Hey Man!

Thanks for all the work. It's really sad to watch the things that happened to The Bunk Police and Dance Safe.... But is it due to organizers being afraid of being prosecuted under the RAVE Act or because they don’t wish to be connected to anything "drug" related? Here in Europe I think there is nice progress seen, at least regarding the info booths. Testing is also becoming more accepted! Hope all will turn out well!
Greetings from Ljubljana, Slovenia

How music festivals handle the issue of drug use at their events has been one of this year’s hottest legal issues. In 2015, Lightning In a Bottle took a major step towards a more “reality based” drug policy by implementing a number of harm reduction measures at their event.

“Harm reduction" is a term used for the idea that, despite best efforts to maintain a drug-free event, some people will nonetheless use drugs. The idea is to recognize this reality and to focus on providing a network of resources to help keep attendees safe.

As this week’s ATFL question points out, Europe and Canada are already way ahead of the United States when it comes to utilizing this approach at festivals. For example, Canada’s Shambhala Music Festival has been a leader in integrating different harm reduction services (like outreach teams, drug checking services, psychedelic safe spaces and the like) into a unified safety plan for their attendees.

Shambhala's drug testing station. Photo by: Art Gimbel

Given how well this approach works (in 2015 LIB had no deaths, no major medical incidents, and a general feeling of goodwill between attendees and law enforcement) it seems like more festivals would be ready to embrace it. Unfortunately, 2015 also saw a bit of a “zero tolerance” backlash by several festivals. For example, at Electric Forest in 2015, the non-profit harm reduction group DanceSafe was asked to pack up their booth in the vendors’ area. Bonnaroo also shut down the drug checking group The Bunk Police at 2015’s fest.

When it comes to drugs at festivals, “zero tolerance” really makes zero sense. Consider this: At 2014’s HARD Summer Festival, Live Nation made every effort to enact a “zero tolerance” approach to drugs. L.A. County sheriffs got everything on their security wish list including more cops working more hours, more intensive searches, drug sniffing dogs and amnesty boxes.

Yet at the end of the weekend, a 19-year-old woman died and four others went to the hospital. Two more people died at 2015’s event, causing Los Angeles County Supervisor Hilda Solis to call for a ban on festivals on county land. When L.A. County Sheriff Dan Whitten was asked to describe the task of trying to keep drugs out of the festival by security measures alone, he used one word: “Impossible.”

Still not convinced? Well, perhaps an internet meme can clarify. 

Fear of the RAVE Act

Given the reality that drugs will be present at festivals, why aren’t more U.S. events embracing the European and Canadian approach of drug education and harm reduction?

Much of the problem is a fear on the part of owners and promoters that they may be held criminally liable under the RAVE Act. In 2002, then Senator Joe Biden introduced the “Reducing Americans Vulnerability To Ecstasy" (RAVE) Act in the Senate, a bill intended to go after “illegal” or “underground” raves. The RAVE Act expanded a law (the so called “crack-house statute” passed during an earlier national drug panic) and created a new crime, now making it illegal for owners to “maintain a drug-involved” premise.

From the start, the vagueness of this language caused problems. After all, what does “maintaining a drug-involved premise” mean? To answer that question, the bill originally included a list of “findings,” (examples) of things law enforcement should look for to identify these "drug-involved" locations. Unbelievably, things like the speed of the music in beats per minute or the appearance of glow sticks were included.

There was strong opposition to this and the bill was rejected in its original form. Ultimately, Biden changed the name of his bill to the less inflammatory sounding “Illicit Drug Anti-Proliferation Act of 2003” and jettisoned some of the bill’s worst language. The IDAPA was passed in 2003, although most still refer to it by its original name, the RAVE Act.

At 2014's IMFCON (now called XLIVE) in Austin, I was invited to talk about the RAVE Act as part of the awesomely named panel, “Doses and Mimosas: Addressing Drug Use at Music Festival."

As I mentioned at the panel, being a legal authority on the RAVE Act is about as useful as being an expert in unicorn patent law. That’s because prosecutions under this Act have been almost non-existent for years. In fact, the only use of this Act that I am even aware of recently was in 2010. In that case, the prosecutor made a big point of stating that they felt the promoter was directly involved in drug sales.

“We didn't view this as a music-festival prosecution," says Richard Callahan, U.S. Attorney for the Eastern District of Missouri. "We viewed it as somebody who was using a festival site to promote illegal drug sales and profit off of that. We thought there was a difference between a music festival with incidental drug use and a drug festival with incidental music. We believe in this case it was the latter rather than the former."

At IMFCON, I was unable to find any attorney there who knew of an actual prosecution within the last few years. But I met a ton of people who felt that the law was out there and dangerous. And that’s the problem in a nutshell.

I feel it is clear that the intent of the RAVE Act was never to keep safety measures from being implemented at festivals or to go after legitimate owners and promoters. As Biden himself said:

"The purpose of my legislation is not to prosecute legitimate law-abiding managers of stadiums, arenas, performing arts centers, licensed beverage facilities and other venues because of incidental drug use at their events." Senator Joe Biden, Congressional Record Volume 149, Number 116, 31 Jul. 2003.

This is why I call the RAVE Act the Keyzer Soze of laws. It’s not so much that actual prosecutions are taking place, it’s that the existence of the law hangs over everything, causing uncertainty and fear.

And let’s face it, getting “tough on drugs” and calling for bans on festivals is still a much easier sell politically than coming out publicly and advocating for drug testing. The last thing a festival wants to be seen to be doing is “encouraging drug use.” In fact, local promoters may have difficulties getting insurance for their events if they implement these type of measures.

For example, in 2015 at Canada’s Evolve Music festival took the bold step of announcing publicly they would be allowing drug checking at their event. Almost immediately the festival was in danger of being cancelled. This wasn’t because of the RAVE Act (it’s Canada after all) but because the insurance providers got nervous.

Because of this fear and uncertainty, it’s absolutely critical that we festival-goers make sure event organizers know that they want harm reduction facilities on-site, and push promoters to make the policies promoted by groups like DanceSafe (which will be at Oregon Eclipse Gathering this year) into standard safety procedures. And of course it’s critical that we as a festival community work together to amend the RAVE Act.

You can find more information about the RAVE Act and get involved in the fight to amend it here.

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.