united states court of appeals for the third circuit€¦ · no. 20-1422 united states court of...

No. 20-1422

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellant,

v.

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

Defendants-Appellees.

On Appeal from the United States District Court for the Eastern District of Pennsylvania,

No. 2:29-CV-00519-GAM

BRIEF OF AMICI CURIAE 20 NEIGHBORHOOD CIVIC ASSOCIATIONS AND THE FRATERNAL ORDER OF POLICE LODGE 5

IN SUPPORT OF REVERSAL

STEVEN B. FEIRSON

JUSTIN M. ROMEO

THEODORE E. YALE

DECHERT LLP Cira Centre 2929 Arch Street Philadelphia, PA 19104

MICHAEL H. MCGINLEY

Counsel of Record DECHERT LLP Cira Centre 2929 Arch Street Philadelphia, PA 19104 (215) 994-4000 [email protected]

Counsel for Amici Curiae

May 22, 2020

Case: 20-1422 Document: 38 Page: 1 Date Filed: 05/22/2020

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CORPORATE DISCLOSURE STATEMENT

Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure and Third Circuit L.A.R. 26.1, amici make the following disclosures:

1) For non-governmental corporate parties please list all parent corporations: None.

2) For non-governmental corporate parties please list all publicly held companies that hold 10% or more of the party’s stock: None.

3) If there is a publicly held corporation which is not a party to the proceeding before this Court but which has a financial interest in the outcome of the proceeding, please identify all such parties and specify the nature of the financial interest or interests: None.


TABLE OF CONTENTS

Page

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CORPORATE DISCLOSURE STATEMENT ......................................................... i

TABLE OF AUTHORITIES .................................................................................. iii

INTEREST OF AMICI CURIAE .............................................................................. 1

SUMMARY OF ARGUMENT ................................................................................ 7

ARGUMENT .......................................................................................................... 10

I. Drug Consumption Sites Would Unleash The Precise Harms Congress Intended To Prevent. ..................................................................................... 10

A. Congress Enacted § 856 to Protect Neighborhoods from Places That Concentrate Illegal Drug Use..................................................... 11

B. The District Court Erred By Grounding Its Ruling on The Belief that Congress Never Contemplated Consumption Sites. ........ 13

II. Drug Consumption Sites Would Wreak Further Havoc On Neighborhoods And Police Forces That Are Already Suffering. ................ 16

A. The Devastating Harms Congress Sought to Prevent Are Real. ........ 17

B. Creating Safe Havens for Illegal Drug Activity Will Undermine the Rule of Law and Make Effective Policing Impossible. ............... 21

C. Consumption Sites Have Spawned Public Disorder in Countries That Permit Them. .............................................................................. 22

D. This Court Should Enforce § 856 to Protect Communities as Congress Intended. ............................................................................. 25

CONCLUSION ....................................................................................................... 27


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TABLE OF AUTHORITIES

CASES

Ali v. Fed. Bureau of Prisons, 552 U.S. 214 (2008) ............................................................................................ 13

Chicago, Milwaukee & St. Paul Ry. Co. v. Tompkins, 176 U.S. 167 (1900) ............................................................................................ 16

Griffin v. Oceanic Contractors, Inc., 458 U.S. 564 (1982) ............................................................................................ 14

Tennessee Valley Auth. v. Hill, 437 U.S. 153 (1978) ........................................................................................ 8, 13

STATUTES AND LEGISLATIVE MATERIALS

132 Cong. Rec. 26447 (1986) .................................................................. 7, 10, 11, 12

21 U.S.C. § 856 ................................................................................................ passim

Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, 100 Stat. 3207 ....................... 11

Comprehensive Addiction and Recovery Act, Pub. L. No. 114-198, 130 Stat. 695 ....................................................................................................... 15

Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub. L. No. 91-513, 84 Stat. 1236 ...................................................................... 12

Consolidated Appropriations Act of 2016, Pub. L. No. 114-113, 129 Stat. 2242 ..................................................................................................... 15

Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372 ........................ 15

First Step Act of 2018, Pub. L. No. 115-391, 132 Stat 5194 ................................... 15

National Narcotics Act of 1984, Pub. L. No. 98-473, 98 Stat. 2168 ....................... 12

Protect Act, H.R. Rep. No. 108-66 (2003) (Conf. Rep.) ......................................... 14


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OTHER AUTHORITIES

Alberta Health, Government of Alberta, Supervised Consumption Services Review Committee “Impact: A socio-economic review of supervised consumption sites in Alberta” (March 2020), available at https://bit.ly/2WZjfyF .................................................................................... 24

Aubrey Whelan, Eight months after Kensington’s disaster declaration, progress is tempered by the realities of the opioid crisis, PHILADELPHIA INQUIRER (June 27, 2019),https://bit.ly/2XhW5oD ...................................................................................... 17

Aubrey Whelan, Philadelphia’s Kensington ‘under siege’ as opioid-linked homelessness soars, PHILADELPHIA INQUIRER (Sept. 18, 2018), https://bit.ly/2J1PjLj ................................................................................ 17

Brian X. McCrone and Dan Stamm, Drug-Related Slayings Blamed for 10-Year High in Philly Homicides, NBC PHILADELPHIA (Dec. 18, 2018), https://bit.ly/2xigYR9 ........................................................................ 20

Camilla Theakstone, Drug dealers are flocking to Melbourne’s controversial injecting room to sell heroin – and police are powerless to stop them, DAILY MAIL (Apr. 14, 2019), https://www.dailymail.co.uk/news/article-6918549/Drug-dealers-flocking-Melbournes-controversial-injecting-room-sell-heroin.html ................ 21

Cherri Gregg, Krasner: Philly DA’s Office Won’t Prosecute Those Using Safe Injection Sites, CBS PHILLY (Feb. 14, 2018), https://cbsloc.al/2XDOZ9B ............................................................................ 9, 21

Consumption rooms for legal drug-taking around the world, BBCNEWS (Apr. 12, 2013), https://bbc.in/2WT2hR4 ................................................ 15

Crystal Cranmore, ‘You’re Going To Get Hit By A Syringe’: Hundreds Take To Kensington To Make Community Safer, CBSPHILLY (April 6, 2016), https://cbsloc.al/2Xb8hTw ........................................... 17

Darryl C. Murphy, What ‘safe-injection sites’ sound like to people on the front lines of the city’s drug wars, PLAN PHILLY (Feb. 12, 2018), https://bit.ly/2Jauor9 ................................................................................ 19


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Facebook Video: Kensington Community Meeting, Facebook (April 1, 2019), https://bit.ly/2EruYw9 ......................................................................... 18

Hayden Mitman, In Philly neighborhood with drug problem, children play in the streets again, PHILLY VOICE (July 20, 2016), https://bit.ly/2Lmv8cq ......................................................................................... 17

Howard Monroe, Safe Injection Site Opening Inside Same South Philadelphia Plaza That Houses Day Care, Senior Center, CBSPHILLY (Feb. 26, 2020), https://cbsloc.al/3adi4PQ ............................................. 20

Jennifer Percy, Trapped by the “Walmart of Heroin”: A Philadelphia neighborhood is the largest open-air narcotics market for heroin on the East Coast. Addicts come from all over, and many never leave, N.Y. TIMES MAGAZINE (Oct. 10, 2018),https://nyti.ms/2WMjPzs .................................................................................... 18

Joel Wolfram, Kensington residents passionately debate supervised injection facility, WHYY (Mar. 28, 2018), https://bit.ly/2Hv9uA9 ................... 19

Jon Kamp, Wracked by Opioid Crisis, Philadelphia Braces for Tent-Camp Closures, WALL STREET JOURNAL (May 28, 2018), https://on.wsj.com/2IO8MR5 ............................................................................. 17

Kate Kilpatrick, Philadelphia’s plan for opioid safe injection site splits opinion, THE GUARDIAN (July 18, 2018), https://bit.ly/2AlBTax ......................................................................................... 20

Katherine Scott, Chad Pradelli, & Dan Cuellar, ‘We were ambushed’: South Philadelphia residents outraged over plans for safe injection site, 6 ABC Action News (Feb. 27, 2020) and accompanying video, https://6abc.cm/3fzKXsM .................................................................. 17, 26

Luke Henriques-Gomes, ‘It’s saving lives’: community rallies to support Melbourne’s drug-injecting room, THE GUARDIAN (Sept. 15, 2018), https://bit.ly/30zzbal .......................................................................... 24

Meghan Potkins, ‘Nobody is protecting us:’ Safe drug site concerns meeting at city hall gets emotional, CALGARY Sun (Feb. 26, 2019), available at https://bit.ly/32zxR8M .................................................................... 23


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Meghan Potkins, We’re basically at war’: Sheldon Chumir’s zone of overdoses, needles and fear, CALGARY HERALD (Feb. 26, 2019), https://bit.ly/2Hv8k7L ......................................................................................... 23

Paul Sakkal, Police powerless to stop dealers exploiting drug loophole around injecting room, THE AGE (Apr. 11, 2019), https://bit.ly/2UIus6l ........................................................................................... 23

Remy Varga, Melbourne injecting centre a ‘one stop shop for crime’, says police union boss, THE AUSTRALIAN (May 22, 2019), https://bit.ly/2VUne0c ......................................................................................... 22

Rick Bell, Welcome to Calgary’s safe injection horror show, CALGARY SUN (Feb. 14, 2019), https://bit.ly/2Eqw6Qm ................................... 24

Ryan Rumbolt, Beltline businesses near safe injection site frustrated with rise of violent crimes, CALGARY HERALD (Dec. 16, 2018), https://bit.ly/2JZG8vI .......................................................................................... 23

Samantha Beattie, Do supervised injection sites bring crime and disorder? Advocates and residents disagree, THE STAR (Aug. 16, 2018), https://bit.ly/2MS13iF ............................................................................. 23

Samantha Beattie, Don’t open more drug injection sites here, downtown city councillor says, THE STAR (Aug. 14, 2018), https://bit.ly/2VTiibY ......................................................................................... 24

Sara Hoover, New homes for those struggling with addiction set for heart of Philly opioid crisis, WHYY (Jan. 15, 2019), https://bit.ly/3fxfYgW ......................................................................................... 18

Violence Policy Center, The Relationship Between Community Violence and Trauma 3 (2017), https://bit.ly/2TvhIya ....................................... 16


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INTEREST OF AMICI CURIAE1

The Bridesburg Civic Association (“BCA”) was founded in the 1940s as

one of Philadelphia’s first Registered Community Organizations (“RCO”). Along

with the other RCOs joining this brief, BCA strongly opposes consumption sites.

The East Passyunk Avenue Business Improvement District (“EPABID”)

is a non-profit organization established in 2002, dedicated to the revitalization and

promotion of one of Philadelphia’s longest-standing commercial corridors.

EPABID represents a vibrant neighborhood of small, independently operated

restaurants, retailers and service providers. EPABID is joining this brief because of

serious concerns regarding the lack of notice and community dialogue provided by

Safehouse. EPABID opposes the location of a consumption site in a location as

initially proposed that is detrimental to the many hardworking families and

proprietors along its business corridor.

The Fraternal Order of Police, Lodge 5 (“FOP”) represents approximately

14,000 active and retired officers of the Philadelphia Police and Sheriff’s

Department. FOP works vigilantly and vigorously to enforce the law as well as to

protect, promote and improve the working conditions of Philadelphia Police Officers

1 Pursuant to Federal Rule of Appellate Procedure 29(c)(4)(E), counsel for amici affirm that no counsel for a party authored this brief in whole or in part, and no person other than amici and their counsel has made a monetary contribution to the preparation or submission of this brief. Pursuant to Federal Rule of Appellate Procedure 29(a)(2), counsel of record for all parties have consented to its filing.


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and Deputy Sheriffs. FOP members devote their lives to protecting those who live

in and visit Philadelphia. They work each day to get drug dealers and users off of

the streets and to protect the City’s neighborhoods from the scourge of the illegal

drug trade. FOP, on behalf of its members, wishes to ensure that those sworn to

protect Philadelphia’s neighborhoods are not hamstrung in their ability to effectively

serve and protect all local residents and visitors.

Friends of Marconi Park has been around for nine years. The organization

tries to preserve its members’ quality of life, and to beautify its park.

Friends of Penrose is a non-profit RCO established in June 2017 to represent

the developments and businesses west of 20th Street to the Schuylkill, Oregon to

Pattison Avenue. Its mission is to promote the health, safety and welfare of the

community while improving and preserving property values. Friends of Penrose is

not adverse to rehabilitation and to strict enforcement of drug laws to rid the drug

dealers and guns from our streets. Friends of Penrose is opposed to consumption

sites and believe that they will only increase illegal drug use and gun and drug

trafficking in its beloved City.

The Girard Estate Area Residents (“GEAR”) is a RCO founded in 1982

by a group of concerned citizens. GEAR’s mission is to preserve the integrity of its

neighborhood, protect its citizens, weigh in on zoning matters, and maintain its

historic designation. GEAR is also an outreach for neighborhood problems and


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provides activities for residents throughout the year. GEAR believes that there

should never be anything forced into a community that the residents do not want.

The Harrowgate Civic Association (“HCA”) was formed in 2014 by

Shannon Farrell, a native and 41-year resident of Northeast Philadelphia’s

Harrowgate neighborhood, to advocate for the citizens of the area. Harrowgate,

which borders Kensington and Port Richmond, is in the epicenter of Philadelphia’s

opioid crises. The HCA wishes to give a voice to the community members who

suffer the effects of the opioid crises every day, and whose quality of life will be

further degraded, perhaps irreparably, by the opening of a consumption site.

The Holme Circle Civic Association (“HCCA”) is an RCO in Northeast

Philadelphia, founded in 2007. HCCA’s mission is to improve the quality of life in

the Holme Circle area by fostering community among residents and businesses,

promoting civic involvement and volunteering, and ensuring that public services

meet the needs of residents and businesses. HCCA also maintains the Holme Crispin

Cemetery, the burial spot of Thomas Holme, the surveyor of Pennsylvania hired by

William Penn and responsible for designing the original plan for Philadelphia.

The Juniata Park Civic Association (“JPCA”), an RCO founded in 1954,

advocates for the goodwill and safety of the residents of the Juniata community.

JPCA strongly opposes consumption sites, which it believes will send many

communities further into despair, especially by allowing open illegal drug use.


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The Kensington Independent Civic Association (“KICA”) was established

over 50 years ago. As an RCO that represents the Kensington area, it believes that

allowing Safehouse to open consumption sites in Philadelphia, including a planned

site next to Kensington, will do an injustice to law-abiding citizens. And it fears that

Safehouse’s encouragement of open drug use will make it impossible for Kensington

parents to teach their children to stay in school, get a job, or follow the rules.

The Lower Moyamensing Civic Association (“LoMo”) is a community-

based, volunteer-driven 501(c)(3) non-profit organization whose mission is to

improve the quality of life in its neighborhood. LoMo was formed in February 2007

by neighborhood residents to serve its focus area between Snyder to Oregon

Avenues, Broad to Seventh Streets in South Philadelphia. LoMo had been looking

forward to Safehouse community input meetings, but now has serious concerns due

to Safehouse’s complete disregard for LoMo’s residents.

The Morrell Park Town Watch (“MPTW”) was formed in 2017 by a group

of concerned parents in Northeast Philadelphia. Its mission is to stimulate a sense

of community in Morrell Park by addressing safety and quality of life issues. MPTW

voted to join this brief in response to Safehouse’s plan to open consumption sites

without following protocols regarding community involvement.

The Packer Park Civic Association (“PPCA”) is a 501(c)(3) organization

and an RCO with the City of Philadelphia. Its volunteer Officers and Board tackle


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issues large and small in order to stabilize, promote and protect the Community.

PPCA wants to harness the energy of its volunteer colleagues to work towards a

global and permanent solution to the problem of drugs in Philadelphia’s

Communities but strongly opposes consumption sites.

The Parkwood Area Civic Association is an RCO in Northeast Philadelphia.

It strongly opposes consumption sites.

Port Richmond On Patrol And Civic (“PROPAC”) is an RCO in the City

of Philadelphia. PROPAC’s volunteer members participate in many initiatives to

improve their community. PROPAC strongly opposes consumption sites.

The Somerton Civic Association is an RCO in Northeast Philadelphia. For

more than 70 years, members of the Association have worked to promote and

advocate for the well-being and improvement of their neighborhood. Members are

concerned with the harmful impact of drug consumption sites on their surroundings

and the people who live nearby. Members’ concerns extend both to Philadelphia

generally and to Somerton specifically, a neighborhood bordering Bucks and

Montgomery Counties where drug consumption-site operators could locate to serve

users entering the City from jurisdictions where such sites are not welcomed.

The South Broad Street Neighborhood Association (“SBSNA”) was

incorporated in 2006 and is the RCO for South Broad Street from Washington to

Oregon Avenues. It is dedicated to improving the quality of life in the neighborhood


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by street/sidewalk cleaning, removing posters and graffiti, and managing zoning

changes and development. SBSNA understands the need to help those unfortunate

enough to become addicted, but believes that placing a drug consumption site in a

densely populated neighborhood with no input from residents is unacceptable.

The South Philadelphia Business Association (“SPBA”) was founded more

than a century ago in 1897 and promotes business interests that benefit the South

Philadelphia Community at large. SPBA has worked tirelessly to promote, support,

and assist local business owners on a host of business, community, and government

related issues. Most of its members are also residents of South Philadelphia who are

deeply committed to improving the quality of life for South Philadelphia residents.

SPBA believes consumption sites would harm businesses and communities.

The South Philadelphia Communities Civic Association (“SPCCA”) has

been around for over 20 years and works to preserve the quality of life in its area.

The South Port Richmond Civic Association (“SOPO”), founded in 2018,

is an RCO in the City of Philadelphia. SOPO’s community members have voiced

their overwhelming opposition to consumption sites at numerous meetings.

The West Torresdale/Morrell Park Civic Association was established in

the 1950’s, with a resurgence in 2015, and provides a forum where members of the

community can come together to acquire and disseminate information on many

issues that affect its neighborhood including zoning, health, safety and crime. The


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Association fosters ways to support others in its common goal of maintaining and

enhancing the quality of life in its neighborhood. The Association strongly opposes

allowing consumption sites anywhere in the City of Philadelphia.

SUMMARY OF ARGUMENT

Amici are civic associations representing the Philadelphia neighborhoods

most likely to be affected by the operation of illegal drug consumption sites and the

police officers who are sworn to enforce the law and protect those neighborhoods.

Amici have witnessed first-hand the destructive impact drug use has on a community

and are the very people Congress sought to protect when it outlawed the maintenance

of “any place” for the use of illegal drugs. 21 U.S.C. § 856(a). In the words of the

bill’s sponsor: “[A]s a nation of hometowns, neighborhoods and families we have

stood up and said, ‘enough.’” 132 Cong. Rec. 26447 (1986) (statement of Sen.

Chiles). Accordingly, Congress prohibited “places where users congregate to

purchase and use” drugs to ensure that “our streets [do] not become toxic waste

dumps of the drug trade.” Id. That legislative aim is embodied in the law’s plain

language, which contains no exceptions.

The District Court’s focus on whether supervised consumption sites were

explicitly contemplated by Congress at the time of passage turns rules of statutory

interpretation on their head. What matters is not whether Congress anticipated

Safehouse’s existence; what matters is whether the law’s plain text applies to its


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conduct. “It is not for [courts] to speculate, much less act, on whether Congress

would have altered its stance had the specific events of this case been anticipated.”

Tennessee Valley Auth. v. Hill, 437 U.S. 153, 185 (1978). And, if anything, the

express statutory language and Congress’s continuing refusal to allow consumption

sites even as it has amended § 856 and passed numerus other drug laws, shows that

its focus was never on the motives of those that create and maintain such places, but

instead remained at all times on prohibiting the damage to neighborhoods inevitably

caused by the concentration of drug use.

Common sense, amici’s first-hand experience, and relevant studies confirm

that consumption sites would lead to the very harms Congress sought to eliminate.

Every day, amici already suffer the consequences of the drug epidemic in their

neighborhoods. They witness shootings in the streets as rival drug dealers battle

over territory. They are the victims of crimes committed by addicts seeking to fund

their habits. They are the citizens who wake up to streets filled with syringes, trash,

and human waste. Supervised consumption sites would exacerbate all of these

problems by attracting more addicts and more drug dealers to the neighborhoods

where Safehouse chooses to unleash its unlawful social experiment.

Amici who work in law enforcement further understand that Safehouse is not

only asking for a judicially crafted waiver from federal law, but also for the

establishment of law-free zones surrounding its locations. Safehouse’s illegal sites


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would threaten the rule of law and put police officers in the untenable position of

determining, in a quickly changing environment, whether to enforce the laws they

have sworn to uphold or instead to obey what appear to be unwritten directions to

look the other way. Philadelphia’s District Attorney has already promised not to

prosecute illegal drug use at consumption sites.2 Supporters of consumption sites,

like Philadelphia’s Mayor and District Attorney, understand that any other policy

would defeat the purpose of the entire project—a project necessarily grounded in

ensuring that Safehouse’s patrons, who purchase, possess, and consume illegal

drugs, can travel to and from the consumption sites free from any interference by

law enforcement.

Safehouse does not really challenge the deleterious impact of its actions on

the neighborhoods and on law enforcement. Instead, it asks the courts to turn a blind

eye to the clear text, context, and history of the law because, Safehouse claims, its

motives are virtuous. Even if true, whether to permit these facilities is a legislative

decision that Safehouse has no right to make unilaterally. Such balancing is left to

our representatives in Congress. Here, Congress has prohibited the maintenance of

“any place” for the purpose of illegal drug use. And all that amici ask this Court to

do is enforce the law as written.

2 See Cherri Gregg, Krasner: Philly DA’s Office Won’t Prosecute Those Using Safe Injection Sites, CBS PHILLY (Feb. 14, 2018), https://cbsloc.al/2XDOZ9B.


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ARGUMENT

I. Drug Consumption Sites Would Unleash The Precise Harms Congress Intended To Prevent.

The Government’s opening brief and other amicus briefs ably explain why the

plain text of 21 U.S.C. § 856 prohibits Safehouse from operating drug consumption

sites. Because that language is clear and unambiguous, the bill’s legislative history

and the various circumstances contemplated by various legislators should be

irrelevant. The text governs. But, even if it were necessary to consider the statute’s

purpose and legislative history, those factors conclusively confirm that Safehouse’s

proposal would unleash the very harms that Congress sought to prevent when it

enacted (and later expanded) § 856. Congress crafted § 856 to prohibit the creation

and maintenance of “places where users congregate to purchase and use [illegal

drugs].” 132 Cong. Rec. 26447. That is because Congress understood that the

concentration of drug use and dealing poses a unique threat to community wellbeing

and public order. That understanding is evident in the statute’s explicit language, its

legislative context, and the statements of its chief legislative proponents. And, since

the law’s enactment, Congress has chosen time and again to maintain the prohibition

against such places of drug use, even in the face of repeated amendments to the

statute and the passage of other drug laws.


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A. Congress Enacted § 856 to Protect Neighborhoods from Places That Concentrate Illegal Drug Use.

Section 856 was passed as part of the Anti-Drug Abuse Act of 1986 (“the

Act”), Pub. L. No. 99-570, 100 Stat. 3207. The best source of congressional intent—

the text—demonstrates that the law is not linked to the motive behind opening a drug

consumption site. Instead, the Act was deliberately crafted to encompass “any

place” made available for the purpose of illegal drug use. That scope is unrestrained

by any carve outs for conduct undertaken with benevolent intentions.

In fact, the Act is not just silent on the topic of motive; its prohibition

explicitly applies whether the facility is made available “with or without

compensation.” 21 U.S.C. § 856(a)(2). That is because Congress realized that

places of concentrated drug use pose the same risks to communities, whether their

operator’s subjective motive is to cash-in on addiction or is instead to facilitate drug

use in a benevolent non-profit manner. The simple reality is that when addicts and

drug dealers flood amici’s neighborhoods, it would make little difference that the

destructive consequences are the product of good intentions.

The bill’s sponsor, Democratic Senator Lawton Chiles, was crystal clear that

Congress specifically sought by the passage of the Act to eliminate “places where

users congregate to purchase and use” drugs. 132 Cong. Rec. 26447 (1986). Indeed,

Senator Chiles left no doubt that the Act was being passed to protect communities

like amici’s from the negative effects of establishing and maintaining places of


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concentrated drug activity: “We have this bill on the floor today because as a nation

of hometowns, neighborhoods and families we have stood up and said, ‘enough. No

more poison.’” Id. As experience shows, the pernicious effects of concentrated drug

use occur wherever a place is maintained for consumption.

The Act’s historical context also confirms that the statute prohibits the

maintenance of “any place” for the purpose of illegal drug use, regardless of motive

and regardless of who supplies the drugs. By 1986, distributing, selling, and

possessing illegal drugs were already federal crimes. Comprehensive Drug Abuse

Prevention and Control Act of 1970, Pub. L. No. 91-513, § 401(a), 404(a), 84 Stat.

1236, 1260, 1264. However, Congress believed that merely banning possession and

distribution of controlled substances was insufficient to protect communities. See

132 Cong. Rec. 26447. Accordingly, it enacted § 856 to prevent the concentration

of drug use in “any place.” Congress did so because it was acutely aware that there

is a direct relationship between drug activity and the ensuing crime that devastates

neighborhoods, having found just two years before that: “90 percent of heroin users

rely upon criminal activity as a means of income” and “[m]uch of the drug

trafficking … results in increased violence and criminal activity because of the

competitive struggle for control of the domestic drug market.” National Narcotics

Act of 1984, Pub. L. No. 98-473, 98 Stat. 2168.


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B. The District Court Erred By Grounding Its Ruling on The Belief that Congress Never Contemplated Consumption Sites.

The District Court’s opinion rests on the assumption that Congress did not

specifically intend to outlaw consumption sites like Safehouse’s. According to the

District Court, there is “no credible argument can be made that facilities such as safe

injection sites were within the contemplation of Congress.” District Court Docket

No. (“Dkt.”) 133 at 2-3. But that is both legally irrelevant and factually incorrect.

The Supreme Court has repeatedly held that it is irrelevant whether Congress

contemplated a specific set of facts that are covered by a statue’s plain terms. For

example, in Tennessee Valley Authority v. Hill, the Court applied the Endangered

Species Act according to its plain terms, even though it “would require the

permanent halting of a virtually completed dam for which Congress has expended

more than $100 million.” 437 U.S. 153, 172 (1978). As the Court emphasized: “It

is not for [courts] to speculate, much less act, on whether Congress would have

altered its stance had the specific events of this case been anticipated.” Id. at 185.

Moreover, the District Court’s premise is demonstrably false. Congress made

it illegal to “knowingly and intentionally” make “any building, room, or enclosure”

“available … for the purpose of unlawfully … using a controlled substance.”

21 USC § 856(a)(2) (emphasis added). Its use of the all-encompassing word “any”

confirms that Congress deliberately chose to apply the statute’s prohibition across

the board, with no exceptions. See Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 219


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(2008). Section 856 was drafted to address the situation the parties face here—a

place that endangers communities because it concentrates illegal drug use. Even if

Congress did not “precisely envision” Safehouse’s proposal, Congress undoubtedly

“intended that the language it enacted would be applied as [written]. The remedy

for any dissatisfaction with the results in particular cases lies with Congress and not

with this Court.” Griffin v. Oceanic Contractors, Inc. 458 U.S. 564, 575-76 (1982).

In addition, subsequent legislative actions confirm that, contrary to the

District Court’s assumption, Congress consciously chose not to exempt consumption

sites. Section 856 has been amended twice—and each time Congress has expanded,

rather than contracted, its scope. See Appellant’s Br. 59-62. Of particular note, the

2003 amendment broadened § 856’s title from “Establishment of manufacturing

operations” to “Maintaining drug-involved premises” and made clear that

§ 856(a)(2) applied to all premises maintained for the purpose of using illegal drugs.

Protect Act, H.R. Rep. No. 108-66, at 68 (2003) (Conf. Rep.). Like § 856’s initial

enactment, its 2003 expansion was aimed at protecting communities from the ill

effects that naturally result from places that concentrate illegal drug use. As the

House Conference Report explained: “This expansion makes it clear that anyone

who knowingly and intentionally uses their property, or allows another person to

use their property, for the purpose of … using illegal drugs will be held accountable.”

Id. (emphasis added).


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In the end, Congress has never condoned consumption sites even though:

(1) they have existed for decades,3 and (2) Congress has passed numerous other drug

laws since 2003 that provide other resources for addressing the drug epidemic and

that lessen other drug penalties. For example, Congress reduced the crack-powder

disparity by passing the Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat.

2372, and recently enacted significant criminal justice reforms lessening punishment

in the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat 5194. Congress also

reversed course to permit clean needle exchanges after determining that the benefits

of such programs outweighed the potential costs. See Consolidated Appropriations

Act of 2016, Pub. L. No. 114-113, § 520, 129 Stat. 2242, 2652. And the landmark

2016 opioid prevention bill, the Comprehensive Addiction and Recovery Act

(“CARA”), Pub. L. No. 114-198, 130 Stat. 695, contains no provision exempting

consumption sites from the reach of § 856. The concept of “safe” consumption sites

existed at the time of these amendments—they were long in existence elsewhere.

See supra, n.3. Yet, Congress did not see fit to create a safe haven for consumption

sites. That choice was deliberate, not inadvertent, and “the legislature is presumed

to act with full knowledge of the facts upon which its legislation is based.” Chicago,

Milwaukee. & St. Paul. Ry. Co. v. Tompkins, 176 U.S. 167, 173 (1900).

3 See, e.g. Consumption rooms for legal drug-taking around the world, BBCNEWS (Apr. 12, 2013), https://bbc.in/2WT2hR4 (first government-sanctioned drug consumption room opened in Switzerland in 1986).


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II. Drug Consumption Sites Would Wreak Further Havoc On Neighborhoods And Police Forces That Are Already Suffering.

Everyone agrees that America is in the midst of a tragic, and often violent,

opioid epidemic. That epidemic has struck Philadelphia, and the particular

neighborhoods where amici live and work, especially hard. Amici have experienced

first-hand how dealers, drugs, and addicts can quickly flood into a community. As

a community’s corners become occupied with dealers protecting their turf, violence

ensues. Law-abiding citizens walking to or from work and children traveling to and

from school face the risk of getting caught in the crossfire. At the same time, those

suffering from addiction frequently turn to crime to gain the means to purchase their

fix. The community’s safety declines as police struggle to deal with this confluence

of illegal activity, violence, and drug-induced behavior. And, all those living and

working in the impacted neighborhoods are traumatized by the experience. See

Violence Policy Center, The Relationship Between Community Violence and

Trauma 3 (2017), https://bit.ly/2TvhIya. These are precisely the societal ills

Congress had in mind when it outlawed the maintenance of “any place” for illegal

drug use. Yet, the decision below ignored that legislative judgment by red-penciling

the statute to limit its application solely to establishments “similar” to “crack houses

and raves.” Dkt. 133 at 48; see also, id. at 43-45.


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A. The Devastating Harms Congress Sought to Prevent Are Real.

The illegal drug crisis has already gravely damaged amici’s neighborhoods.

Due to the influx of drug dealers and drug users, those communities’ citizens already

are forced to witness open-air drug use and drug sales,4 to walk through city blocks

littered with used syringes and trash,5 and to maneuver around “streets [that] have

become toilets.”6 Residents fear to leave their homes due to the “violence and

shootings” spawned by the area’s drug problem.7 And, in Kensington, the number

of people living on the streets skyrocketed in just one year, from 271 in 2017 to 703

in 2018—“a level unlike anything city officials have ever seen before.”8

In the meantime, Philadelphia has become a preeminent location for “drug

tourists,” with users traveling from all across the United States to Kensington for its

4 Aubrey Whelan, Eight months after Kensington’s disaster declaration, progress is tempered by the realities of the opioid crisis, PHILADELPHIA INQUIRER

(June 27, 2019), https://bit.ly/2XhW5oD. 5 Crystal Cranmore, ‘You’re Going To Get Hit By A Syringe’: Hundreds Take To Kensington To Make Community Safer, CBS PHILLY (April 6, 2016), https://cbsloc.al/2Xb8hTw; Katherine Scott, Chad Pradelli, & Dan Cuellar, ‘We were ambushed’: South Philadelphia residents outraged over plans for safe injection site, 6 ABC Action News (Feb. 27, 2020) and accompanying video, https://6abc.cm/3fzKXsM. 6 Jon Kamp, Wracked by Opioid Crisis, Philadelphia Braces for Tent-Camp Closures, WALL STREET JOURNAL (May 28, 2018), https://on.wsj.com/2IO8MR5. 7 Hayden Mitman, In Philly neighborhood with drug problem, children play in the streets again, PHILLY VOICE (July 20, 2016), https://bit.ly/2Lmv8cq. 8 Aubrey Whelan, Philadelphia’s Kensington ‘under siege’ as opioid-linked homelessness soars, PHILADELPHIA INQUIRER (Sept. 18, 2018), https://bit.ly/2J1PjLj.


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notorious—and cheap—heroin.9 And the desire for profit at any cost has stepped in

to support this industry, with one individual acting as a “guide”—leading customers

from public transit to the drugs, and carrying around a grocery bag full of clean

needles which he sells for $2 apiece.10 This guide “could help you find heroin,

cocaine, PCP, marijuana, Xanax, Percocet virtually any time of day or night” and,

can even “help you shop around, compare prices and quality.” 11 Judicially

sanctioned consumption facilities would only proliferate this disturbing dystopia.

To be clear, amici share Safehouse’s desire to help those users most at risk.

In fact, amici’s members are on the front lines of helping drug addicts.12 As Shannon

Farrell, President of the Harrowgate Civic Association, explained at a community

meeting, “We feed [the drug addicts], we clothe them, we have taken Narcan

trainings.”13 “We’ve done everything up until now that we’ve been asked to by the

city, by the advocates. If we see somebody bothering them and disrespecting [the

9 Jennifer Percy, Trapped by the “Walmart of Heroin”: A Philadelphia neighborhood is the largest open-air narcotics market for heroin on the East Coast. Addicts come from all over, and many never leave, N.Y. TIMES MAGAZINE

(Oct. 10, 2018), https://nyti.ms/2WMjPzs. 10 Id. 11 Id. 12 See Sara Hoover, New homes for those struggling with addiction set for heart of Philly opioid crisis, WHYY (Jan. 15, 2019), https://bit.ly/3fxfYgW. 13 Facebook Video: Kensington Community Meeting, Facebook (April 1, 2019), https://bit.ly/2EruYw9.


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drug addicts], we stop them. We don’t let them get hurt—even though they’re not

very kind to us.”14

But these communities draw the line at consumption sites. First and foremost,

residents fear for their children. For example, local leaders have warned that a “safe

harbor for drug users” will encourage more young men to sell drugs and could lead

them to prison.15 At community meetings addressing the proposed consumption

sites, local residents have passionately protested that they are “tired of our kids being

exposed to the same environment over and over again.”16 “This is the one time …

we’re asking for our community to have a say,” Farrell said. 17 “We’ve done

everything. This is the one time our kids come first.” 18

Others worry about making drug-related crime even worse. It is common

sense that concentrating illegal drug use will naturally increase drug dealing in the

area, which will inevitably lead to greater violence. That is especially true where

the local prosecutorial authority openly announces it will not even attempt to enforce

the law against drug users. Drug dealers fight for territory, and it is only logical that

14 Id. 15 Darryl C. Murphy, What ‘safe-injection sites’ sound like to people on the front lines of the city’s drug wars, PLAN PHILLY (Feb. 12, 2018), https://bit.ly/2Jauor9. 16 Joel Wolfram, Kensington residents passionately debate supervised injection facility, WHYY (Mar. 28, 2018), https://bit.ly/2Hv9uA9. 17 Id. 18 Id.


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they will fight intensely for the prime territory near the consumption sites. 19

Safehouse’s proponents cite academic studies suggesting that these communities

have nothing to worry about because violent crime did not increase near facilities in

Canada and Australia. However, that apples-to-oranges comparison ignores the fact

that those nations already have far lower violent crime rates.20 The residents in

neighborhoods that Safehouse is targeting know better. They rely on their personal

experience that “in North Philly, in Kensington, those drug dealers are violent.”21

Safehouse’s proponents argue that its facilities will prevent these externalities

by, for example, providing bathrooms. But those promises are facially preposterous.

For example, the proposed consumption site in South Philadelphia would have been

open for only four hours a day, five days a week.22 The notion that addicted

individuals would visit the site like a family trip to the supermarket—there for a

short time, and then back home—is fanciful. After all, many users use more than

19 Kate Kilpatrick, Philadelphia’s plan for opioid safe injection site splits opinion, THE GUARDIAN (July 18, 2018), https://bit.ly/2AlBTax. 20 For example, in 2018, the last year for which numbers are available, Toronto had a murder rate of 2.26 murders per 100,000 people, whereas Philadelphia had a rate of 22.1. Compare Statistics Canada, Number and rate of homicide victims, by Census Metropolitan Areas, https://bit.ly/2ZqJuiK with City-Data.com Crime rate in Philadelphia, https://bit.ly/3cHLGq2. 21 Kilpatrick, supra n.19; Brian X. McCrone and Dan Stamm, Drug-Related Slayings Blamed for 10-Year High in Philly Homicides, NBC PHILADELPHIA (Dec. 18, 2018), https://bit.ly/2xigYR9.22 Howard Monroe, Safe Injection Site Opening Inside Same South Philadelphia Plaza That Houses Day Care, Senior Center, CBS PHILLY (Feb. 26, 2020), https://cbsloc.al/3adi4PQ.


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once a day. Rather than leave, they would linger. When the consumption site is

closed, they would be back to shooting up in the streets, and drug dealers would

descend upon the area where Safehouse has concentrated their customers. Again,

these are precisely the predictable harms § 856 was crafted to prevent.

B. Creating Safe Havens for Illegal Drug Activity Will Undermine the Rule of Law and Make Effective Policing Impossible.

Amici also know that introducing consumption sites will hamstring police

officers’ efforts to control the drug trade. As in countries that allow consumption

sites, police would inevitably be forced to cease enforcing drug laws near the sites.23

Philadelphia’s District Attorney has already pledged not to prosecute illegal drug

use at consumption sites.24 How could it be otherwise? If the police engage in

genuine enforcement efforts, users will avoid the consumption site and thereby

defeat its purpose. As a result, the District Court’s opinion effectively would create

criminal economic zones in which dealers can ply their trade without fear of

consequence. And it will be entirely unclear what policing tactics, apart from the

lack of ultimate prosecution, will be permissible within those law-free zones,

23 See Camilla Theakstone, Drug dealers are flocking to Melbourne’s controversial injecting room to sell heroin – and police are powerless to stop them, DAILY MAIL (Apr. 14, 2019), https://www.dailymail.co.uk/news/article-6918549/Drug-dealers-flocking-Melbournes-controversial-injecting-room-sell-heroin.html. 24 See Gregg, supra n.2.


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whatever their boundaries might turn out to be.25 If allowed to stand, the decision

below would permit Safehouse, a private, non-governmental group, to nullify the

operation of state and federal drug laws without any legislative input.

C. Consumption Sites Have Spawned Public Disorder in Countries That Permit Them.

In an attempt to distract from the controlling legislative judgment set forth in

§ 856, Safehouse points to other countries where its model has supposedly worked.

But rather than supporting Safehouse’s position, those foreign examples only prove

that consumption sites invite crime and threaten community safety.

Melbourne’s consumption site, according to an Australian police union chief,

has created a “one-stop shop” for crime in the area by attracting illegal drug buyers

who resort to crime to feed their addictions.26 Melbourne police officers report that

increased theft and property crime has followed the influx of drug users to the

consumption site area.27 Likewise, Calgary police officers have warned that the

25 The Mayor’s office claims to have a “public safety plan” to try to prevent “drug dealing, crime, loitering, or other disorderly behavior” around Safehouse’s sites. Dkt. 151-1 at 6-7. However, the Mayor must know that his promise is illusory. First, the Mayor has offered no details on how such a “plan” would be implemented. That failure is hardly surprising. The Mayor supports consumption sites, see id., and active police enforcement of the law would necessarily render those sites a nullity. Second, no matter how many “plans” the Mayor proclaims, they will have no practical effect so long as the District Attorney continues assuring drug users and dealers that they will not be prosecuted for their unlawful conduct. 26 Remy Varga, Melbourne injecting centre a ‘one stop shop for crime’, says police union boss, THE AUSTRALIAN (May 22, 2019), https://bit.ly/2VUne0c. 27 Id.


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province’s consumption site attracts drug dealers, and residents complain about

rising violent crime near the site.28 One Calgary resident compared living across the

street from the site—and enduring daily break-ins—to being “at war.”29 And, in

Toronto, residents and workers lament that the site lures in drug users who assault

them and damage their property.30

Consumption sites also encourage open drug use outside their walls. Near the

Calgary consumption site, a bookstore owner reports that he and his staff are “not

equipped” to deal with the countless drug users who enter his store to consume

drugs.31 Near the Toronto consumption site, residents report seeing more used

needles in the street and more drug dealers selling their wares “in plain sight.”32

And, in Melbourne, someone who travelled to the city’s consumption site to buy

drugs and inject them in a nearby parking lot put it bluntly: “It’s a free-for-all.”33

28 Ryan Rumbolt, Beltline businesses near safe injection site frustrated with rise of violent crimes, CALGARY HERALD (Dec. 16, 2018), https://bit.ly/2JZG8vI. 29 Meghan Potkins, We’re basically at war’: Sheldon Chumir’s zone of overdoses, needles and fear, CALGARY HERALD (Feb. 26, 2019), https://bit.ly/2Hv8k7L. 30 See Samantha Beattie, Do supervised injection sites bring crime and disorder? Advocates and residents disagree, THE STAR (Aug. 16, 2018), https://bit.ly/2MS13iF. 31 Meghan Potkins, ‘Nobody is protecting us:’ Safe drug site concerns meeting at city hall gets emotional, CALGARY SUN (Feb. 26, 2019), available at https://bit.ly/32zxR8M. 32 Beattie, supra n.30. 33 Paul Sakkal, Police powerless to stop dealers exploiting drug loophole around injecting room, THE AGE (Apr. 11, 2019), https://bit.ly/2UIus6l.


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As a result, community life is suffering. Consider the effects of Calgary’s

consumption site: a grandmother and her grandchildren now “walk in fear” thanks

to increased drug use on the sidewalks; fewer children play in the park; and local

businesses have shut down.34 In Melbourne, children who live near the city’s

consumption site no longer can walk to school.35 Likewise, in Toronto, “kids are

afraid to walk to their local park, people are afraid to walk on Sundays through their

neighbourhood or to invite friends and families over for a Saturday barbecue.”36

A recent report issued by Canadian health officials confirms that Calgary

consumption rooms have created a health and safety nightmare similar to the one

amici justifiably fear would occur in their neighborhoods.37 The report uncovered

increased needle debris, increased crime, and “open defecation and urination in

public spaces” near consumption sites.38 The new crime includes dealers “openly

conducting their business unabated near the [sites] due to a burgeoning client base”

34 Rick Bell, Welcome to Calgary’s safe injection horror show, CALGARY SUN

(Feb. 14, 2019), https://bit.ly/2Eqw6Qm. 35 Luke Henriques-Gomes, ‘It’s saving lives’: community rallies to support Melbourne’s drug-injecting room, THE GUARDIAN (Sept. 15, 2018), https://bit.ly/30zzbal. 36 Samantha Beattie, Don’t open more drug injection sites here, downtown city councillor says, THE STAR (Aug. 14, 2018), https://bit.ly/2VTiibY. 37 See Alberta Health, Government of Alberta, Supervised Consumption Services Review Committee “Impact: A socio-economic review of supervised consumption sites in Alberta” (March 2020), available at https://bit.ly/2WZjfyF. 38 Id. at p. iii, 12, 25-27, 38.


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and theft, prostitution, and breaking and entering by drug users.39 The report found

that consumption rooms “exacerbate existing social problems and encourage a

higher concentration of drug users and trafficking within those areas.”40 There is no

reason to believe things would be better in Philadelphia.

D. This Court Should Enforce § 856 to Protect Communities as Congress Intended.

The decision below focused intensely on Safehouse’s motive, as if all other

considerations are irrelevant. The District Court held that, even though Safehouse

intends for individuals to enter its property for the purpose of illegal drug use, § 856

does not apply because Safehouse’s motivation is “reducing the harm of drug use.”

Dkt. 133 at 49.

That sort of legislative vigilantism finds no support in the rule of law—let

alone the specific statute at issue here. Moreover, by eschewing the legislative

process in favor of one group’s one-sided perspective, it ensures resentment and

backlash. When Safehouse unexpectedly announced its plans to quickly open a

facility on the heels of the District Court’s decision, South Philadelphia erupted. Its

residents felt “ambushed” and “blindsided” that Safehouse “snuck” its plans into

39 Id. at 35. 40 See id.


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their community.41 Worse yet, the group attempted to open its first facility in a

building that “houses two day care centers, a senior center, [and is] within 500 feet

of a school.”42 In the end, the project was stalled by an emotional community

backlash that convinced the landlord of the planned facility to back out—at least for

the moment.

The whole ordeal illustrates why the decision to allow consumption sites must

come through the democratic process and not judicial fiat. The public policy

alternatives at issue here unsurprisingly ignite strong passions and engender deep

divisions. For over two centuries our constitutional order has dictated that policy

questions like these should be resolved through congressional hearings to determine

facts, vigorous public debate that informs the legislative balancing of competing

interests, and a finely wrought lawmaking process that requires passage by the

People’s representatives in the House and Senate and approval by the President.

That time-tested deliberative process minimizes civil discord and maximizes respect

for the rule of law. No one party, no matter how pure their motives, is entitled to

short-circuit the values and processes of our constitutional system.

41 Katherine Scott, Chad Pradelli, & Dan Cuellar, ‘We were ambushed’: South Philadelphia residents outraged over plans for safe injection site, 6 ABC Action News (Feb. 27, 2020) and accompanying video, https://6abc.cm/3fzKXsM. 42 Id.


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CONCLUSION

The District Court’s judgment should be reversed.

Respectfully submitted,

/s/ Michael H. McGinley

STEVEN B. FEIRSON

(PA Bar No. 21357) JUSTIN M. ROMEO

(PA Bar No. 326684) THEODORE E. YALE

(PA Bar No. 324678) DECHERT LLP Cira Centre 2929 Arch Street Philadelphia, PA 19104

MICHAEL H. MCGINLEY

(PA Bar No. 325545) DECHERT LLP Cira Centre 2929 Arch Street Philadelphia, PA 19104 (215) 994-4000 [email protected]


May 22, 2020


CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limitation of Federal R. App. P.

32(a)(7) and 29(a)(5) because this brief contains 6,279 words, excluding the parts of

the brief exempted by Fed. R. App. P. 32(f).

This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5)

and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been

prepared in a proportionally-spaced typeface using Microsoft Word 14-point Times

New Roman font.

Date: May 22, 2020




CERTIFICATE OF SERVICE AND ELECTRONIC FILING

I hereby certify that:

1. On May 22, 2020, I electronically filed the foregoing brief with the Clerk of the Court using the CM/ECF system.

2. Using Windows Defender Antimalware Version 4.18.2001.7, Windows Defender Antivirus Version 1.315.1096.0, and Windows Defender Antispyware Version 1.315.1096.0, the electronic version of this brief was scanned for viruses and found to contain none. See 3d Cir. L.A.R. 31.1(c) (2011).

3. Pursuant to the “Notice Regarding Operations to Address the COVID-19 Pandemic” issued by this Court on March 17, 2020 and stating that “[t]he filing of paper copies of briefs and appendices is deferred pending further direction of the Court,” paper copies of this brief have not been filed with the Clerk of Court at this time. See 3d Cir. L.A.R. 31.1(a) (2011).

4. All participants in the case are registered CM/ECF users and service will be accomplished by the CM/ECF system.

Date: May 22, 2020




CERTIFICATE OF BAR ADMISSION

Pursuant to 3rd Cir. L.A.R. 28.3(d), I hereby certify that Steven B. Feirson,

Michael H. McGinley and Justin M. Romeo are members in good standing of the

bar of the United States Court of Appeals for the Third Circuit.

Date: May 22, 2020




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