Rave Act Cont'd (Long)
Drew
<<<New England Journal on Criminal and Civil Confinement
Winter, 2003
Comment
*99 THE GOVERNMENT'S NEW WAR ON DRUGS: THREATENING THE RIGHT TO DANCE!
Shadi Kardan
Copyright © 2003 by New England Journal on Criminal and Civil
Confinement;
Shadi Kardan
I. INTRODUCTION
The U.S. has taken a new approach to its war on drugs -- it has
declared a war on "raves," all-night electronic music dance parties,
where "club drugs" are accused of being "essential" [FN1] and "deeply
embedded" in the culture. [FN2] Targeting the managers and promoters
of raves specifically, the government claims that sales of items such
as "pacifiers, chemical light sticks, and flashing light rings" at
these establishments prove that club promoters and managers conspire
to knowingly and intentionally make their events available for the use
of unlawful controlled substances. [FN3] The government reasons that
since these items are "commonly used to enhance and support the
physiological 'high' caused by the ingestion of 'club drugs,"' making
them available for sale at raves is sufficient to show that club
organizers are knowingly and intentionally using electronic music
dance parties to promote the use of illegal drugs. [FN4]
Applying it for the first time in the context of dance parties, the
federal authorities are using U.S.C. § 856(a)(2), also known as the
"Federal Crack House Statute," [FN5] to arrest and criminally
prosecute rave promoters and managers. [FN6] The statute, which was
originally established in 1986, primarily to shut down crack houses,
[FN7] makes it unlawful to
manage or control any building, room, or enclosure, either as an
owner, lessee, agent, employee, or mortgagee, and knowingly and
intentionally rent, lease, or make available for use, with or without
compensation, the *100 building, room, or enclosure for the purpose of
unlawfully manufacturing, storing, distributing, or using a controlled
substance. [FN8]
By using the statute to criminally prosecute rave club organizers, the
federal government is accusing party organizers of running
twenty-first century crack houses. [FN9] Lacking evidence to prosecute
them for the sale, distribution, or ingestion of controlled
substances, [FN10] the government is holding rave promoters and
managers criminally liable for simply hosting dance party events under
the Federal Crack House Statute. By doing so, the government is using
the statute too broadly and going against legislative intent. As a
result, the new application of the Federal Crack House Statute
threatens the constitutional rights of innocent owners, managers, and
patrons of all electronic music events.
This article examines the unconstitutionality of these actions and
evaluates the adverse effects they will have on the electronic music
dance culture. Part II looks at the historical development of "raves,"
focusing specifically on what they are and what they consist of. Part
III examines what falls under the category of "club drugs" and why
they are associated with the rave scene. Part IV looks at the
government's attempts to shutdown raves through various anti- rave
initiatives, and how these attempts have led to the criminal
prosecution of rave organizers through the use of the Federal Crack
House Statute. Part V argues that the government's new interpretation
of 21 U.S.C § 856 is unconstitutionally broad and vague and as a
result, infringes on constitutional rights. Part VI examines the newly
proposed RAVE Act of 2002, and the potential problems it will face if
adopted.
II. RAVES
Raves have been defined as "all night dance event[s], generally
operating from approximately 10:00 p.m. until 7:00 a.m. the following
morning, that are characterized by loud, rapid, tempo ('techno
music'), 140 to 200 beats per minute, light and laser light shows,
smoke or fog, a[n]d psychedelic screen images." [FN11]
*101 These all-night dance parties developed in Europe in the 1980's
as an "underground" movement. [FN12] The dance parties were kept
private, "secretive, after-hours," and "were often held in gay clubs
where attendance was restricted to invitees or friends of invitees."
[FN13] In fact, the parties' locations were often kept unknown to the
invitees until the evening of the event. [FN14] By the mid-1980's, the
popularity of rave parties caused them to expand and outgrow their
limited attendance. [FN15] As a result, it "became common to hold
all-night raves -- which drew thousands of people -- in large, open
fields on the outskirts of the city." [FN16] Accordingly, as raves
began to grow in Europe, "the first rave parties emerged in U.S.
cities such as San Francisco and Los Angeles." [FN17] By the early
1990's, all- night electronic dance parties existed in the majority of
metropolitan areas in the United States. [FN18]
In general, what distinguishes rave dance parties from other dance
parties is the music. Electronically produced beats that "evolved from
1980s techno, house, and New York garage music," [FN19] are played at
raves through a loud sound system. The music is mixed by live disk
jockeys, who "are skilled stage performers and are considered artists
much like musicians." [FN20] By mixing together different styles of
dance music, the rave phenomenon has expanded the genre of electronic
music and has produced several different categories of electronic
sound. [FN21] Today, electronic music can be classified as "ambient,
techno, trance, progressive trance, cybertrance, house, jungle, drum
'n' bass, techstep, garage, and [break] beat." [FN22]
The evolution of the rave scene, however, has done more than create
new electronic beats, it has created a subculture that comes with its
own fashion and attitude. [FN23] Even though their styles can differ,
the general idea behind their clothes remains the same -- ravers are
there to dance for hours, and their apparel reflects that. Generally
they wear "lightweight, loose- fitting clothes and dress in layers,
allowing them to remove clothing as they become overheated from
dancing for hours. Many wear loose shorts or very wide- legged or
baggy pants." [FN24] In addition, primary colored clothing and *102
patterns are common, many with peace signs and happy faces on them.
[FN25] If the rave has a theme, many ravers will dress in costumes
"that match the theme of the rave (e.g., futuristic, space, mystic)."
