Safehouse Appellee Brief PDF

Case: 20-1422 Document: 46 Page: 1 Date Filed: 06/29/2020

No. 20-1422

In the United States Court of Appeals

for the Third Circuit
UNITED STATES OF AMERICA, Appellant,
v.
SAFEHOUSE, a Pennsylvania nonprofit corporation; and JOSÉ BENITEZ, as

President and Treasurer of Safehouse, Appellees.
________________________________
SAFEHOUSE, a Pennsylvania nonprofit corporation, Appellee,
v.
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,
Appellants.
________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
No. 19-cv-519
District Judge Gerald A. McHugh
BRIEF OF APPELLEES
SAFEHOUSE AND JOSÉ BENITEZ
Ilana H. Eisenstein Ronda B. Goldfein Peter Goldberger Seth F. Kreimer

Courtney G. Saleski Yolanda French Lollis LAW OFFICE OF 3501 Sansom St.
Ben C. Fabens-Lassen Adrian M. Lowe PETER GOLDBERGER Philadelphia, PA 19104
Megan E. Krebs Jacob M. Eden 50 Rittenhouse Place (215) 898-7447
DLA PIPER LLP (US) AIDS LAW PROJECT OF Ardmore, PA 19003
1650 Market St., Ste. 5000 PENNSYLVANIA (610) 649-8200
Philadelphia, PA 19103 1211 Chestnut St., Ste. 600 Attorneys for
(215) 656-3300 Philadelphia, PA 19107 Appellees Safehouse
(215) 587-9377 and José Benitez
TABLE OF CONTENTS
Page(s)
INTRODUCTION .................................................................................................... 1
STATEMENT OF THE ISSUE ................................................................................. 3
STATEMENT OF JURISDICTION.......................................................................... 3
STATEMENT OF THE CASE .................................................................................. 5
A. The Opioid Epidemic ................................................................................... 5
B. Naloxone and Overdose Prevention ............................................................. 5
C. Safehouse and Its Overdose Prevention Site................................................ 7
D. The Crack House Statute, 21 U.S.C. § 856(a) ........................................... 12
E. This Declaratory Judgment Action ............................................................ 13
STANDARD OF REVIEW ..................................................................................... 15
SUMMARY OF ARGUMENT ............................................................................... 16
ARGUMENT ........................................................................................................... 19
I. Section 856(a) Does Not Apply to Safehouse Because Safehouse’s
Overdose Prevention Site Would Not Be Made Available “for the
Purpose of” Unlawfully Using Controlled Substances ................................. 19
A. Section 856 Requires that the Primary or Principal Purpose of
the Property Is Unlawful Use .............................................................. 20
B. The Non-Binding Case Law on which DOJ Relies Does Not
Illuminate the Legal Standard for When a Property Is Used “For
the Purpose Of” Prohibited Activities ................................................. 20
C. Legislative Evidence Further Confirms that Section 856(a) Does
Not Criminalize Safehouse’s Proposed Overdose Prevention Site..... 36
D. Safehouse’s Interpretation of Section 856(a) Harmonizes
Federal Law, While DOJ’s Leads to Absurd Results ......................... 38
E. Section 856(a) Does Not Apply to Safehouse .................................... 42
II. The Rule of Lenity and Clear Statement Rule Require Any Doubt
to Be Resolved in Safehouse’s Favor ............................................................ 47
III. DOJ’s Interpretation of Section 856(a) Raises Grave Constitutional
Concerns and Conflicts with Principles of Federalism ................................. 49
CONCLUSION ........................................................................................................ 54
CERTIFICATIONS
i
TABLE OF AUTHORITIES
Page(s)
CASES
Adamo Wrecking Co. v. United States,
572 U.S. 844 (2014) ............................................................................................ 48
Bond v. United States,

572 U.S. 844 (2014) ......................................................................................19, 50
Burrage v. United States,

571 U.S. 204 (2014) ............................................................................................ 48
Gonzales v. Oregon,
546 U.S. 243 (2006) ..........................................................................19, 41, 50, 51
Gonzales v. Raich,
545 U.S. 1 (2005) ..........................................................................................52, 53
Hillsborough Cty. v. Automated Med. Labs., Inc.,
471 U.S. 707 (1985) ............................................................................................ 51
Jones v. United States,

529 U.S. 848 (2000) ..........................................................................47, 50, 51, 53
Kelly v. United States,
140 S. Ct. 1565 (2020) ............................................................................19, 20, 52
Ladner v. United States,
358 U.S. 169 (1958) ............................................................................................ 48
Loughrin v. United States,
573 U.S. 351 (2014) ............................................................................................ 23
Medtronic, Inc. v. Lohr,

518 U.S. 470 (1996) ............................................................................................ 41
Nat’l Fed’n of Indep. Bus. v. Sebelius,

567 U.S. 519 (2012) ............................................................................................ 52
ii
Orozco-Velasquez v. Att’y Gen.,

817 F.3d 78 (3d Cir. 2016) ................................................................................. 32
Pennsylvania Family Inst., Inc. v. Black,

489 F.3d 156 (3d Cir. 2007) ................................................................................. 4
Pellegrino v. U.S. Transp. Sec. Admin.,

937 F.3d 164 (3d Cir. 2019) ............................................................................... 37
Pereira v. Sessions,
138 S. Ct. 2105 (2018) ........................................................................................ 32
Rewis v. United States,

401 U.S. 808 (1971) ............................................................................................ 48
Reifer v. Westport Ins. Corp.,

751 F.3d 129 (3d Cir. 2014) ............................................................................... 15
Si Min Cen v. Att’y Gen.,

825 F.3d 177 (3d Cir. 2016) ............................................................................... 22
Silverman v. Eastrich Multiple Inv’r Fund, L.P.,
51 F.3d 28 (3d Cir. 1995) ................................................................................... 15
Small v. United States,

544 U.S. 385 (2005) ............................................................................................ 29
Solid Waste Agency v. U.S. Army Corps of Eng’rs,
531 U.S. 159 (2001) ............................................................................................ 47
Sullivan v. Stroop,
496 U.S. 478 (1990) ............................................................................................ 22
Taylor v. United States,
136 S. Ct. 2074 (2016) ........................................................................................ 52
United Savings Ass’n v. Timbers of Inwood Forest Assocs. Ltd.,

484 U.S. 365 (1988) ............................................................................................ 22
United States ex rel. Att’y Gen. v. Delaware & Hudson Co.,

213 U.S. 366 (1909) ............................................................................................ 50
iii
United States v. Bass,

404 U.S. 336 (1971) ............................................................................................ 49
United States v. C.I.O.,

335 U.S. 106 (1948) ............................................................................................ 49
United States v. Chen,

913 F.2d 183 (5th Cir. 1990) .......................................................................passim
United States v. Church,

970 F.2d 401 (7th Cir. 1992) ........................................................................29, 31
United States v. Coles,

558 F. App’x 173 (3d Cir. 2014) ........................................................................ 32
United States v. Cullen,

454 F.2d 386 (7th Cir. 1971) .............................................................................. 46
United States v. Flemming,

617 F.3d 252 (3d Cir. 2010) ............................................................................... 48
United States v. Johnson,
737 F.3d 444 (6th Cir. 2013) .............................................................................. 30
United States v. Kabat,

797 F.2d 580 (8th Cir. 1986) .............................................................................. 46
United States v. Kukafka,
478 F.3d 531 (3d Cir. 2007) ............................................................................... 51
United States v. Lancaster,
968 F.2d 1250 (D.C. Cir. 1992) ....................................................................29, 31
United States v. Lopez,
514 U.S. 549 (1995) ................................................................................50, 51, 53
United States v. Morrison,

529 U.S. 598 (2000) ................................................................................50, 51, 53
United States v. Romano,

849 F.2d 812 (3d Cir. 1988) ............................................................................... 46
iv
United States v. Russell,

595 F.3d 633 (6th Cir. 2010) .............................................................................. 29
United States v. Santos,

553 U.S. 507 (2008) ............................................................................................ 48
United States v. Shetler,

665 F.3d 1150 (9th Cir. 2011) ............................................................................ 29
United States v. Stimler,

864 F.3d 253 (3d Cir. 2017) ............................................................................... 47
United States v. Tamez,

941 F.2d 770 (9th Cir. 1991) ..................................................................25, 35, 36
United States v. Tebeau,

713 F.3d 955 (8th Cir. 2013) ..................................................................24, 35, 36
United States v. Universal C.I.T. Credit Corp.,

344 U.S. 218 (1952) ............................................................................................ 48
United States v. Verners,
53 F.3d 291 (10th Cir. 1995) ..................................................................28, 29, 31
United States v. Walker,

657 F.3d 160 (3d Cir. 2011) ............................................................................... 51
United States v. Wilson,
503 F.3d 195 (2d Cir. 2007) ............................................................................... 25
Weitzman, In re,
426 F.2d 439 (8th Cir. 1970) .............................................................................. 47
CONSTITUTION AND STATUTES

U.S. Const. art. I., § 8, cl. 3 (Commerce Clause) .............................................passim
28 U.S.C. § 1291 ........................................................................................................ 3

28 U.S.C. § 1331 ........................................................................................................ 3
Consolidated Appropriations Act, 2016, Pub. L. No. 114-113, § 520,

129 Stat. 2652 ..................................................................................................... 17
v
Comprehensive Addiction and Recovery Act of 2016, Pub. L. No. 114-198:
§ 101, 130 Stat. 697 ............................................................................................ 17
§ 107, 130 Stat. 703 (42 U.S.C. § 290dd-3) ....................................................... 39
Controlled Substances Act, 21 U.S.C. § 801 et seq.:
21 U.S.C. § 801(3)-(6) ........................................................................................ 51

21 U.S.C. § 812(b)(1)(B) .................................................................................... 39
21 U.S.C. § 843(f)(1) ............................................................................................ 3
21 U.S.C. § 856(a)(1)...................................................................................passim
21 U.S.C. § 856(a)(2)...................................................................................passim
21 U.S.C. § 856(e) ................................................................................................ 3
Declaratory Judgment Act:

28 U.S.C. § 2201 ................................................................................................... 3
28 U.S.C. § 2202 ................................................................................................... 3
Religious Freedom Restoration Act of 1993,

42 U.S.C. § 2000bb et seq. .......................................................3, 4, 14, 45, 47, 54
RULES
Fed. R. Civ. P. 56 ..................................................................................................... 15
Fed. R. Civ. P. 57 ..................................................................................................... 15
OTHER AUTHORITIES
132 Cong. Rec. 26,474 (1986) ................................................................................ 36
149 Cong. Rec. 1849 (2003) .................................................................................... 37
149 Cong. Rec. (daily ed. Jan. 28, 2003):
p. S1669 ........................................................................................................36, 37
vi
p. S1677 ........................................................................................................36, 37
Black’s Law Dictionary (6th ed. 1984) ................................................................... 20
City of Phila., Dep’t of Pub. Health, Philadelphia’s Community

Health Assessment: Health of the City 2018,
https://www.phila.gov/media/20181220135006/Health-of-the-City-
2018.pdf (last visited June 28, 2020) .................................................................... 5
Ctrs. for Disease Control & Prevention:

Opioid Overdose: Prevent Opioid Use Disorder (Oct. 11, 2017),
https://www.cdc.gov/drugoverdose/prevention/opioid-use-
disorder.html ......................................................................................................... 8
Program Guidance for Implementing Certain Components of

Syringe Services Programs (2016), https://www.cdc.gov/hiv/
pdf/risk/cdc-hiv-syringe-exchange-services.pdf................................................. 38
Merriam-Webster’s Collegiate Dictionary (11th ed. 2003) ..................................... 20
Model Penal Code § 2.02 (Am. Law. Inst. 2018) .................................................... 26
SAMHSA, U.S. Dep’t of Health & Human Servs., Medication and

