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The Legal Status of Safe Consumption Sites
Photo by Joe Mabel via Wikimedia
As the opioid crisis continues to ravage the United States, nonprofits, city and state governments have turned to untraditional solutions. Safe consumption sites, locations where people can use drugs under the supervision of medical professionals, are one possible solution. These sites have been successful in numerous countries, such as Canada, Switzerland and Portugal.1 Research shows that safe consumption sites successfully prevent overdose deaths and connect people who use drugs with wraparound services.2 This article examines the actions of governments and nonprofits in Philadelphia, Pennsylvania; Providence, Rhode Island; New York, New York; and San Francisco, California as they attempt to confront the public health crisis by opening safe consumption sites and the legal and political challenges they have faced.
Philadelphia, Pennsylvania
In Philadelphia, efforts by a nonprofit to open a safe consumption site were stymied by the federal government. Safehouse is a Philadelphia based nonprofit that was founded in 2018 by a group of individuals motivated by their Judeo-Christian beliefs in the preservation of human life.3 Safehouse planned to offer Medication Assisted Treatment (MAT), wound care, and referrals to primary care, legal services, social services, and housing opportunities. They also planned to operate a safe consumption site. In February 2019, the US Attorney for the Eastern District of Pennsylvania, William McSwain, filed a complaint for declaratory judgment to prevent Safehouse from opening a safe consumption site.4
In the complaint, McSwain relies on two sections of the 1970 Controlled Substances Act (CSA): 21 U.S.C. § 801 “it shall be unlawful to…manage or control any place…for the purpose of…using a controlled substance” and § 856(a)(2) which states § 801 applies to anyone who makes the location “available for use…for the purpose of unlawfully…using a controlled substance.” Safehouse responded with its own complaint and request for declaratory judgment. It primarily argued that its activities did not fall under those criminalized by § 856.5 Section 856, Safehouse argued, was intended to criminalize “crack houses” and “raves”.6 Congress had not anticipated nor intended to criminalize safe consumption sites. Additionally, Safehouse argued it did not fall under §856’s purview because it operated not “for the purpose of…using a controlled substance” but rather “for the purpose of” providing life-saving medical care and wraparound services.
In October 2019, U.S. District Judge Gerald McHugh ruled that the proposed safe consumption site would not violate the CSA.7 Agreeing with Safehouse’s argument that Congress did not intend to criminalize supervised consumption sites, Judge McHugh found that "the ultimate goal of Safehouse's proposed operation is to reduce drug use, not facilitate it."
In January 2021, on appeal, the Third Circuit District Court reversed the verdict.8 Oral arguments centered on the meaning of “for the purpose of” in the statute. US Attorney McSwain argued that “for the purpose of” referred not to Safehouse’s purpose, but to the purpose of the persons using drugs in the safe consumption rooms. The Third Circuit agreed with the DOJ that “to break the law, Safehouse need only ‘knowingly and intentionally’ open its site to visitors who come ‘for the purpose of . . . using’ drugs. The text of the statute focuses on the third party's purpose, not the defendant's.”9 Only one judge dissented and argued that the statute referred to Safehouse’s purpose, not the purpose of its participants. As of July 2023, Safehouse and the DOJ are back in court in the Eastern District of Pennsylvania battling over the safe consumption site.10 As the lawsuit continues, Safehouse has not been able to open a safe consumption site.
Safehouse hadn’t opened its doors when it was charged by the US Attorney, in part because it began preparations in 2018, when the US Attorney for the Eastern District of Pennsylvania was William McSwain, an appointee of Donald Trump. Trump’s administration favored draconian policies reminiscent of the original war on drugs and was not willing to allow a safe consumption site to operate.11
New York City
New York City is the first US city to successfully open safe consumption sites.12 On November 30, 2021, the nonprofit OnPoint NYC opened two sites in Harlem. The sites are privately funded; they receive no funding from any government entities.13 Unlike Rhode Island, New York state did not pass any legislation permitting the sites.14 In fact, Governor Hochul has not supported a bill in the Legislature to legalize the sites. OnPoint’s sites operate only with the blessing of the New York City Mayor; the Brooklyn, Bronx, Manhattan, and Queens District Attorneys; and an “arrangement” with the NYPD that clients visiting the sites will not be arrested.15
OnPoint NYC’s sites are working exactly as intended. In the two years since the sites’ opening, 3,941 individuals have used the cites over 90,000 times and staff have reversed 1,131 overdoses.16 There have been no deaths at either site. Visitors to the sites can also access a variety of services including bathrooms and showers, food, safe use supplies, wound care, medical assessments, and case management.
