Skip to main content

Are you a legal professional? Visit our professional site

Please enter a legal issue and/or a location
Begin typing to search, use arrow keys to navigate, use enter to select

Find a Lawyer

More Options

3rd Circuit: Proposed Drug Safehouse in Philadelphia Violates Federal Law

By Joseph Fawbush, Esq. on January 19, 2021 3:45 PM

While everyone agrees that the opioid crisis is causing significant harm to individuals, families, and communities across the nation, people disagree on the right response to reducing drug dependence. So far, unfortunately, little progress is being made. Over a hundred people die from a drug overdose every day. Countless more suffer job loss, broken relationships, and negative health consequences from opioid use.

Taking a novel approach to the opioid crisis, Safehouse, a nonprofit corporation in Pennsylvania, attempted to create America's first safe-injection site in Philadelphia. Folks who arrived at the safe-injection site could have used opioids under supervision to lower the risk of overdose. While at the site, they would be presented with rehabilitation options, could talk with a social worker, or even explore housing options. Safehouse would not encourage, store or handle any illegal drugs. The big problem with this approach, however, is that it is a violation of federal law. At least, according to a recent decision out of the Third Circuit.

No Shift In Federal Position on Combating Drug Use

The federal government sought to obtain a declaratory judgment from the Pennsylvania courts that the proposed safe injection site is a violation of federal law. However, the district court disagreed, holding that §856(a)(2) only prevented a person or business from using the property to manufacture, distribute or use drugs himself on the premises. Since Safehouse would only be monitoring folks who came in to use opioids, §856 didn't apply. The government appealed.

Third Circuit Agrees, Says Congress Must Act

Not so fast, said a Third Circuit panel. Under the Third Circuit's reading of the law, the plain text of §856 prohibits anyone from allowing a third party to use their premises for drug use. The fact that §856 was originally passed to give law enforcement a tool to go after crack houses, and that Safehouse has good intentions, is not relevant. As Judge Stephanos Bibas wrote for the majority, “Safehouse's benevolent motive makes no difference." You cannot break federal law even for a good reason. Only Congress can clarify that safe-injection sites are legal under federal law.

Safehouse also challenged the ability of the government to regulate its activity under the interstate Commerce Clause. However, this argument also failed. Judge Bibas wrote that “even though this drug use will happen locally and Safehouse will welcome visitors for free, its safe-injection site falls within Congress's power to ban interstate commerce in drugs."

Dissent Sides With Safehouse

Judge Jane Roth dissented, writing that the majority read into §856 something that was not there – or in any federal criminal statute. Namely, that it criminalizes otherwise legal conduct based on the intentions of a third party. The only reason it would be illegal to administer life-saving drugs to someone who is overdosing is that they arrived at the facility to use drugs. Judge Roth noted that the government conceded Safehouse could provide the same exact service it is proposing at its safe injection site if it only did so outdoors – as first responders routinely do, for example. Because Safehouse is providing several services and is not just a safe injection site, it would not be clear what a person walking into Safehouse would be there to do.

It remains to be seen if Safehouse will appeal or attempt to modify its plans for a safe injection site. For example, they could conceivably try having their safe injection site in a mobile van to avoid violating §856. For now, however, the nation's first-ever safe injection site must be put on hold. The other option, of course, would be for Congress to modify §856 to allow for such sites.

Related Resources

Copied to clipboard