Under California law, injection drug users wishing to obtain sterile syringes face a veritable Catch-22. In those counties in which syringe exchange has been legalized pursuant to a declaration of a local emergency, agents of the state may freely distribute syringes without fear of arrest under drug paraphernalia and prescription laws. However, these same laws make it illegal throughout California for anyone, including syringe exchange clients, to possess a hypodermic syringe without a prescription. Because of this contradiction, police in California can and do enforce syringe laws against clients of legal syringe exchange programs.
To assess the impact of police practices on syringe exchange operation and use, Human Rights Watch visited five California counties in which syringe exchange is either legal under state law or officially tolerated by local authorities: San Francisco, Alameda, Mendocino, Los Angeles, and San Diego. Each of these counties has either made the required declaration of a local emergency under AB 136, or has decided as a matter of policy not to prosecute syringe exchange providers.70 In each of these counties, Human Rights Watch documented cases of injection drug users being harassed, arrested, and cited by the police for possessing syringes that they had obtained from legal syringe exchange programs. Injectors also reported having syringes, both sterile and used, confiscated by the police. In most cases, injectors were neither prosecuted for syringe possession nor cited for any other offense.
Many injectors interviewed by Human Rights Watch in these counties expressed reluctance to use syringe exchange services because they feared they would be stopped or harassed by the police; more commonly, injectors said they did exchanges for fellow injectors who were too apprehensive to use the exchange themselves. These satellite exchangers,71 as they are known, also reported having been arrested or harassed by the police in some cases. In many cases where Human Rights Watch documented government interference with sterile syringe access, persons affected by this interference also reported resorting to high-risk injection practices such as sharing and reusing of syringes.
Human Rights Watch documented numerous cases of police stopping syringe exchange clients in the immediate vicinity of legal exchange sites, where clients were sure to have syringes on their person and face the likelihood of arrest. Given clear public policy in these jurisdictions in favor of syringe exchange, it could be reasonably expected that police would exercise their discretion to enforce drug paraphernalia laws elsewhere. By targeting syringe exchange sites, however, police have had the effect of discouraging the use of a public health intervention that local authorities have legalized and encouraged.
Stops and arrests of syringe exchange clients were particularly common where programs were operating out of tents, cars, or outdoor tables rather than fixed, enclosed buildings. In Oakland, Human Rights Watch interviewed five clients of Casa Segura, a legal syringe exchange facility that operated one of its sites out of a series of tents in the city’s Fruitvale district. The tents were pitched in a parking lot underneath a freeway, just in front of the city’s railroad tracks. A hole had been cut into the fence where syringe exchangers could come and go across the tracks, which they did to avoid being seen by the police.72 The exchange consisted of a set of folding tables with sterile syringes and other injection supplies, a mobile van for wound and abscess care, and a soup kitchen.
Clyde R., a forty-eight-year-old client of Casa Segura, told Human Rights Watch he drove to and from Casa Segura to exchange syringes. He said that in January 2003, he was stopped by police on his way home from the syringe exchange and told he was driving without license plates. The police ran a warrant check and discovered that there were no warrants for his arrest; still, they asked him if he had any drugs in his car. Clyde R. said that he admitted to having clean syringes in his car, whereupon the police searched the car, confiscated his syringes and took him to jail. He said he was cited for driving an unregistered car and for possession of hypodermic syringes.
During a similar incident two months earlier, Clyde R. said, he told the police officer that he had obtained his syringes from a legal syringe exchange. “The cop said I was faced with a Catch-22,” Clyde R. said. “He said he understood the needles were from the needle exchange, but it was still against the law to have them.”73
Vernon F., forty-five years old and homeless, said he drove to Casa Segura on Tuesdays and Thursdays to exchange syringes for himself and three others. He said that the “majority of the time” he saw police officers in the vicinity of the exchange site. “They don’t come right past the place most of the time, but you’ll see them maybe a couple blocks down.”74 Moments later, Vernon F. pointed to a police car and said that he feared leaving the exchange in his car because he did not then have a drivers’ license. “I wouldn’t leave here until he left,” he said. “I’d be scared the man might pull me over, you know what I’m saying?”
About two months previously, police stopped Vernon F. on his way out of the exchange. He described the incident:
They pulled me over... because I didn’t make a right turn signal. I failed to make a right hand signal, is what they said. I thought I did, but I guess I didn’t. So anyway, during the time they pulled me over, they ran a check on my name, and they said I had some tickets and stuff. Then for some reason they wanted to check my car. They said, “Is that alright?” I said, “Yes, you go ahead.” And they checked my car, and they found that I had like 150 outfits [syringes].75
Vernon F. added that on that occasion, the police let him go and did not confiscate his syringes. The prospect of getting stopped, though, was enough to make him nervous about carrying syringes home from the exchange. “Naturally it’s going to scare you,” he said. “You don’t want to take the chance, especially like you might have a warrant, they can use that if they want to take you to jail.”
Wesley A., forty-six, also a client of Casa Segura, testified to the heavy police presence near Casa Segura’s Fruitvale syringe exchange site. “They’ll park around the corner,” he said. “They get out, they hassle you.” He went on:
Wesley A. went on to describe a situation in which he witnessed a friend have his syringes confiscated on his way home from the syringe exchange. He recalled that he had been one of five people leaving the syringe exchange that evening, three walking in front and two behind. He described what he saw:
They swooped the car right in front and cut them off. Stopped them, got out of the car. [They said,] “Well, I guess I know where you’re coming from. Come over here, let me talk to you.” Looked in his bag. “Oh, so you’re a drug user, huh?” Next thing you know, flashlight in his eyes.
