Burning Man and the federal government have a history of disagreeing over law enforcement tactics, and this year is already off to a rocky start even though the event is two months away.

After the release of a more than 300-page report from the Bureau of Land Management that details future expectations of the 80,000-person event, Burners already are protesting possible screenings for weapons and drugs.

…

We asked three legal experts to weigh in:

Stanford Criminal Justice Center Co-director David Sklansky
Retired U.S. District Court Judge Nancy Gertner, now of Harvard Law School
And Professor Frank Cooper of the William S. Boyd School of Law at the University of Nevada, Las Vegas.

…

BLM officials plan to ‘screen’ vehicles and attendees, not ‘search’ them. What is the difference between a screen and a search?

Sklansky: They may have a good argument, but that’s not one of them. Calling it a screening doesn’t make it any more legal. On the other hand, the fact that it’s a search doesn’t make it illegal. Ordinarily, searches are conducted with a warrant or individualized suspicion. When there’s some specialized need beyond regular law enforcement, then a search can be legal even without a warrant, even without individualized suspicion, but only if it’s part of a reasonable program.

…

The word ‘reasonable’ is thrown around a lot — what does it mean in this context?

Sklansky: (chuckles) The courts end up deciding what is ‘reasonable’ on a case by case basis.

…

What would allow the BLM to legally conduct searches of participants at Burning Man?

…

Sklansky: In order to justify the searches that it sounds like the BLM is contemplating, they’ll need to establish two things: One is that the program is reasonable and, two, that the program isn’t aimed at ordinary law enforcement, it’s aimed at a special need…

…

The BLM has noted previously that Burning Man could be a target for an act of terrorism, that firearms have been found at the event and people have died at the event. Could the ‘national security’ or ‘public safety’ argument be made given those details?

…

Sklansky: It might be. But the thing is, this case is sufficiently different than other cases so it’s hard to know for sure how a court would rule.

Read More