The Department of Justice was expected to filed its long-awaited response to the ongoing Safehouse Philly lawsuit on December 5—widely hoped to be the last of a series of extensions. Instead, the DOJ has filed a motion for yet another extension. The new deadline is February 6, 2023. Responses by Safehouse, and counterresponses by the government, are due in March.
Safehouse organizers reached by Filter on December 5 had expressed that they did not expect DOJ to blow the deadline.
“We’ve come to a point where need need to know,” Safehouse Vice President and Cofounder Ronda B. Goldfein told Filter in the hours before the motion was filed. “We aren’t going to continue to give them extensions without any specificity on when is this going to happen.”
Philadelphia-based Safehouse’s proposed safe consumption site (SCS) has been on the frontlines of the DOJ’s (and NIMBYs’) fight to prevent SCS from opening. The historic legal battle has been waged for nearly four years.
On January 10, Pennsylvania Governor Tom Wolf declared the opioid-involved overdose crisis a public health emergency. At that time, the state’s overdose rate was more than twice the national average.
On January 23, Philadelphia health officials announced that overdose response would include Comprehensive User Engagement Sites (CUES) whose harm reduction services would incorporate, among other things, “medically supervised drug consumption,” which was supported by a recent scientific review conducted by the city.
While some officials at the time characterized SCS as a pathway to treatment (and later Safehouse filings would make clear that services included “encourag[ing] entry into drug treatment”), it was mostly presented as an overdose prevention measure—one that would also reduce blood-borne disease transmission, syringe litter and stigma by non drug-using neighbors. Many legislators, wary of being associated with such a “radical” plan, avoided commenting.
By this time, a handful of municipalities in states across the country had already been pushing for SCS. But they’d made little progress, hamstrung by the incrementalism of local governments. The approach in Philadelphia was different; the city itself would not operate the proposed SCS.
“Moving forward,” officials stated, “the City will actively encourage organizations like community nonprofits or medical organizations to operate and fund one or more CUES.”
By October, Safehouse Philly had formed as privately funded community nonprofit—with the intention of operating an authorized SCS.
On February 5, US Judge for the Eastern District of Pennsylvania William McSwain filed a lawsuit against Safehouse and Executive Director Jeanette Bowles. The complaint alleged Safehouse’s operations were criminal, even though the site had not yet opened.
Legal opposition claimed that Safehouse’s proposed operations were in violation of 21 U.S. Code § 856, more commonly referred to as the “crack house statute.” Section 856 prohibits “maintaining any drug-involved premises … for the purpose of distributing or using any controlled substance.”
But the purpose of Safehouse, or any SCS, is to prevent overdose—something that Section 856 does not prohibit, because it doesn’t mention it one way or the other.
On April 3, Safehouse issued a counterclaim:
“Safehouse is nothing like a “crack house” or drug-fueled “rave.” Nor is Safehouse established “for the purpose” of unlawful drug use. Rather, it is established for the exclusive purpose of providing urgent, lifesaving medical care to those at risk of drug overdose. The CSA does not regulate such a legitimate—indeed, critical—medical and public health intervention.”
The counterclaim went beyond requesting that Judge McSwain’s complaint be dismissed; it asked the federal government to clarify that Safehouse operations would not be prohibited under the “crack house statue”—a legal precedent that would pave the way for authorized SCS in the rest of the country, too.
In May, Safehouse President and Treasurer José Benitez was added as a defendant. Through the summer, a series of amicus briefs, hearings and oral arguments proceeded.
On October 2, in defiance of DOJ, US District Judge Gerald McHugh ruled that Safehouse operations would not be in violation of federal law:
“Safehouse plans to make a place available for the purposes of reducing the harm of drug use, administering medical care, encouraging drug treatment, and connecting participants with social services. None of these purposes can be understood as a purpose to facilitate drug use.”
It was a watershed moment for people who use drugs. But the ruling was just a denial of the motion opposing Safehouse—not a ruling on whether its operations would violate Section 856, or even whether SCS were an appropriate response to the overdose crisis at all. So the overall legal standing of SCS remained in limbo, and Safehouse couldn’t confidently move to open.
On January 6, Safehouse filed a motion requesting a final judgment on the legality of SCS. By the end of the month, the government had filed a motion in opposition, and Safehouse had filed its countermotion.
On February 25, Judge McHugh—in a memorandum that noted several points where the government’s legal argument had contradicted itself—granted Safehouse’s motion. With the green light it had been waiting for, Safehouse planned to open within the week.
It didn’t. As expected, an appeal was filed, and promptly approved, but this was overshadowed by opposition from a different source: NIMBYs.
After Safehouse announced a plan to open in South Philadelphia rather than in the city’s northern Kensington neighborhood, NIMBYs descended in swarms. An online petition was followed with the promise of a protest. By February 28, Safehouse was forced to cancel the launch.
