Drug ‘Safehouse’ Challenge Stumbles at 3rd Circuit

PHILADELPHIA (CN) — The Third Circuit showed little sign Monday that it will stop a nonprofit from opening a so-called safe injection site where drug users can get high under medical supervision. 

Safehouse is set to open the facility in Philadelphia, where opioid death rates are higher than anywhere else in the country. Overdoses occurred in more than 80% of the 1,150 unintentional drug-related deaths that the city saw in 2019.

Though the project is supported by Philadelphia Mayor Jim Kenney and other city, federal officials are opposed. The Eastern District of Pennsylvania’s U.S. Attorney William argued before a three-judge panel of the Third Circuit on Monday that Safehouse’s plans run afoul of the Controlled Substances Act, also known as crack-house statute, which says any party that knowingly maintains a place “for the purpose of manufacturing, distributing, or using controlled substances” could face up to 20 years behind bars.

That means “you’re not allowed to directly set up a drug house,” McSwain said, and “you can’t set up a drug house indirectly by knowing that a third party has that purpose.”

But U.S. Circuit Judge Thomas Ambro, a Clinton appointee, questioned where the federal law says anything about a third party.

Representing Safehouse, DLA Piper attorney Ilana Eisenstein told the court that supervised consumption of drugs is a step toward treatment because since users aren't experiencing withdrawal systems.

“The purpose that it has is the prevention of overdose death as far as providing medical treatment and services to those suffering from addiction,” said Eisenstein.

“Yes, there are people who may be using drugs [at Safehouse’s facility] but for what reason? Because they want to stay alive,” she continued. “Because they are suffering from a disease that is compelling them to use a substance that may kill them and they want to stay right where care is available.”

Regardless of users’ intent, McSwain maintained that the defining characteristic of Safehouse is the illegal consumption of drugs like heroin.

Eisenstein objected on behalf of her clients, saying the use of drugs on-site is a secondary purpose. 

“The urgent need for Safehouse is the overdose crisis that we are facing,” she said. “Contrary to Mr. McSwain’s argument that the necessary precondition of safe houses existence is consumption — the necessary precondition of Safehouse’s existence is the overdose crisis, whereby people are dying.”

U.S. Circuit Judge Jane Roth, a George H.W. Bush appointee, also confronted McSwain over his argument that the primary function of Safehouse is its consumption room. 

“In spite of all the other activities and services that are provided there?” Roth questioned, noting that Safehouse itself never possesses any drugs.

McSwain maintained that the government’s position is that “you can’t use without possessing.” 

“One follows the other,” he said. “Safehouse has a purpose of seeing that drugs are used at the place because it is a necessary precondition of using drugs.”

U.S. Circuit Judge Stephanos Bibas, a Trump appointee, presented numerous hypotheticals to McSwain about whether, under this argument, landlords could be prosecuted under the CSA if they suspected tenants were using drugs on their property, or if banks could be prosecuted for making a loan to an owner who then used the property for drug-dealing.

McSwain said if a bank had the knowledge it could be prosecuted under statute.

Eisenstein continued this analogy, warning about the potential that parents who try to treat their child would face prosecution.

While drugs would not be provided at safe injection sites, Bibas questioned Eisenstein about the provision of syringes and needles. Eisenstein likened the situation to medical treatment for diabetics who also receive clean syringes to inject insulin.

“You wouldn't say that someone gives someone clean syringes for the purposes of their diabetes, you would say it's to treat the diabetes, and that's exactly that the key distinction here,” she said.

Though U.S. District Judge Gerald McHugh nixed the federal challenge over a year ago, Safehouse’s plans have remained on hold as Philadelphia has faced the twin challenges of controlling the coronavirus pandemic and widespread protests over racial injustice.

Safehouse had attempted to open a facility in South Philadelphia at the end of February, but halted its plans amid community opposition.

The appeals panel did not indicate Monday when it intends to rule.

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