Federal appeals court rules Philadelphia can’t open heroin injection site, Seattle plans to anyway

A federal appellate court ruled Tuesday the establishment of what would have been the country’s first government-funded heroin injection site in Philadelphia would violate a law known as the "crack house" statute and open its operators to potential prosecution.

Safehouse is the nonprofit advocating for the heroin injection site they believe, despite studies to the contrary, will stem the city’s tide of opioid-related deaths.

Safehouse aims to open a site that would offer a room where addicts can take illegal, lethal drugs with supervision, so that someone could quickly intervene in the case of an overdose.

Federal prosecutors in Philadelphia sued two years ago, arguing Safehouse would violate part of a 1986 antidrug law that makes it illegal to knowingly host illicit drug use and other drug-related activity.

Safehouse won a favorable lower-court ruling in late 2019, but the appeals-court panel sided with local US Attorney William McSwain’s interpretation of the law in a 2-1 ruling that only federal lawmakers can make such a site legal. McSwain, in a rare move, argued the case himself in court.

Circuit Judge Stephanos Bibas wrote for the majority opinion, "Safehouse’s benevolent motive makes no difference. Congress has made it a crime to open a property to others to use drugs, and that is what Safehouse will do."

McSwain said in a statement, "I’m pleased to report that the rule of law is still alive and well in Philadelphia – having been re-affirmed by the U.S. Court of Appeals for the Third Circuit, which held that it is a federal crime to open a heroin injection site or 'consumption room' for illegal drug use. 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."

Safehouse vowed to appeal. The nonprofit’s vice president, Ronda Goldfein, said Tuesday that she is considering Safehouse’s legal options, including appeals to the full bench of Third Circuit judges or the US Supreme Court.

The court’s ruling delivered the latest in a string of recent blows to the nonprofit, which had originally scored a first-of-its kind victory in 2019 with a ruling from a lower court that gave its backers the green light to move forward.

However, citizen opposition and threats from federal prosecutors put a hold on what would have been the first injection site in the US. Thousands attended protests and government meetings to oppose the project in South Philadelphia. The landlord of the proposed site pulled out of the agreement for the project.

In June, the judge who had given Safehouse that earlier go-ahead to open, stayed his ruling until the Third Circuit could give their decision. He cited the community pushback and other recent upheavals, including the coronavirus pandemic and the protests in the city.

According to the Philadelphia Inquirer, "Tuesday’s Third Circuit ruling reversed the earlier victory, sent it back to the lower court for further proceedings, and effectively killed any plans Safehouse may have had for a second attempt at opening in the immediate future."

Bibas stressed in his opinion he was not making a judgment on whether or not a supervised injection site was good public policy rather, his analysis hinged on the 1986 law passed at the height of the crack epidemic, which the Justice Department had cited in its lawsuit to block Safehouse’s opening.

The relevant portion of the statute reads: "It shall be unlawful to … manage or control any place … for the purposes of unlawfully … using controlled substances." McSwain argued that no matter what Safehouse intended, the facility would unquestionably be operated as a place to use illegal drugs, and therefore illegal.

Safehouse and its allies are hoping that the incoming administration of President-elect Joe Biden will help them move the project forward.

Biden was one of the Senate co-sponsors of the 1986 law, but has said he regrets some of legislation he championed in the 1980s and ‘90s.  According to the Philadelphia Inquirer, "Biden’s nominee to lead the Department Health and Human Services, Xavier Becerra, is a supporter of supervised injection sites and, as California attorney general, signed onto an amicus brief supporting Safehouse before the Third Circuit last year."

The ruling also has ramifications for cities across the country like Seattle, that also signed onto the amicus brief. Seattle has more than $1 million budgeted for 2021 for the city funded injection sites. Those proposals include providing spaces for first time users, minors and pregnant women to shoot up. Seattle is already funding groups that admit there are illegal, underground heroin injection sites in the city. Seattle was planning to augment existing locations that provide services to drug users with funds to be injection sites.

Jesse Rawlins, a lead advocate for heroin injection sites in Seattle who works with the Public Defender Association, told The Seattle Times the ruling represented a “road bump” in Philadelphia, and he didn’t see it impeding local efforts. "My expectation and my hope is that we move forward progressively here in Seattle with funding that’s been made available by Seattle City Council," Rawlins said.

ACLU of Washington policy director Mark Cooke, in an emailed statement to the Seattle Times, also hoped that the incoming Biden Administration would intercede to make heroin injection sites a reality. "We hope the incoming Biden administration will allow state and local governments to enact these policies without fear of federal enforcement."

In April 2019 US Attorney Brian Moran told Seattle officials "Don’t go there," in reference to opening an injection site. However, both Moran and McSwain could be out of a job under the incoming Biden administration.

"I’m hoping there will be sites all across the country," Rawlins told KOMO News. "The Biden administration won’t enforce different provisions of federal and hopefully with a new Congress, we can have some progressive policy change happen."