[FN26] Other popular items are bright colored bracelets, necklaces,
and earrings. [FN27]
Furthermore, ravers describe the spirit of raves as PLUR, meaning
"Peace, Love, Unity and Respect," [FN28] claiming "they love raving
because they can socialize with people who are accepting." [FN29]
Ravers speak of "unshackled joy on the dance floor, a palpable sense
of community, emotional release through dancing, and a reprieve from
the self-consciousness. And that's just through the music." [FN30]
However, this free spirited attitude, along with the bright colored
clothing and accessories, is what has allowed the authorities to
conclude that
raves are just a venue for drug purchases. They are no more than
analogous to a crack house, in which you go buy the drugs and go out
the back door. Although there's music being played, and the people at
the raves are saying, 'I come here for the music,' drugs are
predominant in these rave clubs. And it's just a mix of drugs and
music, and it's become a venue for drug purchases. [FN31]
The authorities reason that but for the use of "club drugs," ravers
would not dress and act in the manner that they do. [FN32] They
speculate that because the club drug, Methylenedioxymethamphetamine
(MDMA), rather than hours of dancing, elevates body temperatures,
"ravers ... remove[] most of their clothing," and "wear T-shirts,
bikini tops, tank tops, tube tops, and open-back halter tops to help
keep cool." [FN33] In addition, since MDMA is a stimulant and a
hallucinogen that can enhance people's mood and raise energy levels,
the Drug Enforcement Agency (DEA) has found it accountable for the
PLUR attitude that ravers share. [FN34] The DEA explains that since
the ingestion *103 of MDMA creates a "feeling of 'closeness' or
'empathy,"' [FN35] ravers feel a sense of unity and respect amongst
other ravers.
However, because rave promoters and organizers recognize and provide
for the unique attitudes and styles of ravers at their events, the
federal government has concluded that rave promoters and organizers
promote the use of illegal drugs. [FN36] The authorities claim rave
promoters and managers are "career criminals" who profit and
capitalize on organizing rave parties. [FN37] For example, since
dehydration is a symptom associated with the use of the club drug
MDMA, [FN38] the federal government has gone so far as to use the sale
of bottled water at these events as an indication that rave organizers
promote the use of drugs. [FN39]
III. CLUB DRUGS
There are multiple substances that fall under the category of "club
drugs." These include, Methylenedioxymethamphetamine (MDMA),
Gamma-hydroxybutyrate (GHB), Ketamine, Rohypnol, Methamphetamine, and
Lysergic Acid Diethylamide (LSD), all of which are claimed to have
qualities that enhance the rave experience. [FN40]
MDMA is also known as "Ecstasy, XTC, X, Adam, Clarity and Lover's
Speed." [FN41] It was "first patented in Germany in 1914, but was not
used on humans until the 1960s." [FN42] MDMA was commonly used in
"couple's therapy" until 1988, when it was criminalized due to the
effect it had on human behavior. [FN43] Ecstacy "is synthetically
manufactured in clandestine laboratories and produces both
hallucinogenic and stimulant effects in its users." [FN44] It is most
often taken orally in a pill form, "but some users snort it, inject
it, or use it in suppository form." [FN45] The stimulant effects of
the drug usually last between three to six hours, [FN46] which allows
its users to dance for longer *104 periods of time. However, the drug
can "lead to dehydration, hypertension" and an "increase in body
temperature (malignant hypothermia)." [FN47]
Gamma-hydroxybutyrate (GHB) is also called "Grievous Body Harm, G,
Liquid Ecstasy, [and] Georgia Home Boy." [FN48] It is often created in
home laboratories from the same ingredients that are found in dietary
supplements that help encourage sleep, develop muscles and boost
sexual performance. [FN49] GHB is a central nervous system depressant
that is used for its "intoxicating/sedative/euphoriant properties."
[FN50] During the 1980's and up until 1992, GHB was sold over the
counter, mostly to body builders who used it to reduce fat and build
muscle. [FN51] GHB can be disguised as a clear liquid, or created into
white powder, tablets or capsules. Its stimulant effects can last up
to four hours. [FN52]
Ketamine, also referred to as "Special K, K, Vitamin K, [and] Cat
Valiums," [FN53] is a legal anesthetic that is largely used by
veterinarians. [FN54] When taken in large dosages, Ketamine produces
"dream-like states and hallucinations." [FN55] Formulated either as a
liquid or a white powder, Ketamine is either injected, snorted or
smoked with marijuana or tobacco products. [FN56]
The drug, Rohypol® (flunitrazepam) is also called "Roofies, Rophies,
Roche, and the Forget-me Pill." [FN57] It is associated with a group
of drugs classified as benzodiazepines which includes "Valium®,
Halcion®, Xanax®, and Versed®." [FN58] Rohypol gets its street name,
"Forget-me Pill," because it can lead to "anterograde amnesia" --
causing its users to forget any event that occurred while under the
influence. [FN59] Although illegal in the United States, Rohypol is
used legally in Europe and over 60 other countries as a sedative, a
pre-surgery anesthetic, and to treat insomnia. [FN60] *105 Rohypnol is
a tasteless and odorless drug that is most often taken orally. [FN61]
The sedative effects of Rohypol are further enhanced when used in
conjunction with alcohol; however, even when taken alone, a dose as
small as 1 milligram of Rohypnol can last between eight to twelve
hours. [FN62]
Methamphetamine, also called "Speed, Ice, Chalk, Meth, Crystal, Crank,
Fire [and] Glass," is a central nervous system stimulant. [FN63] It is
a white, odorless powder that can be "smoked, snorted, injected, or
orally ingested," since it can be easily dissolved in liquids. [FN64]
The ingredients used to make methamphetamine can be purchased
over-the-counter, however, the drug is usually created in secret
laboratories and sold through networks. [FN65] Methamphetamine has
been found in many different cities across the United States. [FN66]
Persons who use Methamphetamine experience "decreased appetite, and
increased physical activity levels." [FN67]
Another drug that has been classified as a club drug is Lysergic Acid
Diethylamide (LSD). [FN68] Commonly referred to as "Acid, Boomers
[and] Yellow Sunshines," LSD is a hallucinogen that "induces
abnormalities in sensory perceptions." [FN69] LSD is typically taken
orally, either as a tablet, capsule, liquid or by placing a piece of
blotted paper that has been soaked in the drug under the tongue.
