Federal Court Weighs Briefs In Case On Proposed Safe Drug Consumption Site

“Do I hope that if Vice President Harris is elected, her admin will be more willing to engage? Absolutely.”

By Alexander Lekhtman, Filter

The nonprofit Safehouse is fighting on in a legal struggle which has so far lasted over almost five years, in its bid to open Philadelphia’s first overdose prevention center (OPC). The battle has continued under two presidents, amid opposition from some local residents and support from faith leaders, among others. All the while, Philadelphia has continued to be devastated by overdose deaths.

On September 13, Safehouse announced that had it filed a brief with the U.S. Court of Appeals for the Third Circuit, which hears cases in Pennsylvania. Safehouse is appealing against a previous ruling in favor of the U.S. Department of Justice under President Biden, in seeking to “establish an overdose prevention center where drug users, particularly those suffering from opioid addiction, may remain under direct medical supervision and within immediate reach of critical, lifesaving care at the time of drug consumption, when the risk of overdose death is most acute.”

“Overdose prevention centers have been employed for over 35 years at more than 100 sites worldwide,” the brief continues, “and have, through the medical-supervision model, prevented thousands of overdose deaths, reduced the spread of disease, administered essential medical care, and provided shelter and dignity to those suffering from addiction.” 

Safehouse is arguing on First Amendment grounds that its planned facility is protected by the right to religious freedom, and that the federal government’s opposition prevents members “from fulfilling their deeply held religious beliefs to provide those suffering from addiction with shelter and critical lifesaving care.”

On September 11, a coalition of faith leaders also filed a document with the court in support of Safehouse. The group, comprising 46 religious leaders from 18 states, wrote that “the Court should bar the Government from infringing the sincerely held religious beliefs of certain members of Safehouse’s Board of Directors and allow Safehouse to provide the life-saving treatment that countless Philadelphians deserve.”

“The Bible contains no shortage of passages depicting Jesus providing life-saving treatment… Individuals struggling with addiction are no exception to this calling,” the document continued. “Addiction has historically been stigmatized as a personal choice and moral failing; this stigmatization has led to a public health failure… Judeo-Christian beliefs call on humanity to provide [impacted people] with love, treatment, and care.”

Safehouse first announced its plan to open an OPC in 2018—just after Tom Wolf (D), then Pennsylvania’s governor, declared the overdose crisis a public health emergency in the state. But in February 2019, a federal prosecutor appointed by President Trump sued to block the site from opening. The Trump administration argued that any OPC would violate the federal “crack house” statute, a Reagan-era law that criminalizes “maintaining drug-involved premises.”

In February 2020, the federal District Court in Philadelphia ruled in favor of Safehouse, reasoning that the purpose of the OPC would be to save lives. But just after this court win, Safehouse temporarily tabled its plan amid backlash from residents near the planned site in South Philadelphia.

Then in January 2021, the Third Circuit Court of Appeals overturned the 2020 ruling. Having inherited the case from the Trump administration, the Biden administration has quietly continued to fight it, often stalling.

“We finally got to an impasse where it was clear we weren’t going to resolve this,” Ronda Goldfein, a Safehouse board member and executive director of the AIDS Law Project of Pennsylvania, told Filter of the background to the new developments. “We advised the court we needed to move forward with the litigation. We didn’t think a settlement was forthcoming. In response the DOJ filed a motion to dismiss our religious freedom claim.”

“At every discovery deadline or status report to the court, we’d get up to it and agree to extend it because it felt like things were moving,” she continued. “Finally, by January 2023 they asked for another extension, and we felt that in good faith, we could not continue to grant extensions because people are dying at an alarming rate in Philadelphia—three to four people every day. We felt we simply had to move forward.”

Although Safehouse entered mediation with the DOJ, in July the Biden administration finally took a stance and asked the court to reject Safehouse’s religious-freedom claim, arguing that an OPC would be illegal under federal law.

Carla Sofronski, executive director of the Pennsylvania Harm Reduction Network, further described the harrowing current situation in Philadelpia under Mayor Cherelle Parker (D), whose 2023 campaign platform included increasing police funding and opposing harm reduction resources like OPC. In June, Philly police began enforcing their “improvement plan” for the hard-hit Kensington neighborhood, targeting drug sales, sex workers and “quality of life crimes.” The city recorded nearly 1,400 overdose deaths in 2022, a record high, with Black and Hispanic residents increasingly at risk.

“We’re in the midst of a serious public health crisis,” Sofronski told Filter. “Unfortunately [Mayor Parker] is not using any evidence-based tools, or listening to medical professionals to help the situation…Parker is moving towards more law enforcement approaches rather than public health strategies, and we’re seeing the effects which is continued preventable death, folks with more [skin] tissue wounds, and treatment centers that cannot handle the folks coming in because of the severity of their [health issues].”

Earlier in September, City Councilmember Quetcy Lozada introduced a bill to further restrict mobile harm reduction services in Kensington.

For an OPC to be successful, Sofronski said, support from local residents and businesses will be needed, as well as education for local people about how the site can alleviate issues they’re experiencing.

“This would bring people inside and get them off the streets,” she said. “Right now our police is shuffling people around. They walk up to a crowd and say ‘Everybody needs to move.’ Everybody moves, then 20 minutes later they go there and say, ‘Everybody has to move.’ Folks are being shuffled, they’re pushing them off Kensington Avenue into residential streets. Now the residents are not going to be happy, but they don’t understand the benefits an OPC can bring.”

Much evidence has demonstrated that OPCs prevent deaths, including in surrounding areas. As well as being ready to intervene in any overdose occurring on site, OPC staff provide a range of other resources, services and referrals to improve people’s health and wellbeing. OPCs also reduce issues of concern to some local residents, such as public drug use.

So what happens next in the legal case? Goldfein explained the potential timeline.

“The DOJ will have to respond to our brief, by [roughly] the first two weeks of October,” she said. “We will file a reply the last two weeks of October, and then it will be in the court’s hands.” However, “all this could be pushed back a little later…DOJ could theoretically not respond, and the court will base its decision on our argument and legal reasoning.”

Goldfein declined to speculate on how electoral considerations might factor into the Biden administration’s next moves on Safehouse. But the looming presidential election is impossible to ignore, with Trump and Republicans likely to attack any concession to OPC as “pro-drug” or “pro-crime.”

“We have not heard from [the Harris campaign], and we have not reached out to them,” Goldfein said. “Do I hope that if Vice President Harris is elected, her admin will be more willing to engage? Absolutely. I have heard her talk about her values; I think they align with our values.”

This article was originally published by Filter, an online magazine covering drug use, drug policy and human rights through a harm reduction lens. Follow Filter on Facebook or Twitter, or sign up for its newsletter.

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