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United States v. Safehouse

United States District Court, E.D. Pennsylvania

October 2, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
SAFEHOUSE, a Pennsylvania nonprofit Corporation; JOSE BENITEZ, as President and Treasurer of Safehouse, Defendants. SAFEHOUSE, a Pennsylvania nonprofit Corporation, Counterclaim Plaintiff,
v.
UNITED STATES OF AMERICA, Counterclaim Defendant, and U.S. DEPARTMENT OF JUSTICE; WILLIAM P. BARR, in his official capacity as Attorney General of the United States; and WILLIAM M. McSWAIN, in his official capacity as U.S. Attorney for the Eastern District of Pennsylvania, Third-Party Defendants.

          MEMORANDUM

          Gerald Austin McHugh United States District Judge

         I. The Relevant Factual Background .......................................... 4

         II. Procedural Posture .................................................................. 5

         III. The Controlling Procedural Standard ..................................... 7

         IV. The Statutory Question ........................................................... 7

         a. The Absence of a Controlling Standard of Statutory Construction ......................................................................... 7

         b. Interpretation of 21 U.S.C. § 856(a) ................................. 13

         i. Authorization ............................................................... 15

         ii. Meaning of “unlawfully . . . using” ............................. 18

         iii. To whose purpose (a)(2) refers .................................... 19

         iv. Meaning of “for the purpose of unlawfully . . . using a controlled substance” ................................................... 34

         V. Application of (a)(2) to Safehouse ........................................ 49

         VI. Application of (a)(1) to Safehouse ........................................ 55

         VII. Religious Freedom Restoration Act ...................................... 55

         VIII. Conclusion ............................................................................ 56

         *****

         This is a declaratory judgment action brought by the United States seeking to enjoin the operation of a proposed safe injection site for opioid users in the City of Philadelphia. The Government contends that its operation is unlawful under the Controlled Substances Act (CSA). As an initial matter, it is useful to delineate what is not before the Court. The question is not whether safe injection sites are an appropriate means of dealing with the opioid crisis, either as a matter of public policy or a matter of public health. Nor does this Court have jurisdiction to address the concerns raised by residents of the beleaguered neighborhood of Kensington in Philadelphia as to the appropriate location for the operation of such a facility, if it is lawful. It is also helpful to observe that, although both parties globally invoke various aspects of the Controlled Substances Act, a sprawling statute amended many times over many years, this case focuses on a single narrow provision of the Act, 21 U.S.C. § 856(a)(2)-colloquially known as the “Crack House” statute-as the legal basis for the injunction sought by the Government.

         This narrowness of focus reflects a fundamental underlying reality, which is that no credible argument can be made that facilities such as safe injection sites were within the contemplation of Congress either when it adopted § 856(a) in 1986, or when it amended the statute in 2003. And that baseline reality ultimately has substantive significance in determining whether this statute is properly applied to the safe injection site proposed by Safehouse.

         Having examined the text and employed a number of tools of statutory construction, I conclude that the provision on which the Government relies is reasonably capable of more than one interpretation. This supports a further conclusion that consideration of the legislative evidence surrounding passage of this provision is appropriate. As discussed below, courts must exercise extreme care in discerning the objective sought by Congress in enacting a statute. That said, having reviewed materials I consider appropriate in discerning what Congress sought to address in enacting § 856(a)(2), there is no support for the view that Congress meant to criminalize projects such as that proposed by Safehouse. Although the language, taken to its broadest extent, can certainly be interpreted to apply to Safehouse's proposed safe injection site, to attribute such meaning to the legislators who adopted the language is illusory. Safe injection sites were not considered by Congress and could not have been, because their use as a possible harm reduction strategy among opioid users had not yet entered public discourse. Particularly in the area of criminal law, it is the province of Congress to determine what is worthy of sanction. A line of authority dating back to Chief Justice John Marshall cautions courts against claiming power that properly rests with the legislative branch.[1] A responsible use of judicial power under those circumstances is to decline to expand the scope of criminal liability under the statute and allow Congress to address the issue.

         I.

