Federal judge in Philly hears arguments in case to determine if safe injection sites are legal

Pat Loeb
September 05, 2019 - 7:31 pm
People gathered in front of the court house.

Pat Loeb/KYW Newsradio

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PHILADELPHIA (KYW Newsradio) — A federal judge Thursday heard arguments in the U.S. attorney's lawsuit to stop the nonprofit Safehouse from opening a safe injection site in Philadelphia.

District Court Judge Gerald McHugh began by announcing that he would disregard all of the testimony given in a 7 1/2 hour hearing last month because it overwhelmingly addressed the broader policy issues of safe injection sites.

"What is pending is a narrow, technical, legal issue," he said. "The application of a statute to a course of conduct."

While the issue may be narrow, the implications are not. 

Philadelphia is one of several U.S. cities that, faced with catastrophic overdose rates as a result of the opioid epidemic (Philadelphia had 1,116 overdose deaths in 2018), have proposed sites where users could inject under the observation of a medical team that could intervene in the event of an overdose. 

Such sites, also known as supervised consumption rooms or harm reduction centers, operate in 12 countries. 

But American cities have hesitated, afraid of running afoul of a 1986 law passed in response to the phenomenon of crack houses that makes it a felony to knowingly open or maintain a place for the purpose of using any controlled substance. This is the first case to test whether that makes the sites illegal.

Families of overdose victims and advocates, including some from other cities, rallied outside the courthouse in support of Safehouse before the hearing. Mayor Jim Kenney, District Attorney Larry Krasner and Councilmember Helen Gym joined them.

Inside the courtroom, U.S. Attorney for Philadelphia William McSwain, who brought the suit, argued the wording of the law is self-evident.

"No means no," he said, several times. 

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But the judge asked if there was any evidence — either in 1986 or when the law was amended in 2003 to include "rave" parties where drugs such as Ecstasy were used — that Congress contemplated such a thing as a safe injection site. 

McSwain repeatedly returned to the wording of the "crack house" statute and the fact that Congress has made heroin illegal, but that did not seem to satisfy the judge. 

"No, you cannot point to anything that suggests they contemplated it," McHugh said.

McSwain also argued that Safehouse officials should have worked to get the law changed if they wanted to open a safe injection site, and he scoffed at the notion that their primary objective was to prevent drug use, referring to that argument as "Bizarro World." 

"The hubris of Safehouse is pretty astounding," he said, suggesting they preferred to simply flout the law than work to change it. "We had no choice but to bring this case and I don't think we're the bad guy for doing it."

The judge said he didn't think McSwain was the bad guy, but also rejected McSwain's characterization of Safehouse.

"I have a hard time attacking the motives of people on the front lines," McHugh said.

His questioning of Safehouse attorney Alana Eisenstein was much milder, though he had warned at the outset not to read too much into his questioning of the attorneys.

"I think it went really well," Eisenstein said afterward outside the courthouse. "I feel good about the arguments and I think the judge clearly understood the issues, clearly was well-prepared, so I hope he will be ready to rule in our favor. But we'll see."

She said there would still be legal hurdles to clear even if the judge sided with Safehouse, but Safehouse vice president Ronda Goldfein said the nonprofit would try to open as soon as possible.

"We're going to be orderly and thoughtful, and respect law enforcement and hopefully save some lives," she said.