‘Crackhouse statute’ argument against supervised injection site shot down by judge

Updated 6:34 p.m.

In a decision that could pave the way for the nation’s first supervised injection site to open, a federal judge ruled today that such a facility would not violate the U.S. Controlled Substances Act. 

The ruling is a victory for the Philadelphia nonprofit Safehouse, which has been defending itself against the federal government in court. 

U.S. District Judge Gerald McHugh made very clear that it wasn’t his duty in this ruling to determine whether supervised injection sites are appropriate solutions or tools in combating the opioid epidemic in Philadelphia, or its Kensington neighborhood. His job, as requested by the federal government, was very narrow in scope: to decide whether the so-called “crackhouse statute,” written in 1986, applied to Safehouse. 

The ruling does not mean that Safehouse can open and operate without interference, just that the government’s principal argument against it had failed to pass legal muster. 

That said, attorney Ilana Eisenstein, who argued for Safehouse in court, said she didn’t expect the case to proceed much farther at the district court level. 

“From my reading of the court’s opinion, there aren’t a lot of disputed facts,” Eisenstein said. 

The ruling came down to the site’s main purpose: Would Safehouse’s express purpose be to facilitate drug use? Or would that drug use serve as a means to an end that is ultimately intended to help people who use drugs? 

The judge wrote that allowing some drug use as a component of an effort to combat drug use isn’t enough. “The ultimate goal of Safehouse’s proposed operation is to reduce drug use, not facilitate it, and accordingly, [the statute] does not prohibit Safehouse’s proposed conduct.” 

In a statement Wednesday, U.S. Attorney William McSwain noted that the Department of Justice “remains committed to preventing illegal drug injection sites from opening.”

“Today’s opinion is merely the first step in a much longer legal process that will play out,” McSwain said. “This case is obviously far from over. We look forward to continuing to litigate it, and we are very confident in our legal position.”

Eisenstein said that if the judge does not issue a ruling that will allow Safehouse to open immediately, in the meantime her team would request preliminary relief to do so while the case continued or an appeal moved forward. 

Philadelphia Mayor Jim Kenney applauded the judge’s decision. 

“I believe overdose prevention sites can save lives, reduce the transmission of infectious disease, help connect individuals suffering with substance use disorder to treatment and other services, and reduce the litter associated with open-air drug use,” he said in a statement.  “There are challenges to overcome — and if the City is going to be a national model in harm reduction we need to do it right and in partnership with the community.”

Kenney has supported the site since early 2018, but also backtracked when Safehouse board members announced they had selected a location where they planned to open, without notifying the surrounding community. 

Even if Safehouse gets permission to open while its case is still tied up in court, the nonprofit will have to clear the hurdle of fierce community opposition. Various groups in Kensington have opposed the site from the get-go, arguing that even if the site saves lives, it will only perpetuate the concentrated drug use in their neighborhood. 

“Hopefully, the city will have a public safety plan in place for residents when it opens,” said Shannon Farrell, head of the Harrowgate Civic Association, which has opposed Safehouse at community meetings and in an amicus brief filed with the court. “I hope that it works, for all of us.” 

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This article was updated to add comments from the U.S. Attorney’s Office.