         The Relevant Factual Background

         Safehouse seeks to open an “Overdose Prevention Site, ” which will offer a variety of services aimed at preventing the spread of disease, administering medical care, and encouraging drug users to enter treatment. According to Safehouse's representations about its protocol, [2]when one arrives at Safehouse, they will first go through a registration process. The participant will provide certain personal information and receive a physical and behavioral health assessment. Safehouse staff will then offer a variety of services, including medication-assisted treatment, medical care, referrals to a variety of other services, and use of medically supervised consumption and observation rooms. There is nothing in the protocol that suggests Safehouse will specifically caution against drug usage.

         Participants who choose to use drugs in the medically supervised consumption room will receive sterile consumption equipment as well as fentanyl test strips once they enter the room. At no point will Safehouse staff handle or provide controlled substances. Staff members will supervise participants' consumption and, if necessary, intervene with medical care, including reversal agents to prevent fatal overdose. Before leaving the room, participants will dispose of used consumption equipment. After participants finish in the medically supervised consumption room, staff will direct them to the medically supervised observation room. Nothing in the Safehouse protocol appears to require that a participant remain in the observation room for a specified period of time. In the observation room, certified peer counselors, as well as recovery specialists, social workers, and case managers will be available to offer services and encourage treatment. The same services will again be offered for the third time at check out.

         II. Procedural Posture

         After Safehouse announced its plans, the Government engaged in some correspondence with Safehouse's leadership. The parties could not reach agreement, and the United States then initiated this action against Safehouse and its President and Treasurer, Jose Benitez.[3] See Pl.'s Compl., ECF No. 1; Pl.'s Am. Compl., ECF No. 35. The Government seeks a declaratory judgment that the medically supervised consumption rooms violate 21 U.S.C. § 856(a)(2). I commend the Government for proceeding in this manner, rather than with criminal prosecution. Defendants answered the Government's Declaratory Judgment Complaint with several affirmative defenses, including an argument that application of the statute to their proposed site would be unconstitutional. Defs.' Answer to Compl., ECF No. 3; Defs.' Answer to Am. Compl., ECF No. 45. Safehouse also brought counterclaims and third-party claims, first seeking a declaratory judgment that its proposed operation will not violate § 856(a) and second seeking a declaratory judgment that the Department of Justice's efforts to enforce the statute, threats to prosecute Safehouse, and litigation against Safehouse violate 42 U.S.C. § 2000bb, the Religious Freedom Restoration Act. Id. The Government answered Safehouse's counterclaims and third-party complaint, Pl. & Third-Party Defs.' Answer, ECF No. 46, and then filed a Motion for Judgment on the Pleadings as to its claim as well as the counterclaims and third-party claims. Pl. & Third-Party Defs.' Mot. for J. on the Pleadings, ECF No. 47.[4]

         After considering the pleadings, the Government's Motion for Judgment on the Pleadings, Safehouse's Response, ECF No. 48, and the Government's Reply, ECF No. 115, I have concluded that 21 U.S.C. § 856(a) does not prohibit Safehouse's proposed medically supervised consumption rooms because Safehouse does not plan to operate them “for the purpose of” unlawful drug use within the meaning of the statute. Accordingly, I need not consider whether application of the statute to Safehouse's proposed conduct violates the Commerce Clause. As to the Religious Freedom Restoration Act, Safehouse's claim that the Government's effort to enforce 21 U.S.C. § 856(a) violates the Religious Freedom Restoration Act is now moot, as Safehouse sought only prospective injunctive relief. The Government's Motion will be denied as to its claim for declaratory judgment, as well as Safehouse's counterclaim for declaratory judgment.

         III. The Controlling Procedural Standard

         A Rule 12(c) motion for judgment on the pleadings “is analyzed under the same standards that apply to a Rule 12(b)(6) motion.” Revell v. Port Auth. of N.Y. & N.J., 598 F.3d 128, 134 (3d Cir. 2010). This well-established standard requires that I view the pleadings in the light most favorable to the non-moving party. Leamer v. Fauver, 288 F.3d 532, 535 (3d Cir. 2002). “A Rule 12(c) motion should not be granted unless the moving party has established that there is no material issue of fact to resolve, and that it is entitled to judgment in its favor as a matter of law.” D.E. v. Cent. Dauphin Sch. Dist., 765 F.3d 260, 271 (3d Cir. 2014) (internal quotations and citations omitted). I may consider all pleadings in ruling on a motion for judgment on the pleadings. Id. (citing to Rule 12(c)).

