Inside the Legal Struggle Over Safe Consumption Spaces

On February 5, a group of protestors gathered outside the Philadelphia offices of William McSwain, the US Attorney General for the Eastern District of Pennsylvania. McSwain had just filed a complaint to declare the operations of a local nonprofit’s proposed safe consumption space (SCS) to be illegal.

Safehouse, a privately funded organization led by medical providers, lawyers and faith leaders, with a mission to “save lives by providing a range of overdose prevention services,” has since hit back. On April 3, its legal representation, including the AIDS Law Project of Pennsylvania and DLA Piper, a private international law firm, filed a response.

Safehouse plans its SCS to provide a space for people in Philadelphia to use drugs safely and access medical care. Twelve countries around the world, including Canada, currently host 120 legal safe consumption spaces, and SCS have been demonstrated to reduce deaths and broadly benefit public health.

According to McSwain’s complaint, however, SCS would violate the 1970 Controlled Substances Act (CSA)—and particularly the colloquially-termed “crack house” statute, a law passed by Congress as part of the Anti-Drug Abuse Act of 1986 that makes knowingly owning, using, or maintaining a place purposed for distributing or using drugs a felony punishable by 20 years in prison.

If there had been the political movement to start safe injection sites in 1970 when the law was passed, they would not be violating the CSA,” clarified Alex Kreit, a leading legal scholar on marijuana drug law based at the Thomas Jefferson School of Law, in an interview with Filter. “It’s only because of this, frankly, strange ‘crack house’ statute that was a creature of the height of the drug war.”

Safehouse’s filed counterclaim doesn’t just argue for the judge to rule against McSwain’s contentions; it also seeks to have the legality of Safehouse’s operations positively affirmed.

“If Safehouse only said in the complaint that we don’t agree with the US Attorney General, we would still be in the Neverland of not knowing where safe consumption spaces stand,” Ronda B. Goldfein, executive director of the AIDS Law Project of Pennsylvania and a board member of Safehouse, told Filter. “So we want to know where we stand.”

So What Are Safehouse’s Legal Arguments for SCS?

Safehouse’s legal team asserts a handful of affirmative defenses. If accepted by the courts, these would defeat McSwain’s allegations and set a binding legal precedent to support SCS in Philadelphia and its surrounding counties.

Safehouse argues that its proposed SCS would violate neither the CSA nor the “crack house” statute because it will not operate “for the purpose of” illegal drug use, as the law prohibits.

Instead, it is purposed as a medical care provider, offering “medical supervision of drug consumption designed to provide immediate access to lifesaving care and to encourage entry into long-term drug treatment.” It would be inconsistent with federal law, Safehouse argues, for “doctors, nurses, and medically trained volunteers to turn their backs on patients at their most vulnerable moment.”

As explained in a 2008 University of Chicago Law Review paper by Michael E. Rayfield, now a partner at Mayer Brown’s Supreme Court & Appellate practice, the “crack house” statute does not include drug use that is “merely an ‘incidental’ or a ‘collateral’ purpose of the place.”

Corey Davis, deputy director and staff attorney at the Network for Public Health Law, affirmed this argument’s applicability to SCS in a previous interview with Christopher Moraff for Filter. “There’s a good legal argument that the ‘crack house’ statute wasn’t intended to, and shouldn’t apply to, a bona fide health operation,” said Davis.

Safehouse’s counterclaim likens SCS to other harm reduction strategies that are already legal on the federal level.

The CSA, despite being weaponized against Safehouse, allows for certain medical activities, said Goldfein. “The process of assessing if a participant is overdosing, and then determining how to save them, is a medical practice that is not prohibited by the CSA. And if it’s not prohibited, then it’s permitted.”

Safehouse’s counterclaim likens SCS to other harm reduction strategies that are already legal on the federal level. “Federal law says it is good to give clean injection supplies. It also says to save the lives of people overdosing with naloxone,” said Goldfein. “There is a period where people are most vulnerable: when they are actually using. If you are reading all of these laws together, you can’t come to the conclusion to give out the supplies and have them go out to the alley, use puddle water to shoot up, and then hope someone finds them before they die from overdosing.”

This comparison to naloxone and syringe exchanges also contrasts SCS to the “crack houses” and rave parties that the CSA targets. Legal scholar Alex Kreit suggests that the Attorney General is “taking a law passed for one thing—‘crack houses’—and applying it to another thing: safe injection sites.” Kreit acknowledged, however, that the letter of the law is broad enough to hypothetically include SCSs.

