U.S. Attorney threatens to close Philly supervised injection site if it opens before appeals courts weigh in

Days after a landmark court ruling that could clear the way for the nation’s first supervised injection site to open in Philadelphia, U.S. Attorney William M. McSwain vowed to “use all enforcement tools” at his disposal to shut down any facility that opens before the Justice Department has exhausted its appellate options, according to a letter obtained Tuesday by The Inquirer.

Possible drug seizures, arrests, and criminal forfeiture proceedings are all on the table, the region’s top federal prosecutor wrote in the Oct. 11 missive addressed to Ilana H. Eisenstein, attorney for Safehouse, the nonprofit which hopes before the end of the year to open a facility where people in addiction could use drugs and be revived if they overdose.

“If you and your clients … choose to move forward immediately, then you will force my hand, and I will have no choice but to take the steps necessary to maintain the status quo,” McSwain wrote.

Though he did not specify which steps federal authorities might take first, he added that his office’s efforts would “as a practical matter, shut down the site.”

McSwain’s threat appears to have been prompted by public statements from Safehouse’s organizers following U.S. District Judge Gerald A. McHugh’s Oct. 2 ruling that a 33-year-old federal statute designed to target “crack houses” would not apply to an overdose prevention facility.

Supporters of supervised injection sites have hailed the judge’s decision as a victory and hope it could influence judges in the handful of other U.S. cities that are mulling sites to prevent some of the thousands of overdose deaths the nation suffers every year. But critics — including the city’s police union and some Kensington residents — fear that a supervised injection site would lead to increased drug use and concentrate dealing around the facility.

Chiefly, McSwain took issue with an interview Safehouse vice president Ronda Goldfein gave last week to WHYY-FM, saying the nonprofit hoped to open soon and, while seeking community support, would not be stopped by opposition.

Responding to McSwain’s letter in an interview with The Inquirer on Tuesday, Goldfein said: “We respect the judicial process and would only act in accordance with the court’s ruling. We’re still in the middle of a lawsuit. We’re not opening now, but that’s not to say we’re backing off.”

Asked whether the nonprofit will wait until the appeals process is finished before opening, she replied: “We will respond as appropriate based on a final order from the judge.”

The U.S. Attorney’s Office declined to comment or expand upon its warning Tuesday, saying the letter speaks for itself.

In it, McSwain contends that while he respects McHugh’s decision, it was focused on a narrow piece of federal drug law — the so-called crack house statute designed to stop establishments opened to facilitate the use of illegal drugs.

Justice Department lawyers sued Safehouse earlier this year, arguing that despite the best intentions of its organizers, the overdose prevention site was just another place to use drugs. But McHugh — stressing that he was not endorsing or rejecting supervised injection sites as good public policy — ultimately ruled that such facilities were not on the radar of legislators who drafted the law at the height of the 1980s crack-cocaine epidemic.

“The ultimate goal of Safehouse’s proposed operation is to reduce drug use, not facilitate it,” the judge wrote.

While the “crack house statute” as an enforcement tool may be off the table for now, McSwain noted in his Oct. 11 letter that his office could still deploy other law enforcement options that would target drug users or sellers congregating around the site — though, he said, “we would do so in a way that treats those suffering from addiction as victims.”

“The possession and use of heroin are illegal — and last week’s decision did nothing to change that,” he wrote. The ruling “addressed only Safehouse itself and not the issue of the visitors’ possession and use of illegal drugs at the site, nor the issue of illegal drug distribution that will inevitably occur nearby.”

Though heroin has been used openly for years in some parts of Philadelphia, arrests for use are rare.

Goldfein, echoing the language in McSwain’s letter, accused the U.S. attorney of setting up a "confrontational, chaotic path” that could create a chilling effect on the site’s potential users

“People who need care need to not be afraid of getting care," she said. “People don’t want to be stopped, and certainly not arrested. This is someone who’s just trying to get healthy and stay healthy — and you’re threatening them with law enforcement. To what end?”

It still isn’t clear how quickly both sides intend to act.

Despite vows to do so, the Justice Department has not filed its appeal or asked to stay McHugh’s ruling while it takes the case to the U.S. Court of Appeals for the Third Circuit.

Safehouse, meanwhile, is continuing efforts to raise money from private donors and to assuage concerns from neighbors in Kensington — ground zero for Philadelphia’s opioid epidemic and the most likely site for a Safehouse facility.

Goldfein, who is also the executive director of the AIDS Law Project of Pennsylvania — along with Safehouse cofounders former Gov. Ed Rendell and Jose Benitez, executive director of the Philadelphia needle exchange Prevention Point — are extending their outreach beyond the city.

In an op-ed published Tuesday in the Washington Post, the three cited the more than 70,000 Americans who died of drug overdoses in 2017, arguing the country can no longer afford to wait to implement a measure already deployed in cities in Canada and Europe.

“We can do better,” it read. “We must do better. … No more overdoses anywhere."

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Ronda Goldfein, who is quoted in this story, is the wife of Inquirer editor David Lee Preston.