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In the Supreme Court of the United States ______ No. 21-____ In the Supreme Court of the United States ______________ SAFEHOUSE, Petitioner, v. U.S. DEPARTMENT OF JUSTICE, ET AL., Respondents. ______________ On Petition for a Writ of Certiorari to the United States Court of Appeals for the Third Circuit ______________ PETITION FOR A WRIT OF CERTIORARI ______________ Ronda B. Goldfein Ilana H. Eisenstein Yolanda French Lollis Counsel of Record Adrian M. Lowe Courtney G. Saleski Jacob M. Eden Ben C. Fabens-Lassen AIDS LAW PROJECT OF DLA PIPER LLP (US) PENNSYLVANIA 1650 Market St., 1211 Chestnut St., Ste. 5000 Ste. 600 Philadelphia, PA 19103 Philadelphia, PA 19107 (215) 656-3300 (215) 587-9377 Ilana.Eisenstein Seth F. Kreimer @dlapiper.com 3501 Sansom St. Philadelphia, PA 19104 Peter Goldberger (215) 898-7447 LAW OFFICE OF PETER GOLDBERGER Counsel for Petitioner 50 Rittenhouse Place Ardmore, PA 19003 (610) 649-8200 QUESTION PRESENTED In the midst of the opioid and overdose crises rav- aging the nation and causing the death of more than 3,214 people over the last three years in the City of Philadelphia, petitioner Safehouse, a Philadelphia non-profit organization, seeks to establish an over- dose prevention site that will offer medically super- vised consumption services—a public-health interven- tion employed to prevent overdose deaths by providing immediate access to opioid reversal agents and ur- gently needed medical care at the time and place they are required, which is at the moment of consumption. A divided panel of the Third Circuit reversed the grant of a declaratory judgment in favor of Safehouse and held that the proposed facility would violate 21 U.S.C. § 856(a)(2)—a provision of the Controlled Sub- stances Act (CSA) that Congress passed to target “crack houses” and “rave parties.” Section 856(a)(2) makes it unlawful (in relevant part) to “manage or control any place, whether permanently or temporar- ily, . and knowingly and intentionally . make available for use, with or without compensation, the place for the purpose of unlawfully manufacturing, storing, distributing, or using a controlled substance.” The question presented is: Does 21 U.S.C. § 856(a) make it a felony to offer medically supervised consumption services for the purpose of preventing opioid overdose deaths? (i) ii PARTIES TO THE PROCEEDINGS Petitioner Safehouse, a non-profit corporation, was the Defendant and Counterclaim-Plaintiff in a civil de- claratory action brought by the United States Depart- ment of Justice (DOJ) in the United States District Court for the Eastern District of Pennsylvania. Safehouse’s co-founder and president of its board of di- rectors, José Benitez, was also named as a Defendant in the declaratory action brought by DOJ. Respondents are DOJ; Merrick Garland, in his of- ficial capacity as the Attorney General of the United States; and Jennifer Arbittier Williams, in her official capacity as the Acting United States Attorney for the Eastern District of Pennsylvania. iii TABLE OF CONTENTS Opinions Below ......................................................... 1 Jurisdiction ............................................................... 2 Statutory Provision Involved ................................... 2 Introduction .............................................................. 3 Statement of the Case .............................................. 5 A. The Safehouse Proposal ........................... 7 B. Procedural History ................................... 9 Reasons for Granting the Writ............................... 13 I. The Interpretation of Section 856(a) Is of National and Paramount Importance in the Midst of the Nation’s Opioid Crisis and a Question on which Courts of Appeals Are Divided ............................................. 13 II. The Court of Appeals’ Interpretation of Section 856(a) Is Inconsistent with Its Text, Purpose, and History ............... 18 A. Section 856(a)’s Text and Structure Demonstrate that Criminal Liability Only Applies Where the Defendant, Not a Third-Party Visitor, Acts with Unlawful Purpose ............................. 18 B. The History of Section 856(a) Shows No Congressional Intent to Regulate Public Health Facilities Like Safehouse ................................. 21 iv C. The Court of Appeals Failed to Consider Lenity and the Clear Statement Rule, Resulting in Unintended Criminalization of Those that Operate Facilities Serving People Suffering from Addiction............................................ 23 III. The Court of Appeals Should Have Interpreted Section 856(a) to Avoid the Federalism and Commerce Clause Concerns Posed by Federal Regulation of a Local, Non- Commercial Public Health Intervention ............................................ 