Last week, when Gary McCoy embarked on a hunger strike calling on the city to start a safe consumption site program to reduce overdose deaths, he expected it to last eight to 10 days. Instead, his strike lasted just 60 hours.
By day three, seven members of the Board of Supervisors had reached out to McCoy, telling him they would support a resolution calling on Mayor London Breed to open up safe consumption sites by emergency declaration. With a majority of the city’s legislative body on his side, McCoy called off his strike.
“I intended on being out there for at least a week or two, so I had to prep safely for that to happen,” says McCoy, who serves as policy director for the healthcare nonprofit Health Right 360. “I was impressed and very happy that I got very quick responses from supervisors.”
Now comes the tricky work of figuring out what this emergency program would look like, and, crucially, getting Breed to support it. Only the mayor has the power to declare a state of emergency to turn this idea into reality. Clearing the way for that to happen will likely be a complex and messy process, involving numerous legal and logistical hurdles. But with support from a majority of the Board of Supervisors, momentum is clearly building for this bold, if not unprecedented, policy.
Pieces in Place
Establishing safe consumption sites in San Francisco is not a new idea. Since 2015, a group of public health advocates known as the Safer Inside coalition has been organizing and lobbying city officials.
In August 2018, it appeared they had momentum. A bill that would have legalized safe consumption sites, AB 186, was working its way through the state legislature. Here in the city, Breed was sounding an increasingly supportive tone. She and other city leaders visited a model safe consumption site created by the Safer Inside coalition to demystify what these spaces could look like. In a speech promoting the demonstration at Glide Memorial Church, she invoked her own personal experience. “As many of you know, I lost my sister to a drug overdose. That’s why I have fought so hard for safe injection sites.”
But one month later, in September 2018, Governor Jerry Brown vetoed AB 186, bringing that momentum to a halt. Breed began to change her tune, too.
“In some of her speeches when she first became mayor, Breed said, ‘We are going to make this happen because it’s the right thing to do,’” says Paul Harkin, director of harm reduction services at Health Right 360. “But then it seems her attorneys may have had conversations with her about legality issues, and she appears to have backed off from that and adopted a more wait-and-see strategy.”
Breed was an outspoken supporter of the most recent bill to legalize safe consumption sites at the state level. However, she has yet to publicly comment on the push by McCoy and several supervisors to legalize a safe consumption site in the city by emergency declaration. Her office did not respond to a request for comment.
While it was a frustrating experience for advocates, the failed push three years ago means a great deal of planning already has been done. Harkin and his colleagues at the Safer Inside coalition have a playbook for quickly setting up a safe consumption site, thanks to the demonstration they did in 2018. And city leaders have been briefed on what it would look like, and how they could support it.
“They’ve all already been working on this for a very long time,” McCoy says of the Board of Supervisors and the wider public health community. “So it wasn’t a nuanced thing that required deep discussion.” What could change thanks to McCoy’s hunger strike, he says, is the sense of urgency to make something happen. “Hopefully this motivates a quicker rereading of the laws.”
Next Steps
Seven members of the 11-member Board of Supervisors reached out to McCoy saying they support the city creating a safe consumption site, but the legislative body has yet to make its views official. Over the next month while the board is on recess, Supervisor Matt Haney’s office will craft a resolution calling on the mayor to declare a state of emergency so the city can set up a safe consumption site. Haney’s office confirmed they hope to introduce that resolution at the first meeting back from recess, sometime after Sept. 6.
After that resolution is passed, it will be up to Breed to coordinate the city’s strategy and then declare a state of emergency, clearing the way for the city to violate state and federal law by allowing safe consumption sites. The city attorney, the Department of Public Health, the district attorney, and the Police Department would all have to be brought on board. All of those departments previously have participated in discussions with the Safer Inside coalition, Harkin says.
The city attorney could be a key variable. In April, Breed nominated long-serving City Attorney Dennis Herrera to lead the Public Utilities Commission, a role for which he could be approved imminently. At that point, Breed would select a new city attorney, who would have to stand for election within 120 days. Assemblymember David Chiu, who has supported safe consumption sites in the past, is widely viewed as a likely pick.
“I would like our city attorney to get behind this,” McCoy says. “I think an interpretation of various laws should be looked at with different eyes, given the fentanyl crisis that we’re having.”
