Safehouse asks judge for a final ruling that makes it legal

Safe injection site supporters in Philadelphia rallied outside a federal hearing Thursday to determine if the proposed Safehouse would violate the federal Controlled Substances Act. (Kimberly Paynter/WHYY)

Safe injection site supporters in Philadelphia rallied outside a federal hearing Thursday to determine if the proposed Safehouse would violate the federal Controlled Substances Act. (Kimberly Paynter/WHYY)

Updated 1:35 p.m. Tuesday

When a judge ruled in October that the nonprofit Safehouse would not violate federal law, advocates for what would become the country’s first supervised injection site celebrated the decision as a huge win.  But technically, the judge’s ruling was too narrow in scope to close the case completely.

Now, Safehouse is asking for a final judgment that would not prohibit Safehouse’s proposed overdose prevention model as a matter of law.

“The essence of the motion is we don’t need to have a trial, we don’t need any more evidentiary findings,” said Ronda Goldfein, who is on the Safehouse board and legal team. “We’ve agreed to all the relevant facts, and we can rely on those facts to reach a decision.”

Goldfein has said repeatedly that Safehouse wants to open as soon as there is legal authority to do so. She said Tuesday that the nonprofit is in the “process of readying multiple locations”, and that its desire to open as soon as possible has not changed.

Goldfein and other advocates interpreted U.S. District Judge Gerald McHugh’s October ruling as a good sign toward a final ruling, but it came in response to U.S. Attorney William McSwain’s request for a determination to be made based on the letter of the law and nothing more.

The judge denied that request, determining after oral arguments and an evidentiary hearing that a site where people would be allowed to bring their own illicit drugs onto the premises to inject under medical supervision would not violate the section of the U.S. Controlled Substances Act written in the 1980s known as the “crackhouse statute.”

In February, McSwain had sued the nonprofit to prevent it from opening any such site, claiming that Safehouse’s proposed actions would clearly violate the law, which makes it illegal to operate any place for the purpose of distributing or using drugs.

But McHugh said that wasn’t Safehouse’s main purpose, and that, rather, its main goal was to save lives by standing by with the overdose-reversing drug naloxone while people used.

“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,” McHugh wrote.

McSwain has vowed to appeal any decision in favor of Safehouse. He will presumably do so in the U.S. Court of Appeals for the Third Circuit if McHugh grants Safehouse its request for a declaratory judgment.

In a statement Tuesday afternoon, McSwain said, “This is a necessary first step to getting the case elevated to the U.S. Court of Appeals for the Third Circuit, which will hear the government’s appeal. We are looking forward to that opportunity.” The U.S. Attorney’s office is required to submit its response by Jan. 17.

Also included in Monday night’s filing by Safehouse was a letter McSwain had issued to the nonprofit’s lead attorney, Ilana  Eisenstein, pledging to crack down on Safehouse’s clients were it to open before any appellate process had been resolved.

“The proponents of drug injection sites cannot make heroin use legal, nor can any court,” McSwain wrote days after the October ruling. “If Safehouse attempts to open an injection site in this District during the pendency of an appeal, federal law enforcement would consider all available enforcement tools at our disposal to enforce federal law in and around the site, as appropriate.”

Eisenstein used the threats in the letter as further evidence that Safehouse is deserving of a declaratory judgment, citing preceding U.S. Supreme Court cases in which final judgments were issued in lieu of making a defendant try out the action being deemed as a violation by the government, thus “betting the farm.”

Goldfein said McSwain’s demand that Safehouse wait to open until an appeals process is completed doesn’t make sense from a legal, procedural standpoint.

“We don’t say to the U.S. attorney, ‘Oh, you’re punishing this defendant who has been accused of a crime, but we’d rather you not punish them until we get through all the appeals,’” she said.

Goldfein said she hoped local law enforcement would not cooperate with the U.S. attorney’s threat to crack down on clients using the site, and said that federal law enforcement should not go around arresting people for using opioids if they don’t do so now.

In the filing, Eisenstein reiterated that Safehouse is making this request for final judgment because time is of the essence.  “Each day, in the City of Philadelphia, more lives are lost to the opioid epidemic,” she wrote.

In 2018, there were 1,116 overdose deaths In Philadelphia. Though there is no official count for 2019 yet, based on the rate of overdoses throughout the year, health officials estimate the death toll will be about the same.

This article was updated to include a statement from U.S. Attorney William McSwain.

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