Philadelphia safe consumption site struck down by Court of Appeals

In late 2019, the movement to establish “safe consumption” sites in the United States — including in Seattle — got a rare win when a U.S. District Court judge in Philadelphia ruled that Safehouse, that city’s attempt at opening a safe consumption site, did not violate federal law. Today the 3rd Circuit Court of Appeals reversed that ruling in a 2-1 decision, bringing it into alignment with other federal circuit courts.

 

As I have written before, the legality of the sites comes down to interpretation of 21 U.S.C. 856 (a), which 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.”

Specifically the argument is over the context of “for the purpose of unlawfully … using a controlled substance.” The Fifth, Seventh, Eighth, and Ninth Circuit Courts of Appeals had all previously ruled that to satisfy this condition only the visitors of the site would need to have the purpose to use drugs, not necessarily the owner of the site. Safehouse argued the opposite: that it referred to the owner of the site. The trial court judge agreed with Safehouse (and took sixteen pages to explain why he parsed this differently). But in today’s ruling, the 3rd Circuit makes it clear that the other appeals courts had it right:

We agree with the Government. To break the law, Safehouse need only “knowingly and intentionally” open its site to visitors who come “for the purpose of . . . using” drugs. The text of the statute focuses on the third party’s purpose, not the defendant’s. Even if we read paragraph (a)(2) as Safehouse does, its purpose is that the visitors use drugs. That is enough to violate paragraph (a)(2).

Safehouse could potentially appeal the case to the U.S. Supreme Court, which has yet to rule on the issue in any of the cases, but given that five appeals courts have reached the same conclusion, there is very little chance that it would agree to take the case.

 

 

There continue to be several proponents of “safe consumption” sites in the City Council, who have set aside money in the budget every year to establish one despite the legal peril: the Trump administration DOJ has made it clear to the city that if it attempted to open a safe consumption site there would be an immediate legal challenge. However in the 2021 budget the Mayor and City Council took a slightly different approach: rather than try to establish a single site that would nominally be for the purpose of safe consumption of drugs, they allocated $1.12 million in funding to add “safe consumption” services to existing public health clinics and other health provider locations that serve individuals with substance abuse issues — thereby (possibly) evading an allegation that the site was established “for the purpose” of safe consumption.

It’s also unclear how the Biden Administration DOJ will approach the issue, since it is likely to have a very different philosophy to treating substance abuse than Trump’s DOJ. However, even if it chose not to prosecute, neighbors of a site in Seattle that expanded to offer safe consumption services might have standing to sue under the same legal reasoning.

At the end of the day, today’s ruling doesn’t directly affect Seattle: it is already bound by the prior 9th Circuit ruling that found safe consumption sites to be in violation of federal law. But it does make it less likely that, short of Congress changing the law, safe consumption sites will ever be allowed. If the 3rd Circuit had upheld the legality of the site in Philadelphia, it would have created a “circuit split” that would have made it more likely that the Supreme Court would hear the case to resolve the conflict — potentially (however unlikely) making the sites legal across the nation.


 

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