According to Wesley A., his friend was arrested and taken to the police station but not ultimately prosecuted for possession of drug paraphernalia. Nevertheless, the damage was done. “He got out in four hours, but it’s the hassle he went through,” Wesley A. said. “It’s sad, because the people that come here, they come here to get clean needles, to help themselves from not getting AIDS.” Minutes later, Human Rights Watch had to cut short its interview with Wesley A. because he noticed a police vehicle pulling into the parking lot. “Are you through with me, because . . . I don’t want to go through the hassle,” he asked. “He might get out.”
At least one law enforcement official interviewed by Human Rights Watch viewed such police presence in the vicinity of syringe exchange programs as “happenstance.” Lt. Ben Fairow, who supervises all narcotics enforcement in the City of Oakland, noted that “some of the areas where the exchanges are going on are high drug areas,” so the police may “cross over lines” in the course of enforcing drug trafficking and possession laws. “But we don’t actively pursue the people doing needle exchanges or the people receiving needles,” Fairow said.77 Later, Fairow noted that Oakland police may enforce drug paraphernalia laws as a “quality of life” offense, meaning that arresting people for syringe possession might contribute to a greater sense of safety and security in a neighborhood beset by petty crime. Asked whether police are trained or instructed not to interfere with syringe exchange programs, he said that “outreach groups come to the [police] academy to try to foster a more cooperative relationship with the police,” but that over time, “people lose interest.”
The accounts gathered by Human Rights Watch suggest that police interference with syringe exchange programs is both systematic and potentially lethal. Many injectors said that, out of fear of arrest, they stayed away from syringe exchange sites and resorted to reusing or sharing syringes. “A lot of people too scared to come down here,” Wesley A. said. “And that’s sad, giving them the excuse to say, ‘Hey, damn the needle exchange,’ that’s taking their mind away from staying in the program. . . . all because they don’t want to come down here and get hassled. They keep using the same ones [syringes] over and over.” Accounts such as this are corroborated by a1998 study of injection drug users in San Francisco’s Bay Area showing that injectors who feared arrest for carrying drug paraphernalia were 1.74 times more likely to share syringes than other users, and 2.08 times more likely to share other injection supplies.78
In Los Angeles, Human Rights Watch visited four syringe exchange programs that had experienced various types of police interference. At a syringe exchange site run by Homeless Health Care Los Angeles (HHCLA), volunteers said that the police presence near the exchange was “pretty thick” and seemed “to go in spurts.”79 “That kind of gets people afraid to come in here,” said one volunteer, a former heroin user who had been working at HHCLA for three years. “I just tell the clients, when you leave, be careful, and don’t give them a reason to stop you. Just get your stuff and leave.”80
In some cases documented by Human Rights Watch, police appeared to use syringe possession as a basis for investigating related drug infractions, without citing people under drug paraphernalia laws. At Clean Needles Now, a syringe exchange based in Hollywood, thirty-year-old Jeffrey T. said that drug users often got stopped in the vicinity of the exchange site because the police “know everybody out here gets high.”81 “It happens right around here, you know, I mean like walking in the parking lot of Rite-Aid over here is a good place to get jacked up,82 or the restaurant across the street,” Jeffrey T. said. He said he had been caught with syringes in the area “maybe thirty or forty times,” and each time the police had let him keep the syringes but searched him for drugs. On one occasion, the police pulled him over for riding his bicycle at night without a light. When a subsequent search revealed that was not carrying drugs, the police left him alone. “[They] told me not to be carrying any clean needles, but they left them with me,” Jeffrey T. said.
Forty-year-old Freddie Z., a client of HHCLA, told Human Rights Watch he was stopped by police in December 2002 just steps from the syringe exchange located at the corner of Fifth and Main. He said he was “standing there talking on the sidewalk at Sixth and Main” when the police approached him. “[The officer] said he observed me with something in my hand from a block away,” Freddie Z. said.83 When the police found one sterile syringe and one crack pipe on his person, they did not cite him for possession of drug paraphernalia, but they confiscated the paraphernalia and charged him with being under the influence of drugs. The same thing happened again in January 2003, he said, again right after he had picked up syringes from the exchange.
Some syringe exchange programs have sought to reduce police interference by lobbying their local police departments to permit clients to come and go freely from exchange sites. One example of successful police outreach is in San Francisco, where the San Francisco AIDS Foundation (SFAF) and the San Francisco Police Department have negotiated perimeters around SFAF’s syringe exchange sites inside which police agree not to go unless they have to answer an emergency call. Volunteers for SFAF monitor police activity inside the negotiated perimeter and keep in regular contact with the police about incidents of harassment.84 While such agreements facilitate the smooth operation of syringe exchange programs, they still leave clients vulnerable to arrest and harassment outside the immediate vicinity of the syringe exchange. “Out here, the police are pretty good,” said one client of SFAF. “If you tell them that you’re dealing with the needle exchange, they’ll say, ‘Make sure you get these back to them.’ But out there [outside the perimeter], they take them.”85
Numerous clients of legal syringe exchange programs told Human Rights Watch that when police stopped them, they confiscated their syringes, whether sterile or used, and/or arrested them for possession of drug paraphernalia. Forty-six-year-old Lonnie K., a client of SFAF’s syringe exchange in the Tenderloin district, told Human Rights Watch he had been returning home from the exchange when the police stopped him for jaywalking and confiscated his syringes.86 “We got around the corner here, up on Market [St.], and they came up, cops on motorcycles,” he said. “I had eighty [syringes], and [a police officer] threw them out. . . . the garbage truck came up from behind, and he just dumped them in there.”87 Lonnie K. said that he told the police he had “just come down from the needle exchange,” but “they called me a dope head and a junkie. They didn’t want to hear it.”
