2023 Lawyers For Burners Update

2023 will be the fifteenth year Lawyers for Burners has helped the Burning Man community defend itself against arrests and citations by law enforcement at the Burning Man Event. If you received a citation from the U.S. Bureau of Land Management (BLM) or where arrested or cited by Pershing County Sheriff, Jerry Allen, please fill out a feedback form on the top left tab. Lawyers for Burners is collecting information about law enforcement encounters at the Event and will respond with legal information and assistance in obtaining representation by an attorney.

Lawyers for Burners strongly recommends local criminal defense lawyer:

John B. Routsis

505 Ridge Street, 

Reno, NV 89501 Office:

(775) 785-9116

http://www.routsishardycooper.com/

Alerts for 2023

1. Entering the Event and Driving on Gate Road

Take great care while entering the Event and while driving to your camp on Gate Road, the outer ring of the Event. In recent years, the BLM and Pershing County Sheriff’s Office have shifted their drug enforcement efforts from patrolling inside the Event to stopping vehicles as they enter the Event. The BLM has used motor vehicle stops as a pretext to search vehicles for drugs. Once your vehicle is stopped, the BLM typically has a drug dog nearby to “sniff” your vehicle and “alert” to the presence of drugs.

In recent years, participants reported being stopped for ticky-tacky motor vehicle infractions like driving 13 mph when the speed limit was 10 mph or for having an “obstructed” rear license plate. Once stopped, participants reported being asked if they had any drugs and whether they would consent to a search of their vehicle. Some participants reported that after they said no, the officer went back to his vehicle and immediately returned with a drug dog. Many of those participants reported that it seemed like the officer caused his dog to “alert” even without the presence of drugs. Canine officers are often accused of training their dogs to alert on command or cue: https://www.washingtonpost.com/news/the-watch/wp/2015/08/04/federal-appeals-court-drug-dog-thats-barely-more-accurate-than-a-coin-flip-is-good-enough/?utm_term=.b9a548a33250

This “alert” by the dog can become probable cause to search a participant’s vehicle. If the BLM finds drugs in your vehicle, it will most likely issue you a citation for $530.  You also could be arrested by the Pershing County Sheriff’s Office for drug trafficking under state law. If you wish to contest the citation or plea bargain it to a non-drug offense, contact Lawyers for Burners through the feedback form on this site. Or, if you are arrested and need assistance with finding an attorney Lawyers for Burners can provide a referral. Be polite but know that you do not have to consent to any interrogation or search. Try to enjoy the rest of the Burning Man, a Lawyers for Burners affiliated attorney can assist you after the Event.

2. Pershing County Sheriff Jerry Allen is Out of Control

In November 2014, Pershing County elected Jerry Allen as its Sheriff. Pershing County is a rural and conservative county with a total population of only about 5,000 people if you exclude the inmates incarcerated at the Lovelock Correctional Center. Some of the citizens of Pershing County, including Sheriff Allen, don’t like Burning Man.  After his election, Allen stated in a Reno Gazette-Journal article: “Burning Man brings nothing to Pershing County except for heartache.” Allen also claims that Burning Man “taxes” the county’s resources. 

In truth, Burning Man pays Pershing County approximately $240,000 (of which most goes to the Sheriff’s Office) every year.  This amount was chosen by the County and BRC in a negotiated agreement that looked at law enforcement statistics and costs over a ten-year period.  In addition to this annual payment, Burning Man pays for Sheriff’s deputies’ meals, beverages and snacks, a bunkhouse, bathrooms, trailers, pumping and fresh water, fuel, internet and 24/7 IT equipment and services, offices, furniture, light towers, dispatchers, CAD system, decontamination station, temporary holding facility and a dedicated Emergency Operations Center.  

Additionally, Sheriff Allen has chosen an integrated command structure each year, where he and his deputies work with BLM personnel, use BLM’s resources, drive in BLM vehicles, and integrate patrols with BLM to support BLM traffic stops and drug searches.  Burning Man pays for all of this. So not only does the Sheriff receive a significant budget from the Commission, but Burning Man subsidizes his budget via the many resources it provides to BLM. Pershing County receives even more revenue from the many citations that the Sheriff’s Office issues to Burning Man participants each year.

What seems to have prompted the request for more funds was an enforcement policy change by the current Sheriff to do more targeted or proactive law enforcement than the prior Sheriff had done.  For example, the Sheriff's Office and BLM law enforcement agents spend countless hours on optional activities at the event and stop hundreds of vehicles for having a broken taillight or other minor infractions. The massive scale of the law enforcement operations on playa is already unreasonable.

Yet Sheriff Allen continually requests more money, presumably to arrest more participants so he can then claim that he needs even more money.  And on and on this pointless cycle goes. Sheriff Allen’s deputies have arrested between 40 and 49 participants at each of the last four Events since Allen became Sheriff. This is a six-fold increase from the seven people arrested in 2014 when the prior Sheriff was in charge.  Meanwhile, law enforcement statistics continue to demonstrate, year after year, that serious criminal activity of any kind is rare at Burning Man. Of the arrests, only a small number (always fewer than eight) have been for person-on-person crime; most have been for drug possession. It’s as if Sheriff Allen takes out his frustrations with the Burning Man Event on a small number of its participants.

Under Sheriff Allen, deputies have also been issuing citations for “drugs which may not be introduced into interstate commerce” NRS § 454.351. “Drugs which may not be introduced into interstate commerce” is a rarely used section of the Nevada Health and Safety Code designed to criminalize possession of drugs (like Laetrile) not specifically enumerated in other code sections. Possession of enumerated drugs like cocaine, ecstasy, mushrooms etc. is a felony in Nevada, and the Sheriff could only arrest (not cite) participants in possession of those drugs.

Lawyers for Burners believes that Sheriff Allen issues misdemeanor citations for “drugs which may not be introduced into interstate commerce” for the sole purpose of raising money for his county. The citations impose monetary penalties which end up in Pershing County's general fund. Lawyers for Burners believes that Sheriff Allen is attempting to extract revenue directly from participants to augment the funding the County receives from Burning Man: funding which Sheriff Allen declared was insufficient.  If Sheriff Allen truly believes that the Event is “taxing” his County’s resources, he should hire fewer deputies and direct them to concentrate on real law enforcement priorities instead of writing citations for “drugs which may not be introduced into interstate commerce” under NRS § 454.351. Then, Pershing County could use the bulk of Burning Man’s $240,000 annual subsidy to benefit the citizens of Pershing County.  

The relationship between Burning Man and Sheriff Allen is evolving and could be improved over time. Lawyers for Burners urges participants to give feedback to the Burning Man organization by submitting Law Enforcement Feedback Forms and post-event feedback on the Burning Man website. The Pershing County Sheriff’s new and aggressive law enforcement tactics have caused great misfortune to a few, randomly selected participants. And Lawyers for Burners urges the rest of the Burning Man community to voice their concerns about Sheriff Allen.

3. Burning Man Scores Win against BLM in Federal Court Over Event Costs. 

One of the most galling aspects of law enforcement at the Event is that the BLM forces Burning Man to pay for BLM’s aggressive drug enforcement campaigns at the our Event. This means that participants’ ticket revenue pays for the motor vehicle stops and drug dog searches that generate the majority of criminal infractions and other offenses cited at Burning Man.  For example, Burning Man paid BLM $2,717,129 in 2019 just for BLM’s law enforcement labor costs.  (This was in addition to the approximately $240,000 that Burning Man paid to Pershing County, most of which went to the Sheriff’s law enforcement staffing).  BLM also charges Burning Man for all of the vendors providing equipment and support services for its law enforcement operation. BLM’s support and IT personnel and equipment add millions of dollars in costs that Burning Man must pay every year.  Thus, BLM, along with a local posse recruited by the Pershing County Sheriff, conducts an annual turkey shoot at Burning Man, and the turkeys have to pay for the guns, bullets and drink.

After each of the 2015 – 2019 and 2022 Events, Burning Man filed appeals to challenge the costs charged by BLM including law enforcement.  The Department of the Interior’s appeals board sat on Burning Man’s appeals for over five years.  While its appeals sat dormant, BLM continued to charge Burning Man unreasonable and illegal annual costs. 

After growing tired of paying and waiting for the agency to follow the law, Burning Man filed a lawsuit against the BLM in District Court in Washington, DC; Case No. 19-cv-03729 seeking relief including a refund of unexplained and unreasonable costs.  On March 21, 2021, the Court partially granted Burning Man’s motion for summary judgment and denied the agency’s cross-motion in full. 

The Court holds that [BLM’s] Closeout Decisions lack substantial evidence that the fees imposed on BMP were reasonable. Accordingly, those Decisions are “arbitrary” or “capricious” within the meaning of the APA, 5 U.S.C. § 706(2)(A).

Lawyers for Burners supports Burning Man’s administrative law challenges to BLM’s bloated annual cost Closeout Decisions.  BLM's reasonable costs to administer Burning Man’s annual Event permit, including the 3% fee on gross revenue from the Event that it pays to BLM every year, are lawful.  But reasonable costs authorized by statute do not include self-initiated drug enforcement campaigns like what occurs every year on Gate Road.  BLM should fund its self-initiated drug enforcement operations at Burning Man and justify the expenditure in its annual budget as fiscally responsible uses of federal law enforcement resources.  Because Burning Man funds BLM’s drug enforcement operations directly, BLM and its Pershing County posse conduct their annual turkey shoot without any meaningful review.

THIS INFORMATION IS PROVIDED AS A COURTESY FROM LAWYERS FOR BURNERS AND SHOULD NOT BE CONSTRUED AS LEGAL REPRESENTATION. THIS IS LEGAL INFORMATION, NOT LEGAL ADVICE, WHICH IS AN INTERPRETATION OF THE APPLICABLE LAW TO SPECIFIC CIRCUMSTANCES. WE URGE YOU TO CONSULT A LAWYER FOR LEGAL ADVICE OR REPRESENTATION ABOUT A PARTICULAR LEGAL QUESTION OR ISSUE YOU MAY HAVE.LAWYERS FOR BURNERS RECEIVES NO COMPENSATION FROM ANY RECOMMENDED ATTORNEYS. LAWYERS FOR BURNERS IS SEPARATE FROM BURNING MAN PROJECT AND BLACK ROCK CITY LLC. THE OPINIONS EXPRESSED IN THIS UPDATE ARE THE AUTHOR’S OWN AND DO NOT NECESSARILY REFLECT THE VIEWS OF BURNING MAN PROJECT AND BLACK ROCK CITY LLC.