By Lauren Berg

Law360 (June 24, 2020, 9:12 PM EDT ) A Pennsylvania federal judge who previously approved a supervised drug injection site in Philadelphia halted the facility's opening while the government appeals that decision, saying on Wednesday that the opioid epidemic has been overshadowed by the coronavirus pandemic.

U.S. District Judge Gerald Austin McHugh granted the government's request to stay the opening of a supervised drug injection site operated by the nonprofit Safehouse while it appeals the judge's previous decision, concluding that now is not the time to force change upon Philadelphia while it is confronted with a public health crisis even larger than the opioid epidemic.

"The challenges of coping with the pandemic and with recent community unrest understandably triggered by the death of George Floyd present strains on the city — government and citizens alike — that make the proposed opening of Safehouse unrealistic any time soon," Judge McHugh said.

The judge found that a stay is in the public's interest, saying the opening of Safehouse would require multiple public meetings, the time and attention of the city's Health Department and the allocation of police resources. He said the opening of Safehouse would significantly change how Philadelphia responds to opioid abuse and that such change would be disruptive.

Judge McHugh found that the challenges posed by COVID-19 and police brutality protests make this the wrong time to change the status quo.

The U.S. Attorney's Office for the Eastern District of Pennsylvania lodged the lawsuit last year, aiming to preemptively bar the Safehouse site, which would be a first-of-its-kind facility in the country, from opening its doors to provide medical supervision for individuals looking to illegally use intravenous drugs such as heroin or fentanyl.

Safehouse President Jose Benitez pushed back against the government's position at a hearing last year, insisting that the controversial facility would not violate federal drug laws. Benitez told the judge he believed there was room for a difference of legal opinion.

"It was clear to me that the federal government thought it was illegal, but it was not clear to me that it was illegal," Benitez said at the time. "I don't think the supervision of someone injecting safely is an illegal practice."

Judge McHugh granted Safehouse's request to kill the case in February. The judge said he wasn't swayed by the arguments of U.S. Attorney William McSwain that the Safehouse site violates the Controlled Substances Act's so-called "crack house" provision, which bars operating an establishment "for the purpose of unlawfully manufacturing, storing, distributing or using a controlled substance."

Despite granting the request for a stay Wednesday, Judge McHugh did not find that the government demonstrated it will suffer harms that cannot be prevented or rectified by a successful appeal of the Safehouse opening.

The judge rejected the government's argument that allowing Safehouse to operate "threatens to overturn Congress' determination that there is no legal use" for certain unlawful drugs. The judge said his opinion expressly stated that opioid possession is "undisputedly criminal" and that the government remains free to arrest and charge users of narcotics.

The judge also rejected the argument that Safehouse's provision of a site where users can inject unlawful narcotics under medical supervision denies Congress's judgment.

"Though the government scores a semantic point when it observes that 'safe injection' is an oxymoron when it comes to heroin, cocaine and non-prescribed uses of Fentanyl, if one looks beyond wordplay, it cannot be disputed that Safehouse's efforts are focused on the safety through supervision of the user, not the safety of the act of injection," Judge McHugh said.

The judge also found that the government hasn't shown that the opening of Safehouse would cause more or riskier drug use or that the surrounding community will be adversely affected absent a stay.

Although he found the government failed to show it will suffer harms that can't be prevented or rectified on appeal, Judge McHugh said the ongoing challenges posed by COVID-19 and the "deep social currents and introspection following the tragic killing of Mr. Floyd make this the wrong moment for another change in the status quo."

Ilana Eisenstein of DLA Piper, who represents Safehouse, told Law360 on Wednesday that, despite granting the stay, Judge McHugh's ruling reinforces his previous conclusion that Safehouse's overdose prevention services are legal.

"Safehouse believes its overdose prevention services are presently needed in the city of Philadelphia," Eisenstein said. "Nonetheless, the court found it appropriate to wait to implement its decision until after the appeals process, particularly given that Philadelphia is presently struggling with the COVID-19 pandemic and grappling with the calls for profound change in the wake of the death of George Floyd."

Eisenstein said Safehouse will follow the law and will delay the opening of a site until it has the legal authority to do so.

A representative for the government did not immediately respond to a request for comment.

The government is represented by Erin E. Lindgren, Bryan C. Hughes, John T. Crutchlow and Gregory B. David of the U.S. Attorney's Office for the Eastern District of Pennsylvania. The government was additionally represented by Joseph H. Hunt, Gustav W. Eyler, Alexander K. Haas, Andrew E. Clark, Jacqueline Coleman Snead and Daniel K. Crane-Hirsch of the U.S. Department of Justice.

Safehouse is represented by Ilana H. Eisenstein, Courtney G. Saleski, Ben C. Fabens-Lassen, Megan E. Krebs and Thiru Vignarajah of DLA Piper LLP; Ronda B. Goldfein, Yolanda French Lollis, Adrian M. Lowe and Jacob M. Eden of the AIDS Law Project of Pennsylvania; Peter Goldberger of the Law Office of Peter Goldberger; and Seth Kreimer.

The case is U.S. v. Safehouse et al., case number 2:19-cv-00519, in the U.S. District Court for the Eastern District of Pennsylvania.

--Additional reporting by Mike LaSusa and Matt Fair. Editing by Gemma Horowitz.

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