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Burlington City Council Hears Potential Legal Ramifications Of Creating Overdose Prevention Sites

The Black Lives Matter flag flies in front of Burlington City Hall
Pat Bradley/WAMC
Burlington City Hall (file)

The Burlington City Council discussed the legal implications of creating Overdose Prevention Sites in the city during a work session of their regular meeting this week.
In July 2018 the Burlington City Council passed a resolution supporting the creation of Overdose Prevention Sites — or OPS — to distribute buprenorphine and provide services “to reduce opioid overdoses and provide treatment and recovery options.”
During its September 14th meeting the council passed a resolution asking the City Attorney to conduct a legal analysis on current local, state, and federal laws and to identify strategies to overcome any barriers to set up and operate such sites.  The City Attorney’s office presented its report at this week’s meeting.  Assistant City Attorney Justin St. James said such sites violate federal law.  “There's currently no official or officially sanctioned overdose prevention site in the United States largely because  federal law prohibits them and this U.S. Attorney in this Department of Justice have been fairly aggressive when municipalities  start making progress potentially or exploring establishing or helping establish an OPS facility. The federal government is been very aggressive in reminding folks that there are several laws, specifically 21USC856, which is the largest roadblock federally at this point. This law criminalizes activity related to individuals facilitating people using their house or using a building to use drugs.”

The law creates criminal and civil liabilities for anyone who allows a space to be used for illegal substances and St. James explained there are significant criminal penalties and fines up to $2 million.  “One part of that is not just the fact that it's a felony that carries 20 years in jail or in prison plus a large monetary fine but there's also the concern if you're convicted of that it opens up civil and federal forfeiture, which is obviously problematic and another way that has deterred folks, largely a lot of municipalities, from taking a step to actually establishing an OPS.”

St. James also reported there is a Vermont state law that mimics the federal law.  “There have been some attempts made by actually some Burlington representatives in the last several legislative sessions to create a carve out in immunity so that folks who are working with an OPS would have protection from both civil and criminal liability. That bill has not moved out of House Judiciary.”

Ward 3 Progressive Brian Pine discussed with City Attorney Eileen Blackwood how communities could press for changes in the laws.  “Are we doing absolutely everything that we can do short of bumping up against this federal prohibition?”
Blackwood:   “We could certainly put it higher on our legislative agenda in putting some pressure on that end.  We've had some discussions with the attorney general's office about it. We haven't had discussions with the U.S. Attorney's office and that would probably be another route we could take. I think because the Third Circuit case is on hold everybody's waiting around the country it seems to have that court case go forward a little bit  before trying a lot of other challenges The hope is that combined with a new Attorney General and a positive Circuit Court ruling saying the law doesn’t include this that that will become persuasive or that there will not be enforcement.

A functional and operational analysis on potential Overdose Prevention Sites in Burlington is pending.
The full city council meeting can be viewed here:


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