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Date: 11-28-2021
Case Style:
United States of America v. Safehouse a Pennsylvania nonprofit corporation; José Benitez, as President and Treasurer of Safehouse
Case Number: 20-1422
Judge: Stephanos Bibas
Court: UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
On appeal from The
Plaintiff's Attorney: William M. McSwain [ARGUED]
Gregory B. David
John T. Crutchlow
Bryan C. Hughes
Erin E. Lindgren
Office of United States Attorney
Defendant's Attorney:
Description:
New York, NY - Criminal defense lawyer represented defendants with opening a property to others to use drugs charge.
A. The federal drug laws
Drug addiction poses grave social problems. The opioid crisis has made things worse: more than a hundred Americans die
every day of an overdose. Dep’t of Health & Human Servs.,
Office of the Surgeon General, Facing Addiction in America:
The Surgeon General’s Spotlight on Opioids 1 (2018). People
of good will disagree about how to tackle these enormous problems. Lawmakers and prosecutors have traditionally used
criminal prosecution to try to stem the flow, targeting the supply and hoping to curb demand. Others emphasize getting users
into rehab. Harm-reduction proponents favor treating drug users without requiring them to abstain first. Still others favor
decriminalizing or even legalizing drugs. There is no consensus and no easy answer.
But our focus is on what Congress has done, not what it
should do. Congress has long recognized that illegal drugs
“substantial[ly]” harm “the health and general welfare of the
American people.” 21 U.S.C. §801(2). Indeed, half a century
ago, Congress tackled this national problem by consolidating
scattered drug laws into a single scheme: the Comprehensive
Drug Abuse Prevention and Control Act of 1970. Pub. L. 91-
513, 84 Stat. 1236 (codified as amended at 21 U.S.C. §§801–
971); see Gonzales v. Raich, 545 U.S. 1, 10–12 (2005). To this
day, this scheme governs the federal approach to illegal drugs.
12
Title II of that law, the Controlled Substances Act, broadly
regulates illegal drugs. The Act spells out many crimes. A person may not make, distribute, or sell drugs. 21 U.S.C. §841.
He may not possess them. §844. He may not take part in a drug
ring. §848. He may not sell drug paraphernalia. §863. He may
not conspire to do any of these banned activities. §846. And he
may not own or maintain a “drug-involved premises”: a place
for using, sharing, or producing drugs. §856.
This last crime—the one at issue—was added later. At first,
the Act said nothing about people who opened their property
for drug activity. Then, the 1980s saw the rise of crack houses:
apartments or houses (often abandoned) where people got together to buy, sell, use, or even cook drugs. See United States
v. Lancaster, 968 F.2d 1250, 1254 n.3 (D.C. Cir. 1992). These
“very dirty and unkempt” houses blighted their neighborhoods,
attracting a stream of unsavory characters at all hours. Id. But
it was hard to shut crack houses down. To go after owners, police and prosecutors tried to cobble together conspiracy and
distribution charges. See, e.g., United States v. Jefferson, 714
F.2d 689, 691–92 (7th Cir. 1983), vacated on other grounds,
474 U.S. 806 (1985). But no law targeted the owner or maintainer of the premises.
To plug this gap, Congress added a new crime: 21 U.S.C.
§856. Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570,
§1841, 100 Stat. 3207, 3207–52. This law banned running a
place for the purpose of manufacturing, selling, or using drugs.
Congress later extended this crime to reach even temporary
drug premises and retitled it from “Establishment of manufacturing operations” to “Maintaining drug-involved premises.”
13
Compare 21 U.S.C. §856(a) & caption (2003) with 21 U.S.C.
§856(a) & caption (1986). After all, the statute covers much
more than manufacturing drugs.
B. Safehouse’s safe-injection site
The parties have stipulated to the key facts: Safehouse
wants to try a new approach to combat the opioid crisis. It plans
to open the country’s first safe-injection site. Safehouse is
headed by José Benitez, who also runs Prevention Point Philadelphia. Like Prevention Point and other sites, Safehouse will
care for wounds, offer drug treatment and counseling, refer
people to social services, distribute overdose-reversal kits, and
exchange used syringes for clean ones.
But unlike other sites, Safehouse will also feature a consumption room. Drug users may go there to inject themselves
with illegal drugs, including heroin and fentanyl. The
consumption room is what will make Safehouse unique—and
legally vulnerable.
When a drug user visits the consumption room, a Safehouse
staffer will give him a clean syringe as well as strips to test
drugs for contaminants. Staffers may advise him on sterile injection techniques but will not provide, dispense, or administer
any controlled drugs. The user must get his drugs before he
arrives and bring them to Safehouse; he may not share or trade
them on the premises. The drugs he consumes will be his own.
After he uses them, Safehouse staffers will watch him for
signs of overdose. If needed, they will intervene with medical
care, including respiratory support and overdose-reversal
14
agents. Next, in an observation room, counselors will refer the
visitor to social services and encourage drug treatment.
Safehouse hopes to save lives by preventing diseases, counteracting drug overdoses, and encouraging drug treatment. It
believes that visitors are more likely to accept counseling and
medical care “after they have consumed drugs and are not experiencing withdrawal symptoms.” App. 685.
C. Procedural history
The Government sought a declaratory judgment that
Safehouse’s consumption room would violate §856(a)(2).
