UNITED STATES
DISTRICT COURT FOR THE
EASTERN
DISTRICT OF LOUISIANA
UNITED
STATES OF AMERICA
CRIMINAL DOCKET NO. 01-010
v.
SECTION C MAG.
4
ROBERT J. BRUNET
VIOLATION 21 U.S.C.
§846
21 U.S.C. §856 (a)(2)
18 U.S.C. §2
*
*
*
BRIEF
FOR THE INTERNATIONAL ASSOCIATION OF ASSEMBLY MANAGERS
AS
AMICUS CURIAE
IN
MOTION TO DISMISS
INTEREST OF
THE INTERNATIONAL ASSOCIATION
OF ASSEMBLY MANAGERS, INC.
This case concerns the criminal prosecution of a public
assembly facility manager for the sale and use of controlled
substances on facility property in violation of 21 U.S.C.
§856(a)(2), also known as the “crack house” law.
The International Association of Assembly Managers ("IAAM")
is a not-for-profit, 501 (c) tax-exempt organization incorporated in
the State of Illinois. IAAM’s membership includes approximately
2,800 managers of stadiums, arenas, convention centers,
amphitheaters and performing arts centers (“facility managers”). The
IAAM members operate facilities across the country, including many
within the State of Louisiana, that represent investments of
billions of dollars of public and private funds. These facilities
attract millions of patrons in Louisiana alone each year to a
variety of professional and amateur events including, but not
limited to, football, baseball, music concerts, theatrical
productions, annual conventions and tradeshows. IAAM members,
officers, and staff favor strict drug laws, deterring drug use at
their facilities and enforcing existing drug laws, but do not
support criminal penalties against facility managers and potential
forfeiture of their facilities for the criminal behavior of patrons.
The United States District Court Indictment for Violation of
the Federal Controlled Substances Act and the prosecution for
alleged violations of 21 U.S.C §846, 21 U.S.C. §856 (a)(2) and 18
U.S.C. §2 in this case involves multiple incidents of drug sales and
use during a “Rave” dance party at the State Palace Theater.
Robert Brunet has not, nor have any of his co-defendants,
been charged with personally engaging in the sale, distribution, or
ingestion of controlled substances. Mr. Brunet has been charged with
a felony based on admissions that drug use occurs during such Rave
dance parties, and on allegations that he operated his facility in
such a way to facilitate or accommodate those using MDMA, also known
as Ecstasy and other so-called “club drugs”. Conviction of these
charges would allow the United States to seek forfeiture of the
facility under 21 U.S.C. §853(a)(2) and (3).
The
legal issues presented herein largely center around the duties of a
public assembly facility manager to respect the Constitutional
rights of patrons under the First and Fourth Amendments, and the
responsibility of facilities for the criminal acts of third parties.
Criminal prosecution of facility managers for acknowledged drug use
at their facilities leads to serious questions regarding
Constitutional rights to Freedom of Assembly, Freedom of Speech, and
Fourth Amendment Search and Seizure duties in enforcing a zero
tolerance drug policy. Due to the fact many facilities are owned by
municipalities and state agencies, the question of equal protection,
selective enforcement, and even 11th amendment immunity
for States under the crack house provisions may be implied, since it
could lead easily to the prosecution of many state employees and
forfeiture of state-owned property to the federal government. If Mr.
Brunet is successfully prosecuted as indicted, this will lead to a
major upheaval in the public assembly facility industry, and
necessitate a dramatic change in the practice and policies followed
by facilities throughout the country. These issues threaten to
subject many more facilities and their managers to criminal
prosecution and potential criminal forfeiture over the basic and
rather well settled question of the liability of business owners for
the criminal acts of third parties. For these reasons, IAAM has a
clear interest in the outcome of this litigation. Any decision by
the United States District Court for the Eastern District of
Louisiana in this case concerning the criminal liability of managers
for the drug offenses of their patrons, the provision of adequate
safety and crowd control, and facility’s general liability for the
criminal acts of third parties, will affect IAAM members throughout
the State of Louisiana and may affect members in other states due to
the watershed importance of the issues and the great respect and
deference in which the Court is held. In this way, the decision of
this Court will directly affect the policies and operations of all
public assembly facilities across the country and their ongoing
effort to provide safe and enjoyable entertainment experiences for
all patrons.
