EIS Public Comment 2019

Mark E. Hall

Attn: Burning Man EIS - Permit Renewal

5100 E. Winnemucca Blvd.

Winnemucca, NV 89445

Re: Public Comment Criticizing DEIS Mitigation Measure PHS-1 (Entry Screening).

Dear Mr. Hall:

Please accept the following comments to the Draft Environmental Impact Statement (“DEIS”) for a new 10-year Special Recreation Permit for the annual Burning Man Event (“Event”) in your BLM District. I make these comments as member of the public and as the founder of Lawyers for Burners, an independent public service group helping the Burning Man Community.

These comments are directed to DEIS Mitigation Measure PHS-1 (Entry Security Screening, Appendix E) and the obvious Constitutional defects of the measure. (The mitigation measure also has nothing to do with the environment or the NEPA statute making it farcical which is another legal defect).

I raised the Constitutional defects in an exchange with LE Ranger Rebecca Andres at the April 9, 2019 public forum in Reno, NV. Ms. Andres made some outrageous statements to me about law enforcement’s powers under the pretext of environmental mitigation at the Event. I am shocked that a law enforcement officer with leadership responsibilities at the Event could be so misinformed about basic legal principles which she is sworn to enforce. The following are direct quotations from Ms. Andres:

1. “It’s a ‘screen’ not a ‘search’”

The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. “The basic purpose of this Amendment, as recognized in countless decisions of [the Supreme] Court, is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials.” Camara v. Mun. Court of City & Cty. of S.F., 387 U.S. 523, 528 (1967). The Fourth Amendment “gives concrete expression to a right of the people which ‘is basic to a free society.’” Id. (quoting Wolf v. People of State of Colorado, 338 U.S. 25, 27 (1949)).

Using the word “screen” instead of “search” is meaningless and deceptive. The Supreme Court has articulated a clear standard to determine when conduct by a governmental agent constitutes a “search” under the Fourth Amendment. Under the most prevalent and widely-used search analysis articulated in Katz. v. United States, 389 U.S. 347 (1967), a search occurs when a government official invades an area in which “a person has a constitutionally protected reasonable expectation of privacy.” Id. at 360 (Harlan, J., concurring). Under Katz, a search is analyzed in two parts: “first that a person exhibit an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable.’” Id. at 361.

The BLM and the DEIS can call the activity whatever it wants: the private security operations described in the DEIS mitigation measure falls cleanly within the definitions of a “search” under the Fourth Amendment.

While the activities described in the mitigation measure PHS - 1 are obviously searches, the more important question is whether the searches are reasonable. The Fourth Amendment does not proscribe all searches, “but only those that are unreasonable.” Skinner v. Ry. Labor ExecutivesAssn, 489 U.S. 602, 619 (1989). “[W]e must begin with the basic rule that searches conducted outside the judicial process, without prior approval by [a] judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.” United States v. Hockenberry, 730 F.3d 645, 658 (6th Cir. 2013). The government bears the burden of demonstrating an exception to the warrant requirement. United States v. Jeffers, 342 U.S. 48, 51 (1951).

The government can meet its reasonableness burden when it searches for weapons and explosives with metal detectors or even x-ray scans at places where public safety needs are acute like at airports. See United States v Henry, 615 F. 2d 1223, 1228 (9th Cir. 1980) (“The x-ray scan as used in the present case was a reasonable procedure. It was a non-discriminatory search, used on every object carried by every person who wished to approach the boarding gates. The scan is used only to detect guns or explosives, not as a device to detect all types of contraband. In the majority of cases no physical search is required.”).

But the searches described in the mitigation measure are looking for more than guns and explosives. (Burning Man already extensively searches participants for weapons, explosives, fireworks and other prohibited items, and the BLM has made no showing that Burning Man’s search activity is deficient or that there is a prevalence of weapons or other items threatening public safety at the Event.) The mitigation measure recommends searching vehicles and people for illegal drugs and other contraband and then handing the contraband over to BLM law enforcement for prosecution of participants. The BLM cannot hide such blatant searches and seizures without probably cause or “individualized suspicion of wrongdoing” from the Fourth Amendment by calling it a “screen not a search.”

2. “It [the Constitution] does not apply since Burning Man will hire the private security doing the screening”

The BLM also cannot hide from the Constitution by claiming that searches by private parties are not subject to Fourth Amendment protection. “Although the Fourth Amendment does not apply to a search or seizure, even an arbitrary one, effected by a private party on his own initiative, the Amendment protects against such intrusions if the private party acted as an instrument or agent of the Government. . . . . Whether a private party should be deemed an agent or instrument of the Government for Fourth Amendment purposes necessarily turns on the degree of the Government's participation in the private party's activities” Skinner v. Railway Labor Executives' Assn., 489 US 602, 614 (1989).

“In some cases a search by a private citizen may be transformed into a governmental search implicating the Fourth Amendment ‘if the government coerces, dominates or directs the actions of a private person’ conducting the search or seizure. In such a case, the private citizen may be regarded as an agent or instrumentality of the police and the fruits of the search may be suppressed.” US v. Smythe, 84 F. 3d 1240, 1242-43 (10th Cir 1996). The court continued: “[W]e observed that two important inquiries to aid in the determination of whether a private person becomes an agent or instrumentality of the police are whether ‘the government knew of and acquiesced in the intrusive conduct, and ... [whether] the party performing the search intended to assist law enforcement efforts or to further his own ends.’” US v. Smythe, 84 F. 3d at 1242-43 (citing United States v. Miller, 688 F.2d 652, 657 (9th Cir.1982)).

Burning Man has not and would not hire private security to search its participants for illegal drugs when they enter the Event. Through this mitigation measure, the government is directing the hiring of the security personnel who would be told to search for illegal drugs. Moreover, the security personnel would be required to transfer the seized materials to BLM law enforcement. Thus, the BLM is “coercing, dominating and directing” the private security and such security is subject to the limitations imposed by the Fourth Amendment.

To conclude, please remove DEIS Mitigation Measure PHS-1 (Entry Security Screening) from the final EIS since it recommends searches which are illegal and will be challenged by lawyers in the Burning Man Community. Also, please arrange for BLM law enforcement rangers working in your District to undergo additional training on search and seizure law so that they do not violate peoples’ rights while working at the Event.


/s/ David S. Levin

For Lawyers for Burners