Safehouse counterclaimed for a declaratory judgment that it
would not and that applying the statute to Safehouse would violate either the Commerce Clause or the Religious Freedom
Restoration Act (RFRA). U.S. Const. art. I, §8, cl. 3; 42 U.S.C.
§§2000bb–2000bb-3.
The Government moved for judgment on the pleadings, and
the District Court denied the motion. It held that §856(a)(2)
does not apply to Safehouse’s proposed consumption room.
United States v. Safehouse, 408 F. Supp. 3d 583, 587 (E.D. Pa.
2019). Rather, it held that someone violates §856(a)(2) only if
his purpose is for others to manufacture, distribute, or use illegal drugs on the premises. Id. at 595, 605. And it found that
Safehouse’s purpose was to offer medical care, encourage
treatment, and save lives, not to facilitate drug use. Id. at 614.
Because the statute did not apply, the court did not need to
reach Safehouse’s Commerce Clause or RFRA defenses. After
the parties stipulated to a set of facts, the court entered a final
declaratory judgment for Safehouse. The Government now
15
appeals. On appeal, Safehouse renews its Commerce Clause
defense but reserves its RFRA defense for remand.
We have jurisdiction to hear this appeal. The District
Court’s declaratory judgment has “the force and effect of a final judgment.” 28 U.S.C. §2201. “Once [the] district court has
ruled on all of the issues submitted to it, either deciding them
or declining to do so, the declaratory judgment is complete, final, and appealable.” Henglein v. Colt Indus. Operating Corp.,
260 F.3d 201, 211 (3d Cir. 2001). So it does not matter that the
court did not reach the affirmative defenses. We review the
court’s reading of the statute and application of the statute to
Safehouse de novo. Rotkiske v. Klemm, 890 F.3d 422, 424 n.2
(3d Cir. 2018) (en banc), aff’d, 140 S. Ct. 355 (2019).
II. SAFEHOUSE WILL VIOLATE 21 U.S.C. §856(a)(2)
BY KNOWINGLY AND DELIBERATELY
LETTING VISITORS USE DRUGS
Section 856(a)(2) makes it illegal to “manage or control” a
property and then “knowingly and intentionally” open it to visitors “for the purpose of ... using a controlled substance”:
(a) Unlawful acts
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;
16
(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.
21 U.S.C. §856(a) (emphasis added). This case turns on how
to construe and apply §856(a)(2)’s last phrase: “for the purpose
of ... .” Safehouse insists that, to violate that paragraph,
Safehouse itself would need to have the purpose that its visitors
use drugs. The Government disagrees. It argues that only the
visitors need that purpose; Safehouse just needs to intentionally open its facility to visitors it knows will use drugs there.
We agree with the Government. To break the law,
Safehouse need only “knowingly and intentionally” open its
site to visitors who come “for the purpose of ... using” drugs.
The text of the statute focuses on the third party’s purpose, not
the defendant’s. Even if we read paragraph (a)(2) as Safehouse
does, its purpose is that the visitors use drugs. That is enough
to violate paragraph (a)(2).
A. Under §856(a)(2), the defendant must knowingly
and deliberately let another person use his property
for drug activity.
Before getting to the disputed requirement of “purpose,” we
must first discuss the statute’s two other mental states, neither
of which is really in dispute. To violate (a)(2), a defendant must
17
“knowingly and intentionally ... make [his property] available
for use” by a third party for that person’s illegal drug use. The
first two phrases of (a)(2) focus on the voluntary conduct or
knowledge of the defendant. The first phrase requires the defendant to “manage or control [a] place.” And the second
phrase requires the defendant to “knowingly and intentionally
rent, lease, profit from, or make [the place] available for use”
for illegal drug activity. The adverbs “knowingly” and “intentionally” introduce this second phrase, modifying the defendant’s making the place available to a third party. In practice,
this means three things.
First, the defendant must know that other(s) are or will be
manufacturing, storing, distributing, or using drugs on his
property. See United States v. Barbosa, 271 F.3d 438, 457–58
(3d Cir. 2001). For instance, the owner of a building cannot be
prosecuted if he does not know that others are selling drugs out
of his building. But the defendant cannot just turn a blind eye
to rampant drug activity. See United States v. Ramsey, 406 F.3d
426, 431–32 (7th Cir. 2005). Other courts hold that the owner’s
willful blindness or deliberate ignorance can suffice. See, e.g.,
United States v. Chen, 913 F.2d 183, 192 & n.11 (5th Cir.
1990).
Second, the defendant need know only that his tenants or
customers are selling or using heroin, fentanyl, cocaine, or the
like. He does not need to know that they are violating the law
or intend for them to do so. See Bryan v. United States, 524
U.S. 184, 192–93 (1998); Barbosa, 271 F.3d at 457–58.
“[I]gnorance of the law generally is no defense to a criminal
charge.” Ratzlaf v. United States, 510 U.S. 135, 149 (1994). Of
18
course, Congress can make it a defense. Id. But it does so sparingly, almost exclusively for tax and regulatory crimes. See
Cheek v. United States, 498 U.S. 192, 199–200 (1991) (tax
crimes); Liparota v. United States, 471 U.S. 419, 426 (1985)
(misusing food stamps). And when Congress does require
knowledge of the law, it uses the word “willfully.” Bryan, 524
U.S. at 191–92 & n.13; Ratzlaf, 510 U.S. at 141–42 (equating
willfulness with “a purpose to disobey the law”). It did not do
so here.
