PHILADELPHIA (CN) — Fighting to block what could be America’s first regulated space where drug users get high under medical supervision, a federal prosecutor argued in court Thursday that the law makes no room for so-called safe injection sites.
“Nobody anywhere, anyhow, is allowed to use heroin under the law,” U.S. Attorney William McSwain said during an hours-long hearing in a packed Philadelphia courtroom.
Eyeing the city’s record for most overdoses in the country — Philadelphia saw 1,217 unintentional opioid-related deaths in 2017 — the nonprofit Safehouse selected the neighborhood of Kensington last year to host what it envisions as a “consumption room” where trained professionals could be on hand to help drug users as they use street-bought heroin or fentanyl.
McSwain filed suit in February to block that move, saying such a facility would violate the federal Controlled Substances Act.
“I think that it is inevitable that they are, in fact, promoting it,” McSwain said in court today.
On behalf of Safehouse meanwhile, DLA Piper attorney Ilana Eisenstein maintained that the envisioned facility would be centered around medical care.
“Safehouse is providing the type of medical services that would be available if someone [suffering an overdose] showed up in the ER,” she said. “The reason that we’re allowing them to [inject on site] is not for the reasons of having a party, but for the proximity.”
McSwain said that regardless of Safehouse’s intentions, the government cannot turn a blind eye to illegal use.
“There’s no question that the people coming onto the property are there to break the law, that can’t be allowed,” McSwain said.
Though Eisenstein conceded that the people taking drugs at Safehouse’s facility would meet the legal definition of unlawful use, she said the government has never prosecuted for unlawful use alone.
“What the government wants to do is impute criminal liability to us simply because they’re on our premises,” she said.
Eisenstein explained that the time for medical professionals to administer life-saving Naloxone is “preciously slim” during an overdose on heroin or fentanyl.
“What Safehouse is going to be doing is really no different than what emergency personnel are doing when they’re called to the scene,” Eisenstein said. “All that is different is that the person is simply allowed to stay in the close proximity of someone with Naloxone and training.”
But McSwain said Congress already addressed the legality of safe injection sites under what is known as the Controlled Substances Act’s so-called crack-house statute, under which any party that knowingly maintains a place “for the purpose of manufacturing, distributing, or using controlled substances” faces up to 20 years behind bars.
“When Congress says no, no means no,” McSwain said.
The government’s position is at odds with that of several Philadelphia officials, most notably Mayor Jim Kenney and District Attorney Larry Krasner, who praise Safehouse as a way to combat the opioid epidemic.
An hour before today’s hearing, both politicians made statements outside the courthouse to roughly 70 protesters, holding signs with pictures of loved ones lost to overdoses and slogans like, “They do nothing, we die,” and “Safe consumption now.”
“It’s never been done in our city or our country, but it’s been successful in other parts of the world,” Kenney told the crowd, adding that opioid addiction is not a personality flaw but a disease “spurned by the medical industry and the pharmaceutical industry.”
Kenney went onto say that he personally was prescribed opioids after surgery years ago and very lucky that a nurse took him off them after only a few days. He also said that, for another more minor surgery, he was given a gratuitously large amount oxycodone pills.
Krasner described to the crowd having visited safe injection sites in Canada and Portugal. Since opioid overdoses prevent people from breathing, he said site employees will supervise injection rooms and provide help to people who appear to be overdosing or not breathing.
“What is different about that than what every single one of us would do if we saw someone overdosing on a sidewalk?” he asked.
Krasner emphasized that supervised injection sites keep people from dying, a key step step for anyone who hopes to recover from addiction.
U.S. District Judge Gerald McHugh did not indicate when he intends to rule.