STATEMENT OF THE ISSUES
The International Association of Assembly Managers will
address the following issues:
1.
Public Assembly Facility Managers may not deny musical
performances based on content in violation of the First Amendment.
2.
Public Assembly Facility Managers may not conduct searches
that could not be performed by the State in violation of the Fourth
Amendment.
3.
The criminal prosecution of Public Assembly Facility Managers
under 21 U.S.C. §846 will lead to selective prosecution of
facilities in violation of the Fourteenth Amendment.
4.
Public Assembly Facilities have Affirmative Duties and
Standards of Care to Patrons under civil law that the State alleges
facilitate the use of drugs and form the evidentiary basis of this
prosecution.
5.
The Indictment Holds Robert Brunet Liable For The Criminal
Acts Of Third Parties.
STATEMENT OF THE CASE
In the indictment dated January 12, 2001, the United States
charged Robert J. Brunet, manager of the State Palace Theater in New
Orleans, Louisiana, Brian J. Brunet, an employee of the State Palace
Theater, and James D. Estopinal, promoter at the State Palace
Theater, with violations of 21 U.S.C. §846, 21 U.S.C. §856(a)(2) and
18 U.S.C. §2, alleging that the parties “did knowingly and
intentionally combine, conspire and confederate … to manager and to
control the State Palace theater … and to knowing and intentionally
make available for use, without compensation said building for the
purpose of unlawfully distributing and using controlled substances”,
including MDMA, also known as Ecstasy and LSD.
The factual basis for these allegations states that the State
Palace Theater conducted monthly “Rave” dance parties, featuring
loud, rapid tempo music with light and laser shows, and other visual
presentations. Several drug overdoses were alleged to have spawned
an investigation of the State Palace Theater. The factual basis for
the indictment includes allegations that Brain Brunet, an employee
of the State Palace Theater, told a security guard not to be
proactive in arresting persons selling or using drugs, that
paraphernalia commonly used to enhance drug highs such as pacifiers,
chemical light sticks and flashlight rings were sold. The facility
is alleged to have sold water at inflated prices and provided “chill
rooms” to allow patrons to cool down. Further, it is alleged that
the Defendants knowingly provided medical assistance and ambulances
at the Raves, leading to the conclusion that they were aware of the
possibility of excess drug use and complicit in its use. The
Defendants are also alleged to have allowed persons to have Vicks, a
commercial cold treatment, at the facility, which the State alleges
is used by those ingesting drugs. The State concludes that by its
actions, the management and employees of the State Palace Theater
not only knew of the drug use at its facility, but conspired to
facilitate and encourage drug use, despite its zero tolerance drug
policy and use of security personnel at the facility.
SUMMARY
OF THE ARGUMENT
Public Assembly Facilities are restricted from violating the
Constitutional rights of patrons under the First and Fourth
Amendments to the Constitution, and thus are restricted from
prohibiting types of events based on content, and from performing
intrusive searches on patrons that may or may not curtail drug use
by patrons. Moreover, the “Crack House”
laws charged in the instant case are being used by the
Government against Robert J. Brunet in a manner never intended by
Congress when enacting the laws. The State is, in essence, taking
the safety provisions provided by the State Palace Theater, as
required under industry standards, and using this information as the
basis for a criminal indictment against the Manager of the facility
for the criminal activities of third parties, for which a business
operator does not bear responsibility under civil law.
ARGUMENT
1.
Public Assembly Facility Managers May Not Deny Musical
Performances Based On Content In Violation Of The First Amendment.
The
First Amendment of the Constitution states that “Congress shall make
no law …abridging the freedom of speech …or the right of the people
peaceably to assemble.”
In the instant case, both the rights of individuals to attend
“raves” or techno-music concerts and their right to assemble in a
public assembly facility are in jeopardy.
Public
Assembly Facilities, such as the State Palace Theater, are just
that- places where the public gathers to listen to and exchange
ideas, whether that communication is through the presentation of
speakers, theatrical performances, or music concerts, among other
activities. As such, Facilities are prohibited from discriminating
based on the content of the performances that appear within their
walls. Any restrictions on presentations must follow the narrow and
limited time, place and manner restrictions the Supreme Court has
ruled permissible in regulating speech under the First Amendment.
