The hard conversations on supervised drug use are coming

Last week, in the final board meeting of 2022, an intriguing consortium of seven supervisors signed on to Hillary Ronen’s legislation calling for expedited “wellness hubs” — a more aesthetically pleasing way of saying “supervised drug use sites.” This supermajority includes both Ahsha Safaí and, most intriguing of all, Matt Dorsey.

Mayor London Breed, who saw fit to log in to Microsoft Teams to talk to the Board of Supervisors, rather than amble across the hall, expressed support for safe-use sites. She always has. The problems, she said, are the “serious legal issues that have not been addressed for city-operated or city-funded sites.” 

Ay, there’s the rub: Operating such a site, in the eyes of federal law, is no different than a city-sponsored crackhouse; the legal code undergirding this matter is even unsubtly called “The Crack House Statute.” 

But here’s another rub: We did that. At the Tenderloin Center. For 11 months, until Dec. 4. In full view of all the theater patrons queuing up for “Moulin Rouge!,” and in full knowledge of all the denizens of City Hall who could’ve stopped it if they saw fit. And, what’s more, city officials didn’t just acknowledge what was going on verbally, they wrote it down in official memos. 

Apparently, nobody listened to the City Attorney. Or, you know, saw “The Wire.“

The statute of limitations for violating The Crack House Statute is five years. Meaning San Francisco is on the hook until on or about Dec. 4, 2027, regardless of what we do moving forward. 

But here’s yet another rub: The Crack House Statute has been on the books for a while — since 1986. That’s a long time ago; that’s the same year Metallica released “Master of Puppets.” So why, in only the past couple of months, have multiple nonprofits collaborating with the Department of Public Health to open supervised drug use sites complained that the mayor’s office hastily intervened to derail the process?

On Dec. 10, the Gubbio Project’s Lydia Bransten told the Chronicle’s Heather Knight that the mayor’s office had abruptly pulled the plug on a planned safe consumption site at St. John the Evangelist church in the Mission.  

And, last week, Mission Local talked to a second nonprofit that said the same thing happened to it. That nonprofit has now decided to go on the record: It’s the San Francisco AIDS Foundation, and it had been gearing up to run a supervised consumption site in SoMa. 

Mayoral spokesman Jeff Cretan told us that the city is going to move forward on safe-consumption sites — “when we get legal clarity from the Department of Justice.” The legal test case for this, United States v. Safehouse, has featured a Godot-like series of delays. After a year of foot-dragging, the DOJ is due to show its hand on Jan. 9; based upon the cards it plays, San Francisco may get that legal clarity. Or it may not. 

Less clear is the about-face local nonprofits say they experienced due to the mayor’s intervention. Cretan said there may have been confusion about when the supervised consumption sites were actually slated to open, and noted the umpteenth federal delay in the Safehouse case. The mayor’s office has bristled at the notion this is a political calculation, just as the governor’s office has bristled at the notion that Gavin Newsom’s refusal to greenlight safe-consumption sites was due to trepidation over what Ron DeSantis would say about California coddling junkies. 

The nonprofits Mission Local spoke to, incidentally, weren’t confused. At all.  

This is not going to remain a “Rashomon” situation for long. Ronen is pushing to fast-track a January hearing, and all of these questions are going to be asked, in public, by our elected leaders, some of whom are ostensible mayoral allies.

The question of just what the hell to do about San Francisco’s supervised (and unsupervised) drug use is a seismic-level collision of politics and law. And, complicating matters, both the politics and law are on the federal, state and local levels. 

Let’s start with the law part. Locally, even though eight supervisors are calling for the establishment of “wellness hubs” and setting aside millions to fund them, that and a few bucks will buy them a cup of coffee. The term “veto-proof majority” is not wholly relevant here, because the mayor is not bound to expend the funds underlying this legislation, no matter how many supes voted for it. This is a scenario that has come up time and again, most recently in 2020, when the mayor blew off legislation regarding shelter-in-place hotels approved by all 11 supes.