Counseling Treatment, https://www.samhsa.gov/medication-
assisted-treatment (last visited June 28, 2020) ..................................................... 9
Antonin Scalia & Bryan A. Garner, Reading Law (2012)....................................... 22
vii
INTRODUCTION
The opioid epidemic and opioid overdose crisis are devastating the Nation and
particularly the City of Philadelphia. More than 3,500 Philadelphians have died in
the last three years of this public health crisis. The risk of fatal overdose has become
even more acute, as the COVID-19 pandemic has limited access to social services,
drug treatment, housing, and medical care for those suffering from addiction.
To combat the opioid and overdose crisis, Safehouse seeks to offer supervised
consumption services—an internationally recognized public-health intervention
employed for more than thirty years in sites worldwide to prevent overdose death.
Safehouse will “offer a variety of services aimed at preventing the spread of disease,
administering medical care, and encouraging drug users to enter treatment,”
including by providing critical, lifesaving care at the time of drug consumption,
when the risk of overdose death is most acute. Appx018; Appx684 ¶ 9.
The District Court correctly found that the Controlled Substances Act
(“CSA”), 21 U.S.C. § 856, does not criminalize Safehouse’s proposed medical and
public-health services. The District Court’s decision is not only faithful to the
statutory text, it is consistent with the statute’s history and purpose, harmonizes the
statute with federal law as a whole, and avoids grave constitutional and structural
concerns arising from DOJ’s misguided interpretation of federal law.
1
Section 856 does not broadly apply to any property where drug use occurs;
rather, it contains an essential element limiting the statute to a property used,
maintained, or opened “for the purpose” of unlawful drug activity. Safehouse’s
purpose is to save lives by preventing overdose death, not to facilitate drug use.
Nothing in Section 856’s text, history, or purpose suggests Congress intended to
criminalize Safehouse’s medical and public health intervention.
Recognizing the devastation of drug addition, Congress recently enacted
legislation to mitigate the harms of the opioid epidemic, including support for sterile
syringe exchange and funding for Naloxone access. Opioids, especially now-
prevalent fentanyl, can cause an overdose in seconds after consumption. Without
Naloxone or emergency respiratory support, serious injury or death can occur in
minutes. Notwithstanding the federal funding that supports Naloxone access, the
U.S. Department of Justice’s (“DOJ”) interpretation of Section 856 would impose a
20-year felony for providing a facility that makes Naloxone available when it is most
urgently required, at the moment of consumption. Safehouse’s interpretation, by
contrast, harmonizes these provisions of federal law.
The rule of lenity and clear statement rule require any lingering ambiguity to
be resolved in Safehouse’s favor. Moreover, this Court should interpret Section 856
narrowly to avoid constitutional and federalism concerns raised by the exercise of
2
federal Commerce Clause authority to regulate a non-commercial, entirely local
medical intervention.
This Court should affirm the judgment of the District Court.
STATEMENT OF THE ISSUE
Section 856(a) criminalizes making available a place “for the purpose of”
unlawful use of controlled substances. Does that statute prohibit Safehouse from
permitting individuals to remain in its facility, and under medical supervision, at the
time of drug consumption for the purpose of providing potentially urgent medical
care to prevent overdose death?
STATEMENT OF JURISDICTION
This Court has jurisdiction over this appeal under 28 U.S.C. §§ 1291 and
2201(a). The District Court had jurisdiction over DOJ’s declaratory judgment action
and Safehouse’s counterclaims under 28 U.S.C. §§ 1331 and 1345. See also 21
U.S.C. §§ 843(f)(1), 856(e); 28 U.S.C. §§ 2201, 2202.
In response to DOJ’s suit against it, Safehouse brought two counterclaims
seeking declaratory relief. Appx115-60. The first sought a declaration that Section
856(a) does not apply to Safehouse, as a matter of statutory construction, and the
second sought a declaration that Section 856(a) cannot lawfully apply to Safehouse
under the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. § 2000bb et seq.,
and the U.S. Constitution. The District Court denied DOJ’s motion for declaratory
3
relief, granted declaratory judgment in Safehouse’s favor on the first counterclaim,
and dismissed Safehouse’s alternative request for relief under RFRA without-
prejudice as moot. Appx005.
Safehouse agrees with DOJ that the District Court’s judgment is final and
appealable. See DOJ Br. 15-20. Safehouse was not required to stand on its
complaint for that to be true. This Court has held that the stand-on-the-complaint
requirement does not apply where a court grants judgment on one claim and then
dismisses an alternative basis for the same relief without prejudice on justiciability
grounds—as explained in Safehouse’s Letter Brief. Pennsylvania Family Inst., Inc.
v. Black, 489 F.3d 156, 162 (3d Cir. 2007); see Safehouse Ltr. Br. at 4-5 (Mar. 12,
2020), 3d Cir. Dkt. No. 18 (citing cases).
Dismissal without prejudice of Safehouse’s alternative counterclaim under
RFRA was proper in the context of this case and does not deprive this Court of
appellate jurisdiction. By declaring that Section 856(a) does not apply to Safehouse
and granting judgment in Safehouse’s favor on its first counterclaim, the District
Court granted Safehouse the relief it was seeking—a determination that it cannot be
prosecuted for its proposed conduct—and had no need to decide whether Safehouse
would be entitled to that same relief under RFRA. See Appx008 n.1. On this
threshold issue, Safehouse and DOJ agree. DOJ Br. 15-19. This Court should
accordingly exercise jurisdiction over this appeal and affirm.
4
STATEMENT OF THE CASE
A. The Opioid Epidemic

Philadelphia is in the midst of a severe public health emergency due to the
opioid epidemic and the opioid overdose crisis. In 2018 and 2019 alone, while the
government was pursuing this declaratory judgment action, more than 2,300
individuals died in Philadelphia from an opioid overdose.1 See Appx129 ¶ 18 &
n.15. That is three City residents each day.
B. Naloxone and Overdose Prevention

