US v. Safehouse, 408 F. Supp. 3d 583 (U.S. Dist. Court, E.D. Pa. 2019)

In a momentous decision that may pave the way for one of the country’s first safe consumption sites in Northeast Philadelphia, a federal trial judge ruled that such services are not barred by federal law.

Safe consumption sites, locations where people who inject drugs can do so in a safe environment with access to sanitary equipment, medical care, and treatment services, have entered the harm reduction discourse as a tool for curbing the epidemic of opioid-related drug overdoses and related HCV and HIV transmission. In response to Safehouse’s proposal to open one such site in Philadelphia, the United States Attorney for the Eastern District of Pennsylvania filed a suit in federal court alleging that such safe consumption sites are barred by a provision of the Controlled Substances Act that outlaws “ manage[ing] or control[ing] any place . . . and knowingly and intentionally . . . mak[ing] available for use, with or without compensation, the place for the purpose of unlawfully . . . using a controlled substance.”

Both the government and Safehouse argued in their pleadings that the statute read clearly in their favor. While Federal District Court Judge Gerald McHugh, an Obama appointee, found that the language of the statute is ambiguous, he found that it does not in fact prohibit the operation of a safe consumption site. Looking to the comments of the lawmakers who passed the law as well as the grammar of the statute itself, Judge McHugh found that this provision of the Controlled Substances Act only applies when the entity maintaining the property’s purpose is to facilitate the unlawfully use of a controlled substance, not when a third party might have that purpose. Because Safehouse’s purpose in operating a safe consumption site is to offer specific services, Judge McHugh found that such activity falls outside of the statute. Furthermore, Judge McHugh noted that since the advent of safe consumption sites was after the Controlled Substances Act was last reviewed by Congress, it would have been impossible for a legislator at the time to intend to outlaw them.

While safe consumption sites will likely be the subject of much further litigation and Judge McHugh’s decision may be appealed to the Third Circuit Court of Appeals, it is encouraging that a federal judge has recognized that safe consumption sites do not violate federal law, perhaps paving the way for one to open in Philadelphia.