         IV. The Statutory Question

         For purposes of this motion, the facts outlined above are undisputed, and the sole question is one of law.

         a. The Absence of a Controlling Standard of Statutory Construction

         District courts must faithfully apply the law Congress enacts. Binding precedent usually dictates or substantially influences the way in which district courts apply the law. But the Third Circuit has not yet considered the proper construction of 21 U.S.C. § 856(a), and although other courts of appeals have addressed that subsection, no court has yet considered its application to medically supervised consumption sites.[5]

         When a district judge must address a novel question of statutory construction, part of the challenge is that “[s]tatutory interpretation does not have a defined set of predictable rules. The doctrines of the field are not treated as law. They do not have a theorized jurisprudence that legitimates their source, or even indicates what it might be.” Abbe R. Gluck, Justice Scalia's Unfinished Business in Statutory Interpretation: Where Textualism's Formalism Gave Up, 92 Notre Dame L. Rev. 2053, 2054 (2017). There are instead competing models and schools of thought, and a judge's choice of methodology carries a risk of dictating the outcome of a case. For that reason, I first address the various methods available, both because I believe transparency is important, and because I am convinced that judges must be conscious of the inherent limitations in all the various methods employed.

         The Third Circuit has noted that a court's “goal when interpreting a statute is to effectuate Congress's intent.” S.H. ex rel. Durrell v. Lower Merion School Dist., 729 F.3d 248, 257 (3d Cir. 2013) (quoting Hagans v. Comm'r of Soc. Sec., 694 F.3d 287, 295 (3d Cir. 2012)). Stated differently, “[w]hen a court interprets a statute, the court articulates the meaning of the words of the legislative branch.” Robert A. Katzmann, Judging Statutes 8 (2014). In this endeavor, the Third Circuit has, as recently as this past August, again emphasized that “words matter” and that interpreters must begin the process of statutory construction by looking to the text. Pellegrino v. Transp. Sec. Admin., 937 F.3d 164, 2019 WL 4125221, at *12 (3d Cir. Aug. 30 2019) (en banc) (Ambro, J.) (majority opinion); id. (Krause, J., dissenting). Accordingly, where the meaning of a provision is clear, a court need not look beyond the statutory language.

         To determine whether language is unambiguous, the Third Circuit has instructed that one should “read the statute in its ordinary and natural sense.” In re Phila. Newspapers, LLC, 599 F.3d 298, 304 (3d Cir. 2010) (quoting In re Harvard Indus., Inc., 568 F.3d 444, 451 (3d Cir. 2009)). “A provision is ambiguous only where the disputed language is ‘reasonably susceptible of different interpretations.'” Id. (quoting Dobrek v. Phelan, 419 F.3d 259, 264 (3d Cir. 2005)). In application, however, reliance on the plain meaning of the text is hardly as simple as its proponents contend, as evidenced by cases where both the majority and dissent claim that the language of a statute is clear and unambiguous while reaching opposite results. See, e.g., Zuni Pub. Sch. Dist. No. 89 v. Dep't of Educ, 550 U.S. 81 (2007). I find substantial merit to the observation that “[p]lain meaning is a conclusion, not a method.” Victoria Nourse, Misreading Law, Misreading Democracy 5, 66, 68-69 (Harvard Univ. Press 2016) (hereinafter Nourse, Misreading Law).

         Where plain meaning proves elusive or “a statute is unclear on its face, ” the Court of Appeals has recently reaffirmed that “good arguments exist that materials making known Congress's purpose ‘should be respected, lest the integrity of legislation be undermined.'” Pellegrino, 2019 WL 4125221 at *11 (quoting Robert A. Katzmann, Judging Statutes 4 (2014)). In fact, respecting Congress's purpose is necessary to preserve both the legislative and judicial roles, and legislative materials often provide helpful insight into what Congress meant to accomplish with a given statute. Among the criticisms leveled at courts' use of legislative materials is that they are cited selectively and cited indiscriminately without recognition that different sources are entitled to different weight.[6] Judges must therefore consider legislative materials with an accurate understanding of Congress's rules and procedures. Katzman, supra at 49; Richard A. Posner, Statutory Interpretation-in the Classroom and in the Courtroom, 50 U. Chi. L. Rev. 800, 802-05 (1983) (hereinafter Posner, Statutory Interpretation).