Every second counts when responding to an opioid overdose. That has
become particularly true in light of the widespread proliferation in recent years of
fentanyl—a powerful and fast-acting opioid that is 50-to-100 times more potent than
heroin. Id. ¶ 22. In the event of a fentanyl overdose, a person may stop breathing
within minutes of consumption. Id. Absent intervention, serious injury or death can
occur as quickly as 3 to 5 minutes. Id. And since a person overdosing can lose
respiratory function within minutes of consumption, time is of the essence when an
overdose is occurring. The more time that elapses, the greater the risk of serious
injury and death.
1
City of Phila., Dep’t of Pub. Health, Philadelphia’s Community Health
Assessment: Health of the City 2018, at 5 (Jan. 10, 2019), https://bit.ly/3gacLTZ
(last visited June 28, 2020).
5
Reversal of an overdose is possible with timely medical intervention. In fact,
if immediately available, the administration of Naloxone or similar opioid receptor
antagonists provides lifesaving treatment that will resuscitate and keep a person alive
with medical certainty. Appx130, 139 ¶¶ 23, 68.2
Although Naloxone is designed to be easily administered as an intra-nasal
spray, a person experiencing an overdose (and thus losing consciousness) cannot
self-administer. Appx139 ¶ 69. Thus, Naloxone can work only if someone is close
by to administer it. Id. Ensuring proximity to medical care (and Naloxone) at the
time of consumption is therefore a critical component of efforts to prevent fatal
opioid overdose.
Medical supervision of opioid consumption ensures that an overdose will be
effectively reversed using a variety of available interventions, including prompt
administration of Naloxone and respiratory support. Supervised consumption
allows those at high risk of overdose death to stay within immediate reach of urgent,
lifesaving medical care at the critical moment of consumption.
2
Naloxone has been widely dispensed as a proven means of combatting opioid
deaths with the help of federal, state, and local legislation and funding, as discussed
in more detail below. Demonstrating the efficacy of immediate Naloxone access, in
a 30-year period involving millions of encounters, no person has died of a drug
overdose in any of the supervised consumption site worldwide. Appx174. Given
the centrality of Naloxone to Safehouse’s public health intervention, DOJ’s failure
to mention it shows that it would prefer to ignore Safehouse’s true purpose rather
than engage with it.
6
For these reason, the medical and public health measures that Safehouse
proposes have been recognized and endorsed by prominent national and
international medical and public health associations including the American Medical
Association, the American Public Health Association, AIDS United, the European
Monitoring Center for Drugs and Drug Addiction, the Infectious Diseases Society
of America, the HIV Medical Association, the International Drug Policy
Consortium, and scores of public health experts, physicians, and addiction
researchers. See Dist. Ct. Dkt. Nos. 89, 90, 92, 95. Philadelphia’s Public Health
Commissioner and its Commissioner of the Department of Behavioral Health and
Intellectual disAbility Services have each announced that overdose prevention,
including supervised consumption, is a critical medical and public-health
intervention to mitigate Philadelphia’s overdose crisis. See Dist. Ct. Dkt. No. 101.
C. Safehouse and Its Overdose Prevention Site
Safehouse is a privately funded, non-profit corporation that seeks to open an
overdose prevention site in Philadelphia, and Appellee José Benitez is Safehouse’s
president and treasurer. Appx018; Appx683-84 ¶¶ 1, 4. Safehouse’s purpose is to
provide lifesaving medical treatment, primary care, initiation of drug treatment, and
7
wraparound services to the vulnerable population at high risk of overdose death and
complications from opioid use disorder.3 See Appx683-84 ¶¶ 1, 9, 13, 14.
To achieve this purpose, Safehouse plans to open an overdose prevention site
that will employ evidence-based public-health interventions, including medically
supervised consumption, to mitigate the catastrophic losses associated with the
opioid epidemic and overdose crisis in Philadelphia.4 In particular, Safehouse “will
offer a variety of services” to participants “aimed at preventing the spread of disease,
administering medical care, and encouraging drug users to enter treatment.”
Appx018.5
3
The Centers for Disease Control and Prevention define “Opioid Use Disorder”
as “a problematic pattern of opioid use that causes significant impairment or
distress.” CDC, Opioid Overdose: Prevent Opioid Use Disorder (Oct. 11, 2017),
https://bit.ly/31pRlOE.
4
In public health parlance, Safehouse will employ harm reduction strategies to
combat the opioid crisis. “Harm reduction” is an umbrella term for interventions
that aim to reduce problematic or otherwise harmful effects of certain behaviors. In
the context of substance and opioid use disorders, such interventions seek to
minimize harm for individuals who, for whatever reason, may not be ready, willing,
or able to pursue full abstinence as a goal. At bottom, harm reduction takes into
account the psychology of addiction and substance use disorder and seeks to help
individuals engage in treatments to reduce, manage, and stop their substance use
when appropriate.
5
Safehouse, a not-for-profit organization, will not charge participants for its
services, will not produce any revenue, and will not even permit the on-site exchange
of currency for any purpose. See, e.g., Appx150 ¶ 112.
8
“[W]hen a participant arrives at Safehouse, the first step is a registration
process.” Appx 684 ¶ 7. The participant will provide certain personal information
and receive a physical and behavioral health assessment. Id. ¶ 8. “Safehouse intends
to encourage every participant to enter drug treatment, which will include an offer
to commence treatment immediately.” Id. ¶ 9.
After registration, Safehouse will “offer each participant its services.” Id.
Those services include “wound care, on-site initiation of Medication Assisted
Treatment,6 recovery counseling, HIV and HCV [Hepatitis C] counseling, testing
and treatment, referral to primary care, and referrals to social services, legal services
and housing opportunities.” Id. Safehouse will also provide participants with sterile
syringes and fentanyl test strips “to test for the presence of fentanyl in their drugs”
before consumption.7 Appx685 ¶ 12. And Safehouse will allow for participants to
use supervised drug consumption and observation rooms. Appx684 ¶ 9. Safehouse
6
Medication-assisted treatment is “the use of medications, in combination with
counseling and behavioral therapies, to provide a ‘whole-patient’ approach to the
treatment of substance use disorders.” SAMHSA, U.S. Dep’t of Health & Human
Servs., SAMHSA, Medication and Counseling Treatment (last updated April 29,
2020), https://bit.ly/2YIfZsh (last visited June 28, 2020) “The prescribed medication
operates to normalize brain chemistry, block the euphoric effects of alcohol and
opioids, relieve physiological cravings, and normalize body functions without the
negative effects of the abused drug.” Id.
7
The provision of sterile consumption equipment will reduce of the risk of
transmission of infectious diseases. Safehouse intends to ensure that participants
safely dispose of used consumption equipment, such as syringes, before they leave
the supervised consumption room. Appx685 ¶ 18.
9
participants may request access to all of these services. Id. ¶ 11. And Safehouse
plans to offer the same services to each participant again at check out. Appx685
¶ 21.
Upon request, “[e]ach Safehouse participant may be assigned to an individual
station where they may consume self-obtained drugs, including by injection, under
the supervision of Safehouse staff.” Id. ¶ 13. But under no circumstance will
Safehouse make available any illicit narcotic or opioid. See id. ¶ 14. Nor will
Safehouse manufacture, sell, or administer unlawful drugs, or permit the distribution
or sale of drugs on site. And Safehouse will not allow participants to share
consumption equipment or help another person consume drugs. Appx150 ¶ 112.
Although Safehouse personnel will “be available to advise participants on
sterile injection techniques,” they “will be directed not to provide, administer, or
dispense any controlled substances.” Appx685 ¶¶ 15, 16 (emphasis added).
Safehouse’s trained medical professionals “will supervise participants’ consumption
and, if necessary, intervene with medical care, including respiratory support and the
administration of overdose reversal agents, such as naloxone.” Id. ¶ 17. Within the
consumption stations themselves, Safehouse will engage in the “legal acts of
providing sterile injection equipment and administering emergency medical care.”
Appx063. In practice and by design, the medically supervised consumption stations
will ensure that each participant is within close proximity to medical care (including
10
Naloxone and respiratory support) during and immediately after the time of
consumption—when the risk of overdose is most acute and Naloxone is most
needed. Id.8
Based on first-hand experience and clinical evidence, “Safehouse believes
that supervised consumption aids potential treatment in that its participants are more
likely to engage in counseling and accept offers of medical care after they have
consumed drugs and are not experiencing withdrawal symptoms.” Id. ¶ 22. That is
the role of supervised observation. After leaving a supervised consumption room,
“Safehouse staff will direct participants to the medically supervised observation
room,” with the goals of monitoring participants for the signs of overdose and
facilitating pathways to treatment. Id. ¶ 19. “In the observation room, Safehouse
plans to provide certified peer counselors, as well as recovery specialists, social
workers, and case managers to offer services and encourage treatment.” Id. ¶ 21.
Once again, in this room, “Safehouse intends to encourage” (but not force) “every
8
Safehouse will encourage but not require that its participants commit to
addiction treatment. That is consistent with basic principles of harm reduction. See,
e.g., M. Hawk, R.W.S Coulter, J.E. Egan, et al., Harm Reduction Principles for
Healthcare Settings. 14 Harm Reduction J. 14, 70 (2017). A mandatory approach
to drug treatment, seemingly urged by DOJ and “drug policy” amici (C.A. Dkt. 31),
is widely recognized as ineffective compared to non-compulsory treatment
approaches in terms of reducing drug use, and could deter those in need with serious
use disorder from seeking out Safehouse’s overdose prevention and other lifesaving
medical services. See D. Werb, A. Kamarulzaman, M.C. Meacham, et al., The
Effectiveness of Compulsory Drug Treatment: A Systematic Review, Int’l J. of Drug
Policy 28: 1-9 (Feb. 2016).
11
participant to enter drug treatment,” including immediate commencement of
treatment. Appx684-85 ¶¶ 9, 23.
Thus, Safehouse “will offer all its participants treatment referrals and on-site
initiation of medication-assisted treatment”—along with the many other services
mentioned above—“during at least three stages of Safehouse’s protocol.” Appx063.
The District Court properly recognized that Safehouse’s overdose prevention site
“ultimately seeks to reduce unlawful drug use.” Id. Given the urgent need for these
services—and the staggering number of overdose fatalities in Philadelphia—
Safehouse “plans to open at least one facility in Philadelphia as soon as possible.”
Appx686 ¶ 24.9
D. The Crack House Statute, 21 U.S.C. § 856(a)
This appeal centers on whether Safehouse’s proposed overdose prevention
site would violate 21 U.S.C. § 856(a), a federal criminal law colloquially known as
the “crack house statute.” The statute provides as follows:
9
In Philadelphia, an existing nonprofit community organization, Prevention
Point Philadelphia, provides a wide range of medical and non-medical services
intended to reduce the harms of the opioid crisis—but it does not provide medically
supervised consumption or observation. Appx684 ¶¶ 4-5. Safehouse’s president
and treasurer, Appellee José Benitez, is Prevention Point Philadelphia’s executive
director. Id.
12
Except as authorized by this subchapter, it shall be unlawful to- . . .
(1) knowingly open, lease, rent, use, or maintain any place, whether
permanently or temporarily, for the purpose of manufacturing,
distributing, or using any controlled substance;
(2) manage or control any place, whether permanently or temporarily,
either as an owner, lessee, agent, employee, occupant, or mortgagee,
and knowingly and intentionally rent, lease, profit from, or make
available for use, with or without compensation, the place for the
purpose of unlawfully manufacturing, storing, distributing, or using
a controlled substance.
See 21 U.S.C. § 856(a) (emphasis added). A violation of either subsection is a
federal felony that carries with it several criminal and civil penalties, including fines
of up to $2 million and imprisonment for up to twenty years. See id. § 856(b), (d).
Because it is undisputed that Safehouse will not manufacture, store, or
distribute any controlled substance, the outcome of this appeal hinges on whether
Safehouse will knowingly and intentionally make available for use its overdose
prevention site “for the purpose of ” unlawfully using a controlled substance.
E. This Declaratory Judgment Action
On February 5, 2019, DOJ filed a complaint for a declaratory judgment
against Safehouse. Appx107-114. Advancing an erroneous interpretation of federal
law, DOJ sought a declaration that Safehouse’s medically supervised consumption
room would violate 21 U.S.C. § 856(a)(2).
Safehouse brought a two-count counterclaim against DOJ seeking declaratory
and injunctive relief. Appx115-93. Safehouse’s first counterclaim sought a
13
declaratory judgment that, as a matter of statutory interpretation, Section 856(a) does
not apply to Safehouse’s proposed overdose prevention site. Safehouse’s second
counterclaim sought a declaration that application of Section 856(a) to Safehouse
would violate the Commerce Clause of the U.S. Constitution by criminalizing
entirely local, noncommercial activities and would violate RFRA by subjecting
Safehouse and its founders to criminal penalties for exercising their sincerely held
religious beliefs. In other words, Safehouse argued that Section 856(a) does not
apply to Safehouse, and that it cannot apply to Safehouse even if the court were to
adopt the government’s erroneous interpretation of the statute.
DOJ moved for judgment on the pleadings, and Safehouse opposed the
motion. Appx203-344. The District Court denied DOJ’s motion in a thorough, well-
reasoned Memorandum Opinion, agreeing with Safehouse’s interpretation of
Section 856(a) and rejecting DOJ’s. Appx015-070. As the court explained, Section
856(a) does not prohibit Safehouse’s proposed conduct because “Safehouse does not
plan to make its facility available ‘for the purpose of’ facilitating unlawful drug
use.” Appx029 (quoting 21 U.S.C. § 856(a)).
The District Court’s order denying DOJ’s motion for judgment on the
pleadings was a non-final order that was not appealable as a matter of right. To
facilitate a pathway to final judgment, the parties negotiated an agreed-upon
stipulation of facts. Appx683-86. Each party cross-moved for judgment in their
14
favor as a matter of law, with Safehouse seeking relief under both Federal Rules of
Civil Procedure 56 and 57.
The District Court reaffirmed its conclusion that Section 856(a) does not apply
to Safehouse, adopting its prior analysis and reasoning for denying DOJ’s motion
for judgment on the pleadings. Appx004-12. The court entered judgment in
Safehouse’s favor on its first counterclaim, and declared as a matter of law “that the
establishment and operation of [Safehouse’s] overdose prevention services model,
including supervised consumption in accordance with the parties’ stipulated facts,
does not violate 21 U.S.C. § 856(a).” Appx005 ¶ 4 (internal citation omitted).
STANDARD OF REVIEW
Since the Declaratory Judgment Act “confers discretionary, rather than
compulsory, jurisdiction upon federal courts,” this Court reviews the District Court’s
decision to exercise jurisdiction and grant a declaratory judgment for abuse of
discretion. Riefer v. Westport Ins. Corp., 751 F.3d 129, 138 (3d Cir. 2014); see 28
U.S.C. § 2201(a) (providing that district courts “may declare the rights and other
legal relations of any interested party seeking such declaration”). In conducting this
review, the Court examines the District Court’s conclusions of law de novo. See
Silverman v. Eastrich Multiple Inv’r Fund, L.P., 51 F.3d 28, 30 (3d Cir. 1995).
15
SUMMARY OF ARGUMENT
I. Section 856(a) does not apply to Safehouse, because Safehouse will
operate its overdose prevention site “for the purpose of” providing necessary, urgent,
lifesaving medical care and treatment to people with opioid and substance use
disorder, not to facilitate the unlawful use of drugs. Section 856(a)(2) makes it a
federal crime to “manage or control any place” and “knowingly and intentionally
. . . make available for use . . . the place for the purpose of unlawfully . . . using a
controlled substance.” (emphasis added). An essential element of Section 856(a) is
that the defendant act to manage or control a place “for the purpose of ” unlawful
drug activity. Safehouse will not be such a place, and Safehouse does not have that
purpose. The District Court found, based on the stipulated facts, that “Safehouse
does not seek to administer prohibited drugs but rather to ameliorate the harm from
their unlawful use” (Appx068), and “ultimately seeks to reduce unlawful drug use.”
Appx063. Because Safehouse does not plan to make its facility available ‘for the
purpose of’ facilitating unlawful drug use,” the District Court correctly “conclude[d]
that § 856(a) does not criminalize Safehouse’s proposed conduct.” Appx029.
That result is further supported by Section 856(a)’s purpose and history:
Congress enacted Section 856 to target crack houses, drug-fueled raves, and other
predatory actors and promoters of drug activity—not to criminalize the services
16
proposed by Safehouse designed to prevent overdose death, stop drug use, and
mitigate its harms.
DOJ’s contrary position relies on the incorrect premise that Safehouse would
violate the statute because Safehouse would know its participants unlawfully use
controlled substances in its facility. DOJ conflates the potential criminal liability of
drug users (who may come to Safehouse in possession of small quantities of drugs
obtained before their arrival at Safehouse’s facility), with the entirely legal, and
indeed vital, medical services proposed by Safehouse and its staff.
II. The District Court’s and Safehouse’s interpretation of Section 856 is
not only a correct application of its statutory terms, it also harmonizes other
provisions of federal law; whereas DOJ’s contrary argument would lead to
unreasonable and discordant results. Safehouse’s supervised consumption services
will bridge the short, but critical gap between the provision of sterile syringes and
the urgent need for Naloxone (and other overdose treatments)—interventions
recognized, endorsed, and funded by other provisions of federal law. See
Comprehensive Addiction and Recovery Act of 2016 (“CARA”), Pub. L. No. 114-
198, § 101, 130 Stat. 697; Consolidated Appropriations Act of 2016, Pub. L. No.
114-113, § 520, 129 Stat. 2652.
These federal statutes not only expressly permit, but also fund facilities that
furnish clean and sterile consumption equipment and encourage them to be well-
17
stocked with Naloxone. Only seconds to minutes may elapse between the provision
of sterile equipment and the urgent need for Naloxone, which will reverse an
overdose with medical certainty. But under DOJ’s unreasonable view of Section
856, Safehouse’s medical staff (or, for that matter, loving parents and other family
members, concerned roommates, dedicated social workers, or good Samaritans)
would be prohibited from furnishing these crucial medical interventions at the time
and place they are required—the moment of consumption; and must instead force
those suffering from addiction into the street and out of their sight and care. DOJ’s
interpretation of Section 856 cannot be reconciled with the medical facts recognized
by Congress and federal health law and policy.
III. To the extent any doubt remains that Section 856 applies to Safehouse,
the rule of lenity, the clear statement rule, and the constitutional avoidance doctrine
each requires interpreting the provision in Safehouse’s favor. Any ambiguity in
Section 856’s scope must be resolved against criminalization of Safehouse’s
overdose prevention services.
Moreover, DOJ’s expansive interpretation of Section 856 would exceed the
constitutional limits on Congress’s Commerce Clause authority, which does not
permit Congress to adopt freestanding regulation of Safehouse’s free medical and
public health services—entirely local activities that would not increase the interstate
market for controlled substances and which fall within the traditional province of
18
state and local police powers. This Court may avoid the serious constitutional
question and federalism concerns raised by DOJ’s broad interpretation of Section
856 by adopting the construction urged by Safehouse. See, e.g., Kelly v. United
States, 140 S. Ct. 1565, 1573 (2020); Bond v. United States, 572 U.S. 844, 858-59
(2014); Gonzales v. Oregon, 546 U.S. 243, 270 (2006).
* * * * *
For these reasons, Safehouse respectfully urges this Court to affirm the
District Court’s determination that Section 856 does not prohibit Safehouse from
operating a medically supervised consumption site in the City of Philadelphia.
ARGUMENT
I. Section 856(a) Does Not Apply to Safehouse Because Safehouse’s

