lawful mission … or function[].” In re Jason W., 837 A.2d at 174; see also In re Brown, 562 S.E.2d at 585-86. Given that, I would have thought these cases would have only reinforced the lesson Silva already taught reasonable officers in New Mexico. See Wilson v. Layne, 526 U.S. 603, 617 (1999) (noting law may be clearly established if there is “a consensus of cases of persuasive authority such that a reasonable officer could not have believed that his actions were lawful”).

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 [sic] as they do. I respectfully dissent.”


What do you think of Judge Gorscuh’s decision? What do you think this says about the prospects of him as a Supreme Court Justice? Let HYPELINE News know what you think in the comments!

(h/t Washington Post)

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Jake Leahy is a Staff Writer for Hypeline News, frequent contributor on 560 the Answer in Chicago, and a student at Deerfield High School (IL). Follow him on Twitter @jakealeahy.


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