Case 2:19-cv-00519-GAM Document 141 Filed 02/25/20 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

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.

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CIVIL ACTION
No. 19-0519

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McHUGH, J.

FEBRUARY 25, 2020
MEMORANDUM

This case arises out of Defendant Safehouse’s proposal to open a safe injection site in
Philadelphia to mitigate the harms resulting from unlawful opioid abuse, and the Government’s
determination that opening such a site would be unlawful. Previously, I denied a motion for
judgement on the pleadings filed by the United States. ECF 134. In doing so, I concluded that,

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“[a]ccepting the facts in the pleadings as true, as required under Rule 12 of the Federal Rules of
Civil Procedure, 21 U.S.C. § 856(a)(2) would not prohibit Safehouse from establishing and
operating an overdose prevention facility that provides medically supervised consumption
services.” ECF 134, at 1-2.
That ruling was a nonfinal interlocutory order because it represented nothing more than
denial of a motion. Safehouse did not cross-move for relief, and thus the prior order did not
“end[] the litigation on the merits and leave[] nothing for the court to do but execute the
judgment.” Catlin v. United States, 324 U.S. 229, 233 (1945). Following consultation with the
Court, the parties agreed to a stipulated set of facts, see ECF 137, Ex. A, and filed cross-motions
intended to produce a final, appealable order. To that end, Safehouse moves for final declaratory
judgment under Federal Rules of Civil Procedure 56 and 57, ECF 137, and the Government
opposes and cross-moves for summary judgment, ECF 139.
The recent filings recapitulate the arguments previously advanced by the parties.
Safehouse argues that the establishment and operation of its overdose prevention services model,
which would include supervised consumption rooms, does not violate Section 856(a)(2), 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.” See ECF 137-3. Because Safehouse relies on a
statutory argument, it suggests that the Court “need not reach Safehouse’s remaining claims under
the Religious Freedom Restoration Act . . . and the Commerce Clause of the U.S. Constitution.”
ECF 137, at 7 n.5. I agree that the Court can render a final judgment on the application of Section
856(a)(2) alone. 1

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Safehouse requests the Court dismiss without prejudice its counterclaim under the Religious Freedom Restoration
Act as moot, see ECF 3, at 42-43 (pleading counterclaim); ECF 137-3, ¶ 3 (proposing dismissal without prejudice),

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In response, the Government principally restates its “core contention” that Safehouse’s
overdose prevention model “violate[s] § 856(a)(2).” ECF 139, at 3. To the Government, the plain
text of Section 856(a)(2) demands this result—“(1) Safehouse would manage and control a place
as either an owner or lessee, that (2) it would knowingly and intentionally make available, (3) for
the purpose of unlawfully using a controlled substance.” ECF 139, at 5. I addressed those
arguments in my prior opinion and, even accepting an evolved standard of review, nothing
warrants revisiting them now. ECF 133, at 49-55.
The Government also seeks to inject some procedural uncertainty into the dispute. First,
the Government argues that Safehouse’s motion for declaratory relief should be resolved pursuant
to Rule 56 and not Rule 57 because “a motion for declaratory judgment under [Rule] 57 would be
procedurally improper.” ECF 139, at 5 n.3. To support its contention that declaratory relief is
improper, the Government cites to Arizona v. City of Tucson, 761 F.3d 1005 (9th Cir. 2014), for
the proposition that “[r]equests for declaratory judgment are not properly before the court if raised
. . . by motion.” ECF 139, at 5 n.3 (quoting City of Tucson, 761 F.3d at 1010). That misreads City
of Tucson. In that case and the other cases relied upon by the Government for support, the
movants sought declaratory relief by filing a Rule 57 motion without first seeking declaratory
relief in their initial pleadings. Indeed, in City of Tucson, in the very sentence before the sentence
quoted by the Government, the Court held that a “request for declaratory relief is properly before
the court when it is pleaded in a complaint for declaratory judgment.” Id. Here, Safehouse sought
a declaration pursuant to the Declaratory Judgment Act in its counterclaims and third-party

and, in doing so, seeks to “reserve[] the right to press those claims if this Court’s declaratory judgment on the
underlying statutory question were vacated, reversed, or remanded by an appellate court or if changed circumstances
otherwise established a ripe controversy as to those claims.” Id. The Government contends that by making this
request Safehouse has “abandon[ed] its claim[s]” under RFRA and a related claim under the Commerce Clause.
ECF 139, at 11-12, 12 n.8. I disagree. Given that Safehouse has won the declaratory judgment it seeks, there is no
need to reach its additional claims, and its request that this Court dismiss the RFRA and Commerce Clause claims
without prejudice is sensible. The claims are therefore deemed to be preserved.

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complaint. See ECF 3, at 41; ECF 45, at 5. A final declaratory judgment under Rule 57 is the
appropriate vehicle to conclusively resolve the immediate and actual legal controversy on the
statutory question. See Fed. R. Civ. P. 57, Notes on Advisory Committee on Rules (1937). The
parties maintain a live and actual legal controversy, have stipulated to all material facts, and have
moved for declaratory relief as to the reach of Section 856(a)(2).
Such maneuvering by the Government at this late stage is not constructive. At no point
until its latest filing did the Government suggest that consideration of a motion for declaratory
judgment would be procedurally improper. From the inception of this case Safehouse requested a
full trial on the merits to resolve whether its proposed operation comports with federal law, and
with it the opportunity to develop a detailed factual record. And for just as long the Government
has strenuously resisted such an approach. The Government has never argued there was a need
for additional evidence, a fact of which they were reminded at oral argument. See ECF 133, at 6
n.4. The present motions were filed in consultation with the Court for the express purpose of
creating a final appealable order, something sought by both sides. See ECF 137, at 3. And the
parties’ stipulation to specific facts—an approach first suggested by the Court to the parties in late
August—was intended to complete the record to finally adjudicate a difficult and complex matter
of first impression.
The Government further contends that inferences drawn in resolving a motion to dismiss
under Rule 12 are not properly drawn in resolving the pending motions. Specifically, the
Government protests that Safehouse “never said in its pleadings that it would reduce unlawful
drug use, nor do the Stipulated Facts so state,” and that, because Safehouse has moved
affirmatively for final relief, “the Court cannot make this factual inference in Safehouse’s favor.”
ECF 139, at 11 n.4. In advancing this argument, the Government continues to confuse purpose

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with outcome. The reach of Section 856(a)(2) did not then and does not now depend to any
degree on whether Safehouse’s model actually “would reduce unlawful drug use.” Section
856(a)(2)’s applicability turns on the objective of the relevant actor, not on the effectiveness of a
proposed intervention model. In fact, my opinion of October 2, 2019, explicitly declined to
address “whether safe injection sites are an appropriate means of dealing with the opioid crisis.”
ECF 133, at 2.
In any case, no inference is necessary at this stage because the parties have stipulated to
various facts as recommended by the Court. These include that “Safehouse seeks to open the first
safe injection site in the U.S. in the City of Philadelphia and is . . . [a] nonprofit corporation whose
mission is to save lives by providing a range of overdose prevention services,” and that “the
overdose prevention services it intends to offer are aimed at preventing the spread of disease,
administering medical care, and encouraging drug users to enter treatment.” ECF 137, Ex. A, ¶ 1.
Admittedly, that stipulation is prefaced by “according to Safehouse” or “according to
[Safehouse’s] website,” but later stipulations remove any ambiguity. The parties agree that
“Safehouse intends to offer each participant its services, which include use of supervised drug
consumption and observation rooms, medical services, including wound care, onsite initiation of
Medication-Assisted Treatment, recovery counseling, HIV and HCV counseling, testing and
treatment, referral to primary care, and referrals to social services, legal services and housing
opportunities.” Id. ¶ 9. The parties also agree that Safehouse “intends to encourage every
participant to enter drug treatment, which will include an offer to commence treatment
immediately.” Id. Given those stipulations, the analysis in my memorandum opinion of October
2, 2019, applies with equal validity to the record before me, and there is nothing procedurally
improper in granting the declaratory relief sought by Safehouse.

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The Government’s sudden focus on factual nuances overlooks the complexity of
determining the proper application of the law. Safehouse does not hide that illegal substances will
be used on its premises. To the Government, that alone is enough to resolve the statutory
question. But that position depends upon an overly simplistic formulation of “purpose,” one that
it struggled to defend at oral argument. For instance, the Government acknowledged that
Safehouse could skirt the proscriptions of Section 856(a)(2) if it operated essentially the same
overdose prevention model out of a mobile van instead of a fixed piece of real property so long as
no user “c[a]me into the mobile unit.” ECF 131, at 42:4-43:5. And when confronted with a
hypothetical about parents who instructed their child to use unlawful drugs in their home so that
they could resuscitate the child if necessary, the Government—contrary to its previously avowed
core reading of the statute—responded that Section 856(a)(2) would not apply to that conduct. It
conceded the parents would not have an unlawful “purpose” in participating in such life-saving
activity. ECF 133, at 41; see also ECF 131, at 38:17-42:3.
The Court’s objective in encouraging the parties to supplement the record by stipulation
and agree upon a mechanism for entering final judgment was to eliminate any factual ambiguity
and thereby facilitate appellate review of difficult and subtle issues, including the meaning of
“purpose.” Such clarity and precision have particular importance here, where it is a criminal
statute that the Government seeks to invoke in exercising its authority.
*****
Given the history of this case, and the parties’ supplementation of the record, there is
nothing procedurally improper in granting the declaratory relief sought by Safehouse. The
analysis in my memorandum opinion of October 2, 2019, applies with equal validity to the
expanded record. I will therefore grant Safehouse’s Motion for Final Declaratory Judgment and

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deny the Government’s Motion for Summary Judgment. An appropriate Order follows.

/s/ Gerald Austin McHugh

Gerald Austin McHugh
United States District Judge

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