Overdose Prevention Site Would Not Be Made Available “for the
Purpose of” Unlawfully Using Controlled Substances
The District Court properly concluded that Section 856(a) does not apply to
Safehouse, because Safehouse will operate its facility for the purpose of providing
critical medical services that prevent overdose death and other serious medical
harms, not “for the purpose of . . . unlawfully . . . using” drugs. Appx062-68
(ellipses in original; emphasis added). As the court observed, the “use that will occur
is subsidiary to the purpose of ensuring proximity to medical care while users are
vulnerable to fatal overdose.” Appx064.
19
This conclusion is dictated by the text, history, and structure of Section 856,
and avoids conflicting and irrational results in light of other more recent
congressional statutes that recognize the critical importance of sterile syringes,
Naloxone, and harm reduction to combat the opioid crisis and to treat individuals
suffering from opioid addiction.
A. Section 856 Requires that the Primary or Principal Purpose of the

Property Is Unlawful Use
1. The statutory text establishes that an illicit “purpose” is an essential
element of Section 856(a). Since it is unlawful under Section 856(a)(1) and (a)(2)
to maintain or make available a “place . . . for the purpose of . . . using a controlled
substance,” interpreting the term “purpose” is critical. “Purpose” means “one’s
objective, goal, or end,” as the District Court explained. Appx051; see Black’s Law
Dictionary (6th ed. 1984) (“That which one sets before him to accomplish or
attain[.]”); Merriam-Webster’s Collegiate Dictionary (11th ed. 2003) (defining
“purpose” as “something set up as an object or end to be attained”). The purpose
for which a place is opened, maintained, or made available is the property’s ultimate
objective, not the means by which that objective is achieved. See Kelly v. United
States, 140 S. Ct. 1565, 1573 (2020) (distinguishing between “the objective of the
[deceitful] scheme” and the “byproduct of it”).
Moreover, the District Court correctly held that the “‘for the purpose of
clause’ refers to the mental state of the actor”—i.e., the defendant. Appx033; see
20
Appx036 n.18. In other words, this element requires a showing that Safehouse
knowingly and intentionally make its overdose prevention site available “for the
proscribed purpose.” Appx037.
Rather than apply that straightforward statutory text, DOJ contends (at 21-32)
that Section 856(a)(2)—but not Section 856(a)(1)—depends on the purpose of the
people who will use Safehouse’s overdose prevention facility, rather than on
Safehouse’s own purpose. The District Court properly rejected that interpretation
as contrary to the statutory text: “At no point has the Government presented a
compelling textual reason why the structure of (a)(2) dictates that the purpose
requirement must refer to the purpose of the third party.” Appx034 n.14. Indeed,
Section 856(a) is devoid of any reference to the purpose of any third party (i.e., a
Safehouse participant). Nor would it make sense for serious criminal liability to
hinge on a third party’s mental state and motivations.
DOJ’s argument also rests on the counter-textual premise that the phrase
“place for the purpose” should be given an entirely different and far more expansive
meaning in Section 856(a)(2) than in Section 856(a)(1). As the District Court
explained, “the text suggests no reason to read the requirement differently in (a)(2)
than in (a)(1).” Appx034. Both Subsection 856(a)(1) and (a)(2) use the identical
phrase “for the purpose of.” Neither Safehouse, DOJ, nor any court disputes that a
conviction under Section 856(a)(1) requires proof that the defendant acted to make
21
the property available “ ‘for the purpose of’ drug activity.” Appx034 n.14. Yet DOJ
urges this Court to read that same phrase to mean something entirely different when
used in Section 856(a)(2). Id.
DOJ’s reading is inconsistent with a basic tenet of statutory interpretation that
a word or phrase in a statute is presumed to bear the same meaning throughout the
statutory text. See Antonin Scalia & Bryan A. Garner, Reading Law 170 (2012);
see, e.g., Sullivan v. Stroop, 496 U.S. 478, 484-85 (1990) (observing the “normal
rule of statutory construction that ‘identical words used in different parts of the same
act are intended to have the same meaning.’” (quoting Sorenson v. Sec’y of the
Treasury, 475 U.S. 851, 860 (1986))); see also United Sav. Ass’n v. Timbers of
Inwood Forest Assocs., Ltd., 484 U.S. 365, 371 (1988). This “presumption of
consistent usage” undermines DOJ’s interpretation. Appx036 (citing Si Min Cen v.
Att’y Gen., 825 F.3d 177, 193 (3d Cir. 2016)).
Moreover, contrary to DOJ’s arguments (at 25), there is no need to assign an
entirely different meaning to the same phrase in Section 856(a)(1) and (a)(2) to
prevent “overlap” between the two subsections. To the contrary, Section 856(a)(1)
and 856(a)(2) prohibit different activities. Section 856(a)(1) targets those who
“open,” “lease,” rent,” “use” or “maintain,” property, i.e., typically the operator of
the property; whereas Section 856(a)(2) targets those who “manage or control any
place” and who then “rent, lease, profit from, or make available for use” the property,
22
i.e., typically the landlord or manager. Appx034; cf. United States v. Chen, 913 F.2d
183, 190 (5th Cir. 1990). Both subsections impose the same requirement, however,
that the defendant act to make the property available “for the purpose of ” unlawful
manufacture, distribution, storage, or use.10
2. The same result follows from examining the purpose of Safehouse’s
facility, rather than only examining the purpose of its founders or its employees.
Section 856(a)(2) prohibits knowingly and intentionally managing or controlling a
“place . . . for the purpose of ” illicit drug activity. This focus on the purpose of the
place flows naturally from the statutory text. The word “place” directly precedes,
and therefore is modified by, the phrase “for the purpose of” in Section 856(a)(1)
and (a)(2). Section 856’s title, “Maintaining Drug Involved Premises,” and its
legislative history, see Part I.C, infra, further demonstrate Congress’s particular
focus on the use of property for illicit drug activity.
The purpose of a place may be discerned not only by its owner’s purpose, but
also by the operation of and physical functions within the facility. Here, for example,
Safehouse’s mission is to save lives otherwise at risk of overdose death; its activities
and its facility will be directed at carrying out its lifesaving mission. Safehouse will
be outfitted with Naloxone, emergency respiratory care, medical treatment bays, and
10
Moreover, there is no rule against statutory overlap. Congress may provide for
overlap to ensure comprehensive coverage, which is not uncommon in the context
of criminal statutes. Loughrin v. United States, 573 U.S. 351, 358, n.4 (2014).
23
clean, sterile surfaces and consumption equipment designed to prevent disease
transmission and infection. It will be staffed by medical professionals and trained
drug counselors. Safehouse will be not only in word, but in deed, a place for
receiving medical care, drug treatment, and social services—not a “place . . . for the
purpose of” illicit drug use. The Safehouse facility thus will bear no resemblance to
“crack houses,” opium dens, or rave parties—the prototypical places targeted by
Congress when it enacted Section 856.
A requirement that the place be made available “for the purpose of” illicit
drug activity also distinguishes Safehouse from the out-of-circuit cases relied upon
DOJ (at 23-27), see Part I.B., infra, in which courts found that owners of drug-
infested properties may not escape Section 856(a)(2) liability by denying that they
personally had the express purpose of using the property for drug activity. Unlike
here, in each of those cases, the premises were undoubtedly “place[s] . . . for the
purpose of” illegal drug activity—including a motel where the owner encouraged
drug dealing to pay the rent and where the owner admitted cocaine and other drugs
could be purchased in every room, see Chen, 913 F.2d at 185-86, 190-91; a
campground where over $500,000 in illicit drugs were distributed at each music
festival with the help of the defendant and his staff, see United States v. Tebeau, 713
F.3d 955, 958 (8th Cir. 2013), a car dealership used to distribute kilograms of
cocaine sourced by the defendant (the dealership’s owner), see United States v.
24
Tamez, 941 F.2d 770 (9th Cir. 1991), and an apartment where the evidence proved
the owner “knowingly allowed others to use those residences for the manufacture,
storage and distribution of narcotics,” United States v. Wilson, 503 F.3d 195, 198
(2d Cir. 2007). Safehouse’s medical and public health facility bears no analogy to
those cases. On such facts, any comment in these cases distinguishing the purpose
of the property owners from that of the drug dealers using the property was pure
dictum.
3. DOJ’s expansive and counter-textual view of the statute would allow
for the prosecution of a property owner for simply knowing that any illegal drugs
would be consumed by anyone they permit to enter or remain on their property. See
DOJ Br. 21.
As a threshold matter, that interpretation ignores Section 856(a)(2)’s
requirement that a defendant “knowingly and intentionally” make a property
available for use with the proscribed purpose. Section 856(a)(1), by contrast, states
that a defendant must only “knowingly” operate the property with the proscribed
purpose. No reasonable argument exists that the defendant’s knowledge of drug use
is alone sufficient; rather, the statute criminalizes only those who act with the intent
of making a property available for use “for the purpose of” unlawful drug use.11
11
For the same reason, this Court may readily dismiss DOJ’s attempt to
reformulate the purpose element, by claiming the statute prohibits defendants who
25
DOJ’s reliance on mere “knowledge” of drug use, rather than the “purpose”
of Safehouse’s operations, would also result in a dramatic and unbounded
interpretation of Section 856 liability that is inconsistent with even its own proposed
limits on the statute’s scope. For example, DOJ concedes that Section 856(a)(2)
would not apply to loving parents who invite their adult child to stay home, under
their care and watchful eye, “then instruct the child to inject drugs there, in the
parents’ presence, to allow for resuscitation” with Naloxone.12 DOJ Br. 45 n.11;
Appx055; see Appx010, 35, 626-68. But criminalizing parental supervision of drug
consumption would be the inevitable result of DOJ’s claim that knowledge of drug
use suffices.
DOJ attempts (at 45 n.11) to rationalize the inevitable result of their position
by asserting that “the [hypothetical] parents do not want their child to inject drugs at
all,” but nonetheless allow drug consumption on their property to ensure they are in
proximity to the child in the event of an overdose. See Appx035. That explanation
act with the “conscious object” of unlawful drug use. DOJ Br. 32-40. It is first
unclear whether any daylight exists between “purpose” and “conscious object,” see,
e.g., Model Penal Code § 2.02 (Am. Law. Inst. 2018) (defining “purposely” as acting
with the “conscious object” to bring about a particular result), but in application,
DOJ reverts to reliance on knowledge of drug use alone to establish criminal liability,
which plainly does not suffice under Section 856(a)’s clear terms.
12
At oral argument before the District Court, U.S. Attorney McSwain agreed that
the statute would not apply even though the parents explicitly said to their child,
“[w]e don’t want you to use, but if you’re going to use, we want you to use right here
in our presence and we’ve got Narcan . . . . So shoot up but do it while we’re here
and do it while we can resuscitate you.” Appx0626-27 (emphasis added).
26
offers no viable limiting principle. And it fails to distinguish this case: There is no
basis to claim that Safehouse “wants” its participants to use drugs any more than the
protective parent wants their child to continue to use drugs. Rather, Safehouse’s
purpose is to keep those it serves in immediate proximity to urgent medical care in
the event of a drug overdose, while providing public-health informed pathways to
drug treatment. Safehouse is no different than the parents in this example.
Similarly, under DOJ’s interpretation, a homeless shelter could be criminally
liable for knowingly providing housing for people currently addicted to and using
controlled substances within the facility. Yet, this would be entirely inconsistent
with federally funded programs and guidance by the U.S. Department of Housing
and Urban Development (“HUD”), which administers the “Housing First” program
that establishes grants to fund housing for current substance users. The program
guidance states that “program policies consistent with a Housing First approach do
not consider . . . drug use in and of itself to be lease violations” and advises that
people using drugs in such locations should not be evicted “unless such use results
in disturbances to neighbors or is associated with illegal activity (e.g. selling illegal
substance).”13 The federal government’s own programs thus establish that the
government does not believe on-site drug use to be a basis for eviction even from a
13
See HUD, Housing First in Permanent Supportive Housing (July 2014),
https://bit.ly/3ievCzs (emphasis added).
27
federally funded facility. DOJ does not even attempt to reconcile its interpretation
of Section 856(a) with the HUD’s Housing First federal program guidance, which
requires grantees to keep its beneficiaries sheltered and within reach of critical social
services even if they know their residents are using unlawful drugs on-site.
If those examples are not criminal, under Section 856(a)(2), neither is
Safehouse’s proposed conduct. That is because “[t]he use that will occur is
subsidiary to the purpose of ensuring proximity to medical care while users are
vulnerable to fatal overdose.” Appx064. The only way the government can
distinguish the two scenarios is by ignoring or misconstruing Safehouse’s purpose.14
The DOJ’s interpretation also fails to account for the uniform view of circuit
courts that knowledge or participation in “casual” or “personal” consumption of
drugs is insufficient to establish Section 856 liability; rather, the prohibited purpose
must be the primary purpose (or “significant purpose,” as the District Court
concluded) to which the property is put. Appx053-55 (discussing the case law); see,
e.g., United States v. Verners, 53 F.3d 291, 296 (10th Cir. 1995); United States v.
14
Even though it stipulated to facts that demonstrate the opposite conclusion,
DOJ has stubbornly refused to acknowledge that Safehouse seeks to provide medical
care, including access to Naloxone and respiratory support, and pathways to
treatment. For instance, in the District Court, DOJ “seemingly rejected any
therapeutic purpose” of Safehouse, “derided it as ‘Bizarro World,’” and “urged the
Court to ‘be real’” because it claims Safehouse’s “whole purpose here is for people
to use drugs,” not to provide any medical treatment to its participants. Appx065
n.46 (emphasis added). As the District Court observed, however, there is no support
for “such a caricature of what Safehouse proposes.” Id.
28
Russell, 595 F.3d 633, 642-43 (6th Cir. 2010) (noting uniformity of circuit law); see
also United States v. Johnson, 737 F.3d 444, 449 (6th Cir. 2013); United States v.
Shetler, 665 F.3d 1150, 1161 (9th Cir. 2011); Verners, 53 F.3d at 296; United States
v. Church, 970 F.2d 401, 406 (7th Cir. 1992) (assuming that “casual drug users” do
not risk violating 856”); United States v. Lancaster, 968 F.2d 1250, 1253 (D.C. Cir.
1992) (Section 856 “cannot reasonably be construed . . . to criminalize simple
consumption of drugs in one’s home.”). The DOJ’s opening brief conspicuously
fails to grapple with the core holdings of these cases.
It is thus unsurprising that DOJ cites no case that applies Section 856(a) solely
based on simple possession or unlawful use in a property. Indeed, although DOJ
harps on the illegality of heroin use, it cannot point to “a single § 856(a) case
predicated solely on use” since the statute’s inception. Appx054 n.39 (emphasis
added). A ruling in favor of Safehouse thus will have no effect on the government’s
enforcement of federal drug laws. That prosecution history is an “empirical fact”
that demonstrates the important limitation that “purpose” places on Section 856(a)’s
scope, and that undercuts DOJ’s expansive and unprecedented interpretation of
Section 856. See Small v. United States, 544 U.S. 385, 393-94 (2005).15
15
Notably, DOJ also rarely prosecutes simple possession of controlled
substances. In 2018 and 2019, there was not a single federal prosecution for drug
possession in the Eastern District of Pennsylvania. See U.S. Sentencing Comm’n,
2019 Federal Sentencing Statistics for the Eastern District of Pennsylvania, at 3; U.S.
29
3. DOJ is further incorrect in arguing that Safehouse’s and the District
Court’s application of the purpose requirement improperly reads the word
“facilitate” into the text of the statute. DOJ Br. 53-54. That misses the point. The
concept of facilitation illustrates the practical significance of the “purpose”
requirement under Section 856. Whether or not conduct had the effect of facilitating
drug activity is highly probative of whether it was undertaken with an illicit
“purpose.”16
For that reason, the courts have looked at facilitation as a critical marker of
whether the purpose requirement is satisfied and as a means of delineating the
boundary between simple drug possession (at most, a mere misdemeanor under
federal law) and the serious 20-year felony established by Section 856. That
distinction is important because Congress plainly did not intend Section 856 to apply
to any owner who knows that drug use occurs on her property, as DOJ itself
acknowledges. See DOJ Br. 45 n.11 (conceding there is no violation of Section 856
where “property owner may know” drug activity “occurs within his property, but
Sentencing Comm’n, 2018 Federal Sentencing Statistics for the Eastern District of
Pennsylvania.
16
Safehouse’s services will not facilitate unlawful drug use—anything consumed
on the premises must have been obtained elsewhere, before a participant’s arrival.
Appx685 ¶ 13. Safehouse provides a sterile environment and equipment, access to
medical care, drug treatment, and social services. Appx684 ¶ 9.
30
where the drug use is “too insignificant[] to trigger liability”); see also Verners, 53
F.3d at 296; Church, 970 F.2d at 406; Lancaster, 968 F.2d at 1253.
DOJ’s other contrary arguments are simply variations on its effort to excise
the purpose element from Section 856. For example, DOJ argues (at 29) that
“Section 856(a)(2) cannot refer to the property possessor’s purpose in the same way
as (a)(1) because, if it did, the statute would be self-defeating, permitting illegal
conduct to occur as long as the property possessor could assert an alternative
purpose.” See also Appx034. Of course, any criminal defendant may “assert” that
she lacked the requisite mens rea for a crime—but that possible factual defense does
not abolish the requisite mental state as an essential element of a criminal provision.
As discussed above (and as is the case in any dispute over mental states), numerous
objective and subjective factors—well beyond a person’s say-so—provide probative
evidence of “purpose.”
B. The Non-Binding Case Law on which DOJ Relies Does Not

