A court battle is raging to determine the future of a syringe service program in Santa Cruz, California. On one side are local officials, who argue the state approved the program in their town without getting their input. On the other, program operators and the state public health department say they did everything the law required—and that the lawsuit is just a cynical effort to destroy a life-saving service.
“[It’s] to close us down, that’s what they want,” Denise Elerick, the founder and service coordinator of Harm Reduction Coalition of Santa Cruz County (HRSSCC), which operates the program, told Filter. “They’re not seeking monetary [damages]; they want the authorization removed.”
The lawsuit is being heard in the California Court of Appeals Third District, and the the first court date was July 24. The plaintiffs include the Grant Park Neighborhood Association Advocates; the defendant is the California Department of Public Health (CDPH), with HRSSCC as a “real party.” Several local governments—Santa Cruz and Butte Counties, plus the cities of Santa Cruz, Scotts Valley and Watsonville—signed an official court document supporting the lawsuit, along with the California Police Chiefs Association.
HRCSCC now faces a renewed challenge after previously fighting off this lawsuit in the Sacramento Superior Court.
Complicating the situation, Santa Cruz County has its own, government-run SSP, and the county public health department works with HRCSSC and doesn’t oppose its services. HRCSSC operates a mobile-only service, offering sterile syringes, sharps boxes, naloxone, disease testing and referrals; the county meanwhile runs two brick-and-mortar locations.
HRCSCC now faces a renewed challenge after previously fighting off this lawsuit in the Sacramento Superior Court. In December 2020, the same plaintiffs alleged under California environmental protection law that the program didn’t complete a proper environmental impact review.
In 2021, Governor Gavin Newsom (D) signed a bill aimed at preventing these kinds of “environmental” lawsuits being used to target SSP. The judge then voided the environmental review aspect of the lawsuit, though didn’t address plaintiffs’ claims that the program created a “public nuisance.” But she objected to plaintiffs’ claims that state officials and HRCSCC didn’t properly inform and consult locals before offering syringe services—which brings us to the current appeal.
California lawmakers amended the state health and safety code back in 2011, creating guidelines for allowing syringe service programs (SSP)—heavily evidenced interventions that prevent transmission of bloodborne diseases through sharing of needles among people who use drugs, as well as providing overdose-prevention and other resources.
These rules give the CDPH authority to license privately run SSP in cities and counties, in addition to any government-run programs. According to the law, “Authorization shall be made after consultation with the local health officer and local law enforcement leadership, and after a period of public comment”, and “shall balance the concerns of law enforcement with the public health benefits.”
Put simply, state public health officials make the final call, though they must consult with local public health and police authorities, and give local residents a chance to speak about any proposal.
The meat of the dispute now playing out is over what “consult” means.
In 2020, HRCSCC successfully applied to state authorities to run an SSP. The initial authorization expired last year, but the state then granted HRCSCC a new, two-year license to keep running services.
The meat of the dispute now playing out is over what “consult” means. The plaintiffs allege that local authorities were not properly consulted during the initial application in 2020, and didn’t have a chance to air their complaints.
In an amicus brief shared with Filter, attorneys for Santa Cruz County state: “Consultation means more than CDPH being available to receive input in a one-directional flow of information. CDPH must instead engage in a meaningful discussion and exchange of information with the local health officer and law enforcement leadership in order to reduce local impact and improve the proposed [syringe exchange program].”
“The exclusion of local experts prejudices the community by extension,” they continue, “because the local health officer and law enforcement leadership cannot advise CDPH of the efficacy of a proposed SEP or the harm or impact that a proposed SEP may cause.”
In a legal document responding to that amicus brief, HRCSCC writes that state health officials did in fact consult with local officials before approving the program—and that they actually responded to some of the complaints raised in those conversations, only approving HRCSCC’s license with certain restrictions.
“Contrary to the [parties’] contention, the plain language of the statute does not suggests that the Legislature intended to require CDPH officials to conduct one or more sit-down meetings with every police chief in every city and county where an SEP would be authorized to operate,” the HRCSCC document states. “The heightened consultation requirement that [parties] read into the statute cannot reasonably be inferred from the plain text of the statute simply because the statute requires both notice and consultation.”
It continues, “Because [the law] includes no such specific instructions regarding the manner in which the Department is required to consult with law enforcement officials, it would be reasonable to conclude that the Legislature intended to grant the CDPH broad discretion to decide how to ‘consult.’”
In other words, HRCSCC says, the plaintiffs are trying to set a definition of “consult” that was not established by the legislation—and the law, in fact, left it up to CDPH to determine the nature of appropriate consultation.
City police and the county sheriff both initially stated their fears about “dirty needles” and “syringe litter,” and their opposition to “using local parks as a dispersal point.”
To back this up, the document details how state health officials’ conversations with Santa Cruz County officials informed their final decision. The complaints they encountered were all too familar to harm reductionists.
City police and the county sheriff both initially stated, back in 2020, their fears about “dirty needles” and “syringe litter,” and their opposition to “using local parks as a dispersal point.”
In reality, SSP reduce discarded syringes by facilitating safe disposal, and do not increase drug use or other illegal activities.
Despite this, CDPH sought to address law enforcement’s concerns by approving HRCSSC’s license on the following conditions: It must not operate in any public parks; it must conduct weekly cleanups and respond to public reports of discarded syringes; and it must distribute sharps containers and educate the public about proper disposal.
But another simple fact, HRCSSC states, means that the plaintiffs have no standing and the lawsuit shouldn’t even have gone forward.
The initial authorization for HRCSSC’s work expired in 2022. So a judge, the organization says, can’t undo or take away a license, based on some alleged past offense, that doesn’t even exist anymore.
“Our participants support us, treatment programs and other community-based organizations—it’s just the majority of our elected officials who don’t.”
Denise Elerick told Filter that HRCSSC’s new license was approved last year with no opposition from local public health officials—and law enforcement didn’t comment.
But that hasn’t stopped the plaintiffs from trying again now. Elerick described their new tactic as “moving the goalpost,” since the environmental lawsuits are no longer allowed.
The lawsuit is unfolding amid a wider climate of political and legal challenges to SSP in California. In recent years, Filter has reported, for example, on campaigns that successfully shut down services in Orange County, Eureka and Chico—typically blaming the programs for “syringe litter,” increased drug use, overdose and addiction, despite all the evidence contradicting such claims.
Elerick characterized the current suit as politically motivated. “I’m very frustrated the city and county supported this without ever reaching out to us,” she said. “I look forward to just continuing the work. We aren’t required to get elected representatives to support us, I want the community to know we are widely accepted, we have a ton of supporters. Our participants support us, treatment programs and other community-based organizations—it’s just the majority of our elected officials who don’t.”
Image by Joe Gratz used via Flickr.
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