By Scott Burris
Federal District Judge Gerald McHugh of the Eastern District of Pennsylvania ruled today that the operation of a safe injection site to prevent overdose, HIV, and other harms associated with drug injection would not violate the federal Controlled Substances Act. The ruling came in an action for declaratory and injunctive relief brought by the local U.S. Attorney, seeking to prevent the opening of “Safehouse” by a private group led by former Pennsylvania Governor and Philadelphia Mayor Edward G. Rendell. The judge denied the requested relief.
The case turns on Section 856 of the CSA, known as “The Crack House Statute,” the most relevant portion (21 U.S.C. § 856(a))of which makes it unlawful to “manage or control any place . . . and knowingly and intentionally . . . make available for use, with or without compensation, the place for the purpose of unlawfully . . . using a controlled substance.” The Court concluded that “no credible argument can be made that facilities such as safe injection sites were within the contemplation of Congress either when it adopted § 856(a) in 1986, or when it amended statute in 2003.” The decision is an extended disquisition on the canons of statutory interpretation, but to cut that long story short, the fact that the operators know and even intend that clients will inject illegal drugs in the facility does not mean that they are maintaining a premises for the “purpose of unlawfully . . . using a controlled substance.” The U.S. Attorney argued that it was enough to violate the law that Safehouse was creating a place for safe drug injection. The judge demurred, drawing on legislative history, a little case law, and the dictionary to interpret the law to require, if not a sole purpose, at least a “significant” one – that Safehouse would have to have illegal drug injection to be a major goal of its operation. That, the court found, just wasn’t true: “Safehouse plans to make a place available for the purposes of reducing the harm of drug use, administering medical care, encouraging drug treatment, and connecting participants with social services. None of these purposes can be understood as a purpose to facilitate drug use.”
This is a momentous decision. It not only clears the path for an SIF in Philadelphia, which is in dire need, but also changes the equation in more than a half-dozen cities or states considering the intervention. While the ruling is not binding on other courts outside this district, the reasoning is clear and compelling. At bottom, Judge McHugh follows the medical evidence and the logic of public health practice to reject, as essentially facetious, the argument that an effective harm reduction intervention adopted and validated in many places around the world is just a criminal drug enterprise. This should put some legal wind in the sails of other cities and restart what I once called the race to open the second U.S. safe injection room.
The citation is UNITED STATES OF AMERICA v. SAFEHOUSE et al, Case No. 2:19-cv-00519-GAM (E.D. Pa. 10/2/19), and the opinion is available here: