- The Washington Times
Wednesday, February 6, 2019

The Trump administration went to court Wednesday to try to block a nonprofit from opening the nation’s first supervised drug injection site, saying it violates a federal law prohibiting anyone from knowingly facilitating illegal drug use and marking the first time the Justice Department has weighed in on the issue.

The Philadelphia site would be the first to offer a “safe” place for addicts to use drugs, obtained elsewhere, under medical supervision. Safehouse, the site operator, said it’s a chance to cut the death rate of the opioid epidemic.

But William McSwain, the U.S. attorney in Philadelphia, launched a pre-emptive strike Wednesday.

“If Safehouse wants to operate an injection site, it should work through the democratic process to try to change the law,” Mr. McSwain said in a statement announcing the move. “But normalizing the use of deadly drugs like heroin and fentanyl and ignoring the law is not the answer to solving the opioid epidemic.”

Cities including Seattle, New York, San Francisco and Denver are inching closer to opening sites and likely will be watching the outcome of the battle.

Ronda Goldfein, who sits on the Safehouse board, said the nonprofit has anticipated pushback from the federal government and is ready to fight in court.

“We have consistently maintained that our disagreement may need to be resolved by the fair and impartial judicial system,” she said.

The Trump administration made clear early that legal action would ensue.

Deputy Attorney General Rod Rosenstein in August pledged a swift and aggressive response. He told the city’s NPR affiliate that safe injection sites “undermine the deterrent message” to prevent addiction.

The lawsuit says safe injection sites are banned by a 1986 federal law known as the “crack house statute,” which makes it a felony to knowingly open or maintain any place for the purpose of manufacturing, distributing or using controlled substances.

Ilana Eisenstein, the Philadelphia lawyer representing Safehouse, said the statute should not apply to good-faith efforts to help addicts.

“We respectfully disagree with the Department of Justice’s view of the ‘crack house’ statute,” she said in a statement to The Washington Times. “We are committed to defending Safehouse’s effort to provide lifesaving care to those at risk of overdose through the creation of safe injection facilities.”

Analysts say the Justice Department’s argument appears to be on firm legal footing.

“The text of the crack house law is pretty broadly written, and courts have interpreted it pretty broadly applying it to other contexts,” said Alex Kreit, a drug policy specialist and law professor at Thomas Jefferson School of Law in San Diego.

Mr. Kreit said the statute has been used to target, for example, a car dealership that allowed a drug dealer and a concert promoter to host drug-fueled music festivals on the lawn.

“If the courts stick with these broad interpretations, it will put the supervised injection operators in a tricky place,” Mr. Kreit said.

Safehouse might try to claim protection under a 1970 law that shields undercover police officers who commit crimes when they buy and sell drugs to enforce the law.

Mr. Kreit said that would be an uphill battle because the law applies only to government officials or those deputized by the government. Philadelphia would have to grant Safehouse specific authority for that argument to be successful in federal court, he said.

Safehouse has been endorsed by city officials, including Mayor Jim Kenney, a Democrat. Former Pennsylvania Gov. Edward G. Rendell, a Democrat, sits on its board.

More than 1,100 people died from overdoses in the city last year, more than three times the homicide rate. City officials have pointed to studies in Europe and Canada, where safe injection sites are legal, showing reductions in overdoses and transmissions of diseases.

But Mr. McSwain said flouting federal law is not a solution to Philadelphia’s opioid epidemic.

“I invite a dialogue with our community partners, including Safehouse, to discuss ways we can work together within the law to bring an end to this epidemic,” he said.

Prosecutors chose a relatively nonconfrontational approach to Safehouse by filing a civil case asking a judge to rule on the legality now rather than waiting for the site to open and battle the case through criminal arrests and prosecutions.

“This was a good way to get it into the federal courts without putting anyone in a federal prison,” Mr. Kreit said.

• Jeff Mordock can be reached at jmordock@washingtontimes.com.

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