“Start Spreading the News” – New York is the First City to Open Safe Injection Sites

new york safe injection sites

Start spreading the news, I’m leaving today I want to be a part of it: New York, New York

These little town blues, are melting away I’ll make a brand new start of it in old New York

While California is still endeavoring to open safe injection sites through Senate Bill 57 New York City took the giant step and did it becoming the first city in the country to open the doors for people who need a safe and non-judgemental supervised consumption site to use their drugs.  

New York City is officially the first jurisdiction in the U.S. to open safe consumption sites where people can use currently illicit drugs in a medically supervised environment and receive treatment resources.

For readers who do not know what a safe injection site is, it is not a place to promote illegal drug use or bring crime to neighborhoods. Addiction is a public health issue not a criminal justice issue. Rather they are overdose prevention centers that provide a user a safe and clean environment with clinicians prepared to step in should there be an emergency. 

Proponents argue that they save lives and can help people in addiction reconnect with society and get health services.

It’s a harm reduction service that advocates have long argued could serve a critical role in reducing the overdose crisis. 

New York will authorize two sites to begin operation as soon as Tuesday. Both locations are in Manhattan: East Harlem and Washington Heights. 

The sites will be run by two nonprofits — New York Harm Reduction Educators in East Harlem and the Washington Heights Corner Project — a Health Department spokesman said. Both of the nonprofits are funded by the city, but the city will not staff or operate the facilities, the spokesman said.

Overdose prevention centers (OPCs) as the sites are called will offer people who use drugs clean needles, and provide people medical care and the ability to be connected to social services as well as treatment for addiction, according to the city. The centers will have naloxone available, which is used to treat overdoses and provide tests to detect fentanyl, a powerful narcotic often used to cut other drugs like heroin and OxyContin. “Overdoses have become prevalent nationwide because of the use of fentanyl and intravenous drug use is on the rise.”

“New York City has led the nation’s battle against COVID-19, and the fight to keep our community safe doesn’t stop there. After exhaustive study, we know the right path forward to protect the most vulnerable people in our city. And we will not hesitate to take it,” said Mayor Bill de Blasio. “Overdose Prevention Centers are a safe and effective way to address the opioid crisis. I’m proud to show cities in this country that after decades of failure, a smarter approach is possible.” 

This is the right step for New York. The drug overdose deaths this year are staggering and have exceeded numbers since the city began keeping documentation of such drug related deaths in 2000.

In the first three months of 2021 alone, 596 people died of overdoses in the city — the highest rate of such drug-related deaths in a three-month span since the city began keeping such data in 2000. In 2020, more than 2,000 people died from overdoses throughout the five boroughs — another all-time high, according to city records.

There was an immediate backlash from conservatives at the news of the opening of the injection sites. Both neighborhoods have become home to addicts either shooting up in the streets in Washington Heights or gathering near the local methadone clinic in East Harlem. 

And then there is federal law that conservative politicians can latch on to, to try to shut the program down. But are they correct? Can they hide behind a federal law known as the “Crack House” Statute?

Rep. Nicole Malliotakis (R-S.I., Brooklyn) pointed to already existing law as her central argument against the new city policy. 

A federal law, known broadly as the “crackhouse statute,” prohibits using or opening “any place, whether permanently or temporarily, for the purpose of manufacturing, distributing or using any controlled substance.”

In a letter to Attorney General Merrick Garland, Malliotakis called the new policy “unlawful” and urged him to “close these sites and prevent this dangerous plan from expanding.” 

“Experiments with ‘safe’ injection sites have resulted in a concentration of addicts in neighborhoods where these sites are established, deteriorating quality of life and leading to increases in homelessness, theft and violence,” she wrote, referring to similar policies enacted in foreign countries. “Subjecting Americans to such an experiment here in the United States is not only illegal, but cruel.”

She also cited the recent Philadelphia site that was blocked from opening in January 2021 by a federal court decision. 

On the legal front, though, Malliotakis cited a January 2021 federal court decision effectively blocking an injection site in Philadelphia.

But what if an argument can be made that would allow for safe injection sites within the “Crack House” Statute? That is what one Boston College legal scholar proposed in a law review article. 

Although serious discussion of safe injection facilities is new to the United States, they have been operating in other countries for decades. Safe injection facilities are founded on the principle of harm reduction, which “[i]n much of the developed world . . . is recognized as one of the four pil- lars of drug control, alongside enforcement, treatment, and prevention.”32 Harm reduction programs are designed “to aid dependent drug users with- out attempting to curtail their use.”33 The idea is to reduce the negative con- sequences associated with drug use, both to the user and to the public, with- out necessarily reducing drug use itself. 