There are important legal considerations that the city attorney and the mayor’s office would need to build into the emergency declaration. The order would need to have guardrails “to make sure that the clinicians and healthcare workers working in these sites are protected” from legal repercussions, McCoy says. The declaration would likely need to be renewed on a regular basis, at least until the state legislature authorizes a safe consumption site program.
Once a state of emergency is declared, then a site — or, if public health advocates get their way, multiple sites — would need to be identified. In San Francisco, where many drug users smoke fentanyl, high-powered HVAC systems would be required, Harkin says.
Harkin would like to see different safe consumption sites for different communities of people, including women, trans people, and other groups. Culturally competent clinicians would be present on site to reverse overdoses, should they occur, and work to connect people to treatment.
Safe consumption sites have a strong track record on both fronts. No one has ever died of a drug overdose at one of these sites, according to numerous public health researchers and a 2014 review of 75 academic studies. Additional research indicates drug users are four to eight times more likely to enter treatment when using at a safe consumption site than at another location, according to a fact sheet published by Glide.
With no formal proposal on the table, there doesn’t appear to be organized opposition to the city creating safe consumption sites. As plans get fleshed out, however, opposition is likely to emerge, especially close to the proposed sites.
“The NIMBYs will be one of the biggest challenges to opening a safe consumption site,” Harkin says, referencing the controversies that surrounded the location of needle exchanges and homeless navigation centers. “But usually the way these things go, once it’s up and running, when people realize that the sky is not actually falling, they forget about it, and like the Embarcadero Navigation Center, they see that these interventions work.”
Past Precedent
Creating a program that violates federal and (for now) state law might sound controversial and risky. Indeed, that appears to be the prevailing school of thought in Sacramento, where yet another bill legalizing safe consumption sites recently was delayed in committee by at least a year, meaning the state won’t sanction these sites until January 2023 at the earliest. San Francisco’s state Senator Scott Wiener, who spearheaded the bill, previously told SF Weekly he was disappointed about the delay, adding that he vows to do everything he can to get the bill passed next year. Last week, Wiener told the Chronicle that he would support the city creating its own safe consumption site program as he continues his work at the state level.
There’s speculation among political insiders and public health advocates that the upcoming recall election of Governor Gavin Newsom might have something to do with the delay at the State Capitol. But in San Francisco, at least, there’s a long history of city officials circumventing federal and state law to support causes they believe in. Newsom himself did just that when he was mayor, legalizing same-sex marriage in the city even as national political leaders warned it would hurt the Democrats’ chances in the 2004 presidential election.
“It’s a shame Newsom doesn’t seem to want to touch this right now, because he’s taken these kinds of political risks before in order to do the right thing,” Harkin says.
In this case, an even more relevant precedent would be the city’s embrace of clean needle exchange programs in 1993 to slow the spread of HIV. That process was remarkably similar to the path forward for a safe consumption site program in the city.
After state-level legislation authorizing clean needle exchanges failed multiple times, then-Mayor Frank Jordan, the Board of Supervisors, and multiple city agencies came together to create a citywide program by declaring a state of emergency, despite the warnings of the state Attorney General.
Mike Shriver, who sat on the Health Commission at the time, says it was clear the city’s HIV prevention strategies were not protecting injection drug users. Public health advocates partnered with city officials to find “ways in which they could get indemnified to actually do this emergency public health measure, working with the city and working with the health department and working with attorneys to really figure out how we as city could respond to the needs of a community at risk.”
The data, he says, speak for themselves. The number of injection drug users contracting HIV annually was cut in half over the course of the 1990s, according to SFDPH data. “I am absolutely convinced that we took that trajectory and put it on a downward turn here in the city in a really significant way,” Shriver says.
Jordan — who, as a former police chief, was very much a moderate San Francisco politician — testified to the program’s success before the U.S. Senate. By the late ’90s the federal government functionally decriminalized clean needle exchanges, and programs sprung up across the country. Gradually, these programs expanded their offerings, including more sanitary equipment, overdose reversal medications, and other resources.
Shriver views safe consumption sites as a logical extension of clean needle exchanges. “It sets the stage for what’s being done now. Let’s do it inside, in a much more managed space where we can actually do overdose prevention.”
It would be a bold step, but not a revolutionary one.
“I think that the city has a demonstrated history of being heroic and being in a leadership role of how we address public health issues,” Shriver says. “And I think it’s time for the city to once again do it.”
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