Nearly two years after Philadelphia Mayor Jim Kenney said his office would not stand in the way of a safe consumption site (SCS) to help cut the city’s record overdose levels, the fate of Safehouse, which would be America’s first officially sanctioned SCS, is now in the hands of a federal judge.
On September 5, for the second time in as many weeks, US Attorney Bill McSwain of the Eastern District of Pennsylvania argued in Philadelphia’s Federal Courthouse for the judge to rule in favor of an injunction filed by McSwain’s office to prevent Safehouse from opening in the overdose-ravaged neighborhood of Kensington.
“There’s no question that the people coming onto the property are there to break the law; that can’t be allowed.”
Unlike a similar hearing held on August 19, which focused on testimony and cross-examination of public health experts and Safehouse executives on the merits of SCS, yesterday’s oral arguments revolved around both sides’ interpretations of relevant laws.
“There’s no question that the people coming onto the property are there to break the law; that can’t be allowed,” said McSwain in the case of US vs. Safehouse. He referenced the so-called “crackhouse statute” of the Controlled Substances Act, which makes it a federal crime to knowingly maintain “any place, whether permanently or temporarily, for the purpose of manufacturing, distributing, or using any controlled substance.” It also makes it illegal to manage, rent, lease or control such a space.
Those who violate the 1986 law—a vestige of “tough on crime” era of drug policy which aligned Republicans and Democrats in a failed, brute-force effort to address the spread of crack cocaine—face up to 20 years in prison.
Courts do make a distinction, however, between facilities that exist for the purpose of drug manufacturing or sales, and so-called “pure consumption sites,” where people bring their own drugs. Drug activity that is merely an “incidental” or “collateral” purpose of a building is not prosecutable under federal law. For instance, courts have ruled that “casual” drug use and “simple consumption of drugs in one’s home” are not subject to prosecution because the primary function of the structure is shelter.
Now such interpretations are under granular examination. Reality shows that even many well-intentioned laws have done more harm than good. So just where does law enforcement recede and public health take over?
Judge Gerald Austin McHugh Jr. seemed especially interested in that question at the hearing. Among other things, he asked McSwain if parents who are concerned about their child potentially overdosing and therefore knowingly allow them to inject at home could be prosecuted under the “crackhouse” statute.
McSwain’s answer: “No.”
“The reason that we’re allowing them to [inject on site] is not for the reasons of having a party, but for the proximity.”
Safehouse has long maintained that drug use at its site would be incidental to its primary goal—which is to save lives. Indeed, people could use the group’s services—say, to get into drug treatment—without ever injecting at the site.
This point has repeatedly been hammered home by DLA Piper attorney Ilana Eisenstein, who is representing Safehouse.
“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.”
Speaking with Filter, Eisenstein reiterated this point, drawing a parallel to the hypothetical parents referenced in court by Judge McHugh.
“Safehouse’s purpose is to save lives by offering proximity to health care is not different from the family home scenario,” she said. “The purpose is to save lives which are at risk from drug use.”
Asked to comment on what, if anything, could be construed from Judge McHugh’s line of questioning, Eisenstein said: “It’s always a little dangerous to guess what a judge is thinking and [McHugh] even cautioned against that at the beginning of the oral argument. Nonetheless, I think his questions suggest that purpose does matter and that the question of legality is not as black-and-white as McSwain argues.”
As previously reported by Filter, the US Attorney filed a civil action against the nonprofit group Safehouse in February. The group, which includes the city’s health commissioner and former DNC Chair and Pennsylvania Governer Ed Rendell on its board, announced last year that it would open the nation’s first SCS. Philadelphia Mayor Jim Kenney and then-newly elected District Attorney Larry Krasner had said they would not stand in the way of such an effort.
Krasner and Kenney both participated in a rally in support of Safehouse that was held outside the courthouse in downtown Philadelphia yesterday.
Safehouse was originally planned to be located in a squat industrial building nestled behind a trash-strewn commercial lot, near the main intersection of Kensington and Allegheny Avenues. But after this proposed site drew criticism from a small but vocal group of community members, the site’s owner pulled the plug.
When I recently drove by the vacant building, used syringes were visible lying on the street outside the entrance, illustrating how far riskier, unsupervised injection drug use continues there regardless.
Now, sources tell Filter that a second, temporary potential site has been identified.
On Kensington Avenue yesterday afternoon, injection drug users gathered in small groups, chatting and smoking. Most were familiar with the effort to bring SCS to Philadelphia but were unaware that its fate was being argued right then, less than two miles away.
One woman, who didn’t give me her name, agreed to speak on camera:
One young man, his right eye puffy and bruised, sat alone, hunched over on the stoop of a vacant store front. He came to Philadelphia nine months ago from Puerto Rico to receive treatment—which consisted largely of kicking heroin cold turkey. He left the facility and for the past two months has been homeless in a community he knows nothing about.
The man, who gave his name as Juan, has no family or friends in Philly, and said he was unaccustomed to fentanyl, which has yet to supplant heroin in Puerto Rico. He wasn’t even aware that just a few blocks to the west of where he sat, he might soon find a community of people who spoke his language, understood his culture, and could help him navigate the harrowing experience of being alone and addicted in an unknown city. He knew nothing about SCS, but said he would use such a facility if one existed.
For people like Juan, Safehouse could be a means to stay alive, and a gateway to real, evidence-based drug treatment if he wants to try it again.
Judge McHugh did not say when his ruling should be expected. But if it comes down in Safehouse’s favor, SCS could be a reality in Philadelphia in as little as a few weeks.
“Our goal is to be up and running as soon as we have legal authority to do so,” Eisenstein said.
Photo of Safehouse supporters outside the courthouse by Christopher Moraff
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