[FN70] Once the drug is consumed, its effects are usually felt within
30 to 90 minutes. [FN71] The effects of the drug, however, can vary
"depending on the amount taken, on the surroundings in which the drug
is used, and on the user's personality, mood, and expectations."
[FN72] Physically, a user can experience higher blood pressure,
increased heart rate, and sleeplessness. [FN73]
The certain commonalities among these drugs have allowed authorities
to group them as "club drugs" and associate them directly with raves.
[FN74] Almost all of the drugs increase physical activity, and are
either a stimulant or *106 a hallucinogen. [FN75] Since raves are
all-night dance parties, [FN76] the desire to stay awake and dance for
many hours can be satisfied by a drug that can increase physical
activity. Furthermore, since these drugs can stimulate and induce
sensory perceptions, the laser lights that flash "in synchronicity
with the pulsating bass of the music" [FN77] at raves can be further
enhanced through the consumption of certain club drugs. As a result,
it has been concluded that "the ultimate goal of the complex musical
and visual show is to enhance the effects of [club drugs such as] X."
[FN78]
In effect, Generation X [FN79] has become associated with "club
drugs," especially MDMA (ecstasy), and the authorities hold the rave
dance culture responsible for the association. [FN80] In response,
different anti-rave initiatives have been attempted and the Federal
Government is now seeking to prosecute the people who promote and
organize all-night electronic dance parties, claiming they host such
events for the purpose of promoting the use of illegal drugs. [FN81]
IV. ANTI-RAVE INITIATIVES
Although raves began as an underground movement, their popularity soon
made them less secretive and heavily commercialized. [FN82] In effect,
many communities attempted to reduce the number of raves in their
areas, afraid of the use of club drugs associated with them. [FN83] A
number of "cities passed new ordinances designed to regulate rave
activity, while others began enforcing existing laws, [to] help[ ] ...
monitor raves more closely." [FN84]
Among the many cities that started taking steps to control and oversee
the activities at raves were "Chicago, Denver, Gainesville, Hartford,
Milwaukee, and New York." [FN85] These cities began to enforce
"juvenile curfews, fire codes, health and safety ordinances, liquor
laws, and licensing requirements for large public gatherings." [FN86]
In the city of Chicago, "where underground parties gave birth to house
music in the Eighties -- club owners *107 and managers, event
producers and even performers can be fined as much as $10,000 for
participating in an unlicensed rave." [FN87] In addition, Mayor
Richard Daley made plans to apply the city's "drug- and ganghouse
ordinance," (a local version of the Federal Crack House Statute), to
prosecute club owners and promoters. [FN88] In Orlando's Orange
County, "a sixty-day 'Dance Hall Moratorium' prohibiting new dance
clubs from opening" was instituted. [FN89] In Seattle, children under
the age of 18 are required to be accompanied by a parent to raves
under the city's "teen dance ordinance." [FN90]
Moreover, the National Institute on Drug Abuse (NIDA), "initiated a
broad- based public initiative to inform and educate teens, young
adults, parents, and communities about the dangers of drugs such as
'ecstacy,' 'roofies,' and GHB." [FN91] With a budget of $54 million,
and the help of the American Academy of Child and Adolescent
Psychiatry (AACAP), the Community Anti-Drug Coalitions of America
(CADCA), and National Families in Action (NFIA), NIDA set out to
"increase the public's awareness of the effects these drugs may have
on the physical and mental health of the nation's youth." [FN92] NIDA
distribut[ed] 250,000 copies of a special Community Drug Alert
Bulletin that explains where [club] drugs are being used and what
science has revealed about the way they work. And ... place[d] more
than 330,000 free colorful 'HotStamp' cards-which show how using
ecstacy can disrupt brain function-in restaurants, bars, coffee shops,
and bookstores. [FN93]
What's more, from July 31, 2000 through August 2, 2000, the DEA hosted
the International Conference on Ecstasy and Club Drugs at their
headquarters in Arlington, Virginia. [FN94] "[I]n partnership with
approximately 300 officials from the domestic and foreign law
enforcement, judicial, chemical, prevention and treatment
communities," the conference allowed for several "demand reduction
objectives" on MDMA to be institutionalized. [FN95] The objectives
included:
*108 Providing accurate, complete, and current information on the
scientific findings and medical effects of club drugs on the human
body; [w]orking with local, State, and other Federal agencies and
nonprofit organizations in an effort to advance drug education and
prevention; [e]nhancing parental knowledge of raves and club drugs and
engage their active participation in education and prevention of drug
abuse; [and] [e]ducating high school and college students on the
realities of raves and the effects of club drugs on the human body.