Asked what he did to inject after police confiscated his syringes, Lonnie K. said he kept extras at his house or bought them from someone else. About six months earlier, though, he saw someone try to clean a borrowed syringe with water minutes after police had confiscated his sterile ones.88 “He didn’t get done fixing [injecting], they [the police] cleaned him all out, right. He didn’t have any bleach so he kept cleaning out, cleaning out, that was it. With water.”
Alicia Rigby, a volunteer for SFAF, told Human Rights Watch her clients frequently complained police confiscated their syringes, both sterile and used, after they left the exchange. In part for this reason, SFAF stopped requiring that clients turn in one syringe for every syringe taken, instead guaranteeing clients at least twenty syringes per visit. “Literally every day someone will come in and say, ‘The cops took my cart,’ ‘The cops took my bag,’ ‘The cops took my . . . ’”, she said. “And then they’ll ask for twenty.”89 Similar cases of confiscation have been documented by Bridget Prince, a researcher with the University of California – San Francisco who interviewed and observed young injectors while volunteering at the San Francisco Needle Exchange (SFNE) in the city’s Haight-Ashbury neighborhood. One young injector told Prince the police confiscated her syringes “every time they search me,” which is “every other day.”90 Another said she had just been to the syringe exchange when the police took all twenty-eight of her clean syringes from her. “Today she had to trade half a pack of cigarettes . . . to get just three needles,” Prince reports.91
In Hayward, a suburb of Oakland, Human Rights Watch met an injector who had recently been arrested and charged with possession of a syringe he had obtained from a legal syringe exchange program. Hugh S., forty-eight, said that he had been standing outside a liquor store with three or four other people when the police “just zoomed in there, because . . . they wanted to check everyone out for warrants.”92 He said he had just been to the syringe exchange that day or the day before and had one syringe in his pocket. “They told me they wanted to check my pocket for drugs,” he continued, “and then found that point [syringe] in my pocket and got all ticked off over that because I didn’t pull it out for them.” Hugh S. said that he was taken to the city jail where he spent four hours waiting for a court date. At the public defender’s suggestion, he pled guilty to possession of a hypodermic syringe and received a year’s probation.
Hugh S. told Human Rights Watch that by continuing to use the syringe exchange, he was violating the conditions of his probation and faced a felony charge. “I’m just going to take the risk,” he said, noting that he would rather go to jail than risk HIV infection. “You’re damned if you do, and you’re damned if you don’t.”93
Thirty-five-year-old Jamie D., who exchanged approximately 200 syringes per week at SFNE, said he had been charged approximately ten times with “sale of hypodermics”—a charge that police sometimes lay when injectors are found with more than twenty syringes in their possession. Researcher Bridget Prince cited the similar case of a SFNE client who said she had an upcoming court date for a charge of “possession and sales of controlled paraphernalia.” Even where such paraphernalia charges are not prosecuted in court, Prince notes, the arrests themselves interfere with the operation of the syringe exchange and compromise injectors’ health.
Because syringe exchange programs are often located in high prevalence drug areas, arrests for syringe possession may result in orders to stay out of the neighborhood in which the program is located. Mary O., thirty-three, told Human Rights Watch she had been convicted of selling marijuana approximately one year earlier, for which she received an order to stay away from the area of the sale. The area included the house occupied by SFNE, which is a fixed-site syringe exchange.95 When Mary O. re-entered the area to use the exchange, she said, the police stopped her, found her syringes, and gave her thirty days in jail for violating her probation. Mary O. said she was “afraid to bring needles to the exchange or to carry them at all,” because she was “afraid of the cops.”96 On a recent trip to the syringe exchange, she said, she saw police parked near the site and threw her syringes away instead of bringing them in.97
Stay-away orders such as Mary O.’s result in what Prince describes as “the geographic displacement of . . . injectors away from the neighborhoods where [syringe exchange] services are provided.”98 Prince documented one case of a couple who, after using neighborhood health services for many years, moved to an isolated part of San Francisco to avoid encounters with the police. “I always carry my own needles and will keep one and use it over and over again now that I can’t exchange so easily,” one member of the couple said.99
As just noted, participation in a legal syringe exchange program does not protect injectors from arrest for possession of drug paraphernalia. However, some syringe exchange programs in California have begun to issue cards to their clients identifying them as participants in a sanctioned syringe exchange, with the hope that such cards will deter police and prosecutors from conducting arrests or filing charges.100 Syringe exchange clients in Berkeley (Alameda County) told Human Rights Watch that being identified on the card as a “volunteer” of the local syringe exchange program provided them some additional protection. However, other clients spoke of having been arrested despite presentation of identity cards. Thirty-nine-year-old Austin W., a client of HHCLA’s syringe exchange in Los Angeles, said the police “take my outfits and the card and throw it away, and go, ‘This means nothing to us.’”101 HHCLA’s cards used to include a printed endorsement of syringe exchange by former Los Angeles mayor Richard Riordan, but according to Austin W., the police still confiscated them. About a year and a half ago, he was exiting his apartment building on Fifth Street when the police stopped him and asked him for identification.
They said, “Well here, give me your wallet,” and when they found my needle card and they looked on the back, they made a comment about, “Well Richard Riordan says it’s OK.” I go, “Yeah,” and then they searched my person and they found the outfit and some cottons and cookers inside, and they took it and took the card.