Neighbors have expressed mixed reactions to the open sites.17 While recognizing the sites’ importance, some neighbors state that the sites have increased drug use in their neighborhoods, as people now come to the building to use drugs and end up using drugs in the street when the building is closed. To ameliorate this, in May 2022, Mayor Eric Adams tweeted his desire for the sites to operate 24/7.18 Adams acknowledges that the main issue in keeping the sites open is a lack of funding, and has said that he hopes City Hall will be able to step in.
In contrast to the response by the US Attorney in Pennsylvania, US Attorney for the Southern District of New York, Damian Williams has not brought any charges against OnPoint NYC.19 He made a statement to the New York Times in August 2023 that OnPoint NYC’s operations are running afoul of federal, state, and local law and that “[his] office is prepared to exercise all options — including enforcement — if this situation does not change in short order.” However, at the time of publication of this article, he has not taken any steps to charge or close OnPoint NYC’s sites. Williams was appointed by President Biden in 2021;20 Biden's administration has recognized that safe consumption sites are an appropriate response to the opioid crisis.21 This attitude may be the reason Williams has yet to bring any charges.
San Francisco
The California legislature has approved two bills to authorize safe consumption sites only to have them vetoed by governors - Jerry Brown in 201822 and Gavin Newsom in 2022.23 Critics suggest that Governor Newsom’s veto in 2022 was a political maneuver to preserve his popular appeal for a future presidential campaign. However, San Francisco’s City Hall has taken independent steps to open safe consumption sites.
In 2020, Mayor London Breed announced she and Supervisor Matt Haney were introducing a bill to authorize safe consumption sites (called Overdose Prevention Programs by the legislature) and provide a process by which the Department of Health Services would regulate nonprofit organizations who seek to operate such sites.24 The bill still stipulated that the city would not officially authorize the sites or issue permits until authorized by state law.
In 2021, Mayor Breed took another step to allow safe consumption sites: she proposed legislation that would allow the city to purchase a property to serve as a safe consumption site.25 This is radically different from the situations in Philadelphia, Providence, and New York City, whose governments are unwilling to provide financial support to the sites and have relied on nonprofits using their own funds to provide the sites’ physical locations. I could not find any articles stating whether or not this legislation passed. It likely did not, because in May 2023, despite her earlier proposal for the city to purchase a property for use as a safe consumption site, Breed announced a new budget providing funding for “wellness hubs” but stipulating that any safe consumption sites in the hubs would have to be privately funded.26
When Governor Newsom vetoed the state legislature’s safe consumption site bill in 2022, the plan to authorize safe consumption sites in San Francisco seemed dead in the water. However, in January 2023, Mayor Breed introduced legislation to amend the 2020 bill and no longer require state law authorization for the San Francisco DHS to authorize local sites.27 The legislation passed the Board of Supervisors in March 2023.28
Unbeknownst to most, a safe consumption site did operate in San Francisco between January 2022 and December 2022.29 After announcing a “state of emergency” in the Tenderloin District, Mayor Breed opened the “Tenderloin Linkage Center”. The center distributed harm reduction supplies like sterile syringes and naloxone, connected visitors to resources, and allowed visitors to use drugs under supervision. During its eleven months of operation, the center reversed 333 overdoses.30 If Stephanie Hinds, who served as U.S. Attorney for the Northern District of California while the Center was operating, ever commented on the legality of Center, I cannot find a record of it online.
However, with little warning and no explanation, Breed closed the site in December 2022.31 It seems she is taking a new stance – while there have been no news articles about progress toward a safe consumption site since April, Mayor Breed and San Francisco District Attorney Brooke Jenkins have recently increased policing of “open air drug use” by creating a unit to patrol sites where people use drugs and arrest individuals, to force them into receiving treatment.32 Mayor Breed is up for reelection in November 2024 and might be backing away from harm reduction in favor of a law and order approach to preserve her popularity.
