Burning Man

Going to Burning Man? The Feds Want You Searched for Drugs

Can the government demand a warrantless search with no probable cause of ticket holders as a condition of issuing an event permit?

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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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61 responses to “Going to Burning Man? The Feds Want You Searched for Drugs

    1. I honestly don’t know why people would go anymore. Its not just that its ‘mainstream’ but that its just trading off the reputation of the early anarchist days when that’s all gone. If you just want to go into the desert, do drugs, shoot things, and fuck you can do that anywhere.

      1. ^ This.

        My criticism of Burning Man going back to its early days is that if I want to drive 8-10 hours out into the wilderness to do drugs, I don’t want there to be 50,000 people there when I get there. It defeats the purpose of driving 8-10 hours out into the wilderness. I can drop acid in Union Square to much the same effect.

        1. If that is all you were going for, damn right to avoid it.

          Oh and there were too many people when it was ten-thousand, not fifty. Unless you’re some kind of hippie come lately.

          1. I never attended, as at no point did it sound remotely enjoyable to me. I hated raves, too, but I’m unusually anti-social.

            1. “Hey dude, would you like to go to Burning Man?”

              “No. In fact, I would hate it.”

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        2. My criticism of Burning Man going back to its early days is that if I want to drive 8-10 hours out into the wilderness to do drugs, I don’t want there to be 50,000 people there when I get there. It defeats the purpose of driving 8-10 hours out into the wilderness. I can drop acid in Union Square to much the same effect.

          Amen. I couldn’t have said it better myself.

          1. It is better that anti-social malcontents avoid crowds of normal people trying to have fun.

            Just part of America’s great sifting.

            1. Normal people? At Burning Man?

              Wow, you can’t even rent a clue.

        3. It didn’t used to be so populous.

          Gone are the days of the drive-by shooting range, and their like will sadly never return. (To Burning Man, anyway.)

      2. C’mon, Agammamon ?. people go to watch the other people. It’s likely a shitload of fun, especially if you’re smokin’ a little weed, huh? Huh?

    2. I can’t tell which to be more anxious about, the cops or the bikes.

    3. Diane, with all due respect, that’s a picture of the overpaid and underworked LEOs rolling to the temple to honor a deceased friend. They don’t usually get to cluster-fuck like that unless someone hits someone else with a flashlight, or they want a group photo.

  1. “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.”

    The Constitution doesn’t apply to contractors!

    1. That is working pretty profitably for Vigilant Solutions.

    2. You don’t know what you’re talking about. You’re not even in the right hemisphere.

      The government cannot mandate, as a condition of using public land, that someone waive their rights under the Constitution.

      Kindly re-enroll in school immediately, and this time actually attend your classes.

      1. You mean like when they won’t let you “keep and bear arms” when you go into a National Park, or a government building?
        Or the myriad other places where you can’t exercise that right as a condition of entry?
        How about the blanket waiving of the rights to be “secure in your effects” when you have just returned from a foreign country?
        Jason, thy name seems to be Pollyanna.

    3. sorry, Fist – the Constitution applies when the government has dictated the terms of operation to the contractor.

  2. So they are ignoring the fourth AND second amendment. Why just the drug outrage? Where is the concern for illegally disarming the citizenry?

    1. Those only apply where there are no people present. It’s a good system.

  3. Closure Order violations, to include weapons . . .

    Do you think the people at BLM know that BML doesn’t forbid weapons on BLM lands? My own town has a little ad-hoc shooting range on BLM land – its a shithole because its not ‘owned’ by anyone, its not ‘official’ people just go there to shoot.

    And that BM is in Nevada which also does not have much in the way of weapon restrictions.

  4. Maybe these people should go and buy their own land to conduct this thing on? Having an event that is supposed to be all about breaking free of government and societal rules on government owned land is an irony that is lost only on the doofuses who run this thing.

    1. John stop talking out your arse. something like 85% of Nevada is state or federally owned. Most states in the west are like this with 50% or more publicly owned. There’s nowhere to go.

      1. They can’t leave Nevada? And what about the other 50%?

        1. Burning Man is mostly based out of San Francisco. They don’t want to drive any farther than they have to.

          And I’m not entirely sure the gov’t would let them host it on private land anyway. It’s a huge cash cow for them with all the law enforcement they make them rent.

