Among its orders issued on Monday, the Supreme Court did something usually unremarkable: it summarily refused to hear an appeal without comment. Most appeal requests are denied by SCOTUS, but docket 16-984 was unusual in several respects. For one, it involved a 13-year-old boy arrested, handcuffed, and taken to jail for making fake burping noises in gym class. But recently it also became a notable dissent by recently appointed Supreme Court justice Neil Gorsuch from when he had served on a Federal Circuit Court.
The facts of the case were straightforward. As summarized in the introduction to the petition for appeal:
Thirteen-year-old F.M. burped in gym class, laughed, and, after the teacher removed him from the classroom, he leaned back into the classroom while sitting in the hall. Because these acts divided the teacher's attention, Officer Arthur Acosta ("Officer Acosta") handcuffed F.M., transported him to the local juvenile detention center, and charged him with Interference with the Educational Process, N.M.S.A. 1978, § 30-20-13(D) ("Section 30-20-13(D)"). Officer Acosta handcuffed and transported F.M. even though F.M. was compliant at the time he arrested him and there was no state interest in transporting him.
Ultimately, the case ended up in the hands of a federal Tenth Circuit Court, which found in a 2-1 ruling that the policeman's qualified immunity was sufficient to summarily dismiss any action against him. Gorsuch, however, found this absurd and began his dissent:
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.
In his concise 4-page dissent, Gorsuch skewered the majority's convoluted reasoning, which seemed to spend much of its 94 pages constructing a careful path circumventing a New Mexico appellate court ruling that "interference with the educational process" required a "substantial, more physical invasion" of a school's operations. On this basis, Gorsuch concluded that the statute in question (which used identical language to the statute in the previous court case regarding colleges) obviously did not intend to criminalize minor "noises or diversions." He noted several other court cases from other states dealing with similar issues that concluded the same thing.
On this basis, he wrote that a "reasonable officer" in New Mexico should have known better.
But why did the Circuit Court come down so harshly and construct such convoluted reasoning just to let a police officer off the hook? The answer may be in the quiet sea-change in SCOTUS jurisprudence that seeks to limit almost all challenges to the "qualified immunity" given to police officers. Despite the fact that it doesn't appear in any federal statute, "qualified immunity" became de facto law after the 1982 Supreme Court ruling in Harlow v. Fitzgerald, which interpreted 42 U.S. Code § 1983 "Civil action for deprivation of rights" extremely narrowly. Over the years, this qualified immunity has expanded to the point that almost any police action -- no matter how unconstitutional or egregious -- is immune to civil action.
One recent illustrative case is SCOTUS's 2014 ruling in Plumhoff v. Rickard. After a routine traffic stop for a broken headlight, a car sped off resulting in a high-speed chase. After the car was cornered by a police patrol car, the police fired 15 shots into the car at close range, killing the driver and passenger and causing the vehicle to crash into a nearby house. SCOTUS reversed the appellate court's decision unanimously, determining that qualified immunity was still in effect. It should be noted that the doctrine of "qualified immunity" does not merely find officers non-liable for their actions; it necessitates a summary dismissal of any claims against them, preventing any actual consideration of fact in a lawsuit.
But what does this have to do with the "burping teen"? As argued in a recent Minnesota Law Review article, the Supreme Court has not only expanded its "qualified immunity" exceptions, but it has attempted to stamp out any possible dissent among lower courts. Rather than the standard jurisprudence concept of relying on citation of precedent, SCOTUS has instead chosen to quietly expand this doctrine (which it itself created in 1983), "describing it in increasingly generous terms and inexplicably adding qualifiers to precedent that then take on a life of their own." During the past 15 years, the Court has ruled in favor of the "qualified immunity" in 16 of 18 cases it chose to take. And in 6 of these cases it chose summary reversals of Circuit Court decisions, with no allowance for oral argument or briefing. (As the law review article notes, that represents about 1 of every 7 summary decisions in recent years.)
This tendency to not only reverse Circuit Court decisions (often unanimously), but often without even allowing argument, shows an unusual trend in SCOTUS jurisprudence. Even more remarkable is that through a series of rulings, SCOTUS has effectively short-circuited the process of appeals by insisting that (1) "qualified immunity" can only be denied in cases where officers violate "clearly established law," but (2) effectively limiting the determination of "clearly established law" to SCOTUS itself. Hence, if your case is not basically identical to the circumstances of a previous successful challenge to "qualified immunity" litigated by SCOTUS, lower courts are now implicitly instructed to grant immunity no matter what.
Indeed, earlier this year Bloomberg reported a story with the headline "Supreme Court Has Had Enough with Police Suits," after the most recent summary reversal -- just because the facts were "unique":
The justices made it clear that they wanted to send a message. [...] And the opinion referred to several occasions "in the last five years" in which the Supreme Court has reversed lower courts on the qualified immunity issue. There's little doubt of the message to the lower courts: The Supreme Court wants fewer lawsuits against police to go forward.
In an era where police misconduct seems to be getting more attention all the time, why are we not hearing more reporting about this quiet revolution in Supreme Court jurisprudence that has effectively made it impossible to make police accountable for their actions?
Returning to our "burping boy" case, perhaps we can read Gorsuch's dissent in a new light. Were the Circuit Court judges simply trying to find a way to grant immunity just to avoid another smackdown by SCOTUS? In his conclusion, Gorsuch comes close to accusing his colleagues of manufacturing an argument that they don't actually believe is just: "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..." He then goes on to say that he doesn't believe the law is "quite as much of a[n] ass as they do."
Because of his prior involvement with the case, Gorsuch was forced to recuse himself from consideration of the SCOTUS appeal. But if his dissent was sincere, maybe his voice will remain one dissenting voice among the otherwise unanimous Supreme Court justices who now allow for almost no possibility of personal culpability for police negligence, incompetence, or abuse.