What the feds’ safe injection site lawsuit could mean for the rest of the country

If the Philly nonprofit wins, the facilities would effectively be legalized.

Vancouver's safe-injection site was the first to open in North America

Vancouver's safe-injection site was the first to open in North America

Living-Learning Programs / Flickr Creative Commons
michaelawinberg-square-crop-feb2018

A new federal lawsuit against a Philadelphia nonprofit could determine the future of supervised drug consumption sites across the United States.

The U.S. Attorney’s Office on Wednesday morning announced it has filed a civil suit against Safehouse, the Ed Rendell-backed, Prevention Point-associated group looking to open the country’s first safe injection facility in Philadelphia.

While the action is not an official injunction or cease operations order, the feds’ stated goal is to stop the nonprofit from moving any closer to implementation.

Safehouse reps intend to fight back, they said in a statement. And though it’s leveraged against a Philly organization, the determination of the suit will have implications that ripple across the country.

Another Philadelphia first?

It’s been a year since Philly first announced its intention to pursue a safe consumption site — also called an overdose prevention site or a comprehensive user engagement site. The facility would offer people a safe space to use drugs, plus clean syringes, medical treatment and recovery resources. It would exist as part of a broader effort to reduce local overdose deaths — 1,217 people suffered fatal drug overdoses in 2017.

Sites like this are already operational in at least 10 countries, including Canada. A study conducted at Vancouver’s safe injection site shows they can be effective — out of 453 potentially fatal overdoses there between March 2004 and July 2008, between eight and 51 people could have died if the ODs had occurred outside the facility.

But is this solution legal in the U.S.? That will depend on how a federal judge interprets the legislation. Once a determination is made, it will impact active plans for safe consumption sites across the country — in places like San Francisco and New York City.

“So-called ‘supervised injection sites’ would break the law, plain and simple,” said U.S. Attorney William M. McSwain in a statement. “The law is clear — and it is my job to respect and enforce the rule of law.”

Public health and the ‘crack house statute’

From the feds’ point of view, the idea is illegal under the Controlled Substances Act.

Advocates on the other side argue that the law isn’t specific enough to necessarily prohibit an overdose prevention site.

Under the act, there’s something called the crack house statute (yes, literally). It prohibits people from knowingly maintaining — or even being present in — a space where controlled substances like marijuana, cocaine or heroin are being consumed.

But in another section, the act allows for education, research and training programs related to controlled substances, emphasizing prevention and rehabilitation. The question comes down to whether the judge views supervised consumption sites as meeting those qualifications.

Some legal experts suggest Safehouse’s proposed facility would qualify as legal.

“On the face of the statute, it would appear to [ban] supervised consumption sites,” said Lindsay LaSalle, director of public health law and policy at the New York-based Drug Policy Alliance. “But if you dig a little deeper into the legislative history, it’s clear that actually supervised consumption sites are in accord with the public health intentions of the legislation.”

Protestors lobbied for a safe consumption snear to City Hall back in August.

Protestors lobbied for a safe consumption snear to City Hall back in August.

Max Marin / Billy Penn

The immunity defense

And then there’s another option: the immunity provision.

In a 2018 report, drug policy expert Alex Kreit explained that the Controlled Substances Act provides immunity to “any duly authorized officer of any state, territory, political subdivision…who shall be lawfully engaged in the enforcement of any law or municipal ordinance relating to controlled substances.”

That generally applies to police officers, Kreit wrote, but he thinks it could also apply to public health or treatment providers.

If this all sounds like a long shot, think again: LaSalle explained that other loopholes in the federal act have previously allowed for the legalization of clean syringe exchanges and medical marijuana.

“This is an incremental step up from a syringe exchange,” she said. Exchanges provide clean equipment, she explained, while a safe consumption site would provide a clean physical space.

If there’s a negative outcome in this suit, she added, it would basically classify safe consumption sites as being in violation of the federal crack house statute. “That will certainly impact how other jurisdictions move forward.”

City: Ball’s in the feds’ court now

In an official response to McSwain, Safehouse president Jose Benitez and VP/lawyer Ronda Goldfein argued the facility would not violate federal law. “We believe that a proper constitutional application of Section 856 does not prohibit our primary purpose of preventing fatal overdoses,” they wrote.

As a year-long supporter of safe consumption sites, Mayor Jim Kenney is not named in the lawsuit because he hasn’t yet taken official action to open up a facility. Still, city officials say they remain committed to the idea.

“Since we began working with advocates to investigate the use of overdose prevention sites in the city of Philadelphia, there have always been legal obstacles to overcome,” said city spokesperson Deana Gamble in a statement. “With this action, the U.S. Attorney’s Office has ensured that the ultimate decision as to whether these sites can move forward in the United States will lie with the federal judicial system.”

She added: “The city remains committed to supporting the private operation of an overdose prevention site, because data and evidence show that it can save lives.”

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