Finally, the defendant must make the place available to others “intentionally.” That means deliberately, not accidentally
or by mistake. Barbosa, 271 F.3d at 458. Because paragraph
(a)(2) predicates liability on a third party’s drug activities, it
adds this extra intent requirement to shield owners who are not
complicit. An owner is not liable, for instance, if he knows that
trespassers are doing drugs but did not invite them and does
not want them.
B. Under §856(a)(2), the defendant need not have the
purpose of drug activity
While (a)(2) requires the defendant to act knowingly and
intentionally, it does not require him to also have another mental state: “purpose.” Paragraph (a)(2) requires someone to have
a “purpose”—but not the defendant. To get a conviction under
(a)(2), the government must show only that the defendant’s
tenant or visitor had a purpose to manufacture, distribute, or
use drugs. This conclusion follows from the law’s language
and grammar. It avoids making paragraph (a)(2) redundant of
(a)(1). It also avoids making (a)(2)’s intent requirement
19
redundant. And it is the conclusion reached by every circuit
court to consider the issue.
1. The plain text requires only that the third party have the
purpose of drug activity. Section 856’s text makes it clear that
(a)(2)’s “purpose” is not the defendant’s. We see this from the
way that paragraphs (a)(1) and (a)(2) are written and structured.
i. Paragraph (a)(1). The Government does not charge
Safehouse with violating paragraph (a)(1). But to understand
its sibling, paragraph (a)(2), we must start with (a)(1):
[I]t 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.
21 U.S.C. §856(a)(1) (line break added; mens rea terms italicized). This paragraph requires just one actor and two sets of
actions. The actor is the defendant. He “open[s], lease[s],
rent[s], use[s], or maintain[s] [the] place.” He also has “the purpose of manufacturing, distributing, or using” the drugs. These
actions do not require a third party. A person can “maintain”
an apartment or “manufactur[e]” drugs all by himself. Yet this
paragraph does not forbid third parties. A defendant does not
have to act alone; he can “us[e]” drugs with a friend or “manufactur[e]” them with a business partner. He can even have his
employees do that work for him; a kingpin can run a drug
20
empire without ever touching the drugs himself. But even if no
one joins him in his drug activities, he still falls under (a)(1).
The inquiry turns on the purpose of the defendant.
So paragraph (a)(1) bars a person from operating a place
for his own purpose of illegal drug activity. On this, the parties,
the District Court, and our sister circuits all agree. For instance,
a person may not use his bedroom as the base of his drug dealing operation. See United States v. Verners, 53 F.3d 291, 296–
97 (10th Cir. 1995). He may not manufacture meth in his garage and regularly invite others over to use meth in that garage.
See United States v. Shetler, 665 F.3d 1150, 1163–64 (9th Cir.
2011). And he certainly may not rent houses to serve as drug
distribution centers by day and house his street-level drug dealers by night. See United States v. Clavis, 956 F.2d 1079, 1083–
85, 1090–94 (11th Cir. 1992).
ii. Paragraph (a)(2). Now we turn to paragraph (a)(2):
[I]t shall be unlawful to—
...
(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.
21
21 U.S.C. §856(a)(2) (line breaks added; mens rea terms italicized). The District Court read this paragraph, like paragraph
(a)(1), to require that the defendant act for his own purpose of
illegal drug activity. But paragraph (a)(2) does not require such
a high mental state (mens rea). Instead, the defendant need only
deliberately make his place available to another, knowing that
this other person has the purpose of illegal drug activity.
Unlike paragraph (a)(1), paragraph (a)(2) contemplates at
least two actors: a defendant and a third party. The defendant
“manage[s] or control[s]” the place, whether “as an owner, lessee, agent, employee, occupant, or mortgagee.” He could be a
landlord, a business owner, or a renter.
The second actor is some third party: a tenant, a customer,
or a guest. She is the one who uses or occupies the place. The
law does not mention this third party, but its verbs require her.
The landlord must “rent” or “lease” the place out to a tenant.
For the business owner to “profit from” the place, customers
must pay him. If a defendant “make[s] [the place] available for
use,” someone must be there to use it.
In turn, that third party engages in the drug activity. Paragraph (a)(2) lays out three sets of actions, corresponding to the
three phrases broken out separately above. The defendant does
the first two: he “manage[s] or control[s]” the place, and he
“rent[s], lease[s], profit[s] from, or make[s] [it] available for
use.” The third party does the last set of actions: she “manufacture[s], stor[es], distribut[es], or us[es] a controlled substance”
(or at least has the purpose to do so). For instance, the tenant,
not the landlord, sells drugs out of the apartment.
22
This third party, we hold, is the one who must act “for the
purpose of” illegal drug activity. The parties vigorously contest
this point. But this reading is logical. Paragraph (a)(1) requires
just the defendant. He must have the purpose of drug activity,
whether he engages in it by himself or with others. Paragraph
(a)(2) requires at least two people, adding the third party. She
performs the drug activity. The phrase “for the purpose of” refers to this new person.
Thus, a defendant cannot let a friend use his house to weigh
and package drugs, even if the defendant himself is not involved in the drug ring. See United States v. McCullough, 457
F.3d 1150, 1157–58, 1161 (10th Cir. 2006). He cannot tell his
son to stop selling drugs from his trailer, yet let him stay even
when he keeps selling. See Ramsey, 406 F.3d at 429, 433. And
he cannot lease storefronts to known drug dealers just because
he needs the money. See United States v. Cooper, 966 F.2d
936, 938 (5th Cir. 1992).