An HHCLA volunteer told Human Rights Watch that he had heard stories like this from other clients as well. “They tell me, ‘Well you know, [the police] stopped me and took my needles.’ And I say, ‘You show them your card, your needle exchange card?’ And they say, ‘Yeah, but they don’t give a fuck about that’.”102 Malcolm T., thirty-six, a client of Clean Needles Now’s Hollywood site, stressed that once an injector had been stopped with drug paraphernalia, a card would do nothing more than enable him or her to negotiate a lighter sentence. “By that time you’re already in jail,” he said. And because “most people that are in jail do not want to stay in jail” according to Malcolm T., they would accept an offer of probation or less jail time.103 In his experience, cards did not provide an effective bar to arrest or prosecution for syringe possession.
As suggested by some of the accounts above, police officers often ask suspected drug users to empty their pockets of syringes or other sharp objects before conducting “pat down” or other searches. A number of injectors told Human Rights Watch that, if stopped by police, they would voluntarily hand over their syringes or freely admit to having syringes on their person. While this practice may be a reasonable precaution against needle-stick injuries, police officers must obtain consent to conduct even a pat down search absent reasonable suspicion that an individual has committed a criminal offense and is presently armed and dangerous.104
Some injectors told Human Rights Watch that police officers would often react with hostility and even violence if they found a syringe during a search. This raises the concern that injectors who would not otherwise consent to an unauthorized search might feel threatened into handing over their syringes out of fear of retaliatory action. Thirty-five-year-old Saundra O., who said she had been stopped with syringes about three times in the last year, said the police “got pretty pissed off” when she denied having any sharp objects in her pocket and the police subsequently found one. “The [officer] said, ‘You told me you didn’t have anything sharp . . . . You’re going to jail.”105 As a result of this incident, she said, she empties her pockets or her purse whenever officers ask her to.106
Thirty-six-year-old Lewis L., a veteran of the 1991 Gulf War, said that a police officer reacted violently when he unexpectedly found a syringe in Lewis’s pocket. “I got socked in the mouth,” Lewis L. said. He continued:
If a police officer’s only authorization to search is an individual’s consent and that consent is obtained by threats of force, the search is invalid.108 To avoid such illegal searches, police officers should ensure in all cases that individuals are not being threatened into handing over evidence for which police have no independent authority to search.
Syringe exchange clients come from all walks of life, and all face the risk of arrest for possession of drug paraphernalia. However, Human Rights Watch’s research suggests that the risk of being stopped by police while using legal syringe exchange services may be particularly acute for certain populations, including homeless people, sex workers, probationers and parolees, and other populations who come in frequent contact with the police. Injectors living in less populated, rural areas may also face a heightened risk of arrest due to their having earned reputations with local police and sheriffs.
For homeless injectors, daily encounters with sometimes hostile police, combined with not having a safe place to store injection equipment, make it extremely difficult to benefit from legal syringe exchange programs. Carlene N., forty-four, a homeless woman and longtime client of SFAF’s syringe exchange, told Human Rights Watch: “Getting needles is no problem. Keeping them is the problem.”109 Carlene N. said that she had frequently had syringes confiscated in the course of being stopped for trespassing, panhandling, or other infractions associated with living and sleeping in public places. “Any chance they get, they will make you get rid of your needles,” she said. She went on to observe the relationship between the difficulty of keeping sterile syringes and high-risk behavior among injectors she knows.
Sharing is too common. More common than I like to think. It surprises me how many people are like, “I ran out of needles, just give me a clean one,” even if it’s a used one. And you know, HIV’s not gone. More people do it [share syringes] than I would ever imagine. I think the main reason is that they have no choice. They’re in a position where they have no supplies with them.
Homeless people said they were especially vulnerable to paraphernalia charges when police were conducting “sweeps” of their encampments. Lonnie K. told Human Rights Watch that approximately three years earlier, when he was homeless, the police “busted up our camps and took our outfits.”110 He recalled being camped in an alley underneath a bridge when “the cop cars came through, and they had a dump truck, and they came and got all our stuff. They took all our outfits, you know our cookers and paraphernalia and shit, and threw it all away, and gave me two citation tickets for having paraphernalia.” Asked how he paid the tickets, Lonnie K. said, “I don’t. Nobody does.” Failure to pay such tickets typically results in a bench warrant for arrest, which subjects the violator to stops and searches and being detained.111
For homeless people, such sweeps represent not only a violation of their due process rights, but also a violation of their right to privacy and a threat to their health.112 As long as the police conduct sweeps of places where homeless people live, homeless injectors will have no safe place to keep sterile syringes, and therefore will be forced to carry them on their person at tremendous risk of arrest. The foreseeable result of this fear is that injectors will choose not to carry sterile syringes with them for when they have an opportunity to inject, and will engage in life-threatening syringe sharing or reuse.