Illuminate the Legal Standard for When a Property Is Used “For
the Purpose Of” Prohibited Activities
DOJ relies heavily on non-binding authority to support its erroneous position
that the only relevant purpose under Section 856(a)(2) is that of Safehouse’s
participants. Because those cases rely on an unpersuasive and erroneous
interpretation of Section 856(a), and involve utterly distinguishable facts, the District
Court properly rejected them. Appx338-40.
31
As a threshold matter, “the Third Circuit has not yet considered the proper
construction of 21 U.S.C. § 856(a),” and the District Court was the first in the
country to address the application of that statute to a medically supervised
consumption site. Appx021; see Appx047 (reading United States v. Coles, 558 F.
App’x 173, 181 (3d Cir. 2014) (non-precedential) as supporting the view that Section
856(a) focused on the defendant’s purpose). Moreover, as described below, none of
those cases involved remotely analogous facts, much less addressed the legality of a
medical and public health intervention akin to Safehouse.
In any event, DOJ exaggerates the supposed consensus among other circuits
regarding the purpose element of Section 856(a)(2).17 First, as the District Court
recognized, the number of federal appellate decisions alone means little since “all of
those decisions rest upon United States v. Chen, 913 F.2d 183 (5th Cir. 1991),
adopting its conclusion without critical analysis.” Appx038; Appx046. Second,
DOJ’s cited cases focus on the mens rea of the defendant and evaluate whether
sufficient evidence established that the defendant knew or intended that the property
17
DOJ implies that this Court should blindly follow these other circuits. But
“judges must not shirk from their responsibility to follow where reason and logic
take them” (Appx038), and this Court has not hesitated to depart, when appropriate,
from the erroneous decisions of its sister circuits. For instance, in Orozoco-
Velasquez v. Attorney General, 817 F.3d 78, 81-82 (3d Cir. 2016), this Court rejected
the holdings of at least six circuits on an issue of statutory interpretation, and two
years later the Supreme Court vindicated the Third Circuit by agreeing that those
holdings were wrong. Pereira v. Sessions, 138 S. Ct. 2105 (2018).
32
be used for prohibited drug activity. Each case undisputedly involved properties rife
with drug dealing activity from which the defendant reaped substantial financial
benefits. Certainly no case dealt with facts remotely informative to resolution of the
issue in this case. The District Court properly found Chen and its progeny neither
persuasive nor analogous to the question presented here. Appx040-47.
In Chen, the owner of a motel was accused of knowingly making the property
available for overt and notorious drug distribution, in violation of both Section
856(a)(1) and (a)(2). The Fifth Circuit first correctly found that Section 856(a)(1)
requires proof that the defendant have the specific purpose to use the property for
improper distribution, manufacture, storage, or use. 913 F.2d at 189-90. Chen took
a misstep, however, when it concluded that, under Section 856(a)(2), “the person
who manages or controls the building and then rents to others, need not have the
express purpose in doing so that drug related activity take place; rather such activity
is engaged in by others (i.e., others have the purpose).” Id. at 190. The court in
Chen incorrectly found Section 856(a)(2) applies if the defendant had only “actual
knowledge that she was renting, leasing, or making available for use the [premises]
for the purpose of unlawfully storing, distributing, or using a controlled substance”
or was willfully blind to that fact. Id. at 191-92 (emphasis added).
The court in Chen believed it must tie liability under Section 856(a)(2) to the
third-party’s illicit purpose and apply a lesser standard of “knowledge,” rather than
33
purpose, to the property owner, on the incorrect assumption that Section 856(a)(1)
and (a)(2) otherwise would be redundant. As the District Court observed, the Chen
“court unnecessarily applied the rule against surplusage to address” a non-existent
redundancy, while at the same time failing to give any independent meaning to the
term “intentionally” when reading the statute. Appx040-41. And, as discussed
below, there are many reasons to reject the notion that Section 856 turns on proving
the “purpose” of a third party to a prosecution.
The court in Chen was not only wrong as a matter of statutory interpretation,
its holding also has minimal application to Safehouse given the starkly
distinguishable facts. At trial, the government amassed “overwhelming evidence”
that the Chen motel was being used for the purpose of “drug related activities.” 913
F.2d at 191. In particular, the owner/defendant told an undercover officer that the
officer could purchase cocaine in “almost any room,” witnesses testified that
everyone at the motel was “involved in selling drugs,” and the owner/defendant
“would encourage the tenants to make drug sales so that their rent could be paid.”
Id. at 185-86. There no doubt the Chen drug motel was a “place . . . for the purpose
of” illicit drug activity.
The other cases relied on by DOJ are similarly distinguishable and shed little
additional light on Section 856(a)’s application to Safehouse. In each case, the
property in question was used for rampant and extensive drug distribution activity at
34
the owner’s behest. In United States v. Tebeau, for example, the defendant used his
campground to host music festivals and admitted that he intended for his property to
be used for drug-related activities. See 713 F.3d 955, 958 (8th Cir. 2013). The
defendant further admitted that he was aware individuals were selling drugs on his
premises, and it was estimated that approximately $500,000 in illegal drugs were
sold at each event. See id. at 958, 961. As in Chen, the defendant’s purpose was
not necessary to the sufficiency of the evidence in Tebeau because, notwithstanding
his attempt to disavow his “purpose” on appeal, the evidence established the
campground owner made his property available for the purpose of, and amply
profited from, the widespread drug distribution activity that occurred there.
Likewise, the car dealership at issue in United States v. Tamez was the location
of repeated drug sales. 941 F.2d 770, 772-73 (9th Cir. 1991). In fact, the owner of
the car dealership (the defendant) was the source of the drugs used on the property
and thus had a unity of purpose with the third-party actors that engaged in prohibited
conduct on the property. Id. On appeal, the defendant argued that Section 856(a)(2)
was only intended to apply to drug manufacturing operations. Id. at 773. Although
the court refused to examine the “purpose” of the property in assessing whether the
owner of the property could be charged under the statute, it did so based solely “on
the logic of Chen,” with little additional analysis. Id. at 774. The Tamez case lends
no assistance to the very different question presented here.
35
The application of Section 856(a)(2) to the drug motel in Chen, the drug-
fueled music festival in Tebeau, and the cocaine-and-car dealership in Tamez
accordingly says nothing about the legality of Safehouse’s overdose prevention
services.
C. Legislative Evidence Further Confirms that Section 856(a) Does