2. Safehouse’s interpretation would make paragraph
(a)(2) and “intentionally” redundant. Together, paragraphs
(a)(1) and (a)(2) compose a coherent package, forbidding different ways of “[m]aintaining [a] drug-involved premises.” 21
U.S.C. § 856 (caption). Each paragraph sets out a distinct
crime, separated by a paragraph number, spacing, and a semicolon. United States v. Rigas, 605 F.3d 194, 209 (3d Cir. 2010)
(en banc). Each requires a different actor to have the required
purpose.
Safehouse’s reading, by contrast, would make paragraph
(a)(2) redundant of (a)(1). In each, Safehouse says, the defendant himself must have the purpose of drug activity. It concedes
23
that the paragraphs partly overlap. But it argues that (a)(1) covers the crack house’s operator, while only (a)(2) covers a “distant landlord.” Oral Arg. Tr. 63. This distinction does not hold.
If each paragraph required just one actor who has the purpose
of drug activity, the distant landlord would fall under either.
Safehouse admits that he violates (a)(2). He is guilty under
(a)(1) too, because he has “rent[ed]” and “maintain[ed]” a
place for drug activity. Nothing would differentiate (a)(2) from
(a)(1).
Safehouse’s other example to distinguish the two paragraphs fares no better. It postulates an owner who lets her boyfriend run a crack ring from her apartment while she is at work.
It says she would violate only (a)(2). Not so. If she does not
have the purpose of using the apartment for drug sales,
Safehouse’s reading would exclude her from either paragraph.
But if she does have that purpose, she would be liable under
both.
Thus, on Safehouse’s reading, (a)(2) would do no independent work. Recall that a defendant can just as easily violate
(a)(1) while working with someone else. Both paragraphs
would require the defendant to have the requisite purpose, so
(a)(2) would add nothing. That redundancy is fatal. Though
statutes sometimes overlap, we try to avoid reading one part of
a statute to make another part surplusage. Yates v. United
States, 574 U.S. 528, 543 (2015). That is especially true of two
paragraphs nestled in the same subsection. Id. We will not collapse the two into one.
Safehouse’s reading would also make paragraph (a)(2)’s intent requirement redundant of its purpose requirement.
24
Congress added the word “intentionally” to paragraph (a)(2)
but not (a)(1). Intention, like purpose, is a volitional mental
state; it requires the defendant to will something. One cannot
have a purpose of unlawful drug activity without intending that
activity. In paragraph (a)(2), the intent requirement would
make no sense layered on top of requiring the defendant to
have the purpose. But it makes sense to require the defendant’s
intent on top of the third party’s purpose. That protects defendants against liability for mistaken, accidental, or involuntary
use of their property.
3. Other circuits read §856(a) similarly. Finally, six other
circuits agree with our reading of the two paragraphs. See
United States v. Wilson, 503 F.3d 195, 197–98 (2d Cir. 2007)
(per curiam); United States v. Chen, 913 F.2d 183, 189–90 (5th
Cir. 1990); United States v. Banks, 987 F.2d 463, 466 (7th Cir.
1993); United States v. Tebeau, 713 F.3d 955, 959–61 (8th Cir.
2013); United States v. Tamez, 941 F.2d 770, 774 (9th Cir.
1991); United States v. Verners, 53 F.3d 291, 296–97 & n.4
(10th Cir. 1995). No circuit has held otherwise.
True, as Safehouse notes, no other circuit has addressed a
safe-injection site. The other circuits’ cases involved egregious
drug activity. But these cases all recognize the textual difference between the defendant’s own purpose under paragraph
(a)(1) and the third party’s purpose under (a)(2). Safehouse has
much better intentions. But good intentions cannot override the
plain text of the statute.
4. Safehouse’s other arguments are unpersuasive.
Safehouse raises three objections to the plain reading of the
text, but they all fail. First, it responds that “for the purpose of”
25
cannot mean two different things in the two sister paragraphs.
It does not. We presume that “purpose” means the same thing
in both. Env’t Def. v. Duke Energy Corp., 549 U.S. 561, 574
(2007). But we do not presume that the “purpose” belongs to
the same actor in each paragraph.
The difference in phrasing draws that distinction. For instance, paragraph (a)(1) forbids a defendant’s “use” of a place
“for the purpose of” drug activity. Paragraph (a)(2) forbids a
defendant’s “mak[ing] [a place] available for use ... for the
purpose of” drug activity. In each subsection, “for the purpose
of” refers back to “use,” its nearest reasonable referent. See
Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 152–53 (2012). Whoever “use[s]” the
property is the one who must have the purpose. Since the third
party is the actor who “use[s]” the place in paragraph (a)(2), it
is her purpose that matters. Those two phrases are worded differently because they target use by different actors.
Second, Safehouse fares no better by citing the rule of lenity. We interpret ambiguities in criminal statutes in favor of the
defendant. Liparota, 471 U.S. at 427. Before we do, though,
we must exhaust the traditional tools of statutory construction.
Shular v. United States, 140 S. Ct. 779, 787 (2020). And once
we do that, this statutory text is clear enough, not “grievous[ly]
ambigu[ous].” United States v. Castleman, 572 U.S. 157, 173
(2014) (quoting Barber v. Thomas, 560 U.S. 474, 488 (2010)).