The
United States Supreme Court has ruled that the performance of music
is protected by the first amendment.
Public Assembly Facilities have, from time to time, sought to
restrict the performance of certain types of shows or music at their
facilities, only to find, time and again, that the facility and its
surrounding areas are largely traditional or limited public forums
for the exchange of ideas, where only narrow, content-neutral
regulations as to time, place and manner are allowed, as long as
other adequate alternative means of communication are available. For
example, in Marilyn Manson, Inc. v. New Jersey Sports and
Exposition Authority,
the Authority sought to prevent “Ozzfest ‘97” from Giants Stadium,
because it found the band, Marilyn Manson and Pantera,
objectionable. Despite the fact that these bands had performed
publicly without any problems or incidents, the Authority felt it
was not in the best interests of the facility to hold the concert,
alleging the heavy metal bands might cause safety concerns. The
District Court enjoined the Authority from canceling or prohibiting
the concert on First Amendment grounds, stating the Authority could
not cite any legitimate safety concerns involving Manson’s or
Pantera’s performance.
Likewise, in
Promotions Limited v. City of Southeast Charlotte,
the City sought to prohibit a production of the Broadway
musical, HAIR, in part due to its six second nude scene. Despite
evidence that the show was popular and would most likely sell out,
the City felt it was not in keeping with their “family
entertainment” image. The Court rejected this argument and enjoined
the Facility from prohibiting the performance, stating
“It is
much too late in the history of the First Amendment to seriously
suggest that public officials managing a public facility may pick
and choose the philosophical and ideological content of programs
using public auditoriums.”
See also
Atlantic
Beach Casino, Inc., d/b/a The Windjammer v. Morenzoni,
749 F. Supp. 38 (D. R.I. 1990) (town counsel’s attempt to revoke
liquor and entertainment licenses in attempt to stop performance of
“2 Live Crew”, a band known for songs with allegedly obscene lyrics,
was enjoined and held to constitute a prior restraint on free
speech, bearing a heavy presumption of unconstitutionality);
Ginsberg v. City of Miami 307 F. Supp. 675 (S.D. Fla. 1969)
(poetry reading by Allen Ginsberg halted mid-performance based on
alleged obscenity; Court held the interruption was impermissible and
City was forced to make the Stadium available on another date at no
cost to allow reading to continue uninterrupted); and
Aubrey v. Cincinnati,
815 F. Supp. 1100(S.D. Ohio 1993) (Content of sign at baseball game
could only be regulated as to size, not as to message, and
constitute protected speech); Carreras v. City of Anaheim,
768 F.2d 1039 (9th Cir. 1985)(Area surrounding convention
center and stadium were public forums for expression).
In part due to the vast
interconnection between government, public assembly facilities, and
the freedoms of expression and assembly granted under the First
Amendment, Facilities are not as free as individuals would be in
similar circumstances to control the expression of patrons,
solicitors, or lessees. Even when faced with events that might pose
potential security problems or be seen as attracting the “wrong
element”, facilities have very little choice in preventing such a
use of the facility without encountering First Amendment issues.
Likewise in the instant case, the State Palace Theater cannot deny a
lease of its facility based merely on the “type” or “content” of an
event. Any regulation must be content neutral and evenly applied.
The United States likewise is prohibited from discriminating against
“raves” or techno-music dance parties, based on the content. Despite
the fact that the officials involved in the indictment surmised and
had evidence of drug usage and procurement by third parties on the
premises of the State Palace Theater, it may not use as evidence
against Mr. Brunet the musical content and stage show of the “Rave”
party as a basis for the allegation that he knowingly and
intentionally made the State Palace Theater available for the use
and distribution of controlled substances. The United States may
not, on one hand, prohibit a public assembly facility from
discriminating based on content the shows it houses, and then use
the content of the same show as evidence of a criminal conspiracy to
violate the law. To do so places all public assembly facility
managers directly between the Scylla of Constitutional Law and the
Charybdis of federal narcotics laws, wherein the manager has no
ability to comply with both masters.
2.
Public Assembly Facility Managers May Not Conduct Searches
That Could Not Be Performed By The State In Violation Of The Fourth
Amendment.
Additional evidence used in the indictment against Robert Brunet
includes his recorded statement that acknowledges the use of drugs
at Rave parties. The indictment implies that security at the event
was lax, and that drug use, while perhaps not encouraged, was
tolerated to an extent unacceptable under the “Crack House” statute.
