The Human Services Omnibus Bill passed this year by the DFL-controlled Minnesota Legislature includes about $18 million for the commissioner of Human Services to create grants for harm reduction organizations to establish safe recovery sites.

The sites could include safe injection spaces.

“We need an option that doesn’t necessarily require that somebody is ready to stop using on the day that they enter support,” said Eric Grumdahl, the assistant commissioner for Behavioral Health, Housing, and Deaf and Hard of Hearing Services for the Minnesota Department of Human Services.

“We’re really providing support and engagement and trust-building and those other life-saving forms of care that are able to make sure that we’re able to keep somebody alive long enough to recover.”

This comes as the most recent Minnesota Department of Health data shows there was a 43 percent increase in opioid overdose deaths from 2020 to 2021.

“Trying to think creatively on how we can address that, I think law enforcement wants to be part of that conversation,” said Jeff Potts, the executive director of the Minnesota Chiefs of Police Association. “We want to be at the table to figure out how we can make this work both from a public health and a public safety perspective.”

Potts said an important piece of the conversation will need to be about where the sites will be located. The Department of Human Services is still working to determine whether the state will target locations for a safe recovery site or if communities will apply.

“If it’s in a neighborhood, what does that mean for neighborhood safety? If people can come and go freely to use controlled substances, will there be people who take advantage of those people, say drug dealers? Will there be a higher concentration of those folks in a particular neighborhood?” said Potts. “Where we see high concentrations of drug dealing, we also see other crimes come with that.”

He also has questions about law enforcement’s involvement.

“What if there is some kind of incident or situation inside where there’s violence? Is law enforcement going to be allowed or welcome to come address that situation?” said Potts. “Right now, we have a lot of questions and not a lot of answers about how it works.”

The Minnesota Department of Human Services told 5 EYEWITNESS NEWS there will be extensive community engagement as the process moves forward.

It’s unclear how the federal government will respond.

A non-profit Safehouse, trying to open the first site in the country in Philadelphia, was sued in 2019 by the Department of Justice under the Trump Administration. U.S. Attorney William McSwain argued it violated the federal Controlled Substances Act, which includes a 1980’s era law aimed at banning crack houses.

“They wanted to find a way to prosecute people that maintained a crack house, which was a place where people went to use crack and usually there were sales going on there as well,” said Mark Osler, a University of St. Thomas School of Law professor and former federal prosecutor, about the federal law. “They outlawed owning, renting, maintaining that place and that law has never been changed.”

While a U.S. District Court judge ruled in favor of the non-profit, the court of appeals reversed the decision in January 2021.

“The appellate opinion by the third circuit was pretty thorough,” said Osler. “It was written by a pretty influential judge named Stephanos Bibas, who said clearly the statute applies on the elements to what Safehouse was doing even though what safehouse was doing wasn’t a crack house.”

Not long after the decision in Philadelphia, sites opened in New York City and have been allowed to operate. NYC is in a different appellate division.

“The statute pretty clearly covers what a safe injection site would do,” said Osler, who said Minnesota could still face legal challenges as it works to implement the spaces. “What the statute doesn’t take into account, although, is the intent of what harm reduction is about so the question becomes will the DOJ prosecute people who open safe injection sites? And that’s an open question right now.”

We reached out to the Department of Justice to see if they will take legal action against Minnesota to prevent sites from opening statewide. A spokesperson responded, “We will decline to comment at this time.”