Remember Safehouse? It seems like a lifetime ago, but prior to the COVID 19 pandemic, involving strict stay-at-home orders and stern directives to stay at least six feet away from other humans — which were subsequently rendered non-essential by the absolute right to loot and riot shoulder-to-shoulder with like minded comrades — Philadelphia faced the threat of legalized houses of heroin in residential neighborhoods. 

Oh, those were the days of such simpler problems.

Just a few short months ago, progressive do-gooders incessantly chastised Philadelphians that their reluctance to condone “safe” heroin use next to their homes and businesses amounted to disregard for human life. Safehouse, a non-profit, pushed ahead with its mission to proliferate comfortable and inviting lounges where they could “save lives” by gathering drug addicts, their vices in hand, to so-called safe sites where concerned agents would stand by and attempt to resuscitate drug users who overdosed.

The Philadelphia District Attorney, the elected official whose job under the City Charter (until the current officeholder) is to prosecute crimes in Pennsylvania’s largest city, swiftly announced that the use of heroin and other illegal drugs in conjunction with a Safehouse site would essentially be not only legal, but encouraged, in the City of Brotherly Love. This philosophy builds on D.A. Larry Krasner’s campaign promises.  Philadelphia’s progressive mayor, known for his jig seen round the world at the thought of flouting federal immigration detainers, also rolled out the welcome mat.

Philadelphia citizens, the people that operate businesses, purchase homes, work, raise families and invest in our communities, came out in full force, standing athwart the madness of woke progressives, and yelled: “STOP THE INSANITY.”

Philadelphia citizens, the people that operate businesses, purchase homes, work, raise families and invest in our communities, came out in full force, standing athwart the madness of woke progressives, and yelled: “STOP THE INSANITY.” Turns out, law abiding communities do not welcome legalized drug dens on their blocks. Unfortunately, most Philadelphia elected officials did not share their constituents’ sentiments.

Enter the U.S Attorney for the Eastern District of Pennsylvania, William M. McSwain, a federally appointed prosecutor for Southeastern Pennsylvania. McSwain, an obstinate stickler for the rule of law, a concept he mentions in virtually every public speech, understood immediately that Safehouse’s plan for a drug injection house would violate federal law. With all of the power of the United States Department of Justice, he sued in federal court, asking a judge to confirm what he knew: that federal law prohibits drug dens.

As sometimes happens when you ask for an impartial interpretation of a duly passed, democratic law, McSwain’s case drew an Obama appointee: Judge Gerald A. McHugh, Jr. District Court Judge McHugh, safely ensconced in his lifetime appointed seat, (and no doubt personally residing in a neighborhood far from any proposed Safehouse activity), essentially concluded that the explicit prohibition of illegal drug use does not apply when one’s motives include reducing harm, such as by establishing a so-called safe injection site.  Extending that logic, even though Congress never specifically passed a law permitting drug addicts to shoot up in protected safe spaces, it meant to, but never got around to it.

Fortunately, we have a federal appellate system, so McSwain appealed McHugh’s dubious ruling to the Third Circuit Court of Appeals, where the case awaits appellate review — and hopefully a panel of jurists that will read and follow the law in question.

Federal appeals often attract “friend of the court” briefs, known as amicus curiae. Interested parties apply to the court for permission to submit their research and analysis on a given case, though they are not parties to the original litigation. These submissions often allow insight into those with specialized knowledge of the issue at hand and perhaps a different perspective than the case’s litigants.

Surprising no sentient being whatsoever, the Safehouse case drew the interest of twenty local Civic Associations, specifically formed to protect the interest of Philadelphia neighborhoods. Additionally, the local Fraternal Order of Police jumped into the fray, on McSwain’s side. If federal law prohibited heroin abuse, but the folks at Safehouse managed to get one lone federal judge’s blessing, how should a local police officer react in the face of what he or she knows to be considered felonious drug activity? Should such an officer follow the law as written, or ignore it?

The Civic Associations joined forces with the police and retained for their amicus curiae submission a lawyer who boasts a clerkship for a sitting Supreme Court Justice as well as another for a Circuit Court Judge, later elevated to the Supreme Court, on his curriculum vitae. When trying to convince an appellate court of the merits of your argument, an attorney who spent a nice chunk of his career helping our nation’s most powerful jurists would be the right fit for the job.  While it is a shame they have to spend resources on this matter, the Civic Associations and the Fraternal Order of Police demonstrate that they will not idly stand by in the face of such lawlessness.

Surprising no sentient being whatsoever, the Safehouse case drew the interest of twenty local Civic Associations, specifically formed to protect the interest of Philadelphia neighborhoods. Additionally, the local Fraternal Order of Police jumped into the fray, on McSwain’s side.

Michael H. McGinley, a Philadelphia attorney, patiently outlines the relevant law on behalf of the amici but, more importantly, frames the poignant sentiments of the Civic Associations and police. Philadelphians, he notes, suffer daily from the drug epidemic, constantly faced with litter consisting of the detritus of drug use such as used syringes, drug paraphernalia and human waste. Drug dealers tend to use gun violence to protect their territory, and addicts often commit crimes to fund their drug habits. Allowing Safehouse into neighborhoods would only exacerbate the chaos. The police, if they follow the District Court’s ruling, would have to look the other way as drug crimes burgeon, allowing the purchase, possession and consumption of illegal drugs by the patrons of Safehouse, which is the exact opposite of their sworn law enforcement role.

McGinley implores the Third Circuit to follow the best rulebook in the world: the United States Constitution. That 231 year-old document dictates that policy issues be vigorously and publicly debated and resolved in a bicameral process by our elected leaders in the House and Senate as well as final approval by the President. By respecting the process, and the rule of law, we make sure to hear all voices and balance competing interests.

We cannot lose sight of the progress of the Safehouse case even as the pandemic, protests and riots batter us daily. Citizens must prevent the short-circuiting of our Constitutional order, in any form. Stand with the Civic Associations, and the police, and the U.S. Department of Justice, to prevent what McGinley calls “legislative vigilantism,” and protect our communities. Fight back by continuing to follow this case and let your voice be heard by the people we elect, before those that eschew the rule of law make our country unrecognizable. 

Linda A. Kerns is an attorney and a co-founder of Broad + Liberty. She can be reached at lkerns@broadandliberty.com. @lindakernslaw.

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