26 IV. This Case Is an Ideal Vehicle to Resolve this Question, which Warrants this Court’s Immediate Attention ................................................. 29 CONCLUSION ....................................................... 31 Appendix A: Court of appeals opinion ................... 1a Appendix B: Court of appeals order ..................... 68a Appendix C: District court Feb. 25, 2020 memorandum opinion .......................................... 68a Appendix D: District court Feb. 25, 2020 order granting summary judgment ..................... 68a Appendix E: District court Oct. 2, 2019 memorandum opinion .......................................... 79a v TABLE OF AUTHORITIES Page Cases: Adamo Wrecking Co. v. United States, 434 U.S. 275 (1978)........................................... 24 Bond v. United States, 572 U.S. 844 (2014)..................................... 27, 29 Burrage v. United States, 571 U.S. 204 (2014)........................................... 24 Gonzales v. Oregon, 546 U.S. 243 (2006)..................................... 27, 29 Gonzales v. Raich, 545 U.S. 1 (2005) ........................................ 27. 29 Hillsborough Cty. v. Automated Med. Labs., Inc., 471 U.S. 707 (1985)........................................... 27 Jones v. United States, 529 U.S. 848 (2000)..................................... 23, 29 Kelly v. United States, 140 S. Ct. 1565 (2020) ................................ 18, 29 Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519 (2012)........................................... 28 Solid Waste Agency v. U.S. Army Corps of Eng’rs, 531 U.S. 159 (2001)........................................... 23 Standing Akimbo, LLC v. United States, 141 S. Ct. 2236 (2021) ...................................... 28 Sullivan v. Stroop, 496 U.S. 478 (1990)........................................... 20 Taylor v. United States, 136 S. Ct. 2074 (2016) ...................................... 28 vi TABLE OF AUTHORITIES--CONTINUED Cases—continued: United States v. Bass, 404 U.S. 336 (1971)........................................... 24 United States v. Chen, 913 F.2d 183 (5th Cir. 1990) ............................ 20 United States v. Church, 970 F.2d 401 (7th Cir. 1992) ............................ 17 United States v. Lancaster, 968 F.2d 1250 (D.C. Cir. 1992) ......................... 16 United States v. Lopez, 514 U.S. 549 (1995)............................... 27. 28, 29 United States v. Morrison, 529 U.S. 598 (2000)..................................... 27, 28 United States v. Russell, 595 F.3d 633 (6th Cir. 2010) ............................ 16 United States v. Santos, 553 U.S. 507 (2008)........................................... 24 United States v. Shetler, 665 F.3d 115 (9th Cir. 2011) ............................ 16 United States v. Universal C. I. T. Credit Corp., 344 U.S. 218 (1952)........................................... 24 United States v. Verners, 53 F.3d 291 (10th Cir. 1995) ............................ 16 Statutes and Regulations: Comprehensive Addiction and Recovery Act of 2016, Pub. L. No. 114-198, § 101, 130 Stat. 697 ................................................................ 6 vii TABLE OF AUTHORITIES--CONTINUED Statutes and Regulations--Continued: Consolidated Appropriations Act of 2016, Pub. L. No. 114-113, § 520, 129 Stat. 2652 .......... 7 21 U.S.C. § 844 ....................................................... 17 21 U.S.C. § 856(a) .......................................... passim 21 U.S.C. § 856(b) .................................................. 17 28 U.S.C. § 1254(1) .................................................. 2 Legislative Material: 149 Cong. Rec. 1678 (2003) ................................... 22 149 Cong. Rec. 1849 (2003) ................................... 23 149 Cong. Rec. 26474 (1986) ................................. 22 Other Sources: Antonin Scalia & Bryan A. Garner, Reading Law 170 (2012) .................................. 20 Betsy McKay, U.S. Drug-Overdose Deaths Soared Nearly 30% in 2020, Driven by Synthetic Opioids, Wall Street Journal (July 14, 2021), https://ti- nyurl.com/pervh3fr ........................................... 13 CDC, National Center for Health Statistics, Provisional Drug Overdose Death Counts, https://www.cdc.gov/nchs/nvss/vsrr/drug- overdose-data.htm#dashboard ......................... 13 HUD, Housing First in Permanent Support- ing Housing (July 2014) ................................... 26 viii Purpose, Black’s Law Dictionary (11th ed. 2019) .................................................. 18 IN THE Supreme Court of the United States ______________ No. 21- ______________ SAFEHOUSE, Petitioner, v. U.S. DEPARTMENT OF JUSTICE, ET AL., Respondents. ______________ On Petition for a Writ of Certiorari to the United States Court of Appeals for the Third Circuit ______________ PETITION FOR A WRIT
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