Goldfein emphasized that Safehouse is “not in favor of any of the activity covered by” the “crack house” statute.

Anti-SCS contentions are countered from another, perhaps surprising, angle: religious freedom.

Additionally, the anti-SCS CSA and “crack house” statute contentions are countered from another, perhaps surprising, angle: religious freedom. According to Safehouse’s counterclaim, McSwain’s argued interpretation of federal drug laws would violate the nonprofit’s “Judeo-Christian beliefs” under the Religious Freedom Restoration Act of 1993—a law that prohibits substantially burdening religious beliefs and practices.

For Safehouse’s clergy board members—like Chip Mitchell, lead evangelist of Greater Philadelphia Church of Christ, and Frank A. James III, Missio Seminary‘s president and professor of Historical Theology—an SCS is “an exercise of the religious beliefs of its Board of Directors, who hold as core tenets preserving life, providing shelter to neighbors, and ministering to those most in need of physical and spiritual care,” argues the counterclaim.

Judge Gerald Austin McHugh Jr. is assigned to the case and, as Christopher Moraff has noted, he is a “lifelong Catholic,” quoted as saying, “Faith calls upon us to act in certain ways. One of the most important ways for a Catholic is showing concern for the poor.” Moraff reported that SCS advocates find McHugh’s stated beliefs to be a reassuring indicator of how he might rule in the case.

“Our constitution guarantees us all the protection of our right to speech and to worship. We have those fundamental rights,” said Goldfein. “God says that the highest thing you can do is to save a life. And the government can’t say I can’t save a life.”

An Alternative Legal Avenue

Some advocates supporting safer consumption spaces have said that the federal government should just employ the same “hands-off” approach they have used for state-level marijuana legalization.

But Kreit notes that such a strategy relies on the prosecutorial discretion of the federal government. He argues instead, in a February Boston College Review of Law article, that a more robust justification for SCS has been “hidden in plain sight”—specifically, in an obscure provision of the CSA, the law at the heart of the drug war.

Tucked within the Control and Enforcement sub-chapter’s section on Burden of Proof and Liabilities, this provision “confers immunity on federal, state, and local officials who commit federal crimes while enforcing drug laws.”

It was most likely written to protect law enforcement officers from conducting sting operations, Kreit presumes. Over the course of the past two decades, the provision has been applied to cases involving a person’s request for the return of medical marijuana confiscated by law enforcement officers. In such cases, police departments challenged the requests, claiming that returning the drug would amount to an officer distributing drugs. The courts held, though, that the officers had legal immunity in these circumstances.

Kreit argues that an SCS can be immunized from federal prosecution as long as the overdose prevention operations are sanctioned by local ordinance

Kreit argues that, under the provision, an SCS that is run by a state or municipality—or is private but deputized by them—can be immunized from federal prosecution as long as the overdose prevention operations are sanctioned by local ordinance. The CSA provision’s language casts a broad net and, for Kreit, could include SCS.

Kreit recognizes that Safehouse, the group vying to open the first legal SCS in the United States, is a private nonprofit, and not deputized by Philly. He also acknowledges that the provision “is mostly untested [in court],” save for the medical marijuana cases. And he can’t say whether a court would sympathize with his argument—no one really can.

But Evan Anderson, a Public Health Law scholar at the University of Pennsylvania’s Schools of Nursing and Medicine, told Filter that he thinks not. “I have to be honest,” said Anderson, “I don’t think it’s a great argument.” He recognizes that “the federal government—if it really wants to—can make life really difficult for Safehouse,” and that it “would be a stretch to extend [immunity] to a non-governmental agency, even if it’s operating in good faith with the government.”

“Drug control laws were never meant to prohibit people from being safe.”

In contrast, Goldfein finds Kreit’s argument “compelling,” and could be open to using the argument in the future if their current ones don’t pan out. “By no means have we ruled it out,” she said. A partnership would be great. We don’t have deputized staffers by the state or city. If we had some type of partnership to rely on that argument, then sure. But we aren’t there yet.”

“Laws are supposed to make sense. Laws are supposed to represent what we value as a society,” added Goldfein. Similarly, Anderson affirmed that “drug control laws were never meant to prohibit people from being safe.”

But Goldfein, chuckling, noted that her comment was made “slightly ironically.” For her, that’s clearly not how drug laws have turned out.


Photograph: Christopher Moraff

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