A federal appeals court rejects plans for a supervised injection site in Philly

In a setback to advocates who had hoped to open the nation’s first supervised injection site in Philadelphia, a federal appellate court ruled Tuesday that such a facility would violate a law known as the “crack house” statute and open its operators to potential prosecution.

In a 2-1 decision, a three-judge panel of the U.S. Court of Appeals for the Third Circuit lauded the goals behind Safehouse — the nonprofit that, in an attempt to stem the city’s tide of opioid-related deaths, has proposed the site to provide medical supervision to people using drugs.

But, Circuit Judge Stephanos Bibas wrote for the majority, “Safehouse’s benevolent motive makes no difference.”

“Congress has made it a crime to open a property to others to use drugs,” he added. “And that is what Safehouse will do.”

He was joined in the decision by Circuit Judge Thomas Ambro.

Circuit Judge Jane Richards Roth dissented, calling the logic behind the ruling “absurd” and the 30-year-old statute on which it was based — one meant to go after owners and tenants of drug dens — “nearly incomprehensible.”

Safehouse vowed to appeal.

The court’s ruling delivered the latest in a string of recent blows to the nonprofit, which had 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.

Since then, Safehouse’s effort to open in a South Philadelphia medical plaza last year fell apart amid an acrimonious battle with residents and members of City Council.

Then in June, the judge who had given Safehouse that earlier go-ahead stayed his ruling until the Third Circuit could weigh in. He cited the community pushback and other recent upheavals, including the coronavirus pandemic and the racial injustice protests that gripped the city.

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.

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 U.S. Supreme Court.

“We remain confident that federal law is not designed to force us to stand by silently or idly while our brothers and sisters are dying,” she said.

U.S. Attorney William M. McSwain — whose office sued on behalf of the Justice Department to block Safehouse’s opening and who, in a rare move, argued the case himself in court — hailed Tuesday’s decision as a victory for “the rule of law.”

“The Third Circuit’s opinion is a faithful reading of the statute’s plain language and is consistent with Congress’ intent to protect American neighborhoods from the scourge of concentrated drug use,” he said in a statement.

In crafting Tuesday’s opinion, Bibas stressed he was making no judgment on whether or not a supervised injection site was good public policy in a city where, on average, three people die from drug overdoses a day — a rate that has only increased during the pandemic.

Instead, his analysis hinged almost entirely 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 measure reads: “It shall be unlawful to … manage or control any place … for the purposes of unlawfully … using controlled substances.”

For Safehouse, that meant the legal debate has focused entirely on what exactly the purpose of its facility is.

McSwain maintained that no matter what Safehouse intended, the facility would unquestionably be operated as a place to use illegal drugs, and therefore on the wrong side of the law.

Safehouse disputed that interpretation, arguing that Congress couldn’t possibly have meant to criminalize a potentially lifesaving medical facility in its efforts to crack down on unscrupulous property owners.

Bibas, however, waved away debate over congressional intent, hewing strictly to the law’s wording.

“Good intentions cannot override the plain text of the statute,” he wrote, suggesting, as McSwain has previously, that if Safehouse wanted to open legally it should lobby Congress to change the law.

In her dissent, Roth balked at that literalism and warned that with such a narrowly focused reading, the court risked unintentionally criminalizing other harm-prevention measures like parents who allow a child who uses drugs to live in their home for fear of what could happen to them on the streets.

As with Safehouse, she wrote, “the [parents] act despite their knowledge that drug use will occur, not for the purpose that drug use occur.”

Despite Tuesday’s setback, Safehouse and its allies — who include Mayor Jim Kenney, District Attorney Larry Krasner, and former Gov. Ed Rendell — held out hope that the ruling would not be the last word. They looked to the incoming administration of President-elect Joe Biden for a potential lifeline.

Biden was one of the Senate cosponsors of the 1986 law but has said he regrets some of that tough-on-drug legislation he championed during the 1980s and ‘90s and pledged during his campaign to decriminalize marijuana. And his 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.

Biden’s Department of Justice could also use prosecutorial discretion and decide not to enforce the “crack house” statute to shut down Safehouse or other supervised injection sites.

Krasner, in a statement, urged it to do so.

“We must … stop relying on the courts to force states to do what is difficult and right,” he said. “Federal prosecutors have broad discretion not to charge crimes where enforcement is unjust and doing so is bad for society.”

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