Dear Festival Lawyer,

Thanks for your articles. I notice that most of your advice centers around encounters with police. What about private festival security encounters? I had one I thought to be highly illegal last year at TomorrowWorld . Could you possibly publish a small article about private security and how to deal with them best?

–C. A. H.

When music websites review a festival, they usually focus on things like the lineup, the food, and other practical topics like bathrooms. These things are important, but I sometimes think one of the most important things we can review is the topic of security.

A poorly trained or overly-aggressive private security company can have a massive impact on how you enjoy the festival. Don’t believe me? By all accounts, Backwoods Music Festival this year was great. There was amazing music and a clear commitment to the health and safety of their patrons (as shown by their commitment to including numerous harm reduction measures).

Unfortunately, the private security company they hired ended up being a complete disaster. 34-year-old attendee Patrick Murphy died after festival security detained him for “erratic behavior.” His death occurred under such mysterious circumstances that Oklahoma law enforcement was investigating it as a possible homicide .  That same weekend, members of the Austin, Texas-based electronic music duo Fyer  pulled out of the festival after a private security guard harassed and ultimately assaulted them and their crew for walking under a fence as they tried to leave Saturday.

Things were bad enough that Backwoods Festival went on their Facebook page to apologize and assured patrons that the security company in question had been fired and would be replaced next year.

Hopefully you will never encounter any situation that dramatic. But it’s still a good idea to know how to handle yourself in any negative encounter with a rogue or aggressive private security officer. A good starting place is to review how you should handle yourself if stopped by a police officer at a music festival.

As I’ve discussed in prior columns and articles, you should ask if you are being detained and leave the police encounter immediately if you are not. If you are being detained, you should remain silent and ask for a lawyer. Also, you should never agree or consent to a search of your person or property.

In order to help remind you of these rules, I’ve put them in a handy “tip card.”

When it comes to private security, these officers have a right to conduct a “reasonable” search of your person and property as a condition of your entry into a festival. As long as you are free to walk away, this type of search is generally legal. The exception is if the search becomes too "invasive" and security begins to touch you inappropriately. 

Once on festival grounds, festivals can use a variety of security personnel: on-duty police officers, off-duty police officers working a paid job for the festival, and private security officers.

The 4th Amendment prohibits “unreasonable searches and seizures” by the police. Whether or not your 4th Amendment rights apply to a private security officer (or an off-duty police officer working for a festival) depends on whether or not they are acting as an “agent” of the government.

To determine this, courts look at two things:

1) Whether the government was aware of and acquiesced in the conduct of the private security officer.

2) Whether the private security officer intended to assist the police by his actions

If the 4th Amendment doesn’t apply, you can’t ask a Judge to throw the evidence out as being an illegal search. As you can tell, whether the 4th Amendment applies or not is going to depend on the particular security setup put in place by the festival.

For example, in a case called State v. Iaccarino, a Florida court ruled that off-duty police hired to provide security at that year's ZenFest were the legal equivalent of cops. The court put a lot of weight on the fact that the cops conducted searches in full uniform (including firearms) and drove police cruisers to the festival. Also the tasks of the off-duty officers were coordinated by the sheriff’s office. The sheriff’s office had even placed a paddy wagon in front of the festival entrance in contemplation of the impending arrests. Therefore, although the officers were off-duty, they were acting as “instruments” of the police, for purposes of Fourth Amendment analysis.

On the other hand, in a case called U.S. v. Craig, a federal court found that the private security guards hired at the Strangefolk-Garden of Eden Music Festival were legally acting as private citizens and the 4th Amendment’s prohibition against unreasonable search and seizures didn’t apply to them.

The court noted that when private security contacted and ultimately searched Mr. Craig they were just trying to eject him from the festival as opposed to conducting a criminal investigation. As the Craig court put it:

"This makes clear that GMC Security's intent in holding Craig was to have him removed from the Concert grounds. There is no evidence that GMC Security intended to detain Craig on suspicion of criminal behavior.”

As a practical matter, you probably won’t be able to tell if, legally, the security you are dealing with is considered a “private citizen” or an “agent of the government.” I therefore suggest that you are better off always following the Five Tips and assuming that legally the private security guard will be considered a police officer. A judge might later find the 4th Amendment does apply in your situation and you will want to have preserved your rights it that happens.

For example, in the Iaccarino case, the courts threw out all the searches because the private security guards were considered agents of the government and because the patrons did not consent to the searches.

Also, by following the Five Tips you convert private security into an “agent of the government.” As I mentioned above, the Craig court put a ton of weight on the fact that security was just trying to escort Mr. Craig out of the festival. (Festival Lawyer Sidenote: Reading the opinion, one gets the notion that Mr. Craig was a handful at the festival. The opinion notes that Mr. Craig was mad at security that day because he was still upset from them finding and throwing away his psychedelic mushrooms from his jeep the night before.)

Technically, a private security guard only has the right to arrest you the same way a private citizen does (a so-called “citizen’s arrest”). There are cases that say that private security is only allowed to search you for the purpose of deciding if you should be allowed into the venue, or if you need to be ejected from the premises. There might have been a different result in the Craig case if Mr. Craig had asked to leave the festival and affirmatively withdrew his consent to be searched.

Therefore, if I knew for sure I was dealing with a private security officer, I would make the following statement to make it clear that private security was detaining me and searching not to eject me but to assist the cops: “I am withdrawing my consent to any search. I am asking that I be ejected and my ticket price refunded.”

If you do run into overly aggressive or inappropriate private security officer, alert a supervisor. Have a friend with you document the encounter and let the supervisor (as well as the festival promoters) know that you have been handled in an inappropriate fashion. Most festivals take these allegations seriously and will act to fire unprofessional security guards.

If you are not getting any satisfaction from the festival or the promoters, consider warning others about the bad behavior of security at this particular fest. Perhaps the most important thing we can do as a community is to join together to “vote with our wallets.” One person making a complaint can be ignored. But if a festival gets a reputation for unprofessional security and the community chooses not to go because of that, the festival will have to change their approach – just like Mountain Jam did in 2014.

Got a question for the Festival Lawyer? Email him at askthefestivallawyer@fest300.com

Disclaimer: Although the Festival Lawyer is a lawyer he is not YOUR lawyer. The ATFL column gives general information about legal topics, NOT legal advice. The law is complex, varies a great deal from state to state, and each factual situation is different. Also, “The Festival Lawyer” is a fictional character. Think of the Festival Lawyer more like a legal spirit guide, encouraging you to educate and inform yourself.