Safe Drug-Injection Site in Philly Nixed by 3rd Circuit

After a federal judge had said it would not violate federal law for drug users to shoot up in a facility with medical supervision, the appeals court found otherwise Tuesday. 

A protester leads a chant outside the courthouse in Philadelphia where a federal judge heard 2019 arguments in a lawsuit to block what would be the country’s first safe injection facility. (Courthouse News photo/Alexandra Jones)

PHILADELPHIA (CN) — Plans to open up America’s first supervised drug-injection site in Philadelphia came to a screeching halt with the Third Circuit ruling 2-1 Tuesday that such a site would violate federal law. 

“The statute forbids opening and maintaining any place for visitors to come use drugs. Its words are not limited to crack houses,” U.S. Circuit Judge Stephanos Bibas wrote for the majority. “Congress has chosen one rational approach to reducing drug use and trafficking: a flat ban. We cannot rewrite the statute. Only Congress can.”

Nearly three Philadelphians die a day from overdoses, and 1,150 died from an overdose in 2019.

In an effort to combat the opioid crisis, the nonprofit Safehouse unveiled plans in the fall of 2018 to open a facility in Philadelphia that would be a safe space for users to inject their street-purchased drugs under the supervision of medical personnel. 

The plan was supported by Philadelphia Mayor Jim Kenney, and the public appeared to be on board with the idea, too, with Safehouse raising $1.8 million to cover first year costs. 

It never got off the ground, however, after U.S. Attorney William McSwain brought a 2019 lawsuit under the Controlled Substances Act. The law says any party that knowingly maintains a place “for the purpose of manufacturing, distributing, or using controlled substances” could face up to 20 years in prison.

Representing Safehouse, DLA Piper attorney Ilana Eisenstein emphasized Tuesday that the fight is not over. 

“We are disappointed with today’s U.S. 3rd Circuit appeals court decision,” Eisentein said in an email. “We remain confident that the law was not intended to force Americans to stand by as idle witnesses while our brothers and sisters are dying. Conscience compels us to pursue all legal options, and we shall.”

Bibas applauded Safehouse for wanting to save lives but noted that does not mean they cannot break the law. 

“A defendant can be guilty even if he has the best of motives,” the Trump appointee wrote. “A child who steals bread to feed his hungry sister has still committed theft. The son who helps his terminally ill mother end her life has still committed murder.”

Though the Clinton-appointed U.S. Circuit Judge Thomas Ambro concurred with Bibas, U.S. Circuit Judge Jane Roth dissented, saying the majority’s reading would also transfer liability to shelters for the homeless and the parents of users. 

“Parents could violate the statute by allowing their drug-addicted adult son to live and do drugs in their home even if their only purpose in doing so was to rescue him from an overdose,” Roth wrote. 

The 22-page dissent continues: “Illicit drug activity does not motivate parents to make their home available to an adult son who is addicted to heroin. To the contrary, they want their son’s drug use to stop. Nor does illicit drug activity motivate shelter operators to admit homeless people. In each instance, the owners act despite their knowledge that drug use will occur, not for the purpose that drug use occurs.”

Tuesday’s ruling, which came two months after oral arguments, includes assurances that parents and shelter operators have nothing to fear in the Controlled Substances Act.

“People use these places to eat, sleep, and bathe. The drug use in homes or shelters would be incidental to living there,” Bibas wrote. “But for most people, using drugs at Safehouse will not be incidental to going there. It will be a significant purpose of their visit.” 

McSwain was pleased with the ruling, saying the “rule of law is still alive and well in Philadelphia.” 

“The Third Circuit’s opinion is a faithful reading of the statute’s plain language and is consistent with Congress’s intent to protect American neighborhoods from the scourge of concentrated drug use,” McSwain said in a statement.

In the dissent, Roth focused on Safehouse’s motivation.

“There is no evidence suggesting that Safehouse will admit anyone to its facility hoping that they will use drugs. To the contrary, it actively tries to persuade users to stop,” the George H. W. Bush appointee wrote. “Unlike drug dealers and rave operators, Safehouse’s motivating purpose is to put itself out of business.”

Roth added that Safehouse provides other services besides a place to take drugs, such as testing, overdose medication and drug treatment programs. 

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