Not Criminalize Safehouse’s Proposed Overdose Prevention Site
The legislative evidence confirms that Congress intended Section 856(a) to
impose liability on landlords or property-owners who make their properties available
for unlawful purposes, and never contemplated its application to an overdose
prevention site—or any similar public health facility. Appx066; see Appx017. As
the District Court observed, “[t]he impetus for § 856(a) initially was a concern about
crack houses, and a similar concern about drug-fueled raves motivated the 2003
amendment.” Appx028; see 132 Cong. Rec. 26474 (1986) (Statement of Senator
Chiles) (explaining that Congress enacted Section 856(a) to “[o]utlaw operation of
houses or buildings, so-called ‘crack houses’, where ‘crack’, cocaine and other drugs
are manufactured and used”); 149 Cong. Rec. S1677 (daily ed. Jan. 28, 2003).
Although this “focus on making places available for such illicit purposes does not
limit the provision’s applicability to only crack houses and raves”—as the District
36
Court recognized—“it does caution against extending the statute too far beyond
similar circumstances.” Appx062.18
When 2003 Amendment to Section 856 was being debated, Senator Biden
described the reasons he proposed changes to the statute: “My bill would help in the
prosecution of rogue promoters who not only know that there is drug use at their
event but also hold the event for the purpose of illegal drug use or distribution. That
is quite a high bar.” 149 Cong. Rec. S1678 (daily ed. Jan. 28, 2003) (emphasis
added)). During the debates over the 2003 Amendment, Senator Grassley stressed
that the target of the legislation was events where drugs are sold, but pointed
specifically “to drug reduction efforts as an example of conduct that would be
inconsistent with criminal intent.” Appx060 (citing 149 Cong. Rec. 1849 (2003))
(emphasis added). Those statements quelled concerns “about the Government using
the existing crack house statue, or any expanded version, to pursue legitimate
business owners.” Appx044 & n.29.
As the District Court explained, a “common denominator among the actions”
Congress sought to criminalize is the property owner’s goal of “enabling drug use
and supporting the market for unlawful drugs.” Appx062. Accordingly, the court
18
Although DOJ argues legislative history is per se off limits, there is no
requirement that a court interpret statutory text without consideration of the statutory
intent and purpose. See, e.g., Pellegrino v. U.S. Transp. Sec. Admin., 937 F.3d 164,
179 (3d Cir. 2019).
37
was correct that the legislative evidence conforms to the statutory text, which is to
limit Section 856’s application to property that is operated or maintained “for the
purpose of” drug distribution and use. “To read § 856(a)(2) to apply to medical
purposes and efforts to combat drug abuse would take the statute well beyond what
it aimed to criminalize.” Id.
D. Safehouse’s Interpretation of Section 856(a) Harmonizes Federal

Law, While DOJ’s Leads to Absurd Results
1. Safehouse’s comprehensive overdose prevention model is consistent
with the federal government’s response to the opioid crisis and other provisions of
federal law, including federally endorsed syringe exchange initiatives. The services
Safehouse will offer—clean injection equipment, Naloxone access, comprehensive
medical services (primary and wound care, HIV and Hepatitis C treatment), and
immediate enrollment into drug treatment—are not only permitted by federal law,
they are expressly endorsed by Congress and federal agencies.
In particular, the U.S. Department of Health and Human Services (“HHS”)
and the Centers for Disease Control and Prevention (“CDC”) expressly approve of
comprehensive syringe exchange programs, which include the provision of sterile
needles, tourniquets, wipes, clean water for injections, and instruction on safer
injection techniques. Recently, Congress clarified that federal law not only permits
syringe exchange programs, but now allows those programs to receive federal
funding. CDC, Program Guidance for Implementing Certain Components of Syringe

38
Services Programs (2016), https://bit.ly/31qjDIM. Congress and federal agencies
likewise affirmatively have promoted the availability of Naloxone and other opioid
receptor antagonists. CARA, § 107, 130 Stat. 703 (42 U.S.C. § 290dd-3).
DOJ’s brief makes no mention of these federal laws and policies affirming the
need for harm-reduction approaches to opioid addiction, including ready Naloxone
access. In fact, in a case about the legality of overdose prevention services, DOJ’s
brief strikingly does not discuss Naloxone access or prevention of overdose death at
all, much less acknowledge the thousands of lives lost to the opioid crisis and
Safehouse’s mission to prevent such losses in the future. Instead, DOJ unhelpfully
points out that heroin is unsafe, illegal, and designated a “Schedule I” substance
under the CSA, 21 U.S.C. § 812(b)(1)(B). DOJ Br. 45-46. As the District Court
observed, however, Safehouse is not “in any respect . . . contradict[ing] Congress’s
conclusion that, even under medical supervision, heroin use remains unsafe. Rather,
I understand Safehouse to assert that, when drug users engage in the undisputedly
unsafe behavior of consuming Schedules I and II drugs, providing a space to
facilitate immediate medical intervention, although insufficient to make that
behavior safe, does not violate § 856(a) of the CSA.” Appx020.
Safehouse will bridge the short, but critical, gap—a matter of seconds to
minutes—between the time a person receives a sterile syringe and other clean
injection equipment and the need for immediate access to Naloxone and other
39
medical treatment to reverse an overdose. DOJ does not dispute that Safehouse may
provide a person with syringes and consumption equipment and may have Naloxone
at the ready. It cannot be that Safehouse itself, as well as its leadership and
personnel, would commit a 20-year felony unless it insists that a person leave the
safety of its shelter—and potentially go to an alley, a public street or bathroom, or
home alone—at the very moment when access to lifesaving medical supervision and
care is most critical, that is, at the time of consumption.
In fact, DOJ acknowledges that Safehouse’s services, including supervised
consumption, would be legal if offered out of a “mobile van,” as long as participants
injected illegal drugs outdoors, in public. DOJ Br. 54-55. Yet, according to DOJ,
the “statutory language” of Section 856(a) criminalizes these same services if
Safehouse offered them indoors, where medical staff would greater access to
necessary equipment, resources, and space to provide emergency medical
interventions, and where its participants would remained within a sheltered, clean,
and supervised environment, rather than on the street or in other public places. Id.
Fidelity to the statutory language does not require such absurd results: Safehouse
offers a reasoned interpretation of Section 856(a) that is faithful to its text and avoids
the irrational consequences of DOJ’s arguments.
2. DOJ also disregards the U.S. Supreme Court’s determination that
federal drug laws are not designed to regulate legitimate medical practice. See
40
Gonzales v. Oregon, 546 U.S. 243, 270 (2006). In Oregon, the Supreme Court
observed, “Congress [through the CSA] regulates medical practice insofar as it bars
doctors from using their prescription-writing powers as a means to engage in illicit
drug dealing and trafficking as conventionally understood. Beyond this, however,
the statute manifests no intent to regulate the practice of medicine generally.” Id.
(citing Medtronic, Inc. v. Lohr, 518 U.S. 470, 475 (1996)). The CSA thus affords
registered medical practitioners wide discretion to use reasonable clinical judgment
in the regulated practice of prescribing, administering, or distributing controlled
substances.
The CSA has even less application to Safehouse’s medical and public health
services, because Safehouse’s personnel will not engage in any of the activities
regulated by the CSA—it will not store, prescribe, distribute, or administer any
controlled substances. See Oregon, 546 U.S. at 271-72 (describing the limited and
clearly enumerated areas of medical practice regulated by the CSA). Section 856
therefore should not be interpreted to override the medical and public health
judgment about how and where Safehouse’s medical staff will offer opioid reversal
agents and other urgent and primary care for individuals suffering from opioid and
substance use disorder—medical interventions that the CSA does not regulate.
41
E. Section 856(a) Does Not Apply to Safehouse

