Update: 12:15 p.m.
After months of threats, federal prosecutors in Philadelphia launched a legal challenge on Wednesday against the nonprofit Safehouse, which is hoping to open what would be the nation’s first site where people with opioid addiction can use drugs under medical supervision.
The civil lawsuit, which is jointly being pursued by Pennsylvania-based prosecutors and the Department of Justice in Washington, is the first time the federal government has intervened in the hotly debated issue of supervised injection sites, providing what may become an important legal test case as cities across the country consider similar proposals.
The complaint, which can be read in full below, comes just as Safehouse officials ramp up fundraising efforts and continue to scout a location for what they say is a medical facility that can save lives.
If federal officials succeed in court, the momentum behind Safehouse may be lost.
“This is in-your-face illegal activity using some of the most deadly, dangerous drugs that are on the streets. We have a responsibility to step in,” said William McSwain, the U.S. Attorney for the Eastern District of Pennsylvania, in an interview in his office recently. “It’s saying, ‘Safehouse, we think this is illegal. Stop what you’re doing.’”
According to the suit, a supervised injection site would violate a section added to the Controlled Substances Act in the 1980s during the height of the crack epidemic.
McSwain’s comments affirm remarks made last year by Deputy Attorney General Rod Rosenstein, who said in an interview with WHYY that swift and aggressive action would follow the opening of a supervised injection site. Such facilities operate in Canada and Europe, but none exist in the United States. That has not stopped other cities like New York, Denver and Seattle from publicly debating similar proposals.
Last week, Pittsburgh Mayor Bill Peduto also said the city would explore the creation of supervised injection sites.
In Philadelphia, the one-count civil lawsuit is far from the most assertive posture federal prosecutors could have taken in response to a proposal sanctioning the use of illegal drugs, McSwain said.
The suit is asking U.S. District Court Judge Gerald McHugh to rule on the legality of Safehouse’s plans, rather than waiting for Safehouse to open and then cracking down with arrests and a prosecution.
“We’re not bringing a criminal case right now. We’re not arresting anybody. We’re not asking to forfeit property. We’re not looking to be heavy-handed,” McSwain said. “This can serve everyone’s interest in order to find out what the court thinks of this. But this, in our view, is illegal.”
Ronda Goldfein, vice president and lawyer for Safehouse, said federal drug laws were not written to obstruct a medical facility focused on saving lives and moving those addicted to opioids treatment.
She is confident the court will rule in Safehouse’s favor.
“We have a disagreement on the analysis and intention of the law,” Goldfein said. “We don’t think it was intended to prevent activities such as this, and perhaps it will take a court’s ruling to move the issue forward.”
Philadelphia’s District Attorney Larry Krasner, who has promised not to prosecute anyone associated with Safehouse, was dismayed by the federal government’s action.
“No one is giving drugs to people. The people coming in were going to use those drugs anyway,” said Krasner, adding that the plan to have Safehouse staff watch “people who have injected their own drugs to make sure they do not fall asleep and stop breathing” should not be criminalized.
The provision of the law in question is widely known as the crack house statute. It makes it illegal to maintain a space for the purpose of making, storing, distributing or using an illegal drug. Safehouse would not make or provide opioids to users, but it would allow people to bring in their own drugs to use while being monitored by medical staff.
A study by Alex Kreit, a drug policy expert and law professor at Thomas Jefferson School of Law in San Diego, found that the law has been successfully used to prosecute things like a drug seller operating out of a car dealership, rave parties where ecstasy was prevalent and a concert promoter who threw music festivals where illegal drugs flowed freely.
Kreit said that while the language of the Controlled Substances Act is broad enough to encompass an injection site, he can also imagine a defense gaining traction based on that idea that it is a local concern involving a medical service in the midst of an opioid crisis forcing officials to reconsider the status quo.
“It is completely untested in terms of how federal law will apply to safe injection sites,” Kreit said. “People will be watching this very closely, particularly in other cities that have expressed their intention of starting a safe injection site.”
But he says winning with that pitch would be an “uphill battle” in federal court. Even if the purpose of a site is not to encourage drug use, if illegal drugs are being used knowingly, that has been enough for courts to justify a crackdown, Kreit said.
Safehouse is a privately-run nonprofit that has the support of top city officials and former Gov. Ed Rendell, but will not receive taxpayer funding. Planners say they aspire to open a facility sometime in 2019.
Philadelphia health officials estimate that opioid-related drug overdoses kill about three people a day in the city. The more than 1,100 people who died from an overdose last year is triple the city’s murder rate.
The overdose mortality rate hit a five-year low last year, and city officials attribute the decline to the distribution of naloxone, known by the brand name Narcan. Transit workers, police and paramedics now all are equipped with the overdose-reversing drug.
Studies have shown that in Canada and Europe, supervised injection sites have averted lethal overdoses and extended a link to treatment services.
McSwain remains a skeptic.
“That doesn’t mean that you’re not going to overdose when you’re not at the site. And it doesn’t mean that there couldn’t be other negative effects of having a site, where more people are, for example, getting hooked on drugs or trying drugs, because they think it’s safe, or they think it’s legitimate, or they think it’s legal,” McSwain said. “We don’t attract people to go down this path of drug dependency that destroys their lives.”
McSwain said there is no evidence that such a model would definitively work in Philadelphia, saying he worries an injection site would normalize or even entice people to use unpredictable synthetic opioids like fentanyl, a drug that can be 50 times more powerful than heroin.
In November, McSwain wrote Safehouse officials a letter imploring the nonprofit to comply with federal law, writing that the federal statute “makes no exception for entities such as Safehouse who claim a benevolent purpose.”
In response, Safehouse officials told McSwain they “respectfully disagree,” because the statutes were never intended to be used to attack a medical injection site.
“We hope that the U.S. Attorney’s Office will exercise prosecutorial discretion in assessing our proposed overdose prevention services,” Goldfein wrote.
Three months later, federal officials took Safehouse to court.
“These folks have good intentions and they’re trying their best to combat the opioid epidemic, but this step of opening an injection site crosses the line,” McSwain said. “If Safehouse or others want to open this type of site, they need to steer their efforts to get the law changed.”
Tom MacDonald contributed to this report.
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