On the federal level, could the Department of Justice unload on San Francisco for running a safe consumption site — and, as Breed fears, deprive the city of millions of dollars and even send city employees to federal prison? Yes. But could they do that already? Also yes. And could they do that regarding consumption sites — of marijuana? 

You’re damn right they could. 

“Marijuana is still a Schedule 1 substance under federal law,” says Kellen Russoniello, a staff attorney at the Drug Policy Alliance. “Even in states where it is legalized, it remains federally illegal. The federal government could try to make the case to apply the Crack House Statute to cannabis, if it’s consumed on-site.” 

That’s the case with plenty of cannabis sites in San Francisco, sites that are subjected to complex city permitting and planning processes, and have to pass muster with the neighborhood, hire local kids, etc. Since this is a city-sanctioned process, yes, it’s conceivable that a malign Department of Justice could attempt to rain legal hellfire on the city as well. 

Should San Francisco, in a panic, dismantle any government ties to cannabis and shutter its cannabis sites? Not hardly. Rather, those positing worst-case scenarios of what a future troglodyte Attorney General might do to San Francisco regarding safe-consumption sites should possibly reconsider what that “worst-case scenario” might actually entail, and how realistic it actually is. 

Could San Francisco open up a supervised drug use site tomorrow, if it did so using private funding and private land, like New York City is doing and Rhode Island is planning to do? Yes, it could. That has the City Attorney’s blessing. But, as you’d guess, this is a tough fundraising lift. And, Russoniello notes, the feds could still swoop in and arrest everyone. They’d just be sending nonprofit workers to prison, instead of city workers.  

And San Francisco, remember, is still potentially in the soup until December, 2027, because of the Tenderloin Center. If we’re really talking worst-case scenario, a truly vindictive, weaponized DOJ would see no logical reason to be less punitive when prosecuting the city that serves as an avatar for liberal misrule merely because it ceased breaking the law after overtly flouting it for 11 months.

“We are being too cute by half,” says Ronen, “by pretending we haven’t already opened these things.” 

The Board of Supervisors cannot make the mayor spend money she doesn’t want to spend. 

But it can try. So, what comes next may be, in the words of Supervisor Aaron Peskin, “legislative guerrilla warfare.” 

“One starts these things by reasoning, and then one moves on to begging and pleading and if that doesn’t work, and if the board has the political will, then it can spill over the outside of that political issue. It can encompass and get tangled up in a web of other issues ranging from holding up mayoral appointments to refusing to appropriate funds for other mayoral priorities.” 

That’s certainly one way things could unfold. But everyone ostensibly wants the same thing here. Next month, in a belated Christmas miracle, we might instead see productive conversations. 

Free and open government discussions about doing federally illegal things are difficult. That’s a given. But San Francisco is in a difficult place. 

“I understand the concerns in a crazytown Republican administration, where they’d be going after Nancy Pelosi’s city,” explained Supervisor Matt Dorsey when asked about the possibilities of federal retribution. “But now? I don’t get the gun-shyness.” 

When Dorsey was running for office, he’d introduce himself to homeless people using drugs on the street. “I’d tell them, ‘I’m your supervisor, but I’m also a recovering addict. If you ever want to go to your meeting, give me a call.’ And they’d appreciate it. But they’re not ready yet.”

Dorsey is a big proponent of the abstinence-based programs that are working for him. But, he notes, these programs only work for the living. Safe-consumption sites, he says, keep people living long enough to contemplate the need for change. 

“There is real urgency to pursue a harm-reduction approach that can save lives, but also provide an interim step toward the promise of real recovery,” he says. “There just has to be a legal path toward doing this.” 

Or, Dorsey intimates, any path. He notes that, in the 1990s, then-Mayor Frank Jordan defied Republican state Attorney General Dan Lungren’s demands to nix San Francisco’s needle-exchange program. Jordan said he’d go to jail before curtailing a life-saving initiative. 

Jordan did not go to jail. The program continues. 

San Francisco, next month, will have frank discussions about what it needs. And what it’s willing to risk to get it. 

“We have to have these conversations,” Dorsey says. “This is not new. But, in many ways, it is unprecedented.”