[FN96]
However, in January 2000, following the death of a seventeen year-old
girl who overdosed at a rave in 1998, the government sought to
eliminate rave dance parties completely, by criminally prosecuting the
people responsible for organizing them. [FN97] The new anti-rave
initiative, "Operation Rave Review," uses 21 U.S.C. § 856 to arrest
and prosecute rave promoters and managers, claiming that they
"knowingly and intentionally allow[ ] the distribution and use of
numerous controlled substances during rave events." [FN98]
A. United States v. Barbeque of New Orleans, Inc., d/b/a State Palace
Theater
In January of 2000, "Operation Rave Review" made its way to New
Orleans, Louisiana. [FN99] Undercover agents entered the State Palace
Theater posing as "Rave" patrons and secretly video recorded the
activities inside the theater, while other agents video taped the
activities outside. [FN100] Subsequently, two managers of the theater,
Robert J. Brunet and Brian J. Brunet, as well as promoter, James D.
Estopinal, a/k/a Donnie, were arrested and prosecuted under the
Federal Crack House Statute, 21 U.S.C. § 856. [FN101]
According to the government, the undercover agents' video tapes proved
that certain items that the defendants sold at the rave event, such as
"pacifiers, chemical light sticks, and flashing light rings," were
"items of paraphernalia," since they are "commonly used to enhance and
support the physiological 'high' caused by the ingestion of 'club
drugs."' [FN102] The government explained that the pacifiers are used
to prevent involuntary teeth clenching, a common side effect of
ecstacy, and the chemical lights and neon glow sticks are used to
enhance the sensory effects of other club drugs. [FN103] Furthermore,
the government insisted that since the defendants "provided a 'chill
room' where the 'Rave' patrons could be cooled down," *109 the
defendants further intended to promote the use of illegal drugs at
their events. [FN104]
Moreover, the investigation showed that a group of people associated
with "DanceSafe" set up tables at the event from which they
distributed literature to the rave patrons. [FN105] Since the
literature consisted of descriptions on how to use ecstacy and other
club drugs safely, the defendant's knowledge of the distribution of
illegal substances in their establishment was further substantiated.
[FN106] The undercover DEA agents also claimed that they were able to
purchase "illegal drugs in excess of 50 times from 'Rave' patrons."
[FN107] Therefore, given these facts, the government claimed that "the
defendant[s] [were] in a conspiracy with named unindicted
co-conspirators and others to knowingly and intentionally make
available for use the State Palace Theater ... knowing that 'Rave'
patrons unlawfully distributed and used controlled substances, more
particularly ECSTASY." [FN108] Even though the search conducted by the
undercover agents revealed no evidence of defendants' direct
involvement with actual drug activity, the "defendants were
[nonetheless] indicted on January 12, 2001, for alleged[ly]
violat[ing] ... the [Federal] Crack House Statute, 21 U.S.C. §
856(a)(2)." [FN109] Therefore, the defendants were charged with
"knowingly [and intentionally] ma [king] the State Palace Theater
available for the [purpose of] use and sale of [club drugs such as]
ecstasy and LSD," [FN110] not for the purpose of providing music.
The government's finding of defendants' knowledge and intent to make
the State Palace Theater available for the purpose of promoting the
use and sale of club drugs was based on an assortment of facts.
[FN111] For example, since there is a high risk of injury associated
with club drugs and because defendants had medical personnel on hand
to assist or transport anyone in need, the government claimed that
this showed the defendants knew their patrons used drugs. [FN112] The
government reasoned that the defendants, by providing medical help,
were promoting their patrons' illegal activities. [FN113] *110 In
addition, since dehydration is a symptom associated with the ingestion
of the club drug ecstasy, and the defendants sold bottled water at
their rave events, this contributed to the government's contention
that the defendants were running a drug operation. [FN114] Therefore,
for the first time in the context of dance parties, Robert Brunet,
Brian Brunet and James Estopinal were criminally indicted under the
Federal Crack House Statute and accused of using electronic music
dance parties to promote the use of illegal drugs. [FN115]
Facing a possible sentence of up to 20 years and a lengthy legal
battle that could take years and cost them millions, the three
promoters accepted a plea bargain: "their company, Barbeque Inc.
