United States v. Safehouse, CIVIL ACTION No. 19-0519

• Decision Date: 02 October 2019
• Docket Number: CIVIL ACTION No. 19-0519
• Citation: 408 F.Supp.3d 583
• Parties: UNITED STATES of America, Plaintiff, v. SAFEHOUSE, a Pennsylvania nonprofit Corporation; Jose Benitez, as President and Treasurer of Safehouse, Defendants. Safehouse, a Pennsylvania nonprofit Corporation, Counterclaim Plaintiff, v. United States of America, Counterclaim Defendant, and 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, Third-Party Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

408 F.Supp.3d 583

UNITED STATES of America, Plaintiff,

v.SAFEHOUSE, a Pennsylvania nonprofit Corporation; Jose Benitez, as President and Treasurer of Safehouse, Defendants.

Safehouse, a Pennsylvania nonprofit Corporation, Counterclaim Plaintiff,

v.United States of America, Counterclaim Defendant,andU.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, Third-Party Defendants.

CIVIL ACTION No. 19-0519

United States District Court, E.D. Pennsylvania.

Filed October 2, 2019

Bryan C. Hughes, Gregory B. David, John T. Crutchlow, Eric D. Gill, U.S. Attorney's Office, Erin E. Lindgren, United States Attorney Office, Philadelphia, PA, William M. MCSwain, U.S. Attorney, Allentown, PA, for Plaintiff.

Adam Steene, DLA Piper LLP, New York, NY, Thiru Vignarajah, DLA Piper LLP, Baltimore, MD, Adrian M. Lowe, Jacob M. Eden, Ronda Goldfein, Yolanda French Lollis, The Aids Law Project of PA, Ben C. Fabens-Lassen, Courtney G. Saleski, Megan Krebs, Rachel A.H. Horton, Ilana H. Eisenstein, DLA Piper LLP, Seth Kreimer, Philadelphia, PA, for Defendants.

MEMORANDUM

Gerald Austin McHugh, United States District Judge

I. The Relevant Factual Background...586

II. Procedural Posture...586

III. The Controlling Procedural Standard...588

IV. The Statutory Question...588

a. The Absence of a Controlling Standard of Statutory Construction...591

b. Interpretation of 21 U.S.C. § 856(a)...591

i. Authorization...592

ii. Meaning of "unlawfully ... using"...594

iii. To whose purpose (a)(2) refers...595

iv. Meaning of "for the purpose of unlawfully ... using a controlled substance"...605

V. Application of (a)(2) to Safehouse...614

VI. Application of (a)(1) to Safehouse...618

VII. Religious Freedom Restoration Act...618

VIII. Conclusion...618

*****

This is a declaratory judgment action brought by the United States seeking to enjoin the operation of a proposed safe injection site for opioid users in the City of Philadelphia. The Government contends that its operation is unlawful under the Controlled Substances Act (CSA). As an initial matter, it is useful to delineate what is not before the Court. The question is not whether safe injection sites are an appropriate means of dealing with the opioid crisis, either as a matter of public policy or a matter of public health. Nor does this Court have jurisdiction to address the concerns raised by residents of the beleaguered neighborhood of Kensington in Philadelphia as to the appropriate location for the operation of such a facility, if it is lawful. It is also helpful to observe that, although both parties globally invoke various aspects of the Controlled Substances Act, a sprawling statute amended many times over many years, this case focuses on a single narrow provision of the Act, 21 U.S.C. § 856(a)(2) —colloquially known as the "Crack House" statute—as the legal basis for the injunction sought by the Government.

This narrowness of focus reflects a fundamental underlying reality, which is that no credible argument can be made that facilities such as safe injection sites were within the contemplation of Congress either when it adopted § 856(a) in 1986, or when it amended the statute in 2003. And that baseline reality ultimately has substantive significance in determining whether this statute is properly applied to the safe injection site proposed by Safehouse.

Having examined the text and employed a number of tools of statutory construction, I conclude that the provision on which the Government relies is reasonably capable of more than one interpretation. This supports a further conclusion that consideration of the legislative evidence surrounding passage of this provision is appropriate. As discussed below, courts must exercise extreme care in discerning the objective sought by Congress in enacting a statute. That said, having reviewed materials I consider appropriate in discerning what Congress sought to address in enacting § 856(a)(2), there is no support for the view that Congress meant to criminalize projects such as that proposed by Safehouse. Although the language, taken to its broadest extent, can certainly be interpreted to apply to Safehouse's proposed safe injection site, to attribute such meaning to the legislators who adopted the language is illusory. Safe injection sites were not considered by Congress and could not have been, because their use as a possible harm reduction strategy among opioid users had not yet entered public discourse. Particularly in the area of criminal law, it is the province of Congress to determine what is worthy of sanction. A line of authority dating back to Chief Justice John Marshall cautions courts against claiming power that properly rests with the legislative branch.¹ A responsible use of judicial power under those circumstances is to decline to expand the scope of criminal liability under the statute and allow Congress to address the issue.

