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 Executives’ Ass’n, 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.
Sincerely,
/s/
David S. Levin
For
Lawyers for Burners