        2. You mean ‘they can’t leave the ‘western half of the United States’?

          And to call it ‘ironic’ is like saying its ironic that libertarians drive on public roads or accept social security.

    2. John, the irony is much deeper that that. If you want to display an art piece (and burn it), there is a 40 page form to fill out and submit to the Art bureaucrats of Burning Man. I shit you not.

      1. Everyone will be free to do what they want, provided it is the same thing the organizers want.

        1. More interesting than that, it is the inevitable bureaucratization of a sufficiently large social endeavor. It’s almost like an Iron Law.

          1. It totally is. Basically, if you want to have a good time, don’t let the public know about it. People screw everything up.

          2. >>>inevitable bureaucratization of a sufficiently large social endeavor

            dicks. party @my house instead is much more fun.

        2. That’s the real irony of the whole thing.

      2. What if you refuse to do the paperwork and do it anyway? Will somebody come and arrest you while at Burning Man?

  5. 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

    and to go after your impertinent ass.

  6. There are drugs at burning man? Man, times have changed.

    1. Yeah – this reminds of a debate I used to have with a Deadhead friend in the early ’90s who drove around a 1970 VW microbus painted up with flowers, dancing bears, Grateful Dead stickers, and the motto “All Who Wander Are Not Lost.” She was constantly outraged at how often she got pulled over (I may as well have been invisible in my ’83 beige Volvo DL).

      If you buy into the premises of the Drug War, buying tickets to Burning Man is probable cause.

        1. Nice!

    2. Nope.
      Last time I was there, the theme was “I just get high on LIFE!”. And a song and dance routine by The Village People.

      1. That sounds like a Baptist summer camp. God these people are lame.

        1. >>>Baptist summer camp

          at Vacation Bible School we got to play a weird version of kickball with a frisbee too…

          1. I take it back, that sounds like more fun than burning man. I apologize for insulting the Baptists.

  7. “Going to Burning Man? The Feds Want You Searched for Smugs You Poseur.”
    People go to Burning Man to say they went to Burning Man and rub it in the faces of their “square” coworkers.

    1. You just reply, I couldn’t go cause I was at ContraFest. What’s ContraFest? I can’t tell you, we don’t want it to turn into another lame ass Burning Man.

  8. “Can the government demand a warrantless search with no probable cause of ticket holders as a condition of issuing an event permit?”

    Where ya’ been?

    1. Yep. It sure works in the airports – – – – –

  9. To hell with all drug warriors. All of them.

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  11. I just got to the headline, but I’m going to assume it’s not because they don’t want to let in any moochers.

  12. Is this a first-time request by doobie-sniffers in Big Government?

    If so, Republican drug warriors are as obvious a culprit as they are deplorable, bigoted scum.

  13. Without probable cause?

    Uh…. exactly how accurate does your “probable cause” need to be? Because I’m gonna go ahead and say that attending Burning Man is a pretty good proxy, if you are interested in a low false positive rate.

    Not that I’m supporting random drug searches…. but I’d put this up there with “Arrived 2 hours early for a Grateful Dead concert” as probable cause that is likely to have a high hit rate.

  14. “Eye raising,” an eggcorn? Too much product sampling?

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  17. it’s at least as eyebrow-raising that BLM includes weapons in the list of “closure order violations”. what gives them the authority to do so?? a private organization can ban weapons on private land, and even arguably on public land where they are responsible for the permit. but, just like the drugs, a government agency _making it a condition of the permit_ to do so seems like massive overreach.

    1. Here’s how it works… The organizers decide they want to experiment with a rule. “It’s getting too crowded to drive drunk at high speed through the tents at night. Let’s make everyone slow down. ” As soon as that limitation is promulgated, BLM inserts it into their iron clad Stipulations document, so there is no going back. Now you get pulled over by the cops for driving more than 5mph. Same thing happened with 2A rights. No one in their right mind wants to play with guns in a tent city of 80,000 people. Not even me ;). That sort of thing should happen where it was always supposed to happen… On the edge of the playa against a safe backdrop. But BLM translates that into illegal search of people’s domiciles (RVs and tents) and somehow they get away with it.

  18. Why is it: when certain “libertarians” in this comment section disapprove of someone else’s vacation plans, their interest in, and support for, the subjects constitutional rights just evaporates?
    Thank you, Brian, for continuing to question BLMs butt-fucking of BRC.

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