Federal Lawsuit Over Safe Drug Consumption Sites Heads To Mediation To ‘Expedite’ Resolution

The Justice Department and a Philadelphia nonprofit have agreed to transfer a case concerning the legality of safe drug consumption sites out of a federal district court and to mediation before a magistrate judge in order to finally reach a resolution after numerous delays.

Safehouse—which has spent years in litigation after DOJ sued to block them from opening a harm reduction center under the Trump administration—said in an email blast on Tuesday that the parties reached an agreement on moving to mediation last week “to expedite a prompt resolution and begin saving lives.” The nonprofit said it is hopeful that the tactic “is the best way to resolve the lawsuit quickly.”

This comes about a month after the U.S. District Court for the Eastern District of Pennsylvania issued an order requiring that DOJ reveal its position in the lawsuit by January 9. That represented a compromise between the department’s request to have until February and the nonprofit’s position that it would no longer voluntarily accept additional delays after previously agreeing to continually push back the government’s deadline.

For much of the years-long case, Safehouse had described discussions with DOJ as productive and, as such, it agreed to give the department extra time to consider its position. But as time passed, the organization eventually determined that further delay would be untenable.

On Tuesday, the court issued the mediation order that transfers the case to U.S. Magistrate Judge Richard Lloret. Advocates feel that this will speed up the case, which they hope will ultimately clarify the federal stance on safe consumption sites where people can use currently illicit drugs in a medically supervised setting.

Marijuana Moment reached out to Safehouse staff and attorneys for comment on the development, but they did not respond by the time of publication.

Last February, DOJ said that it was “evaluating supervised consumption sites, including discussions with state and local regulators about appropriate guardrails for such sites, as part of an overall approach to harm reduction and public safety.”

Safehouse has been gradually losing patience with the department’s protracted review process and deadline extension requests in the case, writing in a recent filing that the case “has been pending for almost four years.”

“Since the DOJ commenced this litigation in 2019 until the end of 2021, more than 3,600 lives have been lost in Philadelphia to the opioid overdose crisis. Based on 2022 projections, that number will grow to almost 5,000 deaths,” it said. “Safehouse and those that need its life-saving services have waited long enough.”

In October 2021, the U.S. Supreme Court rejected a request to hear a case on the legality of establishing the Safehouse facilities.

In a recent report, congressional researchers highlighted the “uncertainty” of the federal government’s position on safe drug consumption sites, while pointing out 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.

While the Philadelphia facility is being held up amid litigation, New York City opened the first locally sanctioned harm reduction centers in the U.S. in late 2021, and officials have already reported positive results in saving lives.

The Congressional Research Service (CRS) pointed out the discrepancy, stating that while “DOJ actively opposed the operation of supervised consumption sites under the Trump Administration, to date the Biden Administration has not sought to invoke the [Controlled Substances Act] against such facilities.”

The report was published days after National Institute on Drug Abuse (NIDA) Director Nora Volkow 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 specifically say what she would do if she were president and the Trump-era lawsuit was dropped, but she said that safe consumption sites that have been the subject of research “have shown that it has saved a significant [percentage of] patients from overdosing.”

The comments represent one of the strongest positions in favor of safe consumption sites to come from a federal official, and they’re all the more notable given the federal government’s position in the lawsuit that’s so far blocked Safehouse from providing the service.

That said, Rahul Gupta, the White House drug czar, recently said that 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.

A study published by the American Medical Association (AMA) in July found that the recently opened New York City facilities have decreased overdose risk, steered people away from using in public and provided other ancillary health services to people who use currently illicit substances.

The National Institutes of Health (NIH) put out a pair of requests for applications (RFAs) in December 2021 for an effort that will provide funding for efforts to investigate how that 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), previously said that it’s critical to explore “any and every option” to reduce overdose deaths, and that could include allowing safe consumption sites for illegal substances if the evidence supports their efficacy.

The secretary of the U.S. Department of Health and Human Services (HHS), Xavier Becerra, has also signaled that the Biden administration would not move to block the establishment safe injection sites, stressing that “we are literally trying to give users a lifeline.”

But a department spokesperson later walked those remarks back, stating that “HHS does not have a position on supervised consumption sites” and the “issue is a matter of ongoing litigation.” In any case, it would be up to DOJ to decide whether to pursue operators of the facilities under the Controlled Substances Act.

In 2021, Rhode Island’s governor signed a bill establishing a pilot program to allow safe consumption sites to operate in the state.

A New York Assembly committee advanced a bill in May to establish a statewide safe consumption site program, allowing regulators to authorize facilities where people could use currently illicit drugs in a medically supervised environment.

In a pair of setbacks for advocates, however, Vermont’s governor vetoed a bill in June that would have simply created a working group tasked with crafting a plan to open safe consumption sites and the governor of California vetoed a bill in August to permit a pilot program for the harm reduction centers.

Read the federal court’s mediation order in the safe drug consumption site case below: 

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Photo courtesy of Jernej Furman.