What Are My Rights at Large Festivals? (Am I Going to Jail for Weed & Prescriptions at Burning Man?)

Knowing that I’ve been in civil rights advocacy for 7 years and I’m now finishing law school, I get a ton of questions from friends about legal issues.  Being that Burning Man festival happens in 2 weeks, this month I’m inundated with, “Will the cops on the Playa care about x, y, z,” and reading a ton of material from other sources misstating the law (sadly, sometimes even the official correspondence from Burning Man gives inaccurate advice).   The answers to these questions mostly apply to many kinds of festivals, so rather than respond individually, allow me to share my collective thoughts regarding the common themes here:

1. Can I get arrested for smoking weed on the Playa?  Yes.  Nevada made recreational marijuana legal effective July 1st, 2017, but federal law still prohibits possession or use of the same.  So, state cops are not going to be citing you if you’re in compliance with the law.  So what’s the problem?  Two things.  First, Burning Man is held on federal land.  There are federal law enforcement — Bureau of Land Management Rangers — all over, and although some might look the other way, it’s no guarantee.  Second, smoking marijuana in public in Nevada is still illegal.  Whether being in a tent qualifies as being in your home for the purpose of Nevada’s marijuana laws is not a question that has yet been answered, but you definitely do not want to be caught walking around with a lit joint.  You should be especially careful if there are children around, as there are at Burning Man during the day — it is unlikely a cop will “look the other way” if you’re getting high next to a kid.
2. I heard that if one person is doing drugs, they can search the whole camp!  No.  An officer needs probable cause to conduct a search, a standard which means that a person of reasonable prudence would believe that you were committing a crime.  Case law is quite clear that standing next to a person committing a crime — let alone owning a tent 100 feet from them — is not, by itself, probable cause.  But, know that law enforcement is known to coerce consent to search.  How do you respond to, “I just caught your campmate smoking weed, now open your tent or I’m bringing the dogs!”  Easy: “I’m sorry but I don’t consent to a search.”  Let them bring the dogs if they must (they will probably get bored before that time, and your defense attorney would much rather challenge a dog search than your consent), but do not ever consent to a search, whether you are doing something illegal or not.  Likewise, if you’re cited or arrested out on the Playa, you have no obligation to tell them where you’re camping, and I suspect your campmates may prefer if you don’t.  Do not lie to the police on the Playa — if they are federal law enforcement, lying to them is a felony! — but why invite them back to your house?  Instead, “I’m going to exercise my right to remain silent” is a good response (and then do the remaining silent part!).
3. What about prescription pills?  They’re fine.  And despite what this morning’s e-mail from the Burning Man said (“If you use prescription drugs, they must be in the prescription bottle or container you receive from the pharmacist at all times”), I was able to find no part of Nevada’s Controlled Substances Act that requires you to do this, and at least one state that has tried to legislate a “must be in Rx bottle” requirement has found their law declared unconstitutional.  But, here’s the thing: having a baggie full of pills may be evidence that you intended to distribute them.  It’s not enough on its own, but I would not recommend getting 10 little baggies, putting 4 oxycodone pills in each of them, and carrying all 10 baggies with you while walking around the Playa.  You’ll look like a drug dealer, and at the least give them reasonable suspicion to question you.  But, if they are legitimately prescribed to you, in the end, you’ve committed no crime, and carrying one of your Xanax in your pocket in case you need it is, as best I can tell, fully legal in Nevada.
4. Anything else I should worry about?  Yep.  Here’s where people most frequently get in trouble:
   • You won’t get in with: stowaways, fireworks, lasers, styrofoam coolers, pets, plants, and guns (lol at this morning’s e-mail stating there are no “weapons” allowed… anything from knives to flamethrowers is not a problem; the only prohibition is firearms).  The Burning Man staff (not the police) will ask to do a quick look in your car for any of the above on the way in, and you’ll be turned away from the gate if you refuse.
   • Don’t drive like an asshole (don’t drive on open Playa without a mutant vehicle permit, don’t exceed the speed limit, don’t drive while drunk, don’t drive during a dust storm).  It’s weird driving for miles at 10 MPH on gate road, but do it.  Going faster will also screw up your car and create massive dust clouds for everyone else.
   • Use intoxicants responsibly.  Drugs are bad, I hear, but doing them out in the open is just plain stupid, and the police have binoculars and night vision goggles.  They’re also known to go undercover and ask for drugs, so don’t think it’s cool to “gift” them to the cute girl you just met — she may (seriously) be a cop.  Know your limits and don’t get so obliterated that you need medical attention.
   • Mind the children.  Keep anything adult-themed away from the daytime view  of passers-by.  Drinking age is 21 (yes, there are undercovers for that too).  Age of consent is 16.  Most law enforcement on the Playa most (but not all) of the time is fairly relaxed, but if you screw up anything in this section, you’re gonna have a bad time.
   • Ask for consent.  Boobs do not mean “yes.”  And same goes for women… don’t think you get a pass because you’re a girl.  People verbally asking “Can I touch your ___?” or “Can I kiss you?” is common and appreciated by most.  Take the opportunity to go the extra mile to ensure that you’re respectful of people, and also take the opportunity to respectfully educate those who don’t get it.

Have fun out there, guys!