Even a cursory review of the congressional record regarding the
enactment of the statute makes it clear that it was never intended
to be applied in the instant circumstances.
In the hearing entitled
“Implementation of the President’s 1989 National Drug Control
Strategy,
Senator Biden stated:
Mr. President, I ask unanimous consent to include a statement
explaining my amendment on civil enforcement of the crack house
statute at the appropriate place in the Record. There being no
objection, the statement was ordered to be printed in the Record, as
follows:
SUBTITLE D --
CIVIL ENFORCEMENT
Use of civil statutes to
close crack houses. Section 416 of the Controlled Substances Act (
21 U.S.C. 856)
makes it a crime to operate
a place for the purpose of manufacturing, distributing or using a
controlled substances. This covers places such as "shooting
galleries" and "crack houses." Presently this provision is
enforceable only as a criminal offense that carries a maximum term
of 20 years or a fine of up to $500,000.
The clear intent of this
law was to close so-called crack houses or shooting galleries, areas
of high drug sales and use that have been a blight on neighborhoods
throughout our country.
In review of the Congressional Record, there has been much
discussion of the proliferation of the use of “club drugs”,
increasing the enforcement of laws to discourage the recreational
use of MDMA, also known as Ecstasy, that includes the appropriation
of $10,000,000 for carrying out the Ecstasy Anti-proliferation Act
of 2000 for Fiscal Year 2001.
It is clear that the indictment and charges brought against
Mr. Brunet is in part due to this Act, and the increased pressure on
law enforcement to control and discourage club drug use.
The indictment in essence forces the State Palace Theater to
institute a “zero tolerance” drug policy, stricter than their
current “zero tolerance” policy, mandating more invasive searches of
patrons at Raves and any other event where drug use could be
“anticipated”.
Such
“zero tolerance” drug policies are still not effective in removing
all drug use at music events.
Recently, in Florida v. Iaccarino et. al.,
individuals were subjected to searches at the
entrance to a two-day, outdoor rock concert known as “Zen Fest”. In
the planning of Zen Fest, the promoter, property owner and sheriff’s
officials held several meetings, at which conditions for holding the
event including the prohibition of bottles, cans and other
projectiles for safety concerns, a zero tolerance drug policy, and
the use of the sheriff’s office as lead security agency were
discussed.
As part of the zero tolerance drug policy and the permit conditions
issued by the county commission, the promoter published 250,000
anti-drug brochures stating drugs should not be brought to the
event, and if any drug use occurred, future concerts would be
banned.
The promoter also agreed to post professional signs at all
automobile and patron entrances, pay 100 sheriff’s officers to
provide security and conduct searches, and hire 80 additional
security personnel, referred to as “black shirts” due to their
attire, to patrol the grounds. The promoter assumed the patrons
would be subjects to pat down searches and possible metal detectors
to search for drugs, and at other concerts, when illegal drugs were
found, they were confiscated and destroyed, but no arrests were
typically made.
Despite
verbal warnings of the searches to be conducted from the “black
shirts” and signage that warned of prohibitions and searches,
forty-three arrests for drug possession were made by sheriff’s
officers during Zen Fest.
At trial, the Circuit Court for Pasco County granted the numerous
arrestees’ motions to suppress drug contraband found during the
searches, and the State appealed. The Court of Appeals, in examining
the search procedure concluded the following:
a)
The officers had complete discretion as to how thorough a
search to conduct.
b)
The officers, although paid by the Promoter, were acting on
behest and assigned by the Sheriff’s office, and were in full
uniform when performing searches.
c)
None of the arrested individuals expressly consented to any
search, and none of the officers requested consent.
d)
Yelled warnings of upcoming searches by “black shirts” was
not sufficient warning to conclude implied consent to searches on
the part of patrons, or that patrons even heard such warnings.
The
Court reviewed the actual searches conducted, including the groping
of genitals, taking off caps, removing socks and shoes, emptying
pockets, opening purses, and displaying contents of wallets.
Despite objections made by the promoter to the invasiveness of
searches, the Court found that the sheriff’s command office reported
nothing could be done.