Finally, Safehouse objects that it would be “extremely odd”
to tie a defendant’s liability to a third party’s state of mind. Oral
Arg. Tr. 61. That is not so strange. When a robber holds up a
cashier with a toy gun, the prosecution must prove that the
26
cashier had a real “fear of injury.” 18 U.S.C. §1951(b)(1). Or
in a kidnapping case, to show that the defendant acted “unlawfully,” the prosecution must prove that the victim did not consent to come along. 18 U.S.C. §1201(a). And when one member of a drug ring goes astray and kills someone, his coconspirators can still be liable for murder. Pinkerton v. United
States, 328 U.S. 640, 645–47 (1946). Though only the killer
has the requisite specific intent to kill, it is enough that his partners in crime could reasonably foresee that he would kill in
furtherance of the conspiracy. United States v. Gonzales, 841
F.3d 339, 351–52 (5th Cir. 2016); United States v. Alvarez, 755
F.2d 830, 848–49 (11th Cir. 1985).
In sum, all that paragraph (a)(2) requires is that the third
party, not the defendant, have the purpose of drug activity.
Still, the defendant must have a mental state: he must knowingly and willingly let others use his property for drug activity.
Now we apply this statute to Safehouse.
C. Section 856(a)(2) applies to Safehouse because its
visitors will have a significant purpose of drug
activity
Everyone agrees that Safehouse satisfies the first two
phrases of paragraph (a)(2). First, it will “manage [and] control” the site. Second, it will “intentionally ... make [its consumption room] available for [visitors’] use,” knowing that
they will use drugs there. But visitors will come for other reasons too, including Safehouse’s medical and counseling services. So the question is whether the visitors’ use of the consumption room will satisfy the third phrase: (a)(2)’s purpose
requirement. It will.
27
A person’s purpose is his “objective, goal, or end.” Purpose, Black’s Law Dictionary (11th ed. 2019). It is something
he “sets out to do.” Purpose (def. 1a), Oxford English Dictionary (3d ed. 2007).
People often have multiple purposes. A parent might scold
a screaming child both to silence her and to teach her how to
behave in public. But not every purpose satisfies the statute.
The statute requires the actor to act “for the purpose of” drug
activity, not just a purpose of drug activity. 21 U.S.C. §856(a)
(emphasis added). That choice of “the” rather than “a” means
that not just any purpose will do. The actor’s purpose must be
more than “merely incidental.” Lancaster, 968 F.2d at 1253.
But it need not be his “sole purpose.” Shetler, 665 F.3d at 1161.
Otherwise, Congress would have said “for the sole purpose,”
as it has elsewhere. E.g., 18 U.S.C. §48(d)(2)(B); 15 U.S.C.
§62; 17 U.S.C. §1201(d)(1).
Since the actor’s purpose must fall somewhere between an
“incidental” and a “sole” purpose, we think the District Court
and our sister circuits have it right: the actor need have only a
“significant purpose” of drug activity. United States v. Russell,
595 F.3d 633, 643 (6th Cir. 2010). If he has a “significant purpose” of drug use, he violates the statute, even if he also has
other significant purposes. United States v. Soto-Silva, 129
F.3d 340, 342, 347 (5th Cir. 1997).
Safehouse’s visitors will have the significant purpose of
drug activity. True, some people will visit Safehouse just for
medical services or counseling. Even so, Safehouse’s main attraction is its consumption room. Visitors will bring their own
drugs to use them there. And many of Safehouse’s services will
28
revolve around the visitors’ drug use there. The clean syringes
and fentanyl strips will let them inject drugs more securely.
The respiratory support and overdose-reversal agents will reduce their chances of dying of an overdose. And the medical
and counseling care will be offered after they have used drugs.
When a visitor comes to Safehouse to prevent an overdose, that
reason is bound up with the significant purpose of doing drugs.
That satisfies the statute.
Safehouse worries that our reading will punish parents for
housing their drug-addicted children, or homeless shelters for
housing known drug users. It will not. People use these places
to eat, sleep, and bathe. The drug use in homes or shelters
would be incidental to living there. But for most people, using
drugs at Safehouse will not be incidental to going there. It will
be a significant purpose of their visit.
D. In any event, Safehouse has a significant purpose
that its visitors do drugs
Even if paragraph (a)(2) looked to Safehouse’s own purpose, Safehouse would violate the statute. For Safehouse itself
has a significant purpose that its visitors use heroin, fentanyl,
and the like.
Safehouse vigorously contests this point. As it stresses, one
of Safehouse’s purposes is to stop overdoses and save lives.
Other purposes include preventing disease and providing medical care. But as Safehouse conceded at oral argument, “there
can be multiple purposes” that a defendant pursues at once.
Oral Arg. Tr. 53. Plus, motive is distinct from mens rea. A defendant can be guilty even if he has the best of motives. A child
29
who steals bread to feed his hungry sister has still committed
theft. The son who helps his terminally ill mother end her life
has still committed murder.
One of Safehouse’s significant purposes is to allow drug
use. Start with the facility’s name: Safehouse calls it a “consumption room” or “safe-injection site.” App. 683–84. It expects visitors to bring heroin, fentanyl, or the like with them to
use on-site. It will offer visitors clean syringes and fentanyl
strips and advise visitors on how to inject heroin or fentanyl
safely. Safehouse even foresees a benefit to this on-site drug
use: it thinks visitors will be more likely to accept drug treatment “after they have consumed drugs and are not experiencing withdrawal symptoms.” App. 685.