Despite the crack house statute, an obscure provision of the federal Controlled Substances Act (CSA) might allow states and localities to establish government-run safe injection sites. Buried in the CSA is a provision that immunizes state and local officials who violate federal drug laws in the course of “the enforcement of any law or municipal ordinance relating to controlled substances.” This provision was almost surely intended to protect state and local police officers that possess and distribute drugs in connection with undercover operations. Nevertheless, this Article argues, the text of the immunity provision and the scarce case law interpreting it suggest it could shield government-run safe injection sites from federal interference.

This Article proposes a novel solution to the conflict between cities and the federal government over safe injection sites in the form of an ob- scure provision of the Controlled Substances Act that immunizes officials who are engaged in the enforcement of state and local laws relating to con- trolled substances. Although the CSA’s immunity provision was likely writ- ten with undercover police officers in mind, the plain language of the law seems to apply to a government-run safe injection site. A handful of courts have already relied on the statute to immunize government officials who were engaged in the enforcement of state medical marijuana laws. The logic of those decisions supports immunizing the operators of government-run safe injection sites. To be sure, there is other precedent that points toward a narrower reading of the immunity provision, so the case for applying it to safe injection sites is not open-and-shut. But if courts were to agree with the interpretation of the immunity provision outlined in this Article, cities would be free to open safe injection sites without putting their employees at risk of federal prosecution.

If not for that federal court blocking the opening of Safehouse then Philadelphia would have beaten New York to the punch in January of this year. It’s not a race to see which city is first. It’s a race to save lives. 

Safehouse won a battle in a federal district court in 2019 to proceed with the facilities. But in January, the U.S. Court of Appeals for the Third Circuit overturned the decision, ruling that permitting such facilities would violate a 1980s-era federal statute that bars organizations from running operations “for the purpose of unlawfully… using controlled substances.” That law was passed while Biden served in the Senate and helped push punitive drug policies that have had lasting consequences.

But a federal court blocked the opening of what might have been the first “supervised injection site” when it ruled that it violated federal law citing the “crack house” statute.

Safehouse, a Philadelphia nonprofit, had been trying for years to open the first such facility in that city. The supervised injection site would allow people to bring illegal opioids and inject them under medical supervision to prevent fatal overdoses.

Judges Stephanos Bibas and Thomas L. Ambro called Safehouse’s motives “admirable” but said that while “the opioid crisis may call for innovative solutions, local innovations may not break federal law.”  “But Congress has made it a crime to open a property to others to use drugs. … And that is what Safehouse will do,” the opinion said, citing a federal law passed in 1986 and commonly known as the “crack house” statute.

The Safehouse case landed on the doorsteps of the U.S. Supreme Court. But like all things Supreme Court these days anything that is for the sake of the good does not get reviewed or considered for the sake of the sake of the good and in October the high court decided not to review Safehouse’s efforts to open the safe injection site. 

The justices announced on Tuesday that they decided against taking up the case raised by the nonprofit Safehouse, despite the pleas of attorneys general from 10 states and D.C. who recently filed amici briefs urging the court’s involvement.

Organizers of the Safehouse project say federal laws are not intended to criminalize medically supervised centers. Safehouse vice president Ronda Goldfein says the fight is not over. The U.S. tallied more than 93,000 overdose deaths last year, according to CDC data.

The reason the case landed on the doorsteps of the Supreme Court was as stated above they were blocked by a federal court from opening. What is worse is the Biden administration is now silent on the issue.  

Safehouse was set to launch a safe consumption site in Philadelphia before being blocked by a legal challenge from the Trump administration. It filed a petition with the nation’s highest court in August to hear the case.

But while the Supreme Court declined to take action—and the Biden administration passed up its voluntary opportunity to weigh in at this stage, which may well have influenced the justices’ decision—activists say the battle will continue at a lower federal court level, where the administration will have to file briefs revealing its position on the issue.

“We were disappointed that the government chose not to respond to our petition,” Safehouse Vice President Ronda Goldfein told Filter. “They said, ‘We’re going to waive our right to respond,’ [and] the Supreme Court declined to review our case. Ordinarily that sounds like the end of the road—but in our case we are still pursuing our claims in a different venue.”

The fight in Philadelphia is far from over. Activists planned to submit multiple arguments related to religious freedom and interstate commerce protections in federal district court. The Biden administration would be compelled to file a response by November 5 or else they lose. 

A coalition of 80 current and former prosecutors and law enforcement officials—including one who is President Joe Biden’s pick for U.S. attorney of Massachusetts—have filed a brief urging the Supreme Court to take up a case on the legality of establishing a safe injection facility where people can use illicit drugs in a medically supervised environment.This battle is far from over and the U.S. is far behind Vancouver and Europe in harm reduction which is why In 2016, opioid related deaths surpassed 40,000 in the United States, more than double the toll from six years prior. And the numbers are climbing. Isn’t it time this country took a page out of  Canada’s and Europe’s playbook?

Author: Sherri Margolin (Dark Matters)

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