By Aubrey Whelan
The Philadelphia Inquirer
PHILADELPHIA — As ongoing settlement talks could soon clear the way for the opening of Philadelphia’s first supervised injection site, civic organizations and elected officials opposed to the idea say they are growing increasingly concerned that they’re being cut out of the process.
The city’s police union and a coalition of 19 community groups accused the U.S Justice Department this week of effectively “switch[ing] sides” after a years-long legal battle fighting to block such a facility in the city. They urged a federal judge to hear their concerns before signing off on any agreement between the government and Safehouse, the nonprofit that has proposed launching the site to help stem the tide of overdose deaths.
Separately, five Democratic state senators also raised misgivings in a new court filing Thursday.
“The government now imminently plans to abandon the Philadelphians it once pledged to protect,” wrote Michael H. McGinley, a lawyer representing the civic organizations and the police union, in a motion filed Tuesday. “Without intervention, the law and Philadelphia’s neighborhoods may be left with no defense.”
Many of those now raising concerns are the same groups and officials who were most vocal during Safehouse’s bungled attempt to quietly open a supervised injection site in South Philadelphia three years ago — a plan that was quickly scuttled amid fierce opposition from some elected and civic leaders.
But the ratcheting up of anxiety, reflected in recent filings, suggests even if Safehouse can reach an accord with the Justice Department, it may be only a first step in winning the support the nonprofit needs to launch its proposed facility.
As of this week, no settlement agreement has been announced after more than a year of ongoing talks. And neither the U.S. Attorney’s Office in Philadelphia nor Safehouse officials has been willing to discuss the progress of their discussions.
Judge Gerald A. McHugh, who has overseen the case since 2019, has not signaled whether he intends to hear arguments from the civic organizations and state senators who oppose the plan.
But Barbara Capozzi — president of the Packer Park Civic Association, one of the groups that signed on to the recent court filings — said it was important he know of their viewpoints any agreement is finalized.
“We’re hoping to get a seat at the table, which we should have had at the beginning,” she said. “We have to represent the neighbors because no one’s representing the neighbors.”
A long legal battle
Safehouse vice president Ronda Goldfein said Thursday that her organization shares community concerns about “the devastation caused by the opioid crisis.” A record 1,276 people died of overdoses in Philadelphia in 2021, the last year for which complete data are available.
Several local nonprofits, including the Scattergood Foundation, support the sites, and local harm-reduction advocates organized demonstrations to support the sites during Safehouse’s legal battle.
“We think that an overdose prevention center, an evidence-proven initiative to save lives, should be one of the many things that need to be done to address the crisis,” Goldfein said.
But supervised injection sites are a controversial proposition. In a recent a Lenfest Institute for Journalism/SSRS poll that surveyed more than 1,200 people, just 27% of respondents ranked supervised drug consumption sites as one of the best interventions to combat the opioid crisis.
In 2019, the Justice Department — under then U.S. Attorney General William Barr — sued to block Safehouse from opening what at the time would have been the first supervised injection site in the nation, saying it would violate a federal law known as the “crack-house statute,” which makes it illegal for anyone to operate a facility “for the purpose of unlawfully ... using controlled substances.”
Though McHugh rejected that argument — finding that Safehouse’s ultimate goal was not to facilitate drug use but to reduce it — the U.S. Court of Appeals for the Third Circuit overturned that decision in late 2021.
The decision left Safehouse’s backers to return to McHugh’s court to pursue additional legal claims, including an argument that their faiths compel them to provide lifesaving medical care to vulnerable populations and any government effort to block them from launching a supervised injection site would be a violation of their constitutionally protected religious rights.
Meanwhile, the Justice Department under President Joe Biden has proven much more open to embracing harm reduction strategies like needle exchanges and potentially supervised injection sites than under his predecessor, President Donald Trump.
In a statement last year, the department said it was “evaluating supervised consumption sites ... as part of an overall approach to harm reduction and public safety.”
And when two supervised injection sites opened in New York City in late 2021, they drew none of the threats of prosecution and legal action from the Biden Justice Department that Safehouse’s plan had provoked in Philadelphia.
OnPoint NYC, the organization running both sites, has reported that more than 3,100 people have used the sites nearly 70,000 times. Staff have treated more than 800 overdoses.
Settlement talks continue
So far, the ongoing settlement talks between the Justice Department and Safehouse’s backers have been carried out behind closed doors.
A meeting last month appears to have ignited the latest wave of anxiety from the community groups and officials now raising concerns in the case.
Many of the same groups who are now seeking to intervene in the legal proceeding met with U.S. Attorney Jacqueline C. Romero but were outraged when elected officials they sought to bring to the meeting were turned away.
“The community groups ... were happy to support the government’s position when it was enforcing the law and protecting Philadelphia’s most vulnerable neighborhoods,” wrote McGinley, the lawyer whose law firm, Dechert LLP, is representing the opposed community groups pro bono. “But now that the government appears poised to switch sides in this case, the groups must intervene to ensure their health, safety and property interests remain protected.”
The coalition of Democratic state senators who filed their own brief with the court — which includes Christine M. Tartaglione, Sharif Street, Anthony H. Williams and Jimmy Dillon — argued that even if the Justice Department reached an agreement not to enforce existing federal laws to block Safehouse, the nonprofit’s plan could run afoul of state laws that give community-based organizations standing to sue to prevent “drug-related nuisance[s]” in their neighborhoods.
Tartaglione — whose Northeast Philadelphia district also includes Kensington, the neighborhood most significantly affected by the city’s opioid epidemic — has also introduced a bill that would explicitly ban supervised injection sites under state law.
A court decision preempting any vote on such a measure, they said, would undermine the authority of state lawmakers — an authority recognized by the Third Circuit in overturning McHugh’s original decision.
“Regardless of whether the parties agree to a settlement to open one or more drug consumption sites or even provide additional ‘safety protocols’ not originally included in Safehouse’s plans,” lawyers George Gosset Jr. and Shannon A. Sollenberger wrote, “that does not change the decision of the Third Circuit that such a site in the Commonwealth will still violate federal law.”
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