In short, Safehouse will offer visitors a space to inject themselves with drugs. Even on its own reading of purpose, that is
enough to violate the statute.
E. We cannot rewrite the statute to exclude the
safe-injection site
Finally, Safehouse asks us to look beyond the statute’s text
to consider Congress’s intent. The public-policy debate is important, but it is not one for courts. If the text of a criminal
statute “is plain ... the sole function of the courts is to enforce
it according to its terms.” Caminetti v. United States, 242 U.S.
470, 485 (1917).
1. We apply the plain text, not Congress’s expectations.
First, Safehouse objects that Congress targeted crack houses,
but never expected the law to apply to safe-injection sites. That
is true but irrelevant. See Pa. Dep’t of Corrs. v. Yeskey, 524
30
U.S. 206, 212 (1998). Statutes often reach beyond the principal
evil that animated them. Oncale v. Sundowner Offshore Servs.,
Inc., 523 U.S. 75, 79 (1998). For instance, though Congress
meant RICO to target mobsters, it reaches far beyond them to
legitimate businesses as well. Sedima, S.P.R.L. v. Imrex Co.,
473 U.S. 479, 499 (1985) (analyzing the Racketeer Influenced
and Corrupt Organizations Act, 18 U.S.C. §§1961–68).
A court’s job is to parse texts, not psychoanalyze lawmakers. “[W]e do not inquire what the legislature meant; we ask
only what the statute means.” Epic Sys. Corp. v. Lewis, 138 S.
Ct. 1612, 1631 (2018) (internal quotation marks omitted)
(quoting Justice Jackson quoting Justice Holmes). At least
when the text is clear, we will not look beyond it to lawmakers’
statements, because “legislative history is not the law.” Id.; accord Pellegrino v. TSA, 937 F.3d 164, 179 (3d Cir. 2019) (en
banc). The words on the page, not the intent of any legislator,
go through bicameralism and presentment and become law.
Here, the statute’s plain text covers safe-injection sites. We
look no further.
2. Congress’s recent efforts to combat addiction did not
revoke the statute. Next, Safehouse and its amici claim that our
reading of the statute is bad policy. On average, nearly three
Philadelphians die of drug overdoses each day. A consumption
room, they argue, could save those lives. And the Government
has spent lots of time and money fighting the opioid crisis. In
2016, Congress passed the Comprehensive Addiction and Recovery Act, which creates federal grants to treat drug addiction
and prevent overdoses. Pub. L. No. 114-198, §103, 130 Stat.
695, 699–700 (codified at 21 U.S.C. §1536). Since then, it has
31
banned federal funding of syringe-exchange programs but authorized an exception. Consolidated Appropriations Act of
2016, Pub. L. No. 114-113, §520, 129 Stat. 2242, 2652.
Safehouse asks us to read the Act to “[h]armonize[]” it with
these federal efforts. Appellees’ Br. 38. But to do that, we
would have to rewrite the statute. These laws say nothing about
safe-injection sites, and §856(a)(2)’s plain text forbids them. If
that ban undermines Congress’s current efforts to fight opioids,
Congress must fix it; we cannot.
III. APPLYING §856(a)(2) TO SAFEHOUSE IS A VALID
EXERCISE OF CONGRESS’S POWER OVER INTERSTATE
COMMERCE
Having held that Safehouse’s safe-injection site would violate §856(a)(2), we turn to its affirmative defense under the
Commerce Clause. Safehouse argues that Congress lacks the
power to criminalize its local, noncommercial behavior. After
all, it will not charge visitors to use the consumption room. But
the Supreme Court foreclosed that argument in Gonzales v.
Raich, rejecting a Commerce Clause challenge to a different
section of the Controlled Substances Act. 545 U.S. 1, 9 (2005).
Raich clarifies that Congress can regulate local, noncommercial activity when that activity will affect a national market.
Even though Safehouse’s consumption room will be local and
free, the Act bans it as part of shutting down the national market for drugs. The Commerce Clause, together with the Necessary and Proper Clause, gives Congress the power to do that.
U.S. Const. art. I, §8, cl. 3, 18.
32
A. Congress can regulate local activities either (1) if
they are economic and, taken together, substantially
affect interstate commerce, or (2) as part of a comprehensive regulatory scheme
Using its commerce power, Congress can regulate the
“channels of interstate commerce”; “instrumentalities,” people, and “things in interstate commerce”; and “activities that
substantially affect interstate commerce.” United States v.
Lopez, 514 U.S. 549, 558–59 (1995). That last category can
cover local activity and thus risks blurring the line “between
what is truly national and what is truly local.” Id. at 567–68.
To hold that line, we demand that the local activity Congress
regulates be either (1) economic or else (2) covered by a
broader scheme to regulate commerce. See id. at 559–61.
Either route suffices.
1. Congress can regulate local economic activities that
substantially affect interstate commerce. Federal law may regulate local activities if they are economic and, as a “class of
activities,” they substantially affect interstate commerce.
Raich, 545 U.S. at 17 (quoting Perez v. United States, 402 U.S.
146, 151 (1971)); Lopez, 514 U.S. at 559–60. A court does not
decide for itself that a class of activity has substantial economic
effects. We ask only whether Congress had a rational basis to
think so. Raich, 545 U.S. at 22.
Activities can count as economic even if they are not commercial. Raich, 545 U.S. at 18. That is because, even without
buying or selling, some local activities can collectively affect
national supply and demand. Thus, in Wickard v. Filburn, the
33
Supreme Court upheld a law capping how much wheat a farmer
could grow to feed his own livestock, bake his own bread, and
plant his next year’s crop. 317 U.S. 111, 114, 127–28 (1942).