Providence, Rhode Island:
With little fanfare, Rhode Island is scheduled to open its first safe consumption site in spring 2024.33 Governor McKee signed legislation in July 2021, allowing for safe consumption sites, which Rhode Island calls “harm reduction centers”, to operate in the state.34 The 2021 legislation allowed for a two-year pilot program, during which no centers opened. In March 2023, the program was renewed for another two years and in April 2023, the nonprofit Project Weber/RENEW announced that it had won the contract to open the center.35 There is little further information about the site. In fact, there is little news coverage about the project at all. Zachary Cunha, District Attorney for the District of Rhode Island has made no statements about the legality of the site and the vast majority of articles about the site come from local newspapers, not national publications. Rhode Island has escaped the media frenzy over safe consumption sites which highly publicized and politicized the efforts in Philadelphia, New York, and San Francisco.36 Perhaps there will be increased media coverage when the site actually opens, or perhaps due to its small size and racial makeup Providence will escape the media hysteria directed at the other cities in this article.
Discussion
What accounts for each city’s varying degrees of success in opening a safe consumption site?
Safehouse was immediately sued by a Trump-appointed US Attorney McSwain, but OnPoint NYC has been operating two safe consumption sites for almost two years with no action from the SDNY, headed by Biden-appointee Williams. Rhode Island’s US Attorney Cunha hasn’t commented on the 2021 legislature or the proposed safe consumption site at all. Rhode Island’s efforts have also stayed out of the national spotlight, and garnered very little news coverage. San Francisco once had a safe consumption site - untouched by the US Attorney Hinds - but shuttered by the same mayor who opened it with no explanation. Meanwhile, people across the United States are dying of overdoses – over 100,000 a year.37
Safe consumption sites successfully prevent overdoses and connect people who use drugs to wraparound care. OnPoint NYC and the Tenderloin Linkage Center, when it was operating, reversed every on-site overdose with zero fatalities. The opposition to safe consumption sites is political, not scientific. The media demonizes safe consumption sites as promoting drug use and bringing crime to neighborhoods. Politicians who once supported the sites change their policies to preserve their popular appeal for future elections. New York City’s operating sites are precariously balanced on a city government willing to support the sites and a US Attorney choosing not to pursue charges that he is entitled to bring at any minute. A new presidential administration and a new US Attorney could close the sites’ doors.
The lawsuit against Safehouse has demonstrated that safe consumption sites cannot stand against charges under the Controlled Substances Act. Rhode Island’s bill allowing for the opening of a safe consumption site only protects the site against state charges, not federal ones. Even if numerous city and state governments ignore political pushback and allow sites to open, all the sites are subject to federal charges. Should they be charged, the only path forward is to win in court, which Safehouse demonstrated is unlikely. Amending the Controlled Substance Act to allow safe consumption sites is the only way to protect sites’ operation in every state. However, it is extremely unlikely that Congress will take such action in the near future. Therefore, we are left with piecemeal solutions as cities and non-profits try to overcome political hurdles and federal laws to get on with the important business of saving lives.
1 Spotlight on…Drug consumption rooms, European Monitoring Center for Drugs and Addictions, (Sept. 15, 2023).
2 Supervised Consumption Services, National Harm Reduction Coalition.
3 Safehouse Philadelphia Frequently Asked Questions.
4 Bobby Allyn, U.S. Prosecutors Sue To Stop Nation's First Supervised Injection Site For Opioids, NPR (Feb. 6, 2019, 2:29 PM).
5 Complaint for Declaratory Judgment, U.S. v. Safehouse, 480 F.Supp. 3d 583 (E.D. Pa. 2019).
6 Defendant Safehouse’s Answer, Affirmative Defenses, Counterclaims to Plaintiff’s Complaint and Third Party Complaint, U.S. v. Safehouse, 480 F.Supp. 3d 583 (E.D. Pa. 2019).
7 Bobby Allyn, Judge Rules Planned Supervised Injection Site Does Not Violate Federal Drug Laws, NPR (Oct. 2, 2019, 2:42 PM), https://www.npr.org/2019/10/02/766500743/judge-rules-plan-for-safehouse-drug-injection-site-in-philadelphia-can-go-forwar.