1. Safehouse’s proposed overdose prevention services would not violate
Section 856(a). The undisputed facts show that the purpose of Safehouse is not to
facilitate the unlawful use of drugs, but rather to provide necessary, urgent,
lifesaving medical care and treatment to people with opioid and substance use
disorder. DOJ stipulated that Safehouse’s stated “mission is to save lives by
providing a range of overdose prevention services,” and that “the overdose
prevention services [Safehouse] intends to offer are aimed at preventing the spread
of disease, administering medical care, and encouraging drug users to enter
treatment.” Appx010; Appx683-84 ¶¶ 1, 9. DOJ further agreed that Safehouse will
not “provide, administer, or dispense any controlled substances” and rather, any
drugs consumed would have been obtained elsewhere and before arrival at
Safehouse. Appx685 ¶ 15.
As part of its comprehensive, public-health driven approach to overdose
prevention, Safehouse “will offer all its participants treatment referrals and on-site
initiation of medication-assisted treatment” at various stages of the process,
including before, after, and ideally in lieu of supervised consumption. Appx063;
Appx684-85. Even after on-site consumption, any participant will go to the
“medically supervised observation room,” where there will be “peer specialists,
recovery specialists, social workers, and case managers who will specifically
42
encourage treatment.” Appx063; Appx684-85. This approach increases the
likelihood that participants will seek drug treatment. Appx685 ¶ 22.
These facts provide ample support for the District Court’s determinations that
“Safehouse does not seek to administer prohibited drugs but rather to ameliorate the
harm from their unlawful use” and that its overdose prevention site “ultimately seeks
to reduce unlawful drug use.” Appx063. As a result, Safehouse’s operation will not
have “unlawful drug use” as a significant, much less primary purpose. Appx054,
62-63.19 DOJ’s brief falls fall short of demonstrating this finding to be clearly
erroneous. Section 856(a) accordingly does not apply to Safehouse.
2. Rather than deal with those stipulated and undisputed facts, DOJ
disregards them in favor of irrelevant assertions and mischaracterizations of the
record. DOJ primarily proceeds by contending that “illegal drug use . . . is a
necessary prerequisite . . . to the treatment Safehouse proposes,” and therefore
asserts it is Safehouse’s “motivating purpose.” DOJ Br. 44. DOJ goes so far as to
say that, “without the purpose of making its Consumption Room available for illegal
drug use, Safehouse simply would not exist.” Id. at 44-45.
19
Although DOJ, at one point, argues that Safehouse violates the statute because
drug use “is not a mere ‘incidental’ purpose,” it later states that a reasonable
interpretation of Section 856 is to require “a compelling or significant illicit purpose”
or “motivating purpose” to “satisfy the mens rea requirement.” DOJ Br. 42-44. The
District Court applied the “significant purpose” standard and correctly found
Safehouse will not be a place with the “significant purpose” of unlawful drug use.
Appx054, 62-63.
43
DOJ’s argument disregards Safehouse’s proposed model, which seeks to
bring emergency medical services into immediate proximity to those at high risk of
overdose death—facts to which DOJ stipulated. See Appx683-85 ¶¶ 1, 3, 9, 14-17.
No one would believe an emergency room existed “for the purpose of” catastrophic
injuries or medical crises on the theory that, without such urgent medical needs, the
emergency room would not need to exist. For the same reason, Safehouse does not
require, much less desire, “illegal drug use”; rather, “illegal drug use,” particularly
the increased prevalence of powerful and dangerous opioids like fentanyl, have made
Safehouse’s extraordinary interventions necessary to prevent the tragic and
preventable loss of life that results from opioid consumption.
DOJ also argues that Safehouse must have a prohibited purpose because
another organization, Prevention Point Philadelphia, provides similar harm
reduction services (but not supervised consumption and observation). DOJ Br. 44.
But that says nothing about whether it is unlawful for Safehouse to open a facility
that provides those services.
DOJ is further incorrect in asserting that the legality of Safehouse hinges on
proof of efficacy of its medical and public health interventions. This argument
conflates the concept of “purpose” and “outcome” by focusing on whether
Safehouse will or will not reduce drug use. Appx009-10; Appx064-65. Section
856(a) focuses on the purpose of Safehouse’s public health intervention, not whether
44
that intervention will be successful in achieving its goal of reducing overdose deaths
and drug use (based on evidence of efficacy that can only be definitively established
once Safehouse becomes operational).20
3. DOJ constructs a chimera in suggesting that Safehouse seeks immunity
for criminal conduct based “benevolent motives.” DOJ Br. 36-39. Safehouse is not
proposing that this Court endorse civil disobedience; it seeks to engage lawful
conduct under the terms of the statute.21 Appx049. For that reason, the
20
The DOJ’s focus on Safehouse’s potential efficacy in preventing overdose
death and reducing drug use are baffling given its steadfast objections in the District
Court to consideration of Safehouse’s efficacy to resolve the declaratory judgment
suit. By contrast, Safehouse welcomed the opportunity to demonstrate through
public health and medical experts that its overdose prevention services were
supported by the available empirical evidence and the opinions of the leading experts
in the field. Appx020 n.4.
In its recent ruling on DOJ’s stay motion, the District Court carefully evaluated
the empirical evidence and found Safehouse cited “meaningful body of research”
demonstrating the potential of supervised consumption sites to yield favorable
outcomes for individual drug users, positive impacts on the surrounding community,
and a lack of evidence that it promotes riskier drug use. Dist. Ct. Dkt. No. 156 at
16-21 (June 24, 2020).
21
This by no means diminishes the force of Safehouse’s alternative RFRA
counterclaim, which asserted that application of Section 856 to Safehouse would
substantially burden Safehouse’s sincerely held religious beliefs that call it to
provide shelter and lifesaving care to individuals suffering from opioid and
substance use disorder. Appx156-57. Safehouse, José Benitez, and Safehouse’s
board hold the sincere religious conviction that preservation of human life is
paramount—a belief deeply rooted in both Jewish and Christian traditions. The
statutorily guaranteed rights under RFRA constitute separate claims for relief that
are presently moot in light of the District Court’s conclusion that Section 856 does
not apply to Safehouse. Appx070.
45
conscientious objector cases relied upon by DOJ are inapposite; nor is this a case
where “ends justify the means.” DOJ Br. 34-39.
In United States v. Romano, 849 F.2d 812 (3d Cir. 1988), and United States
v. Kabat, 797 F.2d 580, 582 (8th Cir. 1986), for example, the defendants deliberately
violated a law—in both cases by breaking into military establishments to damage
property—to achieve some higher moral purpose (by preventing death by military
action). A similar scenario was posed in United States v. Cullen, 454 F.2d 386, 392
(7th Cir. 1971) (burning draft registration cards). Unlike the statutes at issue in those
cases, Section 856 makes the purpose of Safehouse a necessary element of the
offense: it is not illegal for Safehouse to operate an overdose prevention site because
that site is not a “place” made available “for the purpose of” unlawfully using drugs.
Indeed, then-Judge Stevens drew precisely that distinction in Cullen (in a
portion of the opinion not mentioned in DOJ’s otherwise extensive excerpts from
the opinion, DOJ Br. 37-38), writing:
In some situations the defendant’s ultimate objective may be an

element of the particular offense charged. Thus, to prove
treason, a purpose to give aid and comfort to the enemy must be
established; to prove a criminal attempt an analysis of the
defendant’s purpose beyond the overt act actually completed is
necessary; and to establish some forms of malice, the reasons
why the defendant acted as he did may be critical. In such cases,
the prosecution has the burden of proving improper motive and
it would, therefore, be entirely proper for a defendant to
respond with evidence of good motive.
46
454 F.2d at 391-92 (emphasis added). Section 856 is precisely such a statute which
makes “purpose” a statutory element of the offense—and therefore Safehouse’s aim
to provide lifesaving care to prevent overdose death is surely essential to determining
whether Section 856 applies.22
II. The Rule of Lenity and Clear Statement Rule Require Any Doubt to Be
Resolved in Safehouse’s Favor
The Court need not look beyond the text of Section 856(a) to conclude that
Safehouse’s overdose prevention model would not violate Section 856. But even if
DOJ’s strained interpretation of Section 856(a)(2) were plausible (and it is not), any
ambiguity triggers canons of statutory interpretation—the rule of lenity and the clear
statement rule—each of which provides an independent basis for endorsing
Safehouse’s reading of federal law. See, e.g., Jones v. United States, 529 U.S. 848,
850 (2000) (applying each in similar context); Solid Waste Agency v. U.S. Army
Corps of Eng’rs, 531 U.S. 159, 172-73 (2001).
It is well-settled that where there is “ambiguity in a criminal statute that cannot
be clarified by either its legislative history or inferences drawn from the overall
22
DOJ also cites the dissenting opinions of then-Judge Blackmun in In re
Weitzman, 426 F.2d 439, 452 (8th Cir. 1970), in a tenuous effort to analogize
Safehouse’s overdose prevention services to “the Robin Hood tradition.” DOJ Br.
36 n.9. Putting aside the many ways in which Weitzman is inapposite, the majority
in that case found conscientious objection excused the petitioner from an oath that
was otherwise required to qualify for citizenship. Id. at 453 (per curiam). DOJ’s
citation to United States v. Stimler, 864 F.3d 253 (3d Cir. 2017)—a case rejecting a
RFRA defense to kidnapping—is similarly puzzling and irrelevant.
47
statutory scheme,” courts must interpret that statute in “favor of lenity”—i.e., “in
favor of the defendant.” United States v. Flemming, 617 F.3d 252, 269 (3d Cir.
2010); see Rewis v. United States, 401 U.S. 808, 812 (1971). Put differently,
“[u]nder a long line of [Supreme Court] decisions, the tie must go to the defendant.”
United States v. Santos, 553 U.S. 507, 514-15 (2008) (Scalia, J.) (plurality opinion)
(emphasis added); see, e.g., Burrage v. United States, 571 U.S. 204, 216 (2014);
Adamo Wrecking Co. v. United States, 434 U.S. 275, 285 (1978). The District Court
acknowledged these principles, reasoning that “[t]o adopt the Government’s
suggestion would fly in the face of the admonition that courts should not interpret a
federal criminal statute so as to increase the penalty that it places on an individual
when such an interpretation can be based on no more than a guess as to what
Congress intended.’” Appx066 n.48 (quoting Ladner v. United States, 358 U.S. 169,
178 (1958)).
Similarly, under the clear statement rule “when choice has to be made between
two readings of what conduct Congress has made a crime, it is appropriate, before
we choose the harsher alternative, to require that Congress should have spoken in
language that is clear and definite.” United States v. Universal C. I. T. Credit Corp.,
344 U.S. 218, 221-22 (1952); United States v. Santos, 553 U.S. 507, 514 (2008). As
the District Court recognized, it is a “core tenet of federal law” that “[b]lurred
48
signposts to criminality will not suffice to create it.” Appx068 (quoting United
States v. C.I.O., 335 U.S. 106, 142 (1968) (Rutledge, J., concurring)).
If ambiguity exists, it is the government (not Safehouse) that must resort to
“the legislative process,” should it want to prohibit supervised consumption sites.
DOJ Br. 62. Safehouse does not need prior approval from Congress to engage in
lawful conduct. The law neither “default[s] to criminalization” nor requires
“Congress to clarify when it wishes not to incarcerate citizens.” Appx067 (citing
cases) (emphasis added). And conduct certainly does not become criminal merely
because the Executive Branch says so. Because “legislatures and not courts should
define criminal activity,” the District Court properly deferred to the legislative
process by ruling in Safehouse’s favor. Id. (quoting United States v. Bass, 404 U.S.
336, 348 (1971)).
III. DOJ’s Interpretation of Section 856(a) Raises Grave Constitutional