In Los Angeles, an additional barrier to syringe exchange services for homeless people interviewed by Human Rights Watch was the existence of private security agents hired by state-sponsored Business Improvement Districts (BIDs) to keep the homeless out of certain areas.113 Some of the security agents associated with BIDs were known as “Green Shirts,” “Red Shirts” or “Purple Shirts,” depending on the neighborhood in which they operated. Injectors interviewed by Human Rights Watch understood these agents to be acting under the law, and therefore took their actions seriously. Elnora D., a thirty-year-old injector who exchanged syringes at Clean Needles Now in Hollywood, told Human Rights Watch that she and her boyfriend were stopped by two Green Shirts in a Hollywood parking lot and ordered never to return to the neighborhood. “Two Green Shirts asked to search my stuff,” she said. “One said, ‘This is a huge crack area, I want to search your stuff to see if you’re doing crack’.” When Elnora D. admitted that she had syringes in her possession, the Green Shirts confiscated the syringes and agreed not to do anything further if she agreed never to return to Hollywood. Accounts of private security agents harassing syringe exchange clients were corroborated by outreach workers in both the Skid Row and Hollywood districts of Los Angeles.114
Men and women who both inject drugs and work in the sex trade face a high risk of both contracting HIV and transmitting it to their clients. Ironically, these groups also face a heightened risk of arrest for trying to protect themselves from HIV by using syringe exchange programs. Saundra O., a sex worker and a client of SFAF’s syringe exchange, told Human Rights Watch that she had on numerous occasions had her syringes confiscated by the police, including in the course of being arrested on prostitution charges. “I was prostituting,” she said, referring to an incident about a month earlier. “They stopped me . . . . I gave them my name, and they said, ‘Oh, you have a warrant’. . . and they arrested me.”115
After finding syringes in her possession, Saundra O. said, the police charged her with possession of drug paraphernalia, took her to the police station, and later agreed to drop the paraphernalia charges. Saundra O. expressed her frustration at not being able to keep syringes she had obtained at a legal syringe exchange program.
If you guys distribute these things out free and legally, why do we get arrested for having them illegally? . . . What are we to do, come here, and they distribute them, and then leave them here? What is the purpose of you guys distributing them and we’re not allowed to have them?116
Human Rights Watch met Selena C. at an AIDS volunteer network in Mendocino County. Although she had spent much of her life in Sacramento, where syringe exchange is illegal, Selena C.’s story illustrates the extreme challenges facing any sex worker who seeks to use sterile syringes for drug injection. Forty-seven years old and HIV-positive, Selena C. said that “the cops were on top of you all the time” when she was working in prostitution.117 “I tried really hard not to ever carry needles on me because I didn’t want to get busted,” she said. “You had to go to a place where you knew there was going to be needles when you wanted to use.” Selena C. said that sometimes the heroin withdrawal was so painful, she was indifferent as to whose syringe she was using. “Heroin withdrawal is so horrible I can’t explain it in words,” she said. “If I saw a rig [syringe] and had dope and knew [the syringe] had HIV and it was either shoot up or get sick [from withdrawal], I would shoot up because I was so afraid of getting sick.”
Selena C. found out she was HIV-positive while in Yolo County jail in July 1995. She had been tested for HIV before and released into a residential drug treatment program, but she neither completed the program nor got her HIV test results. She said she contracted HIV either from sharing syringes or from having sex with an HIV-positive client. Approximately fifteen to twenty sex workers with whom she worked and shared syringes tested positive for HIV around the same time. Sometimes, Selena C. said, she would discover that an individual from whom she had just borrowed a syringe had full-blown AIDS. “The cops made it difficult to carry new needles or any needles,” she said. “I was known to them.”
The fear of violating probation or parole by utilizing syringe exchange was a recurrent theme in Human Rights Watch’s interviews with injection drug users. Probationers and parolees often said they were ordered, as a condition of their staying out of prison, not to break the law and to submit to a search at any time. This increased the chance both that police would find syringes on their person if they were carrying them, and that being caught with syringes would lead to time behind bars. The scarcity of treatment for drug offenders added to the likelihood that they would continue to use and possess syringes once released on probation or parole.
Julio L., a forty-four-year-old resident of Oakland, told Human Rights Watch that he used to buy syringes on the street but for the past three months had been using Casa Segura’s syringe exchange program. An ex-offender on parole, Julio L. said he walked to and from the exchange because that was “the safest way to get there.”118 One evening in September 2002, Julio L. was stopped by two police officers while walking home from the syringe exchange. When the officers found a package of new syringes in his bag and discovered he was on parole, they searched his house and took him to the police station for questioning. Julio L. said that he sat in the police car in handcuffs while his aunt, brother, and brother-in-law witnessed the search. Afterwards, he said, his aunt kicked him out of the house and he stayed with friends.
Even if the district attorney does not prosecute them on new charges of possession of drug paraphernalia, probationers or parolees may still spend time in jail for having violated the terms of their probation or parole. “It’s just a big old trap,” said Clayton M., forty-nine, who was charged with possession of drug paraphernalia while on probation in San Francisco. “I looked at the charge, and I laughed, I said I know they’re going to drop this, but they’re going to violate my probation anyway.”119 The charge was dropped, but Clayton M. said he spent thirty days in jail because the possession was deemed a violation of his probation. Kurt C., a volunteer for a legal syringe exchange program in Mendocino County, told Human Rights Watch he spent nine months in county jail for possessing drug paraphernalia while on probation.
The interconnected epidemics of injection drug use and HIV/AIDS are not restricted to urban centers. They also affect rural areas, where they pose unique challenges to both law enforcement and public health. Mendocino County, for example, which is a mountainous region with a population density of only twenty-five persons per square mile, had as of 2001 the fourteenth highest rate of HIV transmission in all fifty-eight of California’s counties.120 The county’s per-capita rate of injection drug use is thought to be equal to or greater than that in urban areas such as Los Angeles and San Francisco. An estimated 2,500 injection drug users live in Mendocino, many of them difficult to reach with services because of rural isolation, poverty, and cultural barriers. Both Mendocino County and its neighbor to the south, Sonoma County, have reported a surge in numbers of HIV and HCV cases in recent years.