         Recently, Georgetown Law Professor Victoria Nourse[7] articulated five guiding principles to facilitate a disciplined, objective use of legislative history-which she prefers to call “legislative evidence”-in statutory interpretation. Nourse, Misreading Law, supra at 68-69; see also Victoria Nourse, A Decision Theory of Statutory Interpretation: Legislative History by the Rules, 122 Yale L.J. 70 (2012). First, she observes that “Statutes Are Elections.” By that she means that the legislature makes choices, and one side prevails. Accordingly, statements of a law's opponents should never be cited for the authoritative meaning of the law, much in the way that a dissenting opinion would not be cited as authority without explanation. Nourse, Misreading Law, supra at 68. Nourse's second principle emphasizes the sequential nature of how laws develop. Just as subsequent appellate decisions trump trial court decisions, later text or legislative evidence can trump earlier legislative evidence. Id. at 69. One should therefore read legislative history in reverse, beginning with the last point in the decision-making process related to the text at issue. Id. at 79-80. The third principle recognizes that Congress's own rules can provide meaningful interpretive guidance when used as legislative canons. Id. at 85-88. Nourse's fourth principle rejects the view that any particular “type” of legislative history will always be the most reliable. Any type of legislative history may mislead the interpreter absent an understanding of the realities of legislative conflict, sequence, and congressional rules. Id. at 88-90. Finally, the fifth principle recognizes that Congress operates with different institutional expectations and incentives than the courts, which may cause courts to misunderstand the significance of certain congressional language. Id. at 91-94. To the extent that I consider legislative context, it is with these principles in mind.

         Necessarily, statutory construction also requires consideration of the “canons” of construction given new life by the late Justice Scalia, and now widely used. See Antonin Scalia & Bryan Garner, Reading Law: The Interpretation of Legal Texts (2012). Indeed, a critical case relied upon by the Government based its holding on the application of a canon. See United States v. Chen, 913 F.2d 183 (5th Cir. 1991). But like legislative evidence, judicial canons need to be employed with an awareness of their limitations. See, e.g., Katzmann, supra at 51-53; Posner, Statutory Interpretation, supra at 805-17. Two criticisms in particular resonate with me. First, many canons are premised on unrealistic assumptions about how Congress creates law. Katzmann, supra at 52-53; Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation from the Inside-An Empirical Study of Congressional Drafting, Delegation and the Canons: Part I, 65 Stan. L. Rev. 901 (2013); Posner, Statutory Interpretation, supra at 806. Second, the manipulability of canons carries the potential for judges to rewrite statutes based on personal preferences under the guise of adherence to objective rules. Nourse, Misreading Law, supra at 105-06; Posner, Statutory Interpretation, supra at 816 (“Vacuous and inconsistent as they mostly are, the canons do not constrain judicial decision making but they do enable a judge to create the appearance that his decisions are constrained.”). Canons' prevalence in the case law requires their consideration, but with the same caution that accompanies use of the legislative record.

         The challenge of statutory construction is such that fidelity to method must often yield to the need to answer a specific, complex question. For example, textualists are fond of praising Justice Frankfurter's admonition to “(1) Read the statute; (2) read the statute; (3) read the statute!” Judge Henry J. Friendly, Mr. Justice Frankfurter and the Reading of Statutes, in Benchmarks, 196, 202 (1967). But Justice Frankfurter more broadly recognized that “there is no table of logarithms for statutory construction. No. item of evidence has a fixed or even average weight. One or another may be decisive in one set of circumstances, while of little value elsewhere.” Felix Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527, 543 (1947), in Judges on Judging: Views from the Bench 221, 229 (David M. O'Brien ed., 1997). In practice, therefore, most judges do not subscribe to purely one method. Katzman, supra at 55; Abbe R. Gluck & Richard A. Posner, Statutory Interpretation on the Bench: A Survey of Forty-Two Judges on the Federal Courts of Appeals, 13 Harv. L. Rev. 1298, 1313-14 (2018); see also Morell E. Mullins, Sr., Tools, Not Rules: The Heuristic Nature of Statutory Interpretation, 30 J. Legis. 1 (2003). Instead, they draw upon multiple tools with the goal being to interpret the statute in question “in a way that is faithful to its meaning.” Katzmann, supra at 29. Although both parties to this case claim the statute is clear, to resolve the question here requires the use of multiple tools as well.

         I employ these tools of statutory construction to illuminate the statute's ordinary meaning. I take a statute's “ordinary meaning” to refer to the meaning consistent with the undisputed, prototypical examples of circumstances in which the statute applies-those to which legislators and members of the public would have expected the statute to apply at the time of enactment. See Lawrence Solan, The New Textualists' New Text, 38 Loy. L.A. L. Rev. 2027, 2040-42, 2044 (2005). Expressing a preference for a statute's ordinary meaning is not to say that the statute only applies to those examples. But just as courts should not interpret the law in a way that excludes the ordinary examples to which it undisputedly applies, courts should hesitate to extend a statute far beyond its ordinary meaning.

         Such principles reflect appropriate respect for the role of Congress. Justice Gorsuch, writing for a majority of the Court, observed that it is fundamental that “Congress alone has the institutional competence, democratic legitimacy, and (most importantly) constitutional authority to revise statutes in light of new social problems and preferences. Until it exercises that power, the people may rely on the original meaning of the written law.” Wisconsin Cent. Ltd. v. United States, 138 S.Ct. 2067, 2074 (2018). Absent binding precedent or some compelling rationale, courts should hesitate to expand the reach of a statute-particularly a criminal statute-far beyond the ordinary meaning conceived of at the time of enactment.

         b. Interpretation of 21 U.S.C. § 856(a)

         The sole question in this case is one of statutory construction. Specifically, the Court is tasked with construing 21 U.S.C. § 856(a), the most relevant portion of which makes it unlawful for any person to “manage or control any place . . . and knowingly and intentionally . . . make available for use, with or without compensation, the place for the purpose of unlawfully . . . using a controlled substance.” § 856(a)(2). I must then determine whether Safehouse's planned activity, specifically the operation of the consumption room, falls within the scope of the statute's criminal prohibition.[8]

         Section 856(a) was enacted in 1986 as part of the Anti-Drug Abuse Act and subsequently amended in 2003 as part of the PROTECT Act. The full text reads:

         Except as authorized by this subchapter, it shall be unlawful to--

(1) knowingly open, lease, rent, use, or maintain any place, whether permanently or temporarily, for the purpose of manufacturing, distributing, or using any controlled substance;
(2) manage or control any place, whether permanently or temporarily, either as an owner, lessee, agent, employee, occupant, or mortgagee, and knowingly and intentionally rent, lease, profit from, or make available for use, with or without compensation, the place for the purpose of unlawfully manufacturing, storing, distributing, or using a controlled substance.

         Some aspects of the statute's application to these facts are clear. Safehouse will manage or control a place and make that place available to participants. Safehouse participants undisputedly will use drugs on Safehouse's property. The remaining question is whether Safehouse will knowingly and intentionally make its property available “for the purpose of unlawfully . . . using drugs” within the meaning of the statute. In the parties' view, this is a simple question. I disagree.

         The impetus for § 856(a) initially was a concern about crack houses, and a similar concern about drug-fueled raves motivated the 2003 amendment. The question is how far beyond those undisputedly covered activities the statute reaches. While I agree that, taking each of the statute's words literally, it might be possible to read § 856(a) to apply to Safehouse, I am not convinced that a plain or ordinary reading of the statute allows that application.