(rather than the individuals themselves), would plead guilty to one
count of operating a crack house, and the corporation would pay a
$100,000 fine, thus eliminating any possible risks that could land the
promoters in jail." [FN116] However, as part of the agreement, the
State Palace Theater was prohibited from introducing, selling or
distributing certain items which the government had established as
sufficient to prove the club organizers' intent to promote the use of
drugs. [FN117]
These items included:
1. Infant pacifiers or any object in the shape of a pacifier[;]
2. Objects that glow, including but not limited to glow sticks and
flashing rings[;]
3. Vapor rub products and vapor inhalers[;]
4. Dust masks or masks of any description[;]
5. Masseur[s], Masseuse or massage tables[;]
6. "Chill Rooms" or areas in the theater which are purposefully kept
15 degrees cooler than the rest of the theater. [FN118]
According to the government, pacifiers, glowsticks and other items
displayed or worn during raves, constitute drug paraphernalia in
violation of 21 U.S.C. § 863 of the Controlled Substance Act. [FN119]
*111 1. Class Action Suit is Brought Against Plea Agreement
In response to the plea agreement, and with the help of the American
Civil Liberties Union (ACLU), plaintiffs Steven McClure, Clayton
Smith, and Michael Behan, brought a class action suit on behalf of a
class of similarly situated performers and attendees of electronic
music events at the State Palace Theater in New Orleans, alleging
"that performance artists at a musical concert have the right,
protected by the First Amendment to the United States Constitution, to
be free of governmental restrictions on their artistic use of legal
items, including glowing objects and masks during their public
performances." [FN120] Further, the action sought a declaration that
"attendees of a musical concert have the right, protected by the
Fourth and Fifth Amendments to the United States Constitution, to be
free of governmental measures requiring the seizure and confiscation
of legally possessed items, including glowing objects, pacifiers,
masks and massagers." [FN121] In addition, plaintiffs sought
"injunctive relief against the enforcement of the provisions of a plea
agreement barring the use and possession at a musical concert of
legally possessed items, including glowing objects, pacifiers, masks
and massagers." [FN122]
On August 23, 2001, the United States District Court of the Eastern
District of Louisiana decided the issue of injunctive relief. [FN123]
The court granted a preliminary injunction against the enforcement of
certain provisions of the plea agreement that barred the use and
possession of
infant pacifiers or any object in the shape of a pacifier; objects
that glow, including but not limited to glowsticks and flashing rings;
-- vapor rub products and vapor inhalers, dust masks or masks of any
description by any person entering a concert or an event where
admission is charged or at the State Palace Theater. [FN124]
*112 The court based its decision on whether the plea agreement was
one that was made as a result of private choice. [FN125] The court
found that because the government "commanded a particular result," the
plea agreement was not the choice of the State Palace Theater. [FN126]
The court explained, the government "has so involved itself that it
cannot claim the conduct that actually occurred as a result of private
choice." [FN127] (Permanent injunction hearing was held on December
17, 2001). [FN128]
2. Court Finds the Banning of Masks, Pacifiers, and Glowsticks
Unconstitutional
On February 1, 2002, in a decision that ACLU called "a 'major victory'
for free speech rights," [FN129] Judge Porteous declared that the
banning of inherently legal objects such as masks, pacifiers, and glow
sticks violated the First Amendment. [FN130] The court explained that
the government's actions were based on the belief that banning the
named objects would either eliminate or reduce the use of club drugs.
[FN131] However, even though banning the use of club drugs was a
legitimate government interest, the court found "the manner in which
the government [was] attempting to address [the] issue violate [d] the
First Amendment." [FN132] Furthermore, despite the claims made by the
government, the court found no conclusive evidence that a ban on such
items would reduce the use of club drugs. [FN133] In conclusion, Judge
Porteous cautioned the government about it's new war against drugs:
[W]hen the First Amendment right of Free Speech is violated by the
government in the name of the War on Drugs and when that First
Amendment violation is arguably not even helping in the War on Drugs,
it is the duty of the Courts to enjoin the government from violating
the rights of innocent people. The government cannot keep legal items
out of places because of illegal activities they associate with these
items. [FN134]
*113 B. United States v. Patrick Pfeffer, Thorsten G. Pfeffer, and Sea
Watch of Panama City Beach, Inc., d/b/a "Club La Vela"
On June 5, 2001, Patrick Pfeffer, Thorsten G. Pfeffer, and their
corporation, Sea Watch of Panama City Beach, Inc., d/b/a Club La Vela,
"were indicted by a federal grand jury 'on charges of 'Operating A
Crack house' with a criminal forfeiture motion."' [FN135] This was the
second instance since the case of United States v. Barbeque of New
Orleans, that the Federal Crack House Statute was being used in the
context of a dance party. [FN136] The main difference, however, was
that the new indictment included the federal government's intention to
seize the assets of the club owners as well. [FN137] If convicted of
violating parts (a)(2) and (b) of the Federal Crack House Statute, the
defendant will also have to forfeit to the United States
all of their interests in property consisting and derived from any
proceeds defendants obtained, directly or indirectly, as the result of
such violations; and property used and intended to be used in any
manner or part to commit and to facilitate the commission of such
violations and all property, including, but not limited to: the real
property and buildings together with all furniture, fixtures,
inventory, equipment and personal property located at [Sea Watch of
Panama City Beach, Inc., d/b/a "Club La Vela"]. [FN138]
This was not the first time that Club La Vela had been forced to
interact with local law enforcement. In 1997, Club La Vela "was the
first club raided under the state's Anti-Rave Bill." [FN139] In 1999,
Florida state officials initiated "Operation Heat Rave," and "served
20 warrants in September and October of that year" on Club La Vela.
[FN140]
After a three-year investigation, in April of 2000, the law
enforcement of Bay County, Panama City Beach and Agents from the
Florida Division of Alcoholic Beverages and Tobacco, raided Club La
Vela, and seized "thousands of pills, gallons of illegal drugs" and
arrested more than sixty *114 people. [FN141] However, no evidence was
found to indicate that the owners of Club La Vela possessed, sold,
distributed or manufactured drugs. [FN142]
According to the Bay County Sheriff, Guy Tunnel, who was among those
who served the warrants on Club La Vela, "the popular nightspot [is] a
place in which young people [are] groomed to become drug consumers."