In the aggregate, it reasoned, excess homegrown wheat could
lower demand, compete with wheat on the market, and so substantially affect interstate commerce. Id.
2. Congress can regulate noneconomic activities only as
part of a larger regulatory scheme. Congress’s power to regulate noneconomic activities, like many traditionally local
crimes, is more limited. “Congress may [not] regulate noneconomic, violent criminal conduct based solely on that conduct’s aggregate effect on interstate commerce.” United States
v. Morrison, 529 U.S. 598, 617 (2000). For instance, Congress
cannot ban possessing guns near schools just because violent
crime might raise insurance rates, hinder education, and thus
dampen economic production. Lopez, 514 U.S. at 563–64. Nor
can it ban violence against women based on how it might harm
employment and the economy. Morrison, 529 U.S. at 614–15.
That is the job of state and local legislatures, not Congress.
But Congress can regulate traditionally local, noneconomic
activities as part of a larger regulatory scheme. The laws in
Lopez and Morrison were single-subject statutes, not part of
regulating interstate markets. By contrast, Congress can reach
local, noneconomic activities (like simple possession) as “part
of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity
were regulated.” Lopez, 514 U.S. at 561. For example, when
this Court faced a federal ban on possessing certain machine
guns, we upheld it. United States v. Rybar, 103 F.3d 273, 274
34
(3d Cir. 1996). That law, unlike the one in Lopez, sought to halt
interstate gun trafficking. Id. at 282–83. To shut down the
interstate market in machine guns, it had to reach intrastate
possession too. Id. By the same token, Congress can ban even
intrastate possession of child pornography. United States v. Rodia, 194 F.3d 465, 479 (3d Cir. 1999).
When Congress regulates local noneconomic activities as
part of a scheme, it need only choose means that are “ ‘reasonably adapted’ to the attainment of a legitimate end under the
commerce power.” Raich, 545 U.S. at 37 (Scalia, J., concurring) (quoting United States v. Darby, 312 U.S. 100, 121
(1941)).
Having discussed the two bases for regulating local activities, we can now apply them. As the next two sections explain,
both the comprehensive-scheme and aggregate-economiceffect rationales independently justify §856’s ban.
B. Congress can ban local drug-involved premises as
part of a comprehensive regulatory scheme
Whether providing drug-involved premises counts as economic activity or not, Congress can regulate it. The drug market is national and international. Congress has found that this
trade poses a national threat. Thus, it passed the Controlled
Substances Act, a scheme to suppress or tightly control this
market. The Act properly seeks to shut down the market for
Schedule I and unprescribed Schedule II–V drugs. Because
Congress passed a valid scheme to regulate the interstate drug
trade, §856 is constitutional as long as it is “reasonably
adapted” to that scheme. Raich, 545 U.S. at 37 (Scalia, J.,
35
concurring) (quoting Darby, 312 U.S. at 121). And it is. To
bolster the Act’s scheme, Congress can reach local premises
where drug activities happen.
1. The Controlled Substances Act is a scheme to tightly
control the interstate drug market. Drugs are big business. In
2016 alone, Americans spent $146 billion on cannabis, cocaine, heroin, and methamphetamine. Gregory Midgette et al.,
RAND Corp., What America’s Users Spend on Illegal Drugs,
2006–2016, at xiv tbl. S.2 (2019). Congress has recognized that
much of this traffic flows in interstate and international commerce. 21 U.S.C. §801(3). It addressed that market in the Act.
To control drug manufacture, sale, and possession, the Act
creates a “closed regulatory system.” Raich, 545 U.S. at 13.
Because Schedule I drugs have no accepted medical use, the
Act bans them entirely. See 21 U.S.C. §812(b)(1). For other
drugs that have some accepted uses but a “potential for abuse”
(those in schedules II–V), the Act requires a prescription.
§§812(b)(2)(A), (3)(A), (4)(A), (5)(A), 844(a). This scheme
seeks to shut down the markets in Schedule I and unprescribed
Schedule II–V drugs. See Raich, 545 U.S. at 19, 24. That goal
is valid, as the power to regulate a market includes the power
to ban it. Id. at 19 n.29.
2. Congress can serve this goal by reaching intrastate activities. The national drug market is bound up with local activities. Drugs produced locally are often sold elsewhere; drugs
sold or possessed locally have usually been imported from
elsewhere. §801(3). Even local possession and sale “contribute
to swelling the interstate market.” §801(4). So to control the
interstate market, the Act reaches intrastate activities.
36
Raich confirms that Congress can do that. Raich upheld the
Act’s ban on local production and possession of marijuana for
personal medical use. 545 U.S. at 9. Unlike the laws in Lopez
and Morrison, this ban was part of a comprehensive regulatory
scheme to shut down the interstate market in marijuana. Id. at
19, 23–24. Drugs are fungible. Id. at 18. Local drugs are hard
to distinguish from imported ones and can be diverted into the
interstate market. Id. at 22. Congress rationally believed that
failing to regulate intrastate drugs “would leave a gaping hole
in the [Act].” Id. So it was necessary and proper to enact a flat
ban, with no intrastate exception. Id.; id. at 34 (Scalia, J., concurring).