In such sparsely populated areas, where police may know injection drug users by sight if not by name, the risk of arrest for syringe possession can be heightened. “Ukiah is a small town,” said fifty-one-year-old Jose F., a client of Mendocino County’s only legal syringe exchange, Project H.O.P.E.121 “Police recognize me, stop me, and take me to jail. When I was using, I was afraid to carry needles because I was afraid to be caught by police.”122 Maurice T., a fifty-eight-year-old client of Project H.O.P.E., told Human Rights Watch of an incident in which the police recognized him as someone who had a suspended license. After leaving the H.O.P.E. syringe exchange one day, he said, he went back to a Walmart parking lot where his truck was parked. “The police saw me behind the wheel of the truck. . . . They stopped me, impounded the truck, and took my syringes.”123 Maurice T. added that the police handcuffed him and told him that he was going to jail for possession of drug paraphernalia. He spent three hours in jail, and after two months and three court appearances, his case was dismissed.
Asked what injectors did when their syringes were confiscated, Project H.O.P.E.’s lead syringe exchange volunteer, Scott Turner, said, “They use used ones.”124 He suspected this whenever syringes were returned by injectors who had not picked them up in the first place, especially when the syringes were dulled beyond recognition.
I get syringes back that are occasionally through somebody else who doesn’t use the exchange, and they’ve been using them for a year, there’s no numbers on them, they’ve been cut shorter, the gasket’s been glued in, you know, they’ve been sharpened over and over and over. And when I get those, it’s from somebody who won’t use the exchange. . . . I was talking to somebody last night . . . and he was saying this other guy that I met through him, he said, is passing around dirty needles saying they’re clean. . . . He actually sells like a dirty needle for a buck.
Some injectors in Mendocino County said they drove to a syringe exchange program in neighboring Sonoma County to avoid harassment by the police. Forty-five-year-old Dean N., a Ukiah resident who claimed he had violated his probation eighteen times for carrying syringes, said he drove forty-five minutes to Sonoma County’s syringe exchange because he didn’t want to be “associated with needles” in Ukiah. “I don’t want a reputation,” Dean N. told Human Rights Watch.125 He even feared that police were conspiring with the syringe exchange program to entrap drug users, a fear that H.O.P.E. outreach workers said was common among their clients: “I was afraid that my program up here would be affiliated with law enforcement, because there are a lot of [syringe exchange] volunteers that work in the county department, and their brothers and sisters work in law enforcement.”
Scott Turner elaborated on the “small-town mentality” underlying these injectors’ fear of syringe exchange:
Up here, you arrive in this town and start using, you’re known that day. They see you with so-and-so walking down State Street, they stop you and roust you. If you’re homeless, you can get rousted all the time. If you live on the railroad tracks, you can get rousted all the time. . . . [The police] don’t need cause. Being homeless is cause. And in this town, being a known addict is cause.126
Turner added that fear and distrust of the police, and by extension syringe exchange, was strongest on Native American reservations or “rancherias”:
I would do regular exchanges there, and after about a year I can remember two girls who asked me to give them a ride. They just asked me, and it was honest, they said, “How much does the sheriff pay you for the names?” And in their heart of hearts, ten years from now, they will believe that. That I’m actually there to get names and pass them on to law enforcement. And there’s nothing you can say to undo that.
Turner suggested that it was not only police harassment but also historical oppression of Native Americans and sometimes drug-induced paranoia that contributed to this instinctive distrust of syringe exchange programs. He said current police practice contributed considerably to the distrust: “It interferes with people’s mindsets as to even considering using the exchange. If they can [get syringes] any other way, they will. They don’t want to physically go on the street, because they know if you go outside, you’re going to get rousted, you’re going to get stopped. If they see your car, they will stop you.”
In Fort Bragg, a town on the Mendocino Coast, volunteers for the H.O.P.E. syringe exchange program said that although their program had been legal since 2000, they still had to use a system of “pager and delivery”—having clients page the exchange to request syringes and arrange a rendezvous point with a volunteer—in order to avoid police harassment. “If they see a needle here, they’re going to pull you over and tear you apart,” said Gordon H., fifty-two, a regular client of the syringe exchange.127 Lorrie H., forty, who has been injecting heroin since 1986, said she was especially vulnerable to arrest because she was a known parolee.
Here, the problem is, once you’re known you don’t stand a chance. They’re going to get you every time they can. If they see you on the street, they will turn around and come after you . . . and you better hope to god you have nothing with you, because you’re going [to jail].128
Lorrie H. told Human Rights Watch she had been on parole for heroin possession charges since September 2000. In August 2002, a parole agent came to her house to do a “general parole search” and found a supply of used syringes that she had been planning to return to the syringe exchange. “He just came knocking on my door with the police department, and came in, pulled me out of bed, made me sit in the front room, tore my room up, found them, and took me to jail,” she said. She added that by the time she went to the parole board for a hearing, she had spent seven months in jail for parole violations.
Human Rights Watch researchers asked Lorrie H. why she continued to store syringes in her home if she was subject to general parole searches. “If you’re a heroin addict, you need them,” she said. “It’s not whether you want them there, you just hope no one finds them there.”129
While California law protects only licensed syringe exchange providers from prosecution under state drug paraphernalia and prescription laws, it is standard practice among most syringe exchange programs to rely on clients who are not licensed to distribute many of their syringes. These “satellite exchangers” allow programs to maximize their geographic reach as designated clients obtain large volumes of syringes from the program and then exchange them with a network of fellow injectors. Satellite exchangers are essential to the successful functioning of syringe exchange programs; one veteran syringe exchange volunteer in Sacramento estimated that the county has anywhere from 200 to 400 active satellite exchangers at any given time, all with designated back-ups.130 However, because they are not protected by law from arrest for syringe possession, satellite syringe exchangers must assume a significant legal risk to perform a function that complements and increases the effectiveness of activities performed legally by licensed syringe exchange staff.
