Philadelphia safe-injection site gets a win in court

Today a U.S. District Court judge in Pennsylvania handed a legal win to Safehouse, a proposed safe-injection site. However, the victory may be short-lived.

The Trump administration, after multiple threats that it would prosecute any safe-injection sites that opened, sued Safehouse over whether it violates the Controlled Substances Act. The relevant provision of the Act, 21 U.S.C. 856 (a), reads:

(a) Unlawful acts   Except as authorized by this subchapter, it shall be unlawful to

      1. knowingly open, lease, rent, use, or maintain any place, whether permanently or temporarily, for the purpose of manufacturing, distributing, or using any controlled substance;
      2. manage or control any place, whether permanently or temporarily, either as an owner, lessee, agent, employee, occupant, or mortgagee, and knowingly and intentionally rent, lease, profit from, or make available for use, with or without compensation, the place for the purpose of unlawfully manufacturing, storing, distributing, or using a controlled substance.

This section is often referred to as the “crack house rule.”

The feds did Safehouse a favor by asking the court for a declaratory judgment in advance of the site opening, rather than waiting for it to open and arresting and charging individuals with criminal acts (the judge commends the government for taking this approach). Specifically, the government asserted that safe injection sites such as Safehouse — and the one contemplated in Seattle — violate paragraph (a)(2) above in that it knowingly and intentionally makes available for use the place for the purpose of unlawfully using a controlled substance.

The bulk of U.S. District Court Judge Gerald McHugh’s ruling delves deep into arcane issues of statutory construction and interpretation, with a large part devoted to one specific question related to an ambiguity in the law as written in section (a)(2): whose “purpose” is it referring to, the party who makes the space available, or the party who is unlawfully using a controlled substance?

Four Circuit Courts of Appeals have ruled on that specific question in the past: the Fifth, Seventh, Eighth, and Ninth. They all came to the same conclusion: it refers to the purpose of the party who is using the substance. And the Seventh, Eighth and Ninth cite the opinion from the Fifth Circuit, U.S. vs. Chen, so they are all clearly on the same page. However, Philadelphia is in the Third Circuit, so there is no binding case law that the judge must follow on this question (the Supreme Court has not ruled on the issue). Instead, Judge McHugh spends several pages carefully dissecting the argument in U.S. vs. Chen, ultimately rejecting it and the other appeals court rulings that rely upon it. I’ll spare you the full details of his lengthy and somewhat tortured line of reasoning (if you care to read it, it starts on page 19 and concludes on page 34), but the conclusion is pivotal: if he had decided that it refers to the party using a controlled substance, the case would be over quickly. There is no doubt of that person’s purpose: to use a controlled substance.

But since the judge concluded that it refers to the purpose of the party controlling the property, he then moved on to consider whether Safehouse’s purpose is to facilitate use of controlled substances. That led to arguments between the parties over whether Safehouse has only one purpose or multiple ones, and the difference between “primary” purposes and “incidental” purposes. In the end the judge wrote:

I cannot conclude that Safehouse has, as a significant purpose, the objective of facilitating drug use. 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.

On the record before me, having applied multiple tools of construction, I find that the purpose at issue under § 856 must be a significant purpose to facilitate drug use, and that allowance of some drug use as one component of an effort to combat drug use will not suffice to establish a violation of § 856(a)(2). The ultimate goal of Safehouse’s proposed operation is to reduce drug use, not facilitate it, and accordingly, § 856(a) does not prohibit Safehouse’s proposed conduct.

Thus he found that Safehouse’s planned safe injection site did not violate the Controlled Substances Act.

Today’s ruling is certainly a victory for Safehouse, but perhaps a short-lived one. The fact that it took the judge fifteen pages to lay out his argument for disagreeing with four different appeals courts is a sign that, regardless of the strength of his argument, other judges could rule differently and it’s ripe for The Third Circuit Court of Appeals to overrule him when the government inevitably appeals. On the other hand, if the Third Circuit does uphold his decision, then there’s a “circuit split” (where appeals courts have conflicting rulings) and the Supreme Court is more likely to take up the case — though at the earliest in its 2020-2021 sitting. So if Safehouse is to ultimately win, it will take at least another two years to run its course.

In the meantime, what does this case mean for Seattle and its attempt to set up a safe injection site? Very little, unless the Supreme Court hears the Safehouse case and rules in the organization’s favor. As I mentioned above, the Ninth Circuit has already ruled on the meaning of 856 (a)(2), and not in the way that’s favorable to safe injection sites. It would take a Supreme Court ruling to set aside that precedent. If the U.S. government filed a similar case here, it would almost certainly win at the district court level, and the Ninth Circuit would likely affirm. The best that the city can hope for is that a Democrat wins the White House and reverses the Trump administration’s policy against safe injection sites, taking the issue out of the hands of the courts.

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