         The Government argues that (a)(2) prohibits Safehouse's medically supervised consumption rooms because the purpose requirement there applies to the third party using the property, not the actor charged with violating the statute. That is, in the Government's view, only the third party must act “for the purpose of unlawfully . . . using drugs.” The Government further contends that, even if the relevant purpose under the statute is that of Safehouse, Safehouse is necessarily acting for the purpose of unlawful drug use. Safehouse disagrees, arguing that the relevant purpose is the purpose for which the property itself is used and contending that its site is not “for the purpose of unlawfully . . . using drugs.” Safehouse also asserts that § 856(a) does not prohibit safe consumption rooms because the CSA authorizes their operation and because the statute does not define “unlawfully . . . using.”

         I reject Safehouse's latter two arguments for reasons explained more fully below. With respect to the purpose requirement, I conclude that the relevant purpose is that of the actor, not the third party or the property. However, “for the purpose of unlawfully manufacturing, storing, distributing, or using a controlled substance” remains ambiguous, susceptible to multiple interpretations. Consistent with the common understanding of purpose to refer to one's end or goal, along with the statutory scheme and legislative context, I interpret that provision to require that the actor have a significant, but not sole, purpose to facilitate drug activity. Because Safehouse does not plan to make its facility available “for the purpose of” facilitating unlawful drug use, I ultimately conclude that § 856(a) does not criminalize Safehouse's proposed conduct.

         i. Authorization

          Safehouse contends that its proposed conduct is “authorized by” the Controlled Substances Act (CSA) and therefore falls within the “[e]xcept as authorized by this subchapter” exemption of § 856(a). According to Safehouse, this follows not from any express authorization, but from the fact that medically supervised consumption sites constitute a legitimate medical practice “which the CSA does not regulate and Section 856 does not prohibit.” Defs.' Resp. to Pl.'s Mot. J. on the Pleadings at 28, ECF No. 48 (hereinafter Safehouse Response). As a logical matter, Safehouse advances an argument that is both simplistic and circular: because the proposed conduct is not prohibited or regulated by the CSA, it is therefore necessarily authorized by the statute and excluded from the reach of § 856 of the CSA. I reject the premise that Congress's failure to prohibit activity constitutes an affirmative authorization. Rather, I am confident that the statute neither expressly prohibits nor authorizes the sites for the same reason-the legislature simply never contemplated them when enacting the law. Granted, if § 856 does not prohibit Safehouse's medically supervised consumption sites-a matter explored further below-additional express authorization would of course be unnecessary. That may make the sites “authorized” in the colloquial sense that they are not illegal, but it does not render them “authorized by this subchapter” within the meaning of the statute.

         Safehouse relies heavily on Gonzales v. Oregon, 546 U.S. 243 (2006), in support of its contention that the Controlled Substances Act allows for safe consumption sites. See Safehouse Response at 30; Transcript of Oral Argument, ECF No. 131, at 49-50. Specifically, Safehouse contends that its medically supervised consumption rooms are authorized because the Attorney General lacks the power to “promulgate rules ‘based on his view of legitimate medical practice'” and the CSA does not regulate the legitimate practice of medicine. Safehouse Response at 30 (quoting Gonzales, 546 U.S. at 260, 270). Gonzales involved a federal challenge to an Oregon statute, passed through a voter ballot initiative, allowing physicians to assist with suicide. 546 U.S. at 250. The statute in question established a detailed protocol for physicians to follow under the supervision of the Oregon Department of Human Services. Or. Rev. Stat. § 127.800 et seq. (2003). The Attorney General of the United States later published an “Interpretative Rule” that physician-assisted suicide was not a legitimate medical purpose, with the result that prescribing, dispensing, or administering drugs to facilitate it could be deemed a violation of federal law and lead to the suspension or revocation of a physician's registration under the CSA. 546 U.S. at 254.

         Although the Supreme Court ruled against the Government, Gonzales does not control on the facts of the current case for several reasons. As a preliminary matter, the proposed activities of Safehouse here are not analogous to the detailed state-regulated scheme at issue in Gonzales. Safe injection sites are recognized as a legitimate harm reduction strategy among some public health experts and recognized medical authorities such as the American Medical Association, see Defs.' Answer at 31, but as Safehouse concedes, no state medical board has issued standards governing their operation. Tr. at 52. It is clear that the Supreme Court in Gonzales was also concerned ...


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