Once again, the summer was marked by a legal volley of amicus briefs, opinions and oral arguments, motions and countermotions. Safehouse remained unopened.
On January 12, the US Court of Appeals for the Third Circuit ruled that Safehouse’s purpose was to facilitate drug use, and therefore in violation of federal law under Section 856. From the opinion delivered by Circuit Judge Stephanos Bibas:
“Safehouse’s main attraction is its consumption room. Visitors will bring their own drugs to use them there. And many of Safehouse’s services will revolve around the visitors’ drug use there. The clean syringes and fentanyl strips will let them inject drugs more securely. The respiratory support and overdose-reversal agents will reduce their chances of dying of an overdose. And the medical and counseling care will be offered after they have used drugs. When a visitor comes to Safehouse to prevent an overdose, that reason is bound up with the significant purpose of doing drugs. That satisfies the statute.”
Safehouse could take its case back down to District Court, or elevate it to the Supreme Court. Lower courts seemed more plausible, but there was a new factor to contend with: the inauguration of President Biden, who as a senator in the 1980s had been a primary architect of the very statute standing in Safehouse’s way.
Meanwhile, on June 29, Rhode Island approved a two-year SCS pilot—the first-ever SCS authorization in the US. Though a landmark victory in its own right, no Rhode Island SCS have yet opened. California, New Mexico and Massachusetts inched closer with legislation of their own. On November 30, New York opened OnPoint NYC, two (of what were originally four) long-awaited SCS. These, finally, were first authorized SCS accessible to drug users.
“I like to think that our litigation has kept this under media attention, and policy attention,” Goldfein said. “And no question it’s the same for all the folks across the nation. The courage shown by Sam [Rivera] and Kailin [See] and the team at OnPoint, the brave folks at Rhode Island … trying to save lives of people we care about.”
In August, Safehouse petitioned the Supreme Court to review the January decision.
In September, Safehouse filed a complaint that reopened one of the many legal defenses it had raised when it was originally sued in February 2019. In addition to arguing that Safehouse had not broken the law, that it would not break the law, that it did not have a prohibited purpose and that it in fact had a perfectly legal purpose, it argued that the organizers had the right to open Safehouse because prohibiting them from doing would violate the Religious Freedom and Restoration Act (RFRA).
This was supported with examples based in Judeo-Christian texts, to which Safehouse’s board members are adherents. Benitez and Goldfein both affirmed that their work with Safehouse “has been an exercise in living out that faith and those teachings.” The organization stated:
“At the core of all board members’ faith is the principle that the preservation of human life is paramount and overrides any other considerations. Although Safehouse is not itself a religious entity or organization, its founders’ and leaders’ beliefs are those of the corporation, and the pursuit of its mission and conduct of its business will implement those beliefs.”
The first time around, this argument had been unceremoniously dismissed. By the time it was refiled in September, “we were having conversations that were not public, but that led us to believe there could be some other way there,” Goldfein said.
The DOJ had 21 days to respond to the lawsuit. On October 12, the Supreme Court declined to review the authorization overturned in Appeals Court in early 2021. But the Biden administration hadn’t been required to issue a response to that; only to the Section 856 lawsuit, the deadline for which was November 5.
Finally, the legal battle seemed to be going somewhere.
The November 2021 deadline was extended to January 2022, then to March. On February 8, the DOJ issued a landmark statement to the Associated Press:
“Although we cannot comment on pending litigation, the Department is evaluating supervised consumption sites, including discussions with state and local regulators about appropriate guardrails for such sites, as part of an overall approach to harm reduction and public safety.”
The language was a marked departure from previous public comment. Coupled with the DOJ’s approach to the ongoing RFRA talks, it seemed to signal a newfound agnostisicm within the department that imbued Safehouse organizers with hope. Yet the department has still not yet commenced any evaluations, nor elaborated on when it might do so.
“We’ve been saying, ‘Great. Let’s do it. And, when will you do it? When will that evaluation be done?’” Goldfein told Filter. “We’re still kind at that place where we’re all in, we just want to know when.”
Settlement talks between Safehouse and DOJ stretched on. The March deadline was extended to June. Then August. Then September.
“We kept extending because we were optimistic, based on their public [and legally privileged] statements,” Goldfein said. Each extension, include its duration, was mutually agreed upon “because we felt it would get us to the goal.”
During a September meeting, Safehouse agreed to give DOJ until December 5. On November 14, Safehouse met with Judge McHugh, which according to organizers reaffirmed DOJ’s commitment. Up until they received the motion mid-afternoon on December 5, they believed the deadline would be met.
Between 2019 and 2021, more than 3,640 people in Philadelphia died of overdose while DOJ dragged out the lawsuit. That number does not reflect deaths in 2022, nor the countless deaths from any year that go unrecorded.
Top photograph courtesy of Joe Piette, Flickr/Creative Commons 2.0. Inset photographs courtesy of Safehouse