[FN143] Panama City Police Chief, J.B. Holloway, stated, "the fact
that the massive night club included rooms for underage patrons
combined with a 'lackadaisical' attitude toward drug use, made it
likely that many teen-agers who visited the club would be exposed to
illicit drugs." [FN144] Holloway added, "[t]hey were raising them to
come back and buy their drugs later." [FN145]
Similar to the case against the managers and promoters of the State
Palace Theater, reasonable precautions taken by the defendants such as
ensuring "that medical personnel and emergency medical treatment were
immediately available to assist or transport anyone in need of such
services," was considered proof that defendants were "running a drug
operation or in some way violating the Crack House Statute." [FN146]
Equally similar to the State Palace Theater case, the government also
referred to the fact that defendants sold bottled water and glow
sticks to patrons at their events as evidence that defendants
"knowingly and intentionally focused the use of Club La Vela as a
location for the use and distribution of illegal, controlled
substances." [FN147]
However, unlike the State Palace Theater case, no plea agreement was
initiated. Instead, the case went to trial in federal court. [FN148]
Patrick and Thorsten Pfeffer and their corporation, Sea Watch of
Panama City Beach Inc., d/b/a Club La Vela, were each charged with two
crimes. [FN149] The first crime was for "making the club available for
the use or distribution of drugs," and the second, for "conspiring to
make the club available for these purposes." [FN150] In essence, it
needed to be shown that the Pfeffers and the corporation were in
violation of 21 U.S.C. § 856, the Federal Crack House Statute.
*115 Accordingly, "[o]n the first count of the indictment, jurors
needed to agree that [either] the Pfeffers had made the building
available just once for someone to use drugs; or ... that the Pfeffers
had allowed someone to distribute drugs on the property." [FN151] On
the second count, to convict the defendant's on the conspiracy charge,
the "jurors would have had to find that some plan had been formulated,
even an unspoken agreement, around 1995 to open the club up for drug
use or distribution." [FN152]
The prosecution called more than sixty witnesses to testify. [FN153]
Some stated that "they had used drugs with Patrick or Thorsten Pfeffer
in the club, others sa[id] they had distributed thousands of doses of
drugs." [FN154] In response, defense attorney, Todd Foster, accused
the prosecution of building its case on lies. [FN155] That was the
common theme in the three defense attorneys' closing arguments -- that
"drug dealers, former club employees accused of dealing drugs, and
drug users had lied on the stand to avoid prosecution or lengthy jail
terms." [FN156]
Thorsten Pfeffer's attorney, Robert Harper, explained that only "a
small clique of people were using and distributing drugs in the club
without management knowledge," [FN157] and that since this was not a
case of negligence, "jurors couldn't convict if they believed only
that the Pfeffers hadn't done enough to stop the problem." [FN158]
Harper went on to say that "the dealers and employees who dealt drugs
did so in secret and had kept their activities from law enforcement
officers investigating the club." [FN159]
In response, Assistant United States Attorney Greg Miller accused the
defense of underestimating the drug problem at Club La Vela, claiming
that "[m]ore than 30 percent of the heart and guts of [the] staff was
dealing in drug activities." [FN160] Furthermore, Miller used the
defendants' desire to increase the popularity of their nightclub as
motive for them to allow drug dealing in their club. Miller claimed
that in order to make their nightclub the largest in the nation, "the
brothers needed to reach out to an emerging 'rave' culture that uses
designer drugs like Ecstacy." [FN161]
Since no drugs had ever been found on the Pfeffers or inside their
club, during the trial the prosecution presented to the jury Blow
Pops, gum, other candies and glow sticks -- items that had been seized
on April 27, 2001 at *116 the club during a raid - as evidence that
Club La Vela patrons were using drugs. [FN162] The prosecution "also
showed the jury a picture downloaded from Club La Vela's website of a
man giving a massage to another man [as] ... evidence of drug use."
[FN163] However, the prosecution's claims did not convince the jury.
On November 27, 2001, after less than two hours of deliberation, the
jurors returned with a verdict of not guilty on all charges against
Patrick and Thorsten Pfeffer and their corporation. [FN164]
V. ANALYSIS
A. The Crack House Statute Is Applied Too Broadly In the Context of
Dance Parties
Title 21 U.S.C. § 856 was adopted in October, 1986, as part of a
comprehensive drug legislation which was
designed to strengthen Federal efforts to encourage foreign
cooperation in eradicating illicit drug crops and in halting
international drug traffic, to improve enforcement of Federal drug
laws and enhance interdiction of illicit drug shipments, to provide
strong Federal leadership in establishing effective drug abuse
prevention and education programs, to expand Federal support for drug
abuse treatment and rehabilitation efforts, and for other purposes.
[FN165]
According to the Congressional Record, 21 U.S.C. § 856 was created to
"[o]utlaw [ ]operation of houses or buildings, so called 'crack
houses' where 'crack,' cocaine and other drugs are manufactured and
used." [FN166] Since its adoption, 21 U.S.C. § 856, has been used to
either cease the operation of an actual crack house, [FN167] or
prosecute a defendant who was directly involved with manufacturing,
storing, distributing, or using controlled substances. [FN168]
*117 21 U.S.C. § 856 provides:
(a) Except as authorized by this subchapter, it shall be unlawful to
--
(1) knowingly open or maintain any place for the purpose of
manufacturing, distributing, or using any controlled substance;
(2) manage or control any building, room, or enclosure, either as an
owner, lessee, agent, employee, or mortgagee, and knowingly and
intentionally rent, lease, or make available for use, with or without
compensation, the building, room, or enclosure for the purpose of
unlawfully manufacturing, storing, distributing, or using a controlled
substance.