The Court reviewed at length the case law on the constitutionality
of searches at rock concerts and other public events, and noted that
while courts have routinely upheld searches conducted at airports
and courthouses, searches at music concerts and festivals have been
treated differently.
Such searches at airports and courthouses have been upheld based on
underlying vital safety interests, where, in this case, the State’s
underlying vital interest in supporting such searches was the
illegality of the drugs themselves.
The Court of Appeals stated that:
If this Court permitted the illegality of the substances themselves
to rise to the level of “vital interests”, then a similar sign
posting would justify any search of any person at any time and to
any degree. For example, such a “vital interest” could seemingly
justify a search at a high school football game, where each student,
teacher, and parent could be directed to take off shoes and socks,
pull out their bras, empty their pockets and contents of wallets and
have their crotch and genitals frisked.
…The evidence reflects that the [rock concert] searches were very
intrusive and not very effective. Although [the State] did seize
some contraband, drug and alcohol use at the [rock concert] was not
eliminated.
The Court further stated that in the instant case, the searches
conducted were at best questionable and the degree of intrusion was
found to be severe especially when the corrections officers
conducted searches as extensive as if booking a patron into jail.
In reviewing the totality of the circumstances, the Court held that
the atmosphere at the gate was intimidating, none of the officers
informed patrons of the right to refuse to be searched and the right
to obtain a refund, and thus the Court could not conclude that
patrons provided informed consent to the invasive searches
conducted, and thus upheld the suppression of all drug contraband
used as the basis of arrest for the appellees.
In the instant case, the prosecutors are concerned that the
searches conducted by the State Palace Theater security at the Raves
were ineffective, and thus led to the conclusion that the facility
and its manager were complicit in the illegal activity taking place
therein. However, even invasive, unconstitutional searches at rock
concerts, such as those used by officers in Florida v. Iaccarino
et. al. supra, have
been found to be ineffective at eliminating illicit drug use at the
event in question.
The question therefore arises as to the practicality of
searches to eliminating the use of illegal drugs at facilities.
Clearly, signs, searches, warnings, postings and the like may deter
some people from engaging in illicit drugs while on premises, but
there seems to be no fool-proof way to enforce a zero tolerance drug
policy at a mass gathering, and ensure no drug will be taken or sold
on premises. The State must also show some interest, beyond the
illegality of the drugs themselves, in order to be able to justify
any more intrusive search other than a mere pat-down.
While one North Carolina Court suggested that a baggage check
system could potentially be utilized, or genuine voluntary consent
to searches be obtained before searching a person or his belongings,
any search conducted will unlikely fully eradicate the use of drugs
in public assembly facilities. IAAM does not mean to suggest that
any of its members condone turning a blind eye to drug use at mass
gatherings, since any such use poses security and safety hazards to
patrons. However, IAAM does feel that the total elimination of drug
use at public assembly facilities is impractical in the real world,
and thus subjecting its managers to criminal penalties for merely
acknowledging the problem is against common sense and public policy.
It is well known that drug use occurs among the young,
particularly teenagers and college-aged individuals. At colleges and
universities across the nation, drugs and alcohol are used by
under-age students in dormitories, at fraternities’ houses, as well
as in private residences. However, due to the privacy rights of
individuals, dorm rooms, frat rooms and apartments rented by
students are not searched for illegal substances, despite the fact
that many a University President would probably acknowledge the use
of drugs on campus, despite all efforts to curb or eliminate such
problems on the part of the administration.
In contrast to the instant case, the United States is not
seeking the arrest and indictment of College and University
provosts, deans and presidents for being complicit in the use of
drugs on campus.
Nor, might we add, has
the criminal or civil law provided facility managers, club owners,
or others similarly situated with guidelines as to what would
constitute sufficient deterrent to drug use to avoid criminal
prosecution such as that facing Mr. Brunet in the instant
circumstances.
Mr. Brunet acted reasonably in providing security guards and
conducting minimally invasive searches at the State Palace Theater.
To require more invasive searches would be to impose requirements
upon private individuals and businesses that would not withstand
constitutional scrutiny were the same searches to be performed by
State or Federal law enforcement agents. Once again, the indictment
in the instant case places facility managers in a quandary between
their obligations under Federal Drug Enforcement law and the
proscriptions of the Fourth Amendment regarding search and seizures
without warrants or probable cause, in which a facility manager has
no ability to adequately serve both masters.
3.
The Criminal Prosecution Of Public Assembly Facility Managers
Under 21 U.S.C. §856 (a)(2) Will Lead To Selective Prosecution Of
Facilities In Violation Of The Fourth And Fourteenth Amendments.
Public Assembly Facilities are primarily of two types- those that
are privately owned and operated, and those that are created,
funded, and maintained by governmental entities. Due to the large
expense of funding new stadiums and arenas, many are financed by the
taxpayers.
As a by-product of criminal prosecution under 21 U.S.C. §856,
property used in the alleged crime is subject to criminal and/or
civil forfeiture provisions. It is clear that prosecutors will be
more inclined to seek enforcement of 21 U.S.C. §856 against private
owners and operators of assembly facilities, since these individuals
have more personal property at stake, and any such forfeiture will
inure to the government’s interest. In comparison, enforcement of
the same provisions against State operated facilities would lead to
Eleventh Amendment issues as to the prosecution of a State and its
employees by the Federal Government, and the potential state or
federal seizure of
State-owned property. This absurd construction of the federal
government indicting State employees in state-run facilities for
violation of the “Crack-House” statutes, so that the state property
could be seized by the federal government, would surely lead most
prosecutors to concentrate their enforcement efforts naturally on
privately owned and operated facilities. This presents facial
problems regarding equal protection and due process that potentially
unravels any ulterior motive being pursued by prosecutors, that
being the ultimate criminal or civil forfeiture of the State Palace
Theater and its closing, to prevent any future Raves at the site.
4.
Public Assembly Facilities Have Affirmative Duties And
Standards Of Care To Patrons Under Civil Law That The State Alleges
Facilitate The Use Of Drugs And Form The Evidentiary Basis Of This
Prosecution.
In
stadiums, arenas, theatres, and other public facilities, no patron
is guaranteed absolute safety and security. Public Assembly
Facilities serve millions of patrons each year within the State of
Louisiana. In events ranging from theater and dance productions to
large professional sporting events, the public depends on our
facilities to provide them with a quality entertainment experience.
The International Association of Assembly Managers (IAAM) provides
education, training, and information to facility managers on a
variety of subjects, including safety and crowd control. However, no
amount of training, security, or preparation can guarantee absolute
safety and constrain any and all illegal behavior at any mass
gathering. Some patrons may display unruly behavior, may become
intoxicated, use controlled substances, and some may even commit
criminal acts.
It is
the well established duty of a business owner to protect their
invitees from harm by exercising reasonable care. It is a basic
premise of tort law in the United States that:
A business owner has an
affirmative duty to protect invitees against known dangers and also
those which are discoverable with reasonable care… The occupier is
not an insurer of the safety of invitees and his duty is only to
exercise reasonable care for their protection.
Basic duties to invitees under textbook tort law include not
injuring invitees by negligent activities, warning of hidden dangers
known to the owner, reasonable inspection of the premises to
discover possible dangerous conditions, and to take reasonable
precautions to protect invitees from dangers that are foreseeable
from the arrangement and use of the property.
Under the Restatement of Torts, an occupier of land must also act
reasonably to render first aid or to care for them when he knows or
should know that the invitee is ill or injured.
Certain events held at public assembly facilities have associated
risks attendant in their production. For example, it has been widely
recognized that while attending a baseball game, a patron may be
accidentally hit with a fly or foul ball. Any injuries resulting
from such an accident are not compensable from the player involved,
nor the facility, based on the theory of assumption of risk.
However, it is well settled within Louisiana and elsewhere that a
facility is obligated, as a business invitee, to provide adequate
safety measures for its patrons.
Specifically, a proprietor must refrain from any conduct likely to
cause injury to a guest, and must maintain his premises free from
unreasonable risks of harm or warn patrons of known dangers thereon.
One of the main pieces of evidence used in the indictment to show
Mr. Brunet was complicit in the use of drugs at the Rave dance
parties held at the State Palace Theater, was the provision of
cooling or “chill” rooms for patrons, the ready availability of
ambulances and medical assistance, and the provision of water at
inflated prices. Under
basic tort law, Mr. Brunet would have been liable for any injuries
to patrons resulting from a lack of “areas of refuge” or the chill
rooms, inadequate medical aid, or failing to provide refreshments,
given the crowd and prior knowledge of activities surrounding a Rave
dance party. Consequently, Mr. Brunet is being indicted, in part,
for providing those accommodations for which he would have faced
civil suit or tort liability should he have chosen not to provide
such amenities. Clearly, it should be unacceptable to use the safety
provisions provided for guests and patrons of State Palace Theater,
mandated to be used by any prudent facility manager, as evidence of
acquiescence or the condoning of illicit drug use and sales. To use
such safety provisions as evidence of wrongdoing places facility
managers in a classic
“catch-22”, where a facility manager will potentially subject
themselves to criminal prosecution for providing such services, yet
be subject to civil litigation, liability, and placing their patrons
at risk of harm, should they opt not to provide such facilities.
IAAM does not believe the eroding of safety measures,
developed over many years and put in place to protect the safety of
patrons, in order for managers to avoid criminal prosecution for the
criminal acts of third parties at public assembly facilities, is in
the public interest. The legal system and the prosecutors in this
case cannot have it both ways. It is patently unjust for one branch
of jurisprudence to require that certain safety precautions be taken
to ensure public safety, and for another arm to use such precautions
as evidence of participation in the use and dealing of illegal
drugs.
Prosecution of Mr. Brunet under 21 U.S.C. §846, 2 U.S.C. §856 (a)(2)
and 18 U.S.C. §2, based on the Factual Basis purported to support
the indictment, in fact shows that Brunet was acting as a reasonable
and prudent Public Assembly Facility manager by providing areas of
refuge for patrons, arranging emergency medical attention and
transportation to be available, and by providing bottled
water at prices charged in similar public assembly facilities
throughout the industry.
A failure to provide any of the above, once aware that the
need for the same was necessary, may subject a facility to a civil
suit for negligence, in the event any patron was injured.
Within the last year, Bill No.1714 in the California Assembly
proposed requirements that all public assembly facilities
accommodating more than 500 people, wishing to hold a concert or
rave and have open floor or festival seating to comply with various
requirements, including:
·
Have an
EMT on duty whenever patrons are present;
·
Have a
facility to accommodate up to ten people at one time for first aid;
·
Have
staffing to meet the need of the event, including training on
dealing with
drug and alcohol induced illness or injury;
·
Have
equipment to treat dehydration, broken and sprained bones, back and
spinal injuries;
·
Have
telephone access to obtain emergency medical assistance by phone;
·
The EMT
on duty must have radio communication with an ambulance service, and
be in communication with security personnel; and
·
Comply
with documentation of first aid treatment rendered, and injury
incurred, reportable annually to the Emergency Medical Services
Authority.
This
bill was proposed in part, due to the death of a young boy at a
“Rave”, due in part, allegedly, to the lack of adequate on-site
medical treatment. Yet, in the instant case, providing emergency
medical treatment for patrons of the Rave at the State Palace
Theater is being used as evidence of acquiescence to illegal
activity and participation in a conspiracy, rather than as the
actions of a reasonable, prudent, and well-informed public assembly
facility manager. Once again, the United States places Mr. Brunet in
a position of choosing the safety of his patrons or his own personal
freedom from criminal prosecution, when these safety provisions are
being utilized as the evidentiary basis for his indictment under 21
U.S.C. §856(a)(2). IAAM
objects to the use of safety and security measures in this way, as
it will have an adverse effect throughout the industry, and has the
potential to undo years of efforts to develop standards of practice
to ensure the safety and enjoyment of all patrons at Public Assembly
Facilities throughout the United States.
5.
The Indictment Holds Robert Brunet Liable For The Criminal
Acts Of Third Parties.
This indictment seeks to hold Mr. Brunet and his co-defendants
responsible for the criminal behavior of its patrons, ingesting and
selling controlled substances, despite the fact none of the named
individuals has been personally alleged to have sold on ingested any
illegal substance, or otherwise directly involved or profiting from
the illegal trafficking of narcotics. It is a well settled principal
in many states, including Louisiana, that businesses are generally
not liable for the criminal acts of third parties, absence a showing
of a special relationship or negligence. For example, in
Noble v. Los Angels
Dodgers,
the plaintiffs had attended a night baseball game at Dodgers
stadium. After the game, when they were returning to their car in
the stadium parking lot, two drunks standing near their car attacked
them. The plaintiffs sued the Dodgers for their injuries, alleging
inadequate security and a jury awarded them damages, but found one
Plaintiff 55 percent responsible for his injuries, and his
girlfriend 35 percent responsible for her injuries. The Dodgers
appealed the decision, and the Court reversed the lower court’s jury
verdict. In a well reasoned opinion reviewing premises liability,
the Court stated:
It is a sad commentary but
it can be said that in this day and age anyone can foresee or expect
that a crime will be committed at any time and at any place in the
more populous areas of the country. That fact alone, however, is not
enough to impose liability on a property owner when a crime does in
fact occur on his or her property.
The Court also
stated that:
We understand the law
still to require that a plaintiff, in order to establish liability,
must prove more than abstract negligence unconnected to the injury.
In cases in which the specific conduct of third parties is brought
to the attention of a defendant property owner sufficiently in
advance of the injury to give the defendant an opportunity to act to
prevent the injury, the causal connection between the failure to act
and the injury is patent. …We are, however, unaware of any case in
which a judgment against the property owner has been affirmed solely
on the basis of a failure to provide an adequate deterrence to
criminal conduct in general.
The question then to be
determined by the jury is what reasonable steps could have been
taken to prevent the Plaintiff’s injury? The purpose of a trial in
this type of case is not simply to critique defendant’s security
measures and to compare them to some abstract standards espoused by
a so-called “security expert”. The objective is to determine whether
a particular defendant should, under the circumstances, be held
liable for a plaintiff’s injury because of a failure to prevent the
criminal actions of a third party. We submit that causation is a
critical question.
No one can reasonably
contend that even a significant increase in police personnel will
prevent all crime or any particular crime. Police officials and
security experts … may differ in their opinion on just how police or
security personnel should be deployed, but
that dispute is in the
context of how to achieve the greatest degree of suppression with
the resources available and not to prevent all crime or any
particular crime.
[Emphasis added].
The Court then reversed the jury decision, stating that the evidence
was simply insufficient to support the judgment.
Similarly, in Moye v. A.G. Gaston Motels, Inc.,
the Supreme Court of Alabama stated that:
This Court has not yet
decided a case whose facts have commanded us to impose liability on
a business for injuries to its invitees as a result of the criminal
conduct of a third person….”It is difficult to impose liability on
one person for an intentional criminal act committed by a third
person.”
Likewise, in Henderson v. Louisiana Downs, Inc.,
the Court of Appeals reviewed whether adequate security was provided
in order to have prevented an injury to a patron by another patron
at a racetrack. The Court reviewed a long line of Louisiana case
law, concluding that “As to criminal acts performed by third parties
specifically, there is generally, no duty to protect others from the
criminal acts of those parties.”
In the instant case, the United States seeks to hold a
facility manager liable for the criminal acts of third parties
within his facility. Although in contrast, the harm is not a classic
tort harm against another patron, but one against the federal drug
enforcement laws, it in nonetheless an accurate analogy of the
charge. It is clear from the cases cited supra that many courts are
of the opinion that the criminal acts of third parties cannot be
controlled, and that no matter what preventative measures are used,
total elimination of crime is unlikely. Security measures are
implemented seeking to suppress crime, but can never hope to
eliminate it completely, which, under the current set of facts,
would still leave facility managers open to prosecution under the
federal crack house laws. This schema is patently unjust, whether
under the criminal or civil context.
SUMMARY
Respectfully Submitted,
_______________________
Turner D. Madden
General Counsel for IAAM
Madden & Patton, L.L.C.
(202) 434-8988
Certificate of Service
I hereby
certify that a true copy of the foregoing Brief In Support Of
Defendant’s Motion To Dismiss was mailed postage pre-paid this 6th
day of March, 2001 to the United States Attorney, Eddie J. Jordan,
Jr., New Orleans, LA, Counsel for the Defendants, Frank DeSalvo, 201
S. Galvez, New Orleans LA and Graham Boyd, ACLU Drug Policy
Litigation Project, 160 Foster Street, 3rd Floor, New
Haven, CT 06511..
General
Counsel for the International Association of Assembly Managers, Inc.
____________________
Turner D. Madden
Madden & Patton, L.L.C.
(202) 434-8988
101st Cong.
1st Sess. 135 Cong Rec S 12758 (1989).
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