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AFTERBURN REPORT 2009

LEGAL TEAM

Litigation

A landmark case found in favor of Burning Man this year. In Beninati v. Black Rock City, LLC, the California Court of Appeal unanimously affirmed that plaintiff Anthony Beninati assumed the risk of getting burned when he chose to walk into the flames on burn night 2005. Beninati had walked into the fire after the Man toppled, and after he tripped and fell he initiated a lawsuit against Black Rock City, LLC (BRC), alleging that BRC was liable for his injuries. In 2008 the trial court found in favor of BRC, noting that Beninati not only knew there was a risk of getting burned when he chose to walk into the fire, but also that he alone had assumed that risk. Beninati appealed. In June 2009 the court of appeal unanimously affirmed that indeed Beninati was responsible for his own injuries. In August Beninati petitioned the California Supreme Court for a final review of his case. But, the court exercised its right to deny review and let the court of appeal's decision stand.

The Beninati decision is now established precedent that the notorious waiver on the back of Burning Man tickets holds up in court, "YOU VOLUNTARILY ASSUME ALL RISK OF PROPERTY LOSS, PERSONAL INJURY, SERIOUS INJURY OR DEATH, WHICH MAY OCCUR BY ATTENDING BURNING MAN." And the law is in line with the "Ten Principles of Burning Man." Radical Self-Reliance encourages participants to take personal responsibility for their individual choices. Not only is this a foundational pillar of our community, it's the law.

In an international lawsuit BRC was also victorious. In 2008 a European company applied for and received a French trademark called "Burning Man" that it used to market clothing. Although different industries can have the same trademark there are certain requirements when doing so. One such requirement is that a trademark cannot be used if a reasonable consumer would be misled into thinking that the two trademarks are indeed one in the same. Since Decommodification, otherwise known as "no-commerce" is one of the cornerstones of Burning Man, it is not hard to see why many Burners were offended at the French company's use of the name. Many thought that our event which is so near and dear to the hearts of thousands of participants had finally "sold out." When cease and desist letters proved ineffective, BRC took a measure of last resort by filing a lawsuit to protect the Burning Man name from being tainted in the global marketplace. In December 2009 the French court ordered that the use of the mark to sell clothes be cancelled, and that the French trademark be transferred to BRC as its legitimate holder.

Currently BRC is litigation free. This frees up resources and time to focus on the more important and fun stuff in the legal arena, like future planning and participants' civil rights.

Lawyers for Burners & ACLU

Again this year, BRC worked with Lawyers for Burners and the American Civil Liberties Union (ACLU) to monitor interactions between various law enforcement agencies and our participants, investigate potential violations of participants' civil rights, and help participants better understand their options regarding citations issued on playa. In 2009, BRC made an effort to distribute law enforcement feedback forms to all participants as they entered Black Rock City, rather than having the forms available only at Playa Info and Ranger Outposts as in years past. (Incidentally, this would have happened, but a number of forms went missing and are still at large, so our apologies to anyone who did not receive all of the printed materials at the Greeter's station.) The goal of canvassing the city with feedback forms was to get an accurate sense of the nature of interactions with law enforcement. This push was a success, and we received about 150 forms from participants and staff containing both commendations and complaints about their interactions with the Bureau of Land Management (BLM), Pershing County Sheriff's Office (PCSO), Washoe County law enforcement, and The Nevada Department of Investigations.

Within the feedback, several trends were noticed, both positive and negative. PCSO officers received several commendations on being helpful and polite. They were observed assisting injured participants, being non-judgmental and patient in their interactions, and even assisting a participant with a flat tire.

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As in the past, PCSO challenged Burning Man's longstanding principle of Radical Inclusion, which welcomes families (including children) in Black Rock City. One challenge played itself out as a threat to arrest a parent whose infant child had no shirt on. When questioned by the Law Enforcement Agency Liaison (LEAL) team about the rationale for such a threat when no laws were being violated, the officers' responses ranged from bizarre to ridiculous. The first reason given was that a potential sex offender would be more apt to prey upon a child without a shirt. The final reason when the first one was shown to have no merit, was that the officers were concerned that the child might get a sunburn. Not surprisingly, no arrests were made.

The other challenge to the families of Black Rock City was the possibility of underage drinking. PCSO conducted a sting operation targeting camps that served alcohol to see if bartenders were checking for ID. About a dozen citations (each for $1,100) were issued. However, most were thrown out of court since PCSO failed to conduct the stings properly. (Sting operations require that an underage decoy not change his or her appearance. The decoy, however, wore a disguise that made it difficult to know what his actual age was.) The upshot of all this is that the community has been reminded of the importance of carding everyone who looks under 21.

BLM officers were applauded by participants on their approachable nature, and at times, familiarity with the event and its values. The Gate team recognized the effort made by BLM officers assigned to perimeter shifts to introduce themselves and work well with the team. Several participants thanked male officers who were asked to leave a female-only private event, and did so understandingly and respectfully. One officer was witnessed helping a group of struggling participants lift a heavy load from the back of their truck.

Unfortunately, again this year participants were faced with situations involving the BLM that brought their civil rights into question, particularly regarding search and seizure. BRC is continuing to work with the ACLU and Lawyers for Burners to investigate these situations and to ensure that all agencies are acting in accordance with the law and the rights of our participants, and to explore any action BRC can take if necessary. As of the first court hearing for participants who received BLM citations, Lawyers for Burners reported that most offenses were reduced to littering charges again this year.

BRC is committed to the rights and fair treatment of our participants, as well as the need to work side-by-side with law enforcement to ensure a safe environment in which our participants' creativity and expression can thrive. Moving forward, we will continue to build our ever-improving relationships with all of the law enforcement agencies that are present at the Burning Man event. We also plan to maintain and increase our communication with participants on what to expect from law enforcement on the playa, what to do when interacting with law enforcement, and where participants can go to get help or give feedback afterwards.

For more details on the LEAL teams operations and breakdown on numbers of citations and arrests, see the Black Rock Rangers AfterBurn.

Contract Negotiations

Contract negotiations with event vendors (medical, toilets, dust abatement, etc.) went smoothly this year due to long-term business relationships and the increasing use of multi-year agreements over the last few years. 2009, however, marks the last year of several key government agency multi-year contracts. As a result most of these will have to be renegotiated in 2010. See the Government Relations AfterBurn for more details.

Submitted by,
Ray Allen, Andie Grace & Lily Rasel

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