Burning Man is a week-long gathering dedicated to art and temporary community that happens every year the week before Labor Day on Nevada's Black Rock Desert. The land it is held on is federally owned and managed by the Bureau of Land Management (BLM), which imposes a set of permit requirements on the event. Burning Man has a reputation for sometimes illegal revelry, and saw over 43 arrests last year, a vast majority for drugs. That was a lower number of arrests than the 58 the year before, for an event that draws around 70,000 people.
Back in March, the BLM issued a draft Environmental Impact Statement (EIS) that contained a provision troublesome to Fourth Amendment fans: the event would be required, as a permit condition, to hire a private security firm with the power to search any citizen who wanted to enter the event—with neither warrant nor probable cause—and turn them over to the cops if contraband were found.
Today, after a legally required comment period, the final version of that EIS has been issued, in a volume one and volume two. While the BLM is no longer insisting that Burning Man organizers hire security, the agency says it reserves the power to search anyone entering the event and arrest them for what they might find. In their public reasoning, the agency conflates security concerns about weapons and the desire to punish people for trying to transport illegal drugs.
In response to Fourth Amendment concerns raised during the public comment period, the BLM writes that:
Comprehensive security plans begin with screening for banned items at the points of entry and a hardened perimeter. A systematic screening process is necessary to provide health and safety at the Event site, which is required by FLPMA, 40 CFR 1508.8, 40 CFR 1508.14, and BLM SRP Handbook 2930-1. DHS recommends designing and implementing surveillance, monitoring, and inspection plans for soft targets and crowded places to avert active shooter, chemical, improvised explosive device, and vehicle ramming attacks. Further, BLM policy instructs law enforcement to aggressively combat illegal substance use on public lands. The constitutionality of such security screening is well supported in instances where the Department of the Interior contracts security at points of entry to large, outdoor, mass gatherings.
One might think that the Environmental Quality Improvement Act, known as NEPA, under which this EIS is issued, should be concerned only with damages to the land or the environment, but the BLM is using the act to justify dominion over the "human environment," which places human behaviors, like possibly possessing illegal drugs, under its purview. They also insist their handbook requires them to be mindful of general health and safety of people at events they permit.
Rudy Evenson, a BLM deputy chief of communications, said this morning that the entire document had been vetted by solicitors within the Department of the Interior. He did not want to speak to any specific Fourth Amendment-based arguments commenters made against the search proposal.
Evenson said that Burning Man requires special closure permits that inform potential visitors publicly that certain rules are in place. These rules make the area distinct from their homes or even their private vehicles on a public road. He offered, as an analogy, the performance venue Wolf Trap in
Maryland Virginia, which is located on a National Park Service site and for which searches of customers entering events are customary.
John Wesley Hall, a practicing trial lawyer and author of the book Search and Seizure, said in a phone interview today that public gatherings such as football and baseball games often allow for searches as a security precaution, but that arrests for drugs discovered in a search undertaken with a security pretext might be challengeable in court. Hall also said the very threat of this practice on the part of the BLM might possibly create standing for a Burning Man ticket holder to sue to prevent the practice on Fourth Amendment grounds. That said, there are no certain results in Fourth Amendment jurisprudence until specific cases are before specific judges.
While no one should be sure beforehand they can predict how a Fourth Amendment challenge would play out, especially given the always ambiguous "reasonableness" at the heart of Fourth Amendment jurisprudence, one commenter on the original EIS pointed to the 2013 case Koontz v. St. Johns River Management District as a reason to believe that an existing "unconstitutional conditions" doctrine that "applies even when the government threatens to withhold a gratuitous benefit" could hobble the BLM's search demand.
While Koontz was about just compensation for property takings involving land use permits, a smart lawyer might be able to analogize this search demand as a permit requirement that can't blithely ignore the Fourth Amendment, since that doctrine "forbids burdening the Constitution's enumerated rights by coercively withholding benefits from those who exercise them." If you wanted to use Koontz to stop the BLM's warrantless searches, you'd have to convince a court that your enumerated Fourth Amendment right was being burdened by having the benefit of entering the event you paid many hundreds of dollars to attend withheld if you refused to consent to a screening search at its gate.
While neither ruling represents controlling federal doctrine, a commenter on the draft EIS also drew attention to cases from the Supreme Courts of Hawaii (1981's Nakamoto v. Fasi) and Washington (1983's Jacobsen v. Seattle) that indicate searching people entering ticketed events for general law enforcement is indeed questionable under the Fourth Amendment.
The BLM insists in the EIS that even a drug search has a security nexus, claiming—without providing detailed evidence of significant violence connected to illegal drug use—that "attempting to stem violent participant behavior without addressing illegal drug use will not have a significant impact on participant or law enforcement safety."
The BLM does say in response to a comment in the EIS that reserving the right to screen all attendees "does not necessarily mean searching every individual or vehicle passing through a point of entry. The BLM is cognizant of protecting all citizens' constitutional rights." However, searching any vehicle without probable cause for an excuse to arrest ought to implicate the Fourth Amendment.
The BLM's Evenson says in an email that "generally speaking, most changes noted in the FEIS will be phased in starting with the 2020 event."
"We will be taking the next few days to fully analyze and understand [the EIS's] contents. Our priority at the moment is the 2019 event, and we are deeply engaged in planning and production," the Burning Man organization wrote via email this morning. "We expect BLM's Record of Decision, due to be published in mid-July, to include no major changes for 2019."