(b) Any person who violates subsection (a) of this section shall be
sentenced to a term of imprisonment of not more than 20 years or a
fine of not more than $500,000, or both, or a fine of $2,000,000 for a
person other than an individual. [FN169]
The phrase "for the purpose of" is what distinguishes the separate
meanings behind subsection (a)(1) and (a)(2) of the Federal Crack
House Statute. [FN170] "Under (a)(1) the 'purpose' is that of the
defendant; it is not enough to open or maintain a place that is used
by others for proscribed purposes, the defendant must maintain the
place for his own goal of manufacturing, distributing, or using
drugs." [FN171] However, under (a)(2), "the 'purpose' may be that of
others; the defendant is liable if he manages or controls a building
that others use for an illicit purpose, and he either knows of the
illegal activity or remains deliberately ignorant of it." [FN172]
Without any evidence to link the defendants directly with drug
activity in their establishments, the defendants in both State Palace
Theater and Club La Vela were indicted under 21 U.S.C. § 856(a)(2) -
accused of knowingly and intentionally making available their
establishments for the purpose of unlawfully distributing and using
controlled substances. [FN173] In other words, the defendants were
charged with organizing a dance party for the specific purpose of
making it available for the use of illegal drugs, not for providing
music.
A conviction under 21 U.S.C. § 856 requires the finding of two mental
elements - knowledge and purpose. The elements require a jury "to find
[a defendant to have] maintained ... or operated ... the
[establishment] with the specific purpose of unlawfully using,
storing, or distributing a controlled substance, and not merely that
she 'operated a[n] [establishment] *118 where drug activity was
rampant."' [FN174] In both cases, the defendants did not deny knowing
that some patrons used drugs. [FN175] However, the defendants' mere
knowledge of the existence of drug use within their establishment is
insufficient to conclude that their music events are organized for the
purpose of promoting illegal drug use. This is too broad of an
interpretation of the elements of "knowledge" and "purpose" as
required by 21 U.S.C. § 856.
An act that is done purposefully is "[t]hat which one sets before him
to accomplish; an end, intention, or aim, object, plan, project."
[FN176] It is the "object toward which one strives or for which
something exists; goal; aim ... intention ... determination;
resolution." [FN177] It is a specific requirement that cannot be
interpreted broadly. By prosecuting rave promoters and managers for
organizing music events with the objective, aim, or goal of promoting
illegal drugs under 21 U.S.C. § 856, the government alleges that
electronic dance parties are illegitimate businesses used as cover-ups
to promote the use of illegal drugs.
B. The New Interpretation of the Federal Crack House Statute Is
Unconstitutionally Vague and Infringes on First Amendment Rights
"It is a basic principle of due process that an enactment is void for
vagueness if its prohibitions are not clearly defined." [FN178] The
prosecution of rave promoters and managers under 21 U.S.C. § 856 draws
a hazy line between what is, and what is not, criminal activity. By
allowing the Federal Crack House Statute to be used in the context of
dance parties, promoters, managers and organizers of all electronic
music events, dance clubs and concerts are at risk of criminal
liability. The government's new interpretation of 21 U.S.C § 856 no
longer allows for "person[s] of ordinary intelligence [to have] a
reasonable opportunity to know what is prohibited, so that he may act
accordingly." [FN179] A vague law runs the risk of capturing the
innocent "by not providing fair warning." [FN180] When applied in the
context of dance parties, 21 U.S.C. § 856 fails to provide explicit
standards that can be followed. Instead, it "impermissibly delegates
basic policy matters to policeman, judges, and juries for resolution
on an ad hoc and subjective basis, with the attendant dangers of
arbitrary and discriminatory application." [FN181]
*119 The government's new interpretation of the Federal Crack House
Statute not only infringes on the fundamental rights of innocent club
owners and managers, but it also threatens the constitutional rights
of patrons of electronic music events. Since an unrestricted
application of a statute could "cause persons whose expression is
constitutionally protected to refrain from exercising their rights for
fear of criminal sanctions," [FN182] organizers and promoters of
electronic music events will eventually be forced to cease operations,
and as a result, censor the First Amendment rights of their patrons.
In other words, "[t]he chilling effect upon the exercise of First
Amendment rights may derive from the fact of the prosecution,
unaffected by the prospects of its success or failure." [FN183]
Therefore, when a law "threatens to inhibit the exercise of
constitutionally protected rights," a stricter vagueness test must be
applied. [FN184]
VI. THE RAVE ACT OF 2002 -- REDUCING AMERICANS VULNERABILITY TO
ECSTASY
On June 18, 2002, the Reducing Americans Vulnerability to Ecstacy Act
of 2002 (The RAVE Act), was introduced to the Senate for approval.
[FN185] The act is an expansive re-write of 21 U.S.C. § 856, which the
government hopes will assist in reducing the use of club drugs and
essentially shutting down raves. [FN186]
The RAVE Act alters 21 U.S.C. § 856(a)(1) by "striking 'open or
maintain any place' and inserting 'open, lease, rent, use, or maintain
any place, whether permanently or temporarily."' [FN187] The RAVE Act
further broadens 21 U.S.C. § 856(a)(2) by providing that it shall be
unlawful to "manage or control any place," [FN188] (instead of "any
building, room, or enclosure," as required by 21 U.S.C § 856(a)(2));
[FN189] "whether permanently or temporarily, either as an owner,
lessee, agent, employee, occupant, or mortgagee and knowingly and
intentionally rent, lease, profit from, or make available for use,
with or without compensation, the place for the purpose of unlawfully
manufacturing, storing, distributing, or using a controlled
substance." [FN190]
*120 The authorities explain that "[t]he bill tailors the crack house
statute to address rave promoters' actions more specifically so that
Federal prosecutors will be able to use it to prosecute individuals
who allow rampant drug use at their events and seek to profit from
putting kids at risk." [FN191] The government insists:
[t]his legislation will not eliminate all raves. Provided that rave
promoters and sponsors operate such events as they are so often
advertised ..., as places for people to come dance in a safe,
alcohol-free environment, then they have nothing to fear from this
law. But this legislation will give law enforcement the tools needed
to shut down those rave operators and promoters who use raves as a
cover to sell drugs. Innocent owners or proprietors will remain exempt
from prosecution. [FN192]
However, the RAVE Act suffers from the same constitutional problems as
the application of the Federal Crack House Statute in the context of
dance parties. In fact, as an expanded version of the Federal Crack
House Statute, the RAVE Act could potentially put more innocent
businessmen and property owners in danger of prosecution. [FN193] The
RAVE Act is so broadly written, that "if drugs are found at a
warehouse rave, bar, club, loft party or [even a] barbecue in
someone's backyard, [any place the government chooses to target], the
owner of the venue [could be sentenced] ... to 20 years in prison and
... fine [ed] ... up to $750,000." [FN194] The prosecution of innocent
businessmen and property owners is unavoidable under the RAVE Act.
