United States v. Safehouse, A Pennsylvania Nonprofit Corp., 011221 FED3, 20-1422

Docket Nº20-1422
Opinion JudgeBIBAS, Circuit Judge.
Party NameUNITED STATES OF AMERICA v. SAFEHOUSE, a Pennsylvania nonprofit corporation; JOSÉ BENITEZ, as President and Treasurer of Safehouse SAFEHOUSE, a Pennsylvania nonprofit corporation v. U.S. DEPARTMENT OF JUSTICE; WILLIAM P. BARR, in his official capacity as Attorney General of the United States; and WILLIAM M. MCSWAIN, in his official capacity as ...
AttorneyWilliam M. McSwain Gregory B. David John T. Crutchlow Bryan C. Hughes Erin E. Lindgren Office of United States Attorney 615 Chestnut Street Suite 1250 Philadelphia, PA 19106 Counsel for Appellants Ronda B. Goldfein Yolanda F. Lollis Adrian M. Lowe AIDS Law Project of Pennsylvania Ilana H. Eisenst...
Judge PanelROTH, Circuit Judge, dissenting
Case DateJanuary 12, 2021
CourtUnited States Courts of Appeals, Court of Appeals for the Third Circuit

UNITED STATES OF AMERICA

v.

SAFEHOUSE, a Pennsylvania nonprofit corporation; JOSÉ BENITEZ, as President and Treasurer of Safehouse SAFEHOUSE, a Pennsylvania nonprofit corporation

v.

U.S. DEPARTMENT OF JUSTICE; WILLIAM P. BARR, in his official capacity as Attorney General of the United States; and WILLIAM M. MCSWAIN, in his official capacity as U.S. Attorney for the Eastern District of Pennsylvania United States of America, U.S. Department of Justice, United States Attorney General William P. Barr, and the United States Attorney for the Eastern District of Pennsylvania William M. McSwain, Appellants

No. 20-1422

United States Court of Appeals, Third Circuit

January 12, 2021

Argued: November 16, 2020

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 2:19-cv-00519) District Judge: Honorable Gerald A. McHugh

William M. McSwain Gregory B. David John T. Crutchlow Bryan C. Hughes Erin E. Lindgren Office of United States Attorney 615 Chestnut Street Suite 1250 Philadelphia, PA 19106 Counsel for Appellants

Ronda B. Goldfein Yolanda F. Lollis Adrian M. Lowe AIDS Law Project of Pennsylvania Ilana H. Eisenstein Courtney G. Saleski Megan E. Krebs Ben C. Fabens-Lassen Peter Goldberger Seth F. Kreimer University of Pennsylvania School of Law Counsel for Appellees

James G. Mann Pennsylvania House of Representatives Counsel for Amici in support of Appellants Republican Caucus of the Pennsylvania House of Representatives and Republican Caucus of the Senate of Pennsylvania

John M. Gore Jones Day Counsel for Amici in support of Appellants Pat Toomey, Brian Fitzpatrick, Tom Cotton, John Joyce, Fred Keller, Mike Kelly, Daniel P. Meuser, Scott Perry, Guy Reschenthaler, Lloyd Smucker, and Glenn Thompson

Jeffrey M. Harris Consovoy McCarthy Counsel for Amici in support of Appellants Drug Policy Scholars and Former Government Officials

Michael H. McGinley Justin M. Romeo Counsel for Amici in support of Appellants 20 Neighborhood Civic Associations and the Fraternal Order of Police Lodge 5

Loren L. AliKhan Office of Attorney General of District of Columbia Office of the Solicitor General Counsel for Amici in support of Appellees District of Columbia, State of California, State of Delaware, State of Illinois, State of Michigan, State of Minnesota, State of New Mexico, State of Oregon, State of Vermont, and State of Virginia

Trevor C. Burrus Cato Institute Counsel for Amici in support of Appellees Cato Institute, American Civil Liberties Union, and American Civil Liberties Union of Pennsylvania

Ezekiel R. Edwards American Civil Liberties Union Counsel for Amicus in support of Appellees American Civil Liberties Union

Mary Catherine Roper American Civil Liberties Union of Pennsylvania Counsel for Amicus Appellee American Civil Liberties Union of Pennsylvania

Michael J. Engle Buchanan Ingersoll & Rooney Counsel for Amici in support of Appellees Dr. Alexis M. Roth, Dr. Stephen E. Lankenau, and 5th Square

Virginia A. Gibson Hogan Lovells U.S. Counsel for Amici in support of Appellees King County Washington, City of New York, City of Seattle, City and County of San Francisco, and City of Pittsburgh

Ellen C. Brotman Counsel for Amici in support of Appellees AIDS United, American Medical Association, Association for Multidisciplinary Education and Research in Substance Use and Addiction, Association of Schools and Programs of Public Health, California Society of Addiction Medicine, Drug Policy Alliance, Foundation for AIDS Research, Harm Reduction Coalition, National Alliance of State and Territorial AIDS Directors, Network for Public Health, Pennsylvania Medical Society, Philadelphia County Medical Society, Positive Womens Network, Treatment Action Group, and Vital Strategies

Michael D. LiPuma Law Firm of Justin F. Robinette Counsel for Amici in support of Appellees Homeless Advocacy Project, Pathways to Housing Pennsylvania, Catholic Worker Free Clinic, Bethesda Project Inc., and St. Francis Inn

