Burning Man is a week-long event of art and temporary community held on federal land in Nevada's Black Rock Desert. The event organizers thus must get a permit from the Bureau of Land Management (BLM) before the burning can legally begin.
This year the BLM is proposing a long series of fresh demands on the event's organizers, most of which strike this reader as more about "event management" than the land management issues the BLM should care about if stewardship of the land is indeed its purpose and goal.
One of the demands in particular raises serious Fourth Amendment issues. A section quoted in full from Burning Man Event Special Recreation Permit Draft Environmental Impact Statement: Volume Two:
At all portals of entry into the Event, beginning 14 days before Labor Day, BRC [shorthand for the company running the event] will be required to contract a BLM-approved, independent, third-party, private security to screen vehicles and participants, vendors and contractors, and staff and volunteers entering the Event. Thirdparty, private security will report Closure Order violations, to include weapons and illegal drugs, directly to law enforcement as violations are observed so that law enforcement can respond. Third-party, private security will provide an Event summary report to the BLM within 30 days of the end of the Event
The most eye-raising part bolded. The BLM wants to demand as a permit condition from this private business that the business hire private security to conduct unwarranted searches of all 70,000 Burning Man attendees without probable cause as a condition of entry into this section of public land—entry for which the citizen has paid many hundreds of dollars and likely driven eight hours or more to arrive at, so the costs of refusing the search are quite high.
The BLM specifically spells out that part of the purpose of this requirement is to find illegal drugs, so it can't claim it's all about preserving public lands. The BLM also requires that the private security hired by Burning Man deliver law violators to government law enforcement. The nexus between the government demand and the warrantless searches without any public safety connection is therefore very clear, though the BLM bureaucrats may have thought they cleverly created plausible deniability by demanding a permit applicant hire another private firm to conduct the searches, rather than conducting the searches itself.
I ran the search demand by John Wesley Hall, a practicing trial lawyer and author of the book Search and Seizure. While nothing is a certain result with constitutional law until specific cases have been considered by specific judges, he sees potential problems with the demand.
"Sounds to me like they are essentially delegating to private authorities" what is actually their own demand, he says, "therefore, [it is] a government mandated search." He recognizes the wrinkle that the ticket-buying citizens could, even at great cost and trouble to themselves, refuse the search, and that perhaps an open offer to refund the ticket might complicate the legality of the BLM demand. He also thinks it might matter if ticket buyers had been informed when buying that they were in essence consenting to a drug search. Even TSA agents, he says, are not operating under a mandate that they must be searching for illegal drugs, as the BLM spells out that the private security they want to force Burning Man to use must. And while the federal government likes to insist its rules dominate, it's worth considering that in Nevada, where the event occurs, recreational marijuana use is legal.
Becky Anders with the BLM is listed in the BLM permit document quoted above as responsible for "Law enforcement, public health and safety, including writing these sections of the EIS." I asked her via email whether the BLM had gotten any sign off from any legal counsel with Fourth Amendment savvy. She replied that "Your questions regarding Fourth Amendment issues would be something we would be interested in having as a substantive comment in order to help improve the document. You can submit comments via email at blm_nv_burningmaneis@blm.gov or on our e-planning website for the Burning Man EIS where you can comment directly on the document. To comment through eplanning go here https://bit.ly/2Yef54r."
Burning Man's organizers are also inviting their constituents—and the BLM's—to make their thoughts about this draft proposal clear to the BLM, as per the process for such drafts. The event organizers had no comment on the Fourth Amendment implications of the demand specifically, though they do mention it on their web site as one of a few "serious problems" with the environmental impact statement and the demands contained in it.
I first wrote about Burning Man's complicated relationship with government for Reason in a 2000 cover feature, "Burning Man Grows Up," and then in my book This Is Burning Man.
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