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Every year, the Burning Man festival sets up a sprawling temporary settlement in the Black Rock Desert where thousands of attendees gather to share art, music and their own brand of counter-cultural community.
Organizers rent the space from the Bureau of Land Management and in order to access the land, they have to file for a special event permit each year.
This time, that process became more contentious when BLM announced it would require attendees and their vehicles to be screened for drugs and weapons. The agency also rejected the festival’s request to expand the participant cap from 80,000 to 100,000.
Staff and attendees of Burning Man have pushed back, saying the searches violate their constitutional rights and threaten to reduce the number of people who come to the event.
The BLM has decided to shelf the plan this year, but the agency is holding onto the idea.
Frank Cooper is a professor of Law at UNLV.
He told KNPR's State of Nevada that there is no difference between a 'screen' and a 'search' under the 4th Amendment's prohibition on unreasonable search and seizure.
"There is no such thing as a screen as far as the Constitution is required," he said, "The bottom line is basically that you can have a full search or you can have a terry frisk. A full search is they go inside your pockets. A frisk is when they just pat you down on the outside."
But even with those parameters, Cooper said the BLM has to have "specific and articulable facts, suggesting a crime is afoot and this person is involved."
The real catch in these kinds of questions is the word "reasonable" in the Constitution, Cooper said.
"It means that the government interest in doing the search outweighs the privacy interest of the individual," he said.
Cooper said one way for the BLM to reasonably search people going to the festival would be to set up a checkpoint similar to checkpoints used to find drunk drivers.
However, the process would need to be truly random.
"When they do a roadblock for drunk driving they don't pick every person, they pick every fifth person or every 10th person," he said, "At that point, they can stop the person and sort of talk to them consensually and in talking to them consensually, if the person says something that makes it sound like they're drunk - they start slurring their words, etc - then they can say, 'now, we've got reasonable suspicion to believe that you may be driving drunk.'"
Jordyn Thayer is a longtime attendee of Burning Man. She's the assistant to the mayor in the area of Black Rock City called Intergalactic Sasquatch Village camp.
She is part of the team that sets up the camps for the festival and she calls the policy illegal. In addition, she believes it is unnecessary.
"We have systems in place that prevent [safety issues]" she said.
Thayer said when people arrive they are greeted and searched by festival organizers and they have a system of Black Rock City Rangers, who patrol the camp and assist people who need help.
She believes the BLM's motive is not improving safety but finding drugs at the festival. However, she said there is drug trafficking going on at the festival.
"The sales are very minimal," she said, "There were probably 100 arrests for any sort of sales. If anybody knows what that looks like it could have been the exchange of goods for another good."
Thayer dismisses the idea that implementing a screening process would deter people from coming to the festival.
"Our love and drive and sense of community and purpose at this event I don't think it will stop these core attendees and participants," she said, "It may deter our overseas participants but I don't necessarily think that any true burner would ever stop going. If they do stop going, it's for a different reason."
Burning Man starts August 25 and runs through September 2.
Frank Cooper, professor of law, UNLV Boyd School of Law; Jordyn Thayer, longtime attendee of Burning Man
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