I. The Relevant Factual Background

Safehouse seeks to open an "Overdose Prevention Site," which will offer a variety of services aimed at preventing the spread of disease, administering medical care, and encouraging drug users to enter treatment. According to Safehouse's representations about its protocol,² when one arrives at Safehouse, they will first go through a registration process. The participant will provide certain personal information and receive a physical and behavioral health assessment. Safehouse staff will then offer a variety of services, including medication-assisted treatment, medical care, referrals to a variety of other services, and use of medically supervised consumption and observation rooms. There is nothing in the protocol that suggests Safehouse will specifically caution against drug usage.

Participants who choose to use drugs in the medically supervised consumption room will receive sterile consumption equipment as well as fentanyl test strips once they enter the room. At no point will Safehouse staff handle or provide controlled substances. Staff members will supervise participants' consumption and, if necessary, intervene with medical care, including reversal agents to prevent fatal overdose. Before leaving the room, participants will dispose of used consumption equipment. After participants finish in the medically supervised consumption room, staff will direct them to the medically supervised observation room. Nothing in the Safehouse protocol appears to require that a participant remain in the observation room for a specified period of time. In the observation room, certified peer counselors, as well as recovery specialists, social workers, and case managers will be available to offer services and encourage treatment. The same services will again be offered for the third time at check out.

II. Procedural Posture

After Safehouse announced its plans, the Government engaged in some correspondence with Safehouse's leadership. The parties could not reach agreement, and the United States then initiated this action against Safehouse and its President and Treasurer, Jose Benitez.³ See Pl.'s Compl., ECF No. 1; Pl.'s Am. Compl., ECF No. 35. The Government seeks a declaratory judgment that the medically supervised consumption rooms violate 21 U.S.C. § 856(a)(2). I commend the Government for proceeding in this manner, rather than with criminal prosecution. Defendants answered the Government's Declaratory Judgment Complaint with several affirmative defenses, including an argument that application of the statute to their proposed site would be unconstitutional. Defs.' Answer to Compl., ECF No. 3; Defs.' Answer to Am. Compl., ECF No. 45. Safehouse also brought counterclaims and third-party claims, first seeking a declaratory judgment that its proposed operation will not violate § 856(a) and second seeking a declaratory judgment that the Department of Justice's efforts to enforce the statute, threats to prosecute Safehouse, and litigation against Safehouse violate 42 U.S.C. § 2000bb, the Religious Freedom Restoration Act. Id. The Government answered Safehouse's counterclaims and third-party complaint, Pl. & Third-Party Defs.' Answer, ECF No. 46, and then filed a Motion for Judgment on the Pleadings as to its claim as well as the counterclaims and third-party claims. Pl. & Third-Party Defs.' Mot. for J. on the Pleadings, ECF No. 47.⁴

After considering the pleadings, the Government's Motion for Judgment on the Pleadings, Safehouse's Response, ECF No. 48, and the Government's Reply, ECF No. 115, I have concluded that 21 U.S.C. § 856(a) does not prohibit Safehouse's proposed medically supervised consumption rooms because Safehouse does not plan to operate them "for the purpose of" unlawful drug use within the meaning of the statute. Accordingly, I need not consider whether application of the statute to Safehouse's proposed conduct violates the Commerce Clause. As to the Religious Freedom Restoration Act, Safehouse's claim that the Government's effort to enforce 21 U.S.C. § 856(a) violates the Religious Freedom Restoration Act is now moot, as Safehouse sought only prospective injunctive relief.

The Government's Motion will be denied as to its claim for declaratory judgment, as well as Safehouse's counterclaim for declaratory judgment.

III. The Controlling Procedural Standard

A Rule 12(c) motion for judgment on the pleadings "is analyzed under the same standards that apply to a Rule 12(b)(6) motion." Revell v. Port Auth. of N.Y. & N.J. , 598 F.3d 128, 134 (3d Cir. 2010). This well-established standard requires that I view the pleadings in the light most favorable to the non-moving party. Leamer v. Fauver , 288 F.3d 532, 535 (3d Cir. 2002). "A Rule 12(c) motion should not be granted unless the moving party has established that there is no material issue of fact to resolve, and that it is entitled to judgment in its favor as a matter of law." D.E. v. Cent. Dauphin Sch. Dist. , ...