Jennifer MacNaughton Counsel for Amici in support of Appellees Mayor Jim Kenney and Dr. Thomas Farley

Brian T. Feeney Jessica Natali Kevin Rethore Greenberg Traurig Counsel for Amici in support of Appellees Philadelphia Area Community Organizations

Mark C. Fleming Wilmer Cutler Pickering Hale & Dorr Daniel Segal Matthew A. Hamermesh Hangley Aronchick Segal Pudlin & Schiller One Logan Square Counsel for Amici in support of Appellees Current and Former Prosecutors, Law Enforcement Leaders, and Former Department of Justice Official and Leaders

Catherine M. Recker Welsh & Recker Counsel for Amicus in support of Appellees Professor Randy Barnett

Mira E. Baylson Cozen O'Connor Counsel for Amici in support of Appellees Religious Leaders in Philadelphia and Beyond

Thomas A. Leonard, IV Cozen O'Connor Counsel for Amici in support of Appellees Friends and Family of Victims of Opioid Addiction

OPINION

BIBAS, Circuit Judge.

Though the opioid crisis may call for innovative solutions, local innovations may not break federal law. Drug users die every day of overdoses. So Safehouse, a nonprofit, wants to open America's first safe-injection site in Philadelphia. It favors a public-health response to drug addiction, with medical staff trained to observe drug use, counteract overdoses, and offer treatment. Its motives are admirable. But Congress has made it a crime to open a property to others to use drugs. 21 U.S.C. § 856. And that is what Safehouse will do.

Because Safehouse knows and intends that its visitors will come with a significant purpose of doing drugs, its safe-injection site will break the law. Although Congress passed § 856 to shut down crack houses, its words reach well beyond them. Safehouse's benevolent motive makes no difference. And 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.

Safehouse admirably seeks to save lives. And many Americans think that federal drug laws should move away from law enforcement toward harm reduction. But courts are not arbiters of policy. We must apply the laws as written. If the laws are unwise, Safehouse and its supporters can lobby Congress to carve out an exception. Because we cannot do that, we will reverse and remand.

I. Background

A. The federal drug laws

Drug addiction poses grave social problems. The opioid crisis has made things worse: more than a hundred Americans die every day of an overdose. Dep't of Health & Human Servs., Office of the Surgeon General, Facing Addiction in America: The Surgeon General's Spotlight on Opioids 1 (2018). People of good will disagree about how to tackle these enormous problems. Lawmakers and prosecutors have traditionally used criminal prosecution to try to stem the flow, targeting the supply and hoping to curb demand. Others emphasize getting users into rehab. Harm-reduction proponents favor treating drug users without requiring them to abstain first. Still others favor decriminalizing or even legalizing drugs. There is no consensus and no easy answer.

But our focus is on what Congress has done, not what it should do. Congress has long recognized that illegal drugs "substantial[ly]" harm "the health and general welfare of the American people." 21 U.S.C. § 801(2). Indeed, half a century ago, Congress tackled this national problem by consolidating scattered drug laws into a single scheme: the Comprehensive Drug Abuse Prevention and Control Act of 1970. Pub. L. 91-513, 84 Stat. 1236 (codified as amended at 21 U.S.C. §§ 801- 971); see Gonzales v. Raich, 545 U.S. 1, 10-12 (2005). To this day, this scheme governs the federal approach to illegal drugs.

Title II of that law, the Controlled Substances Act, broadly regulates illegal drugs. The Act spells out many crimes. A person may not make, distribute, or sell drugs. 21 U.S.C. § 841. He may not possess them. § 844. He may not take part in a drug ring. § 848. He may not sell drug paraphernalia. § 863. He may not conspire to do any of these banned activities. § 846. And he may not own or maintain a "drug-involved premises": a place for using, sharing, or producing drugs. § 856.

This last crime-the one at issue-was added later. At first, the Act said nothing about people who opened their property for drug activity. Then, the 1980s saw the rise of crack houses: apartments or houses (often abandoned) where people got together to buy, sell, use, or even cook drugs. See United States v. Lancaster, 968 F.2d 1250, 1254 n.3 (D.C. Cir. 1992). These "very dirty and unkempt" houses blighted their neighborhoods, attracting a stream of unsavory characters at all hours. Id. But it was hard to shut crack houses down. To go after owners, police and prosecutors tried to cobble together conspiracy and distribution charges. See, e.g., United States v. Jefferson, 714 F.2d 689, 691-92 (7th Cir. 1983), vacated on other grounds, 474 U.S. 806 (1985). But no law targeted the owner or main-tainer of the premises.

To plug this gap, Congress added a new crime: 21 U.S.C. § 856. Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, § 1841, 100 Stat. 3207, 3207-52. This law banned running a place for the purpose of manufacturing, selling, or using drugs. Congress later extended this crime to reach even temporary drug premises and retitled it from "Establishment of manufacturing operations" to "Maintaining drug-involved premises." Compare 21 U.S.C. § 856(a) & caption (2003) with 21 U.S.C. § 856(a) & caption (1986). After all, the statute covers much more than manufacturing drugs.

B. Safehouse's safe-injection site

The parties have stipulated to the key facts: Safehouse wants to try a new approach to combat the opioid crisis. It plans to...

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