This Washington

Safe Consumption Sites Move Ahead Despite Opposition

Mark Miloscia has asked attorney general Jeff Sessions to crack down on legal drug injection sites, which he compares to crack houses. Meanwhile local proponents prepare to defend the sites as a humane response to the region’s heroin epidemic.

By Josh Kelety March 16, 2017

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Despite efforts in the state legislature and appeals to the federal government to intervene, Seattle and King County health officials intend to have safe consumption sites for drug users operational in a year. 

Locally, the proposal—which is part of a ­­set of recommendations compiled by the King County Heroin and Prescription Opiate Addiction Task Force—has political support. The King County Board of Public Health unanimously approved the recommendation and Seattle mayor Ed Murray and county executive Dow Constantine also gave it the thumbs-up. Currently, county health officials are in the early stages of identifying potential locations for the sites, though they are mum on any specific locations circulating in internal discussions. 

But the state senator who is leading the charge against them is not done fighting the sites. In February, state senator Mark Miloscia (R, Federal Way) introduced a bill in the senate to cut off state funding to public health agencies that operate safe consumption spaces—where drug users, particularly heroin addicts, can safely consume drugs, receive basic medical care, and get connected with treatment and social services. The bill, which would effectively ban the facilities statewide, passed the Republican-controlled state senate and moved on to the House Health Care and Wellness Committee—where it is sure to die. Committee chair, representative Eileen Cody (D, West Seattle), who supports the county’s efforts to establish safe consumption sites, tells Seattle Met that the bill “is not going to get a hearing.”

Unrelenting, Senator Miloscia has also appealed to the federal government. He sent a letter to U.S. attorney general Jeff Sessions—who recently called marijuana “only slightly less awful” than heroin—calling on the Justice Department to intervene. In the letter Miloscia wrote that King County’s efforts are “promoting a culture of toleration [of drug use and addiction], diverting precious resources away from treatment, and using an ideological platform to build a permissive society.”

Miloscia’s letter further claimed that safe consumption sites violate federal statute 21 USC 856, colloquially known as the “crack house statute,” which makes it a felony to knowingly open, lease, rent, use, or maintain any place for manufacturing, distributing, or consuming illicit substances. “We are violating federal law and not just state law [with safe consumption sites],” Miloscia told Seattle Met. “Ultimately we’re a nation of laws.”

“I don’t just want this [safe injection sites] in King County or Federal Way and I don’t want this in our state,” Miloscia continued. And while he hasn’t heard back from the Justice Department yet, he is looking at “other options” to block the project, such adding anti–safe consumption site amendments to bills in the senate that pertain to drug use and addiction. “I am not going to let this go away,” he said.

The U.S. Justice Department press office did not respond to requests for comment on Miloscia’s letter. And local health officials and advocates continue to tentatively observe Miloscia’s efforts and a potential federal response.

“To say that we’re not taking into account the [potential] federal response would be naïve,” said Brad Finegood, cochair of the county’s heroin task force and assistant division director at the King County Behavioral Health and Recovery Division.

“It’s really a shame to see a state senator not listen to public health authorities and not respect what a community has really invested in and instead reach out to the Trump administration,” said Patricia Sully, a staff attorney at the Public Defender Association and organizer with VOCAL Washington, a local drug policy reform advocacy group that has pushed for safe consumption sites. “But we’re still really hopeful that King County will be able to proceed without federal intervention.”

Proponents of the safe consumption spaces argue that they stand on substantive legal ground to fend off a federal court challenge if Sessions’s Justice Department were to get involved. Specifically, they argue that both the state constitution and statutes give county health departments sweeping authority and autonomy to address public health issues as they see fit despite technical conflicts with state and federal law. This authority is called “police power” in legal circles. 

Police power authority is a statement which essentially says that states and local governments have the obligation and authority to protect the health of our constituents,” said Mark Cooke, policy director at the Washington Campaign for Smart Justice at the ACLU of Washington (Cooke also sat in on the county’s heroin task force). “Since we are dealing with an opioid epidemic where we have large numbers of people dying and people transmitting infectious diseases, that’s the type of issue that local agencies can act on under police power authority,” he said.  

Cooke and others point to a 1992 case where the Washington State Supreme Court ruled that the Spokane Health District had the authority under the state constitution and statutes to establish needle exchanges to combat the spread of HIV and other infectious diseases despite the fact that they were distributing drug paraphernalia (i.e., clean syringes). Needle exchanges in other states such as New York, Pennsylvania, California, and Ohio have operated in violation of state and federal laws with similar police power authority protections.

The use of police power authority to address public health issues—and the courts’ support for them—dates back to shortly after the end of the Revolutionary War. A quarantine issued over Philadelphia by a local health authority to prevent the spread of yellow fever was upheld by the Supreme Court under police power justifications. Since then, per a 2005 Public Health Reports journal article on the subject, courts have consistently upheld the use of police power to circumnavigate existing laws so long as public health agencies can demonstrate that their actions are “intended to further public health objectives.”

“We believe that there is case law that allows for the public health agencies to respond to health crises and emergencies,” said Finegood.

Cooke says that the protections granted to public health authorities—and local governments generally—could protect King County and Seattle if the Justice Department were to legally challenge the establishment of safe consumption sites. “I think state and local laws could survive a federal preemption challenge,” he said.

The enforcement of federal law, however, is another matter. While the leadership of both the Seattle Police Department and the King County Sheriff’s Office have indicated that they will not crack down on drug users utilizing safe consumption sites (nor the staff operating them), agents from the Drug Enforcement Agency or the Federal Bureau of Investigation could still intervene at their own discretion and local governments would have little recourse; similar to how the DEA recently targeted legal medical marijuana patients in Eastern Washington despite the medical marijuana laws that were then on the books in the state.

“When it comes to enforcement, that’s in the Fed’s hands,” Cooke said. “If the FBI or the DEA wanted to come in and arrest people, Washington couldn’t legally stop them.”

“This [safe consumption sites] is an evidence-based recommendation whereas Mark’s bill [SB 5223] is really based on ideology, not evidence,” says Patricia Sully. “Doctors who specialize in addictions really support these interventions.”

While commonplace throughout Europe and longstanding in Canada, these facilities would be the first of their kind in the United States.

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