JUDGES OK BAN ON TRAPPINGS OF RAVES

No Inalienable Right to Glow Sticks, They Say

Saying a federal judge overstepped his bounds by blocking the
government's ban on glow sticks and pacifiers during raves at the
State Palace Theater, an appeals court Friday tossed out a decision
that sided with the American Civil Liberties Union.

U.S. District Judge Thomas Porteous can't stop federal prosecutors
from enforcing a condition of a plea bargain made in the criminal case
against the rave promoters, a unanimous three-judge panel of the 5th
U.S. Circuit Court of Appeals ruled.

The court sent the case back to Porteous to be dismissed and took a
swipe at the ACLU. "Concerning the First Amendment, they have not
explained the significance of vapor rub," Judge Rhesa Hawkins
Barksdale noted, referring to the mentholated product that Ecstasy
users sometimes inhale for an added sensation during raves.

Acting U.S. Attorney Jim Letten called the ruling a vindication for
the government, which he said went after raves in the interest of
public safety.

"The ACLU stuck its nose where it didn't belong," Letten said. "And
the 5th Circuit said, 'You represent a third party. You do not have a
right to interfere in a judicial process.' "

The 23-page decision revisits the 2001 high-profile government
investigation into the promoters of raves, all-night dance parties
notorious for attracting illicit drugs such as Ecstasy, a synthetic
drug with hallucinogenic properties.

Accused of violating the federal "crack house" law, the corporation
behind the New Orleans rave scene pleaded guilty in August 2001 and
accepted a $100,000 fine and five years' probation.

Barbecue of New Orleans, whose president is Robert Brunet of Metairie,
also agreed to ban glow sticks, vapor rub, pacifiers, dust masks and
other rave accouterments from future parties. That's when the ACLU
stepped in with a civil lawsuit that charged the government was
violating the First Amendment rights of those who thronged to the
laser-light-filled techno dances.

In February, Porteous agreed with the ACLU. While the government's
push to rid raves of drugs is "pure," he said, it went against the
Constitution's intent.

"The government cannot keep legal items out of places because of
illegal activities they associate with those items," Porteous wrote.

But the government only asked Barbecue to "take reasonable steps to
prohibit" glow sticks and the lot from the theater, the appeals court
said Friday. "It does not require their confiscation," the decision
says.

At a December 2001 hearing before Porteous, one of the three
plaintiffs, Clayton Smith, testified that security guards made him
throw away his glow sticks at the door.

While the ACLU and rave defenders claimed that federal agents went too
far in their narcotics investigation, the appeals court made note of
the rash of drug overdoses, including one 17-year-old girl's death,
that plagued the State Palace Theater between 1997 and 2000.

Seventy people were taken from the theater on Canal Street to
hospitals for drug overdoses, the court said. DEA agents made 50 buys
of Ecstasy or other drugs during undercover stings at seven raves.

Prosecutors said Brunet and his corporation came up with the ban on
its own, but the ACLU countered that the men were bullied by the
threat of a criminal trial.

Smith said the pacifier has become a symbol of the rave counterculture
and not a sign of drug use. The symbol evolved because Ecstasy users
are known to grind their teeth, making pacifiers a comfort during
their highs.

Under then-U.S. Attorney Eddie Jordan, federal prosecutors secured
indictments against Brunet, his brother Brian Brunet and party
promoter Donnie Estopinal. They applied the "crack house" law in a
novel way, accusing the men of using the theater as a drug haven.

The federal law was created to combat the crack cocaine scourge of the
1980s, allowing agents to arrest owners of property used as crack
houses. Jordan resigned, and later became Orleans Parish district
attorney, before the plea bargain was signed.

Joining Barksdale in the opinion were Judges Will Garwood and Jerry E.
Smith. Garwood and Smith were both appointed by President Reagan, and
Barksdale was appointed by former President Bush. Porteous was
appointed by President Clinton.