Facing pandemic and protests, Philly too ‘frayed’ for a supervised injection site right now, judge rules

Citing the disruption caused by the coronavirus pandemic and protests in response to the death of George Floyd, a federal judge on Wednesday pressed pause on his historic 2019 ruling that cleared the way for the nation’s first supervised injection site to open in Philadelphia.

U.S. District Judge Gerald A. McHugh granted the Justice Department’s request to issue a stay to his finding last year that such a site – where staff would provide medical supervision to people using drugs – would not violate federal law.

However, in doing so, the judge rejected arguments that allowing one to begin operation before the government had a chance to appeal would put the community and drug users at risk.

Instead, McHugh based his decision on the social and economic upheaval that has roiled the city for months. Now, he said, “is the wrong moment for another change to the status quo.”

“The nerves of citizens are frayed by fear and uncertainty,” the judge wrote. “Even if one assumes a flawless opening process, the operation of Safehouse [the nonprofit behind the supervised injection site plan] would represent a significant change in how the city responds to opioid abuse, and such change would be disruptive.”

McHugh’s order Wednesday effectively killed any short-term plans that Safehouse might have had to attempt another opening after its first effort in a South Philadelphia medical plaza fell apart in February amid an acrimonious battle with residents and members of City Council.

The nonprofit’s executives announced their intention to open there with little advanced notice or feedback from community groups — a strategy McHugh described Wednesday as “naïve.”

» READ MORE: ‘Disrespected’: How South Philly mobilized against the proposed supervised injection site

Safehouse vice president Ronda Goldfein said Wednesday that the nonprofit had no immediate plans to attempt another launch any time soon.

And despite the setback, she said she was grateful “that the judge’s opinion reinforces all the public health arguments we have been making.”

“The conclusion may be that we can’t move forward until another court rules we can,” she said. “But he didn’t say our activities are illegal, or our public health arguments are wrong.”

» READ MORE: After surprise announcement — and cancellation — of Philly’s supervised injection site, advocates haven’t given up

In his opinion Wednesday, McHugh panned arguments from U.S. Attorney William M. McSwain, who had personally led the Justice Department fight against the supervised injection site. The judge rejected his concerns that allowing Safehouse to open before an appeals court ruling could lead to “chaos” between federal agents and drug users that would “deteriorate into a literal street fight.”

“Enforcing the law would certainly be the government’s prerogative,” the judge wrote, “but why such chaos needs to ensue is difficult to comprehend.”

Despite government claims that authorities would be swamped by having to respond to illegal drug use on Safehouse’s property, federal prosecutors in the Philadelphia region have not filed a single case against an individual drug user in the last two years, McHugh noted.

The judge also dismissed government concerns that Safehouse’s opening would lead to more, or riskier, drug use and that the surrounding community would be harmed.

While Safehouse provided peer-reviewed academic studies conducted to rebut those claims, the government relied almost entirely on anecdotal reports based on media accounts and residents voicing unproven concerns – evidence McHugh found unpersuasive.

“The government is correct that it would be far better to have Safehouse commence operation with the direct involvement of public health officials above the level of the municipal government …. [and] has shown that how Safehouse is proceeding is less than optimal,” McHugh wrote. “But I cannot say it rises to the level of irreparable harm.”

A spokesperson for McSwain’s office did not respond to requests for comment Wednesday.

McHugh’s ruling now leaves the decision on whether Safehouse will get a second chance to the U.S. Court of Appeals for the Third Circuit.

In briefs filed earlier this month, McSwain urged the appellate court to overturn McHugh’s October ruling and declare supervised injection sites illegal under federal law.

Safehouse is expected to file its response next week. The appellate court has not yet scheduled a date to hear oral arguments on the case.

Read the opinion: