The Department of Justice (DOJ) filed another federal court brief last week in an effort to dismiss a lawsuit by a Philadelphia-based nonprofit trying to open a supervised drug consumption site. In it, the government argues the organization doesn’t qualify for federal religious exemptions that it is claiming—nor any of the other exceptions raised in the suit.
The court filing comes about a month after 35 Christian and Jewish faith leaders from 19 states submitted an amicus brief in which they supported the nonprofit Safehouse’s establishment of overdose prevention site under the Religious Freedom Restoration Act (RFRA). That friend-of-the-court brief said Safehouse’s board members’ mission to reduce harm aligns with sincerely held religious beliefs.
In its reply to the amicus brief and Safehouse’s own recent filing in the case, DOJ states simply that “one aspect of what Safehouse proposes is not consistent with the law.” Specifically, it says, “maintaining a place where Safehouse would invite drug users to consume illegal drugs would violate 21 U.S.C. § 856(a)(2).”
That law, in relevant part, makes it illegal to “manage or control any place…and knowingly or intentionally…make available for use, with or without compensation, the place for the purpose of unlawfully manufacturing, storing, distributing, or using a controlled substance.”
“It would not violate the Controlled Substances Act (“CSA”), for example, if Safehouse employees remained in close proximity to illegal drug use in the public places in Philadelphia where such use has for decades occurred,” the DOJ brief says, inadvertently acknowledging the failure of criminal prohibition to stop drug consumption. “The only restriction is that it may not invite drug use inside its own facility.”
DOJ has previously argued that the religious exemption does not apply because Safehouse itself is not a bona fide religious organization. But the religious leaders responded in their brief that its board members are nevertheless motivated by a faith-based understanding of their obligation to prevent unnecessary drug overdose deaths.
“The Judeo-Christian tradition has a long history of strongly supporting and treating individuals who are sick, even if they engage in activities outside the norm,” the organization said. “The Government’s efforts, if successful, will substantially impair the ability of Jewish and Christian Safehouse Board Members to practice their sincere religious beliefs.”
But in its new reply, DOJ argues again that “Safehouse is not a religious organization and thus cannot plausibly assert a RFRA or Free Exercise claim on behalf of the corporation itself.” It also maintains that the nonprofit’s “professed ‘belief’ in facilitating illegal drug use is not a ‘religious’ one, but rather a socio-political belief informed by harm reduction principles.”
Even if Safehouse were a religious group, the brief continues, the nonprofit can’t alleged that the law “poses a substantial burden on its free exercise of religion when, by its own acknowledgement, there are a multitude of alternative means by which its beliefs may be expressed.”
DOJ lawyers further argue that Safehouse’s case doesn’t rise to the standard of strict scrutiny that applies to certain other specialized exemptions from the CSA. “Safehouse’s opposition brief,” the reply says, “confirms that none of the scattered provisions it identifies constitute a mechanism for an individualized exemption” from the law.
The CSA does provide that “any person may apply for an exception to the application of any provision of this chapter,” the brief acknowledges, but government lawyers say that provision allows only “an exception to particular CSA regulations,” not an exception to the statute itself.
In other words, the government brief says Safehouse can’t be exempted from the part of the law—21 U.S.C. § 856(a)(2)—that prevents making available a safe space to use drugs.
Other examples of exceptions that Safehouse has referenced in support of its own eligibility, DOJ writes, “are to regulations, not statutory proscriptions.”
“There is no illogic in the government’s interpretation,” the brief asserts: “the government can waive certain requirements, under certain circumstances, but not every requirement, given the plain limitations of the applicable statutory and regulatory text.”
The government brief also notes that “Safehouse’s ‘consumption room’ also faces potential hurdles under state and local law. Earlier this month, the Philadelphia City Council passed a bill—on a 13 to 1 vote—that would band any supervised injection site from opening in most Philadelphia districts absent special permission from a zoning board.” And in May, the state Senate passed a measure that would ban supervised injection sites, a bill Gov. Josh Shapiro (D) has said he would sign if it arrives on his desk.
“If either of these measures are enacted,” DOJ says, “this case would likely be rendered moot for lack of redressability. The government reserves all rights to seek dismissal on such grounds at an appropriate juncture.”
Ahead of DOJ’s initial response to the suit, several local lawmakers, including Democrats championing marijuana legalization, asked the federal court to block Safehouse from opening and requested permission to file a brief in the case. A coalition of 20 Pennsylvania community groups also requested that the court allow it to intervene, but in recognition of the fact that the government is defending the existing statute and opposing overdose prevention sites, the court denied that group’s request.
The Justice Department previously declined to file a brief to offer its position on the harm reduction issue, and it asked for more time to respond in the “complex” case. Last year, the department said it was in the process of evaluating possible “guardrails” for safe consumption sites.
In January, Safehouse and the department agreed to transfer the case to mediation before a magistrate judge to settle the issue. The talks had been described as “productive,” leaving some advocates hopeful that DOJ might drop the dispute altogether.
The Justice Department first blocked Safehouse from opening the overdose prevention center under the Trump administration. Supporters hoped the department would cede the issue under President Joe Biden, who has promoted harm reduction policies as an alternative to criminalization, but so far they’ve been disappointed.
The Supreme Court rejected a request to hear a case on the legality of the Safehouse facilities in October 2021.
While the Philadelphia facility was being held up in the litigation, New York City opened the first locally sanctioned harm reduction centers in the U.S. in November 2021, and officials reported positive results saving lives.
A study published by the American Medical Association (AMA) last year found that the recently opened New York City facilities had decreased the risk of overdose, steered people away from using drugs in public and provided other ancillary health services to people who use illicit substances.
But a federal prosecutor who has jurisdiction over Manhattan recently emphasized in a statement to The New York Times that the sites are illegal and that he is “prepared to exercise all options—including enforcement—if this situation does not change in short order.”
Congressional researchers have highlighted the “uncertainty” of the federal government’s position on such facilities, pointing out last November that lawmakers could temporarily resolve the issue by advancing an amendment modeled after the one that has allowed medical marijuana laws to be implemented without Justice Department interference.
Meanwhile, National Institute on Drug Abuse (NIDA) Director Nora Volkow has tacitly endorsed the idea of authorizing safe consumption sites, arguing that evidence has effectively demonstrated that the facilities can prevent overdose deaths.
Volkow declined to say specifically what she believes should happen with the ongoing lawsuit, but she said safe consumption sites that have been the subject of research “have shown that it has saved a significant [percentage of] patients from overdosing.”
Rahul Gupta, the White House drug czar, has said the Biden administration is reviewing broader drug policy harm reduction proposals, including the authorization of supervised consumption sites, and he went so far as to suggest possible decriminalization.
The National Institutes of Health (NIH) put out a pair of requests for applications in December 2021 to investigate how safe consumption sites and other harm reduction policies could help address the drug crisis.
Gupta, the director of the White House Office of National Drug Control Policy (ONDCP), has said it’s critical to explore “any and every option” to reduce overdose deaths, which could include allowing safe consumption sites for illegal substances if the evidence supports their efficacy.
Read the DOJ reply brief in the Safehouse case below: