Split Third Circuit panel declares that planned safe injection site would be in violation of federal law

As noted in this post from 15 months ago, a federal district judge ruled a Philadelphia nonprofit group’s plan to open a sef injection site would not violate the Controlled Substances Act. But, as reported in this local press piece, headlined “A federal court rejected the plan for a supervised injection site in Philly,” a Third Circuit panel has now reversed this ruling. Here is the start of the majority opinion in US v. Safehouse, No. 20-1422 (3d Cir. Jan. 12, 2021) (available here):

Though the opioid crisis may call for innovative solutions, local innovations may not break federal law.  Drug users die every day of overdoses.  So Safehouse, a nonprofit, wants to open America’s first safe-injection site in Philadelphia.  It favors a public-health response to drug addiction, with medical staff trained to observe drug use, counteract overdoses, and offer treatment.  Its motives are admirable. But Congress has made it a crime to open a property to others to use drugs.  21 U.S.C. §856.  And that is what Safehouse will do.

Because Safehouse knows and intends that its visitors will come with a significant purpose of doing drugs, its safeinjection site will break the law.  Although Congress passed §856 to shut down crack houses, its words reach well beyond them. Safehouse’s benevolent motive makes no difference.  And even though this drug use will happen locally and Safehouse will welcome visitors for free, its safe-injection site falls within Congress’s power to ban interstate commerce in drugs.

Safehouse admirably seeks to save lives.  And many Americans think that federal drug laws should move away from law enforcement toward harm reduction.  But courts are not arbiters of policy. We must apply the laws as written.  If the laws are unwise, Safehouse and its supporters can lobby Congress to 11 carve out an exception.  Because we cannot do that, we will reverse and remand.

The dissenting opinion authored by Judge Roth starts this way:

The Majority’s decision is sui generis: It concludes that 8 U.S.C. § 856(a)(2) — unlike § 856(a)(1) or any other federal criminal statute — criminalizes otherwise innocent conduct, based solely on the “purpose” of a third party who is neither named nor described in the statute.  The text of section 856(a)(2) cannot support this novel construction.  Moreover, even if Safehouse’s “purpose” were the relevant standard, Safehouse does not have the requisite purpose.  For these reasons, I respectfully dissent.

It will be interesting to see if Safehouse seeks en banc review and/or certiorari.  It will also be interesting to see if the Justice Department under the Biden Administration might have a different view on safe injections sites than the Trump Administration.