Fight For Your Right to Wave Glow Sticks: ACLU Wins Victory in New Orleans Rave Case 8/31/01

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It has been all downhill for federal prosecutors since, with great fanfare, they indicted the managers of New Orleans' State Palace Theater under an idiosyncratic reading of federal "crack house" laws. Theater manager Robert Brunet, his brother Brian and rave promoter Donny Estopinal originally faced 25 years in prison for maintaining a place for the purpose of drug sales. But with no evidence the trio were involved in alleged widespread ecstasy sales and use at the theater, the crack house charges fizzled. In a June plea bargain, one business run by Robert Brunet agreed to pay a $100,000 fine, undergo five years probation, and agree to a list of conditions from prosecutors. Among other things, the feds required the Brunets to ban rave culture accoutrements such as pacifiers, glow sticks and surgical masks from any future raves they held.

Last week, thanks to the American Civil Liberties Union (ACLU) National Drug Policy Litigation Project, the glow sticks and other pseudo-drug paraphernalia got a reprieve, at least temporarily. Representing local ravers, the ACLU filed a lawsuit challenging the restrictions on the rave party favors, as well as at-the-door searches, on 1st and 4th Amendment grounds. On 8/23, US District Court Judge G. Thomas Porteus granted a preliminary injunction blocking enforcement of the section of the plea agreement that banned glow sticks, pacifiers and other items.

"We're gonna glow like we never glowed before," rave perfomer Clayton Smith told the New Orleans Times-Picayune after the decision. A participant in the lawsuit, Smith told Judge Porteus that the Air Force drill team, of which he was a former member, used glow sticks in their formations. The techno fan told the judge he had invested countless hours in practice time for his performances at raves.

Also testifying was Emory University professor Claire Sterk, an expert on teenage drug use. She told the court the items in question did not fit the federal definition of drug paraphernalia, which "must directly facilitate drug use." Unlike syringes or crack pipes, the items associated with ecstasy and the rave culture "obviously have no health consequences and don't facilitate the drug use at all," she said. Federal prosecutors attempted to rebut the ACLU with, as the Times-Picayune put it in an editorial critical of the whole State Palace Theater fiasco, "arguments that they themselves must have recognized as silly."

Assistant US Attorney for Eastern Louisiana John Murphy attempted to sell Judge Porteus on the insidious dangers of glow sticks and pacifiers, but the judge wasn't buying. Such items are not drug paraphernalia on their own, Murphy conceded, but when they show up at raves they become tools of enhancing the ecstasy high, he told the court.

"Do pacifiers facilitate the taking of drugs or saving your teeth?" retorted a skeptical Porteus.

Murphy then proceeded to dig himself in deeper. Glow sticks can be rubbed over the eyes to heighten the drug's sensory appeal, he said. Vicks Vapo Rub is smeared inside surgical masks so enthusiasts can get a stronger rush, he added.

Graham Boyd, head of the ACLU's drug litigation project, called the restrictions on glow sticks a "bizarre new extreme" in the drug war. Boyd told the court the banned items might be "associated with drug use," but that people used them "for dancing and self-expression."

Federal prosecutors must now decide whether to appeal the preliminary injunction to the US 5th Circuit Court of Appeals or face new hearings before Judge Porteus in December. In the opinion of the Times-Picayune, Louisiana's largest and most influential newspaper, "the ban on glow sticks is not worth fighting for. It won't keep anyone from using ecstasy or other so-called club drugs, any more than a ban on tie-dyed clothes and Grateful Dead records would keep anyone from smoking marijuana."

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Issue #201, 8/31/01 Editorial: The Big Bully | Plan Colombia Sparks Legalization Groundswell as US Weighs Formal Intervention in Guerrilla War | Justice Department Reports One in 32 Americans Under Correctional Supervision | DRCNet Interview: Kenny "The Real" Kramer of Seinfeld Fame, Libertarian Candidate for Mayor of New York City | Fight For Your Right to Wave Glow Sticks: ACLU Wins Victory in New Orleans Rave Case | Germany Takes Next Step: Heroin Maintenance Trial to Start in February | Poll Finds Support for Marijuana Legalization at Record Level, Though Still a Minority View | US Drug Reformers Head to UN Racism Conference, Letter Asks Secretary General Annan to Put Drug War on Agenda | UN Conventions Need Not Pose Obstacle to Drug Law Reform, European Study Says | Canada's Conservative Fraser Institute Declares Drug War Lost | T-shirts for Victory! Special Offer and Appeal from DRCNet This Month | Action Alerts: Ecstasy Bill, HEA, Mandatory Minimums, Medical Marijuana, John Walters | HEA Campaign Still Seeking Student Victim Cases -- New York Metropolitan Area Especially Urgent | The Reformer's Calendar
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