Concerns and Conflicts with Principles of Federalism
The doctrine of constitutional avoidance undercuts DOJ’s interpretation of
Section 856, which seeks to criminalize entirely local, non-commercial use of
property, asserting a policy power not granted to the Federal Government under the
Commerce Clause of the U.S. Constitution. “[W]here a statute is susceptible of two
constructions, by one of which grave and doubtful constitutional questions arise and
by the other of which such questions are avoided, our duty is to adopt the latter.”
49
United States ex. rel. Att’y Gen. v. Delaware & Hudson Co., 213 U.S. 366, 408
(1909); see Jones, 526 U.S. at 239.
1. As the Supreme Court has explained, where Congress enacts criminal
law that touches on areas traditionally falling within the authority of the states, such
as public health, courts will assume—“unless Congress conveys its purpose
clearly”—that Congress “will not be deemed to have significantly changed the
federal-state balance in the prosecution of crimes.” Jones, 526 U.S. at 239 (internal
quotation marks omitted); see also Bond v. United States, 572 U.S. 844, 858-59
(2014).
Here, DOJ’s interpretation of Section 856 would raise significant federalism
concerns as it would criminalize every local property owner who has “knowledge”
that drugs are used on her premises, as well as rendering felonious the provision of
local medical services to prevent overdoses. Principles of federalism weigh against
interpreting Congress’s Commerce Clause authority in a manner that converts it into
a “general police power of the sort retained by the states.” United States v. Lopez,
514 U.S. 549, 567 (1995); see United States v. Morrison, 529 U.S. 598, 618-19
(2000). While “[t]he States have broad authority to enact legislation for the public
good” through their “police power,” the “Federal Government, by contrast, has no
such authority.” Bond, 572 U.S. at 854; see Oregon, 546 U.S. at 270. “[T]he
regulation of health and safety matters is primarily, and historically, a matter of local
50
concern.” Hillsborough Cty. v. Automated Med. Labs., Inc., 471 U.S. 707, 719
(1985); see Oregon, 546 U.S. at 271-72.
2. Section 856, as interpreted by DOJ, would exceed Congress’ authority
under the Commerce Clause. Section 856 lacks any “jurisdictional element limiting
the reach of the law to a discrete set of activities that additionally has an explicit
connection with or effect on interstate commerce.” United States v. Walker, 657
F.3d 160, 178 (3d Cir. 2011) (citation omitted); see United States v. Kukafka, 478
F.3d 531, 535-36 (3d Cir. 2007). Making a property available on an entirely local,
non-commercial basis for drug “use” is not part of an economic class of activities
that have a substantial effect on interstate commerce—even when viewed in the
aggregate. Any “link between” that conduct and “interstate commerce” (Morrison,
529 U.S. at 612), can be imagined only by creating a speculative chain of
contingencies and “pil[ing] inference upon inference.” Lopez, 514 U.S. at 567.
Congress has never found that unlawful drug use within a property
substantially affects interstate commerce. When Congress adopted the CSA in 1970
it found that illegal importation, manufacture, distribution, and possession had an
effect on interstate commerce, but that finding notably did not include improper
“use.” 21 U.S.C. § 801(3)–(6) (“Congressional findings and declarations: controlled
substances”); see Jones, 529 U.S. at 855 (adopting a narrow reading of the statutory
term “use[d],” to require “active employment for commercial purposes, and not
51
merely a passive, passing, or past connection to commerce” to avoid Commerce
Clause concerns); see also Kelly, 140 S. Ct. at 1574 (limiting the federal wire fraud
statute to schemes with the objective of depriving the victim of property, to avoid
the “a sweeping expansion of federal criminal jurisdiction” that would result “[i]f
U.S. Attorneys could prosecute as property fraud every lie . . . by pointing to the . . .
incidental costs”). Congress separately adopted Section 856 in 1986—a decade-
and-a-half after Congress’s 1970 findings—and it amended the statute in 2003.
Congress made no additional findings about the impact of drug use on interstate
commerce at that time.
The Supreme Court’s decision in Gonzales v. Raich, 545 U.S. 1 (2005), does
not foreclose this Court’s consideration of these substantial Commerce Clause
concerns. In Raich, the Supreme Court held that the CSA’s prohibitions on intrastate
possession and manufacture of marijuana constituted a valid exercise of
congressional authority. The Supreme Court has repeatedly stressed since Raich that
its holding depended on Congress’s judgment that prohibiting intrastate possession
and manufacture of marijuana would affect the national market for marijuana. See,
e.g., Taylor v. United States, 136 S. Ct. 2074, 2077–78 (2016); Nat’l Fed’n of Indep.
Bus. v. Sebelius, 567 U.S. 519, 560–61 (2012) (Roberts, C.J.).
By contrast, Congress has never determined, and no evidence suggests, that
the availability of local property, on an uncompensated basis, for drug “use” has any
52
effect on interstate commerce. As applied here, the operation of Safehouse will not
facilitate or increase the interstate market for controlled substances. Whether drug
use takes place under safe and medically supervised conditions or on the street
cannot plausibly affect the interstate market demand; participants will have already
obtained any drugs before arriving at Safehouse.
In addition, like the non-commercial possession of weapons in Lopez, Section
856 is “not an essential part of a larger regulation of economic activity, in which the
regulatory scheme could be undercut unless the intrastate activity were regulated.”
Raich, 545 U.S. at 24 (quoting Lopez, 514 U.S. at 561). The provision at issue here
regulates only the place in which use occurs; it is a single-subject statutory provision
with a non-economic objective removed from the core of the CSA’s broader
regulatory regime. DOJ has not identified a single prior prosecution under Section
856 of owners who make their property available with knowledge that “use” will
occur on the premises. It is therefore difficult to conclude that such a construction is
“an essential part” of the CSA. Were this Court “to adopt the Government’s
expansive interpretation” of Section 856(a), “hardly a building in the land would fall
outside the federal statute’s domain.” Jones, 526 U.S. at 241.
In sum, DOJ’s threatened prosecution of Safehouse would be
unconstitutional, but this Court can and should avoid these constitutional doubts by
53
concluding that Section 856 does not prohibit Safehouse from operating an overdose
prevention site.
CONCLUSION
For the foregoing reasons, Safehouse and José Benitez respectfully request
this Court to exercise jurisdiction and affirm.23
23
After holding that Section 856(a) “does not criminalize Safehouse’s proposed
actions,” the District Court properly determined that “the RFRA claim is now moot.”
Appx070. In so ruling, however, the District Court explicitly deemed those
alternative claims preserved in the event this Court were to reverse and remand for
further proceedings. Id. Accordingly, if this Court endorses DOJ’s position on
appeal, remand to the District Court would be necessary.
Yet DOJ now appears to suggest that in such a scenario the Court should not
remand, but rather resolve the merits of Safehouse’s novel, fact-bound RFRA
counterclaim based solely on the parties’ briefing below. DOJ Br. 62 n.13. If DOJ
wanted this Court to address the merits of those counterclaims on appeal, it was
incumbent on DOJ to raise those issues in its appeals brief. It chose not to do so.
This Court should decline the invitation to review these issues in the first instance,
without first hearing from the District Court. At the very least, Safehouse objects to
any resolution of its RFRA counterclaims that does not afford it the opportunity to
fully brief those issues.
54
Dated: June 29, 2020 Respectfully submitted,
DLA PIPER LLP (US)

By: /s/ Ilana H. Eisenstein
Ilana H. Eisenstein
Courtney G. Saleski
Ben C. Fabens-Lassen
Megan E. Krebs
One Liberty Place
1650 Market Street, Suite 5000
Philadelphia, Pennsylvania 19103-7300
Tel: 215.656.3300
AIDS LAW PROJECT OF

PENNSYLVANIA
Ronda B. Goldfein
Yolanda French Lollis
Adrian M. Lowe
Jacob M. Eden
1211 Chestnut Street, Suite 600
Philadelphia, Pennsylvania 19107
Tel: 215.587.9377
LAW OFFICE OF PETER
GOLDBERGER
Peter Goldberger
50 Rittenhouse Place
Ardmore, Pennsylvania 19003
Tel: 610.649.8200
SETH F. KREIMER, ESQUIRE
Seth F. Kreimer (PA Bar No. 26102)
3501 Sansom Street
Philadelphia, Pennsylvania 19104
Tel: 215.898.7447
Attorneys for Appellees Safehouse and
José Benitez
55
CERTIFICATE OF BAR MEMBERSHIP
Pursuant to Local R. 28.3(d) and Local R. 46.1(e), I hereby certify that I, Ilana
H. Eisenstein, am admitted as an attorney and member in good standing of the bar
of the United States Court of Appeals for the Third Circuit.
Dated: June 29, 2020 By: /s/ Ilana H. Eisenstein

CERTIFICATION OF COMPLIANCE
Pursuant to Fed. R. App. P. 32(g), Fed R. App. P. 28(a)(10), and Local R.
31.1, I certify the following:
1. This brief complies with the type-volume limitation of Fed. R. App. P.

32(a)(7)(B) because this brief contains 12,999 words, excluding the parts of the brief
exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
2. This brief complies with the typeface requirements of Fed. R. App. P.
32(a)(5) and the type-style requirements of Fed. R. App. P. 32(a)(6) because it has
been prepared in Times New Roman 14-point font using Microsoft Word 2016.
3. This brief complies with the electronic filing requirements of Local R.
31.1(c) because the text of the electronic brief is identical to the text in the paper
copies and because Windows Defender Antivirus Version 1.285.1418.0 was run on
the file containing the electronic version of this brief and no viruses were detected.
CERTIFICATE OF SERVICE
I, Ilana H. Eisenstein, hereby certify that on June 29, 2020, the foregoing Brief
of Appellees Safehouse and Jose Benitez was filed with the Clerk of the Court of the
United States Court of Appeals for the Third Circuit using the appellate CM/ECF
System. All counsel of record are registered CM/ECF users, and service will be
accomplished by the CM/ECF System.

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Case: 20-1422 Document: 46 Page: 1 Date Filed: 06/29/2020

In the United States Court of Appeals

UNITED STATES OF AMERICA, Appellant,

SAFEHOUSE, a Pennsylvania nonprofit corporation; and JOSÉ BENITEZ, as

U.S. DEPARTMENT OF JUSTICE; WILLIAM P. BARR, in his official capacity

Ilana H. Eisenstein Ronda B. Goldfein Peter Goldberger Seth F. Kreimer

Bond v. United States,

Burrage v. United States,

Jones v. United States,

Medtronic, Inc. v. Lohr,

Nat’l Fed’n of Indep. Bus. v. Sebelius,

Orozco-Velasquez v. Att’y Gen.,

Pennsylvania Family Inst., Inc. v. Black,

Pellegrino v. U.S. Transp. Sec. Admin.,

Rewis v. United States,

Reifer v. Westport Ins. Corp.,

Si Min Cen v. Att’y Gen.,

Small v. United States,

United Savings Ass’n v. Timbers of Inwood Forest Assocs. Ltd.,

United States ex rel. Att’y Gen. v. Delaware & Hudson Co.,

United States v. Bass,

United States v. C.I.O.,

United States v. Chen,

United States v. Church,

United States v. Coles,

United States v. Cullen,

United States v. Flemming,

United States v. Kabat,

United States v. Morrison,

United States v. Romano,

United States v. Russell,

United States v. Santos,

United States v. Shetler,

United States v. Stimler,

United States v. Tamez,

United States v. Tebeau,

United States v. Universal C.I.T. Credit Corp.,

United States v. Walker,

CONSTITUTION AND STATUTES

28 U.S.C. § 1291 ........................................................................................................ 3

Consolidated Appropriations Act, 2016, Pub. L. No. 114-113, § 520,

Comprehensive Addiction and Recovery Act of 2016, Pub. L. No. 114-198:

§ 101, 130 Stat. 697 ............................................................................................ 17

§ 107, 130 Stat. 703 (42 U.S.C. § 290dd-3) ....................................................... 39

Controlled Substances Act, 21 U.S.C. § 801 et seq.:

21 U.S.C. § 801(3)-(6) ........................................................................................ 51

21 U.S.C. § 843(f)(1) ............................................................................................ 3

Declaratory Judgment Act:

28 U.S.C. § 2202 ................................................................................................... 3

Religious Freedom Restoration Act of 1993,

Fed. R. Civ. P. 57 ..................................................................................................... 15

149 Cong. Rec. (daily ed. Jan. 28, 2003):

Black’s Law Dictionary (6th ed. 1984) ................................................................... 20

City of Phila., Dep’t of Pub. Health, Philadelphia’s Community

Ctrs. for Disease Control & Prevention:

Program Guidance for Implementing Certain Components of

SAMHSA, U.S. Dep’t of Health & Human Servs., Medication and

consumption services—an internationally recognized public-health intervention

administering medical care, and encouraging drug users to enter treatment,”