The RAVE Act should be found void for vagueness. It does not give a
"person of ordinary intelligence a reasonable opportunity to know what
is prohibited, so that he may act accordingly." [FN195] Since
"[u]ncertain meanings inevitably lead citizens to 'steer far wider of
the unlawful zone' ... than if the boundaries of the forbidden areas
were clearly marked," [FN196] more property owners will be afraid of
renting or leasing their property to any group or event that could
"wrongly [be] perceived as attracting drug users." [FN197] This will
have a "chilling effect upon the exercise of First Amendment rights"
[FN198] of innocent people.
*121 Furthermore, the RAVE Act includes a more dangerous proposal --
it allows for civil suits to be brought against anyone accused of
violating the statute: "Any person who violates subsection (a) shall
be subject to a civil penalty of not more than the greater of (A)
$250,000; or (B) 2 times the gross receipts, either known or
estimated, that were derived from each violation that is attributable
to the person." [FN199] Since a lower standard of proof is attached to
civil cases (as opposed to criminal cases), the RAVE Act, if adopted,
will jeopardize more innocent businessmen and property owners by
causing them to be "fined hundreds of thousands of dollars." [FN200]
VII. CONCLUSION
Club drugs are dangerous. [FN201] They have been linked to the
"increasing numbers of drug overdoses and emergency room visits."
[FN202] There is no doubt that the government's concerns are
legitimate. However, will the government's new methods of prosecuting
rave promoters and managers help eliminate the use of club drugs?
The Federal Crack House Statute and its newly proposed re-write, the
RAVE Act, are quick, simple solutions to a very complex problem.
[FN203] The government, in its new war against drugs, seems to have
bypassed a more important question in deciding how to eliminate drug
use -- why are kids using drugs in the first place? The government is
convinced that organizing dance parties are "the latest methods drug
dealers are using to push drugs on ... kids." [FN204] Therefore, no
more raves equals no more drugs. [FN205] However, history has shown
that "quick fix" laws never solve problems, they only create new
dangers. [FN206]
*122 The reason young adults are drawn to all-night dance parties is
because they are an "integral part of growing up." [FN207] Going to
dance clubs is "a rite of passage which marks adolescent independence
with the freedom to stay out late with friends ... [and] indulge in
the 'adult' activities of flirtation, sex, drink and drugs." [FN208]
Furthermore, because young adults desire "autonomous and distinct
identities," they explore different cultural forms through clothes and
music and adopt "anti-social strategies." [FN209] Inevitably,
all-night dance parties that embrace individuality, creativity and
freedom are celebrated by youth. At these events, clubbers drink
alcohol to "symbolize the achievement of adult status," and use
illicit drugs "to signify a rejection of adult culture." [FN210]
The integration of music and drugs has existed throughout many
generations. For example, in the 1920's, jazz was associated with
marijuana; in the 1960's, psychedelic rock music with LSD; in the
1980's, punk music with speed; and now, electronic music with club
drugs. [FN211] In fact, the substances that are classified as "club
drugs" are not exclusive to the rave scene. [FN212] The majority of
these substances "were being abused in the 1960's, 1970's and 1980's."
[FN213] However, once the media gains knowledge of a sub-culture
associated with drug use, an "inevitable moral panic" [FN214] occurs,
and the government is forced to find a "quick fix." In effect, the
government often does not consider the consequences of its action; the
problem is not solved, and greater risks are created.
Organizers, promoters and managers of raves are aware that their
patrons use drugs. [FN215] Accordingly, they take safety measures at
their events. Rave promoters support organizations such as "DanceSafe"
which publishes and distributes literature to ravers about the dangers
of club drugs; they keep medical personnel on hand to assist or
transport anyone in need; and provide bottled water to prevent
dehydration. [FN216] However, instead of recognizing *123 the club
owner's efforts, the government uses their precautions as evidence of
criminal liability. [FN217]
If the RAVE Act is adopted, innocent people will either go to jail or
be forced into bankruptcy [FN218] and the use of club drugs will not
cease. Instead, a sub-culture that began as an underground movement
[FN219] will find its way back into secret venues and away from any
safety regulations. Essentially, the government's attempts will "only
serve[ ] to further alienate [young adults] from a system they are
rebelling against in the first place." [FN220] The reality of the
government's new war on drugs is best described by the following:
"[I]f you want more deaths stemming from the use of club drugs, then
... drive the club scene further underground." [FN221]