Kurt C., a forty-eight-year-old native of Ukiah, became inspired to do satellite syringe exchange after contracting HIV from injecting drugs. He explained that because Ukiah’s syringe exchange operated on restricted hours, he kept extra syringes to give to other injectors when the syringe exchange was closed:
While the distribution of syringes is legal for licensed syringe exchange personnel in Ukiah, satellite exchangers like Kurt C. operate outside the law. “I take a big chance by having a small supply of clean syringes around for the after hours people,” Kurt C. said. A few months earlier, Kurt C. was distributing sterile syringes to a group of injectors and educating them about the syringe exchange when the police intervened and arrested him. “The police swoop on me, and take all my new rigs [syringes] and the old ones, and take me to jail, and cited me a ticket, and release me, and told me, ‘Damn drug addict, all you damn drug addicts need to be taken out and shot’,” he said. He said it was 2:00 a.m. at the time, and the police recognized him by the light in his car.
Kurt C. said that “the only thing [he] was angry about” was that his clients would be compelled to reuse and share old syringes. “Because of what the police were doing,” he said, “people were going to take the chance of using dirty needles. And that bothers me, it bothers me a lot.” He recounted an incident in which someone was so desperate to inject that he physically attacked Kurt C. for not sharing a used syringe. “He just wanted to use mine and use Clorox and I said absolutely not,” he said. “And he threatened me, grabbed me, pushed me around a little bit, slammed me into the wall, and I said, ‘No, I just can’t do it.’ I said, ‘I am your friend, don’t think I’m trying to be mean to you, I’m just afraid for you to catch AIDS, and if you don’t understand that I’m sorry, beat me up, but I’m not going to give you one of my needles’.”
A significant number of the injectors cited elsewhere in this report—injectors who told stories of being stopped, harassed, and arrested for carrying syringes—were also satellite exchangers in addition to being clients of syringe exchange themselves. Vernon F., who told of being stopped on his way out of Casa Segura in Oakland, said he exchanged syringes for himself and three other persons—one of whom was bed-ridden, and another elderly and unable to travel easily to and from the exchange. Carlene N., who testified to the difficulty of holding on to syringes as a homeless woman, said she distributed approximately 200 syringes each week to almost thirty people in San Francisco’s Bayshore neighborhood. She said she wished she could carry a supply of sterile syringes with her in case her friends needed them, but she was too scared to do so. “I don’t carry them on me anymore, and I stay out of sight,” she said. “Because of the police. Because they’re going to get taken.”132
Used syringes pose a danger not just to injection drug users, but also to individuals who may be accidentally pricked by an improperly discarded syringe. One of the benefits of syringe exchange is to reduce the likelihood of such needle-stick injuries by encouraging, and in some cases requiring, participants to return used syringes to the exchange for safe disposal. Programs that allow nonprescription pharmacy sale of syringes also provide added impetus to establish mechanisms for the safe disposal of syringes. In many cases, however, injectors told Human Rights Watch that the potential for arrest deterred them from carrying their syringes back to exchange sites. While some U.S. jurisdictions have attempted to rectify this situation by placing biohazard containers in public places, this strategy has not yet been adopted in California. Even where it has been adopted, injectors may still discard their syringes carelessly if they think that arrest for possession of drug paraphernalia is the alternative.
Lorrie H. of Fort Bragg told Human Rights Watch that when the police raided her home on a parole search, she had been storing syringes to return to the exchange. “I was arrested for needles that I had ready to go to the exchange,” she said.133 Stories like this were common among homeless people, who had frequently had their syringes confiscated during police sweeps of their encampments, making it harder for them to obtain new syringes. Carlene N. remarked on the police’s misperceptions of homeless people who store large numbers of syringes among their possessions:
. . . When [the police] clear out the camps under the freeway, which is where the highway patrol comes in, they find hundreds of needles. They don’t understand that [people] save these needles because they bring them back here. They [the police] don’t understand that. They see the needles, and so they assume that, “Wow, there’s a hundred needles here, this person must really be a junkie, a really freaked-out junkie.” And that’s not the case. They’re being very responsible by keeping them in one place, not throwing them in the garbage and holding them. And they’re condemning you for that.134
In Los Angeles, Human Rights Watch met numerous injectors who said they were too afraid to carry their used syringes back to the syringe exchange. At the Bienestar syringe exchange, which is located in a predominantly Hispanic area of Los Angeles, injectors said they would not carry syringes back to the exchange because they were “afraid the police would find them,” “could be arrested” or “because it’s paraphernalia.”135 Unsafe disposal may also occur during times when syringe exchange programs are closed. “The hardest thing is, sometimes I bring them and he’s not here, and I just throw them away,” said fifty-four-year-old Wendell R. of Los Angeles. “I don’t want to do any riding with them. I put them in a trash can.”136 Fifty-five-year-old Tyrone H., who uses the syringe exchange program on the city’s Skid Row, said he disguised his syringes in a bag full of recyclables to avoid being searched. “That’s why I carry all this recycling stuff,” he said. “Because cops are less likely to look through my stuff if it’s disguised.”137
The presence of trace amounts of drug residue in used syringes or other injection equipment may heighten the risk of returning syringes to an exchange site.138 In Oakland, Human Rights Watch spoke to someone who said he had witnessed an injector being stopped by the police on his way back to a syringe exchange and arrested for possessing a trace amount of heroin on a used cotton ball. Though it was not possible to corroborate this account with the police or the person in question, the eyewitness described what he saw as follows:
The foreseeable result of arresting someone for possession of used injection equipment is not only that injectors will dispose of syringes unsafely, but also that they will resort to syringe sharing, reuse, and other unsafe injection practices, potentially leading to an increase in HIV and hepatitis C infection and other health complications. Asked what they did when police confiscated their syringes or otherwise deterred them from using syringe exchange, injectors interviewed by Human Rights Watch said they bought new or used syringes on the street, attempted to clean syringes with water, reused syringes until they were dulled beyond recognition, and/or shared with other injectors. These accounts are corroborated by extensive research data indicating that fear of arrest leads to high-risk injection behavior and increased HIV and hepatitis C infection among injection drug users.140
70 San Francisco, Alameda and Mendocino counties have each declared a local emergency as required under AB 136. Los Angeles declared a local emergency in 1994 but did not renew its declaration when AB 136 took effect in 1999. Syringe exchange is thus technically illegal in Los Angeles but is ostensibly tolerated by the police. In San Diego, a local emergency was recently declared, but the declaration only applies to a particular pilot program and thus does not legalize syringe exchange programs that existed since before the declaration. The authority to declare a local emergency is found in sections 8550-68 of the California Emergency Services Act, Cal Gov. Code. Declaring a local emergency requires a majority vote of the local governing body, and once adopted, the emergency declaration must be renewed every fourteen to twenty-one days, depending on the frequency of the meetings (Gov. Code section 8530). In San Francisco, this renewal process is done through the Board of Supervisors’ consent calendar.
71 For a more detained explanation of satellite syringe exchange, see “Interference with satellite syringe exchange,” below.
72 Human Rights Watch interview with Wesley A., Oakland, California, January 28, 2003.
73 Human Rights Watch interview with Clyde R., Oakland, California, January 28, 2003.
74 Human Rights Watch interview with Vernon F., Oakland, California, January 28, 2003.
76 Human Rights Watch interview with Wesley A., Oakland, California, January 28, 2003.
77 Human Rights Watch interview with Lt. Ben Fairow, Oakland, CA, January 28, 2003.
78 Ricky N. Bluthenthal, Jennifer Lorvick, Alex H. Kral, Elizabeth A. Erringer, and James G. Kahn, “Collateral damage in the war on drugs: HIV risk behaviors among injection drug users,” International Journal of Drug Policy, vol. 10 (1999), pp. 25-38.
79 Human Rights Watch interviews with James Hundley, syringe exchange coordinator, and a volunteer, Homeless Healthcare Los Angeles, Los Angeles, California, February 6, 2003.
80 Human Rights Watch interview with a volunteer for HHCLA, Los Angeles, California, February 6, 2003.
81 Human Rights Watch interview with Jeffrey T., Los Angeles, California, February 6, 2003.
82 “Jacked up” is a common term referring to detention, often arbitrary, without formal arrest.
83 Human Rights Watch interview with Freddie Z., Los Angeles, California, February 6, 2003.
84 Human Rights Watch interview with Alicia Rigby, volunteer, HIV Prevention Project (San Francisco AIDS Foundation), San Francisco, California, January 27, 2003.
85 Human Rights Watch interview with Carlene N., San Francisco, California, January 27, 2003.
86 He added that he picked up syringes from SFAF once a week and that, as long as he remained within the exchange’s negotiated perimeter, he did not have problems with the police.
87 Human Rights Watch interview with Lonnie K., San Francisco, California, January 28, 2003.
88 Cleaning syringes with water is not an effective method of preventing HIV or HCV through sharing of injection equipment.
89 Human Rights Watch interview with Alicia Rigby, January 27, 2003.
92 Human Rights Watch interview with Hugh S., Hayward, California, January 25, 2003.
94 B. Prince, “Law Enforcement and Risky Injection Behavior: Preliminary Ethnographic Findings and Fieldnotes” (ed. P. Bourgois), p. 1.
95 A fixed-site as opposed to a mobile syringe exchange is one located in a permanent space where clients pick up and drop off their syringes. Mobile syringe exchanges deliver syringes directly to clients by appointment, often using a pager system. Some syringe exchanges provide both fixed-site and mobile services.
96 Human Rights Watch interview with Mary O., San Francisco, California, January 27, 2003.
97 The way in which law enforcement may interfere with safe disposal of syringes is discussed further in “Interference with safe syringe disposal,” below.
98 B. Prince, “Law Enforcement and Risky Injection Behavior,” p. 2.
100 As of this writing, this strategy was being considered in Oakland and San Francisco. Berkeley-based Needle Exchange Emergency Distribution (N.E.E.D.) uses a system of identification cards and identifies all of its participants as “volunteers” of the syringe exchange. Because it is legal to operate and volunteer for a syringe exchange in Alameda County, this strategy attempts to immunize all of N.E.E.D.’s clients from arrest.
101 Human Rights Watch interview with Austin W., Los Angeles, California, February 6, 2003.
102 Human Rights Watch interview with HHCLA volunteer, February 6, 2003.
103 Human Rights Watch interview with Malcolm T., Los Angeles, California, February 6, 2003.
104 See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868 (1968).
105 Human Rights Watch interview with Saundra O., San Francisco, California, January 27, 2003.
106 See also, the testimony of Hugh S., above.
107 Human Rights Watch interview with Lewis L., San Francisco, California, January 28, 2003.
108 Schneckloth v. Bustamonte 412 U.S. 218 at 233, 93 S.Ct. 2041 at 2051 (U.S. Cal. 1973)
109 Human Rights Watch interview with Carlene N., San Francisco, California, January 27, 2003.
110 Human Rights Watch interview with Lonnie K., San Francisco, California, January 28, 2003.
111 One police lieutenant interviewed by Human Rights Watch suggested that police intentionally issued citations that they suspected would not be paid, allowing them subsequently to arrest the person and take him or her into custody. Human Rights Watch interview with Lt. Ben Fairow, Oakland, California, