You Have Rights When You're at The Club—Know Them
Stand your ground when you’re out with these tips from nightlife attorney Cameron Bowman.
Photo by abstrkt.ch/Flickr
In our Dancing vs. The State series, THUMP explores nightlife's complicated relationship to law enforcement, past and present.
Going clubbing isn't without its risks. Revelers can run into all kinds of trouble on the dancefloor, from stringent drug regulations, to discriminatory door policies, to invasive physical searches. But just because nightlife sometimes brushes up against the law, that doesn't mean clubbers have no rights when they're partying.
Recently, two clubgoers sued an upscale Manhattan nightclub after alleging they were groped by security guards; the incident raised the question of where the boundaries are during searches, highlighting that venues can't overstep their authority when carrying out safety checks. We spoke Cameron Bowman AKA The Festival Lawyer, a California-based criminal defense attorney who specializes in nightlife, to learn more about what your rights are when you go to a club.
THUMP: What are your rights during a search at a club?
Cameron Bowman: It's a grey area. The main reason being that when you go to a club, you're going to a private event and special rules apply. From a legal perspective, the main thing that comes up is whether or not the search has some kind of Fourth Amendment issue, i.e. whether it is a lawful search, and if the private security guards qualify as law enforcement.
The other issue is what you have consented to by purchasing a ticket and coming to the event. In general, what the law says is that you're engaging in what's called an "implied consent waiver" by purchasing a ticket. What that means is that usually on your ticket or at the front door, there is some kind of an agreement that by coming into the place and by paying the fee you're agreeing to be searched.
However if the club has given you the proper notice of the search, and if you are consenting via implied consent, they are still supposed to conduct it in a way that's not "overly invasive." This is where everything gets into really tricky areas. But you do still have rights—just because you bought a ticket doesn't mean that you're agreeing to be searched like you're going into prison. There are supposed to be some boundaries. In general what the courts have said is that if they're doing a search that is consistent with searching for weapons, something that's a danger to that club, then it's OK. But if they're being overly invasive then now they're moving into an area that's illegal.
I would say you are on firm legal ground if they're touching in your private areas—if they're going under your bra, they're going into your underwear. At that point I believe that searches are illegal, and you have a right to object to that. It might to be a point where they are committing a crime.
Read more: The Racist Legacy of NYC's Anti-Dancing Law
What can you do if you feel the security has overstepped the mark?
A lot of times you're faced with the situation where you want to go in. So you need to ask yourself how important that is to you. And if it is important, what I recommend people do is stop the search, and verbally state: "I don't feel comfortable with how you're searching me and I would like a supervisor to take over." Of course, if you do that, you are risking not getting let in, but still, it's an important thing you're doing—you have a right not to be groped by some private security guard. You are legally in the right to object.
It's also important for people who experience this to complain. That means via social media—posting about it on Facebook, or on Yelp—or complaining to the event staff after the event. And to not go back to that club.
Can you go in and then complain afterwards?
If you want to take legal action and sue the club, that is different from complaining. All the time I tell people that even if you went in, you should absolutely complain. A lot of times people are in a bit of a state of shock—[the search] happens quickly, and then you're through the door. I think [invasive searches are] a bigger problem than is widely recognized, and I strongly encourage people to say something if it happens.
When is a club allowed to throw you out?
The whole "right to refuse service" is a real thing. Businesses can pretty much chose who they refuse to serve except if they're doing it on some discriminatory basis. There are federal anti-discrimination laws, and as long as they are not deliberately turning away people because [they are from] a protected class, then generally they have a lot of right to kick you out. If you're being abusive, or you're drunk, or they just don't like your attitude—they really can kick you out. The club has a lot of discretion because it's a private venue.
What can you do if you feel you've been discriminated against?
Same rules apply—make a complaint. Blast them on social media, encourage your friends not to go to the club. If it's a true discriminatory policy, there are attorneys that will bring a discrimination claim against a club if they can show a pattern of them doing this.
What do you if you're caught with something illegal on you?
Clubs are supposed to be conducting a search when you first come in, but not as though they are law enforcement. They're not supposed to be working for the cops in that way; they're supposed to be doing a search to determine if you are safe to come into the club.
So if they find something on you and it's illegal then my advice is to say: "I'm withdrawing my consent to be searched and I want to leave the club."' The reason being that you're in this murky area where it's not clear if they should even be searching you. If they do find something and try to hold you for the cops, and you've said that you want to leave, they are acting as agents of the government and you have Fourth Amendment rights. There have been some court cases which ruled that the club has a right to decide if you come in, but they don't then have a right to go through your pockets for law enforcement—they can't act as cops.
What if the club cancels the show—can you get your money back?
In a legal sense, contract law applies here. You pay for something, that service was supposed to be rendered—if not am I entitled for a refund, or partial refund? What I've noticed is that the most effective thing to do is to get as many people together as you can to approach the club about a group refund. For most clubs it's just not worth the headache for them to not offer you the refund if enough people are pissed off about it.