8 Nina Feldman, In Philadelphia, Judges Rule Against Opening 'Supervised' Site To Inject Opioids, NPR (Jan. 14, 2021, 12:50 PM).
9 U.S. v. Safehouse, 480 F.Supp. 3d 583 (E.D. Pa. 2019).
10 Nicole Leonard, Safehouse supervised injection settlement talks fail as the DOJ pushes to dismiss civil lawsuit, WHYY(July 30, 2023).
11 Katelyn Newman, Injecting a Solution, US News (April 3, 2023).
12 Jeff Mays, Nation’s First Supervised Drug-Injection Sites Open in New York, New York Times (Nov. 30, 2021).
13 Caroline Lewis, Supervised injection sites in NYC have saved lives. But officials won't provide funds, NPR (June 4, 2022, 5:11 PM).
14 Rebecca C. Lewis, Will Hochul come around on supervised injection sites?, City & State New York (Jan. 13, 2023).
15 Brian Mann, New York City allows the nation's 1st supervised consumption sites for illegal drugs, NPR (Nov. 30, 2021).
16 OnPoint NYC.
17 Stephon Johnson, Saving Lives or Ruining the Neighborhood?, The City(Dec. 13, 2022, 5:03 AM).
18 Jose Martinez, Eric Adams Calls for 24-Hour Overdose Prevention Centers, The City(May 19, 2022, 3:19 PM).
19 Sharon Otterman, Federal Officials May Shut Down Overdose Prevention Centers in Manhattan, New York Times (Aug. 10, 2023).
21 Jennifer Peltz, Justice Dept. signals it may allow safe injection sites, Associated Press, (Feb. 7, 2022, 9:37 PM).
22 Melody Gutierrez, California bill to let SF open safe drug-injection site is vetoed by Brown, SF Gate (Sep 30, 2018, 10:01 PM).
23 Jill Cowan, Governor Newsom Vetoes Bill for Drug-Injection Sites in California, New York Times (Aug. 22, 2022).
24 Mayor London Breed and Supervisor Matt Haney Announce Legislation to Authorize New Overdose Prevention Programs, Office of the Mayor(Feb. 27, 2020).
25 Trisha Thadani, S.F. working to open supervised drug use site by spring, possibly in building near the Tenderloin, San Francisco Chronicle, (Nov. 166, 2021, 7:44 PM)
26 Tara Campbell, Here's a look at SF 'Wellness Hubs' plan, which could include safe consumption sites, ABC 7 News(May 28, 2023).
27 Joe Dworetzky, SF Mayor Announces Plan to Facilitate Safe Injection Sites Despite Lack of State Authorization, NBC Bay Area (Jan. 20, 2023, 12:40 PM).
28 Taylor Romine, San Francisco supervisors vote to allow non-profits to operate supervised drug injection sites, CNN (Mar. 1, 2023, 2:58 PM).
29 Vitka Eisen, Here’s the truth of what happened inside S.F.’s controversial Tenderloin Center, San Francisco Chronicle (June 6, 2023).
30 Joe Eskenazi, Study: Tenderloin OD-prevention site saved lives — and got in its own way, Mission Local (Aug. 29, 2023).
31 Sergio Quintana, Closure of SF's Controversial Tenderloin Linkage Center Creates New Issue for the City, NBC Bay Area (Dec. 9, 2022, 7:01 PM).
32 Mallory Moench, Mayor Breed: S.F. will be more 'aggressive' with people struggling with drug addiction. Critics say that means arrests, San Francisco Chronicle (May 24, 2023, 11:01 AM).
33 Kate Wilkinson, RI prepares to open first safe injection site amid onslaught of overdose deaths, WPRI (Aug. 21, 2023, 8:17 PM).
34 Rhode Island’s Harm Reduction Center Pilot Program.
35 Jacob Smollen, Rhode Island moves closer to opening first overdose prevention center, Brown Daily Herald (Feb. 8, 2023, 10:02 PM).
36 Tucker Carlson Tonight, (FOX News Feb. 8, 2022).
37 Provisional Drug Overdose Death Counts, CDC (Feb. 15, 2023).