3. Section 856 is a key part of the Act’s comprehensive regulatory scheme. At oral argument, Safehouse sought to distinguish consuming drugs from providing a place to consume
them. But just as Congress regulates the drug activities, it can
also regulate places where those activities are likely to flourish.
Congress added §856 to plug a “gaping hole” in the Act that
made it harder to stop drug use and dealing at crack houses and
the like. Raich, 545 U.S. at 22.
Section 856 is reasonably adapted to control drug manufacture, sale, and possession. Consider state laws that forbid
BYOB restaurants to let minors drink alcohol on-site. See, e.g.,
N.J. Rev. Stat. §2C:33-27(a)(3). Of course, minors themselves
may not drink in public. Id. §2C:33-15(a). And the restaurants
would not be providing the alcohol, only the space and glasses.
Yet states still punish them if the minors drink there. Why?
Because the ban makes it harder for minors to drink. If restaurateurs know that they could face steep fines for tolerating
37
underage drinking, they will prevent it from happening. So too
here. Just as local drug possession “swell[s] the interstate
[drug] traffic,” clamping down on local drug use helps restrict
that market. 21 U.S.C. §801(3), (4).
We could stop here. Because §856 is part of the Act’s comprehensive regulatory scheme, Congress has the power to ban
even local, noneconomic activity that would undercut that
scheme. But another ground independently supports the Act: it
regulates economic activity that could, in the aggregate, substantially affect interstate commerce.
C. Congress had a rational basis to believe that
making properties available for drug use will have
substantial economic effects
Even if §856 were not part of a comprehensive regulatory
scheme, Congress could still regulate the activities it covers.
Safehouse argues that making a local safe-injection site available for free is noneconomic. But Raich forecloses that argument.
1. Making properties available for drug use is economic
activity. Raich defined “economics” broadly as “the production, distribution, and consumption of commodities.” 545 U.S.
at 25–26 (quoting Webster’s Third New International Dictionary 720 (1966)) (emphasis added). These are all activities that
affect national supply and demand and thus interstate commerce. So producing, distributing, and consuming drugs are
“quintessentially economic” activities. Id. Even intrastate
growing of marijuana for home consumption is economic,
38
because it could substantially affect the national marijuana
market. Id. at 19, 25–26.
To be sure, Safehouse will not itself consume drugs. But it
will create a “consumption room,” a dedicated space for
streams of visitors to use drugs. “[T]here is an established, and
lucrative, interstate market” for those drugs. Id. at 26. Opening
a space for consuming drugs will encourage users to come do
so. Making consumption easier and safer will lower its risk and
so could increase consumption. More drug consumption would
create more market demand. Just as “home consumption [of] a
fungible commodity” is economic activity that can substantially affect the national market, so too is hosting consumption.
See Raich, 545 U.S. at 7.
It makes no difference that Safehouse will let its visitors
come for free. Wickard grew wheat to feed his own livestock
and bake his own bread. 317 U.S. at 114. And though one of
the drug users in Raich grew her own marijuana and another
was given it as a gift, that did not matter. 545 U.S. at 7. Economic activity is broader than commercial activity; it need not
involve buying and selling. Congress validly banned these noncommercial uses to control supply and demand in the drug
market. Raich, 545 U.S. 22–23; Wickard, 317 U.S. at 127–28.
That was necessary and proper. Congress had the power to regulate the whole class of drug activities, and courts cannot “excise” individual cases from that class just because they are
“trivial.” Raich, 545 U.S. at 23 (quoting Perez v. United States,
402 U.S. 146, 154 (1971)).
39
2. Congress has a rational basis to believe that this activity, as a class, substantially affects interstate commerce. Congress could find that maintaining drug-involved premises, as a
class, substantially affects commerce. Drug dealers may well
congregate near Safehouse, increasing the drug trade and arguably drug demand. True, Safehouse argues that its site will not
increase drug demand, as visitors must buy their drugs before
arriving. And amici dispute whether safe-injection sites increase drug use and trafficking. That empirical and policy debate is for Congress, not courts. It is enough that Congress
could rationally find a causal link between drug-involved
premises as a class and commerce. Raich, 545 U.S. at 22.
Congressional findings confirm common sense. 21 U.S.C.
§801(3)–(6). Drugs typically flow through interstate markets
before someone possesses them. §801(3)(C). And intrastate
possession helps swell the interstate market. § 801(4). So regulating intrastate activity is necessary and proper to clamp
down on the interstate market. To be sure, these findings in the
Act predate §856, and they do not specifically discuss druginvolved premises. But we may consider findings from prior
legislation. Rodia, 194 F.3d at 474 n.4; Rybar, 103 F.3d at 281.
And “Congress [need not] make particularized findings in order to legislate.” Raich, 545 U.S. at 21.
In short, Congress can regulate Safehouse both to complete
the Act’s comprehensive regulatory scheme and to stop economic activity that, in the aggregate, could substantially affect
interstate commerce.
Outcome: The opioid crisis is a grave problem that calls for creative
solutions. Safehouse wants to experiment with one. Its goal,
saving lives, is laudable. But it is not our job to opine on
whether its experiment is wise. The statute forbids opening and
maintaining any place for visitors to come use drugs. Its words
are not limited to crack houses. Congress has chosen one rational approach to reducing drug use and trafficking: a flat ban.
We cannot rewrite the statute. Only Congress can. So we will
reverse and remand for the District Court to consider the RFRA
counterclaim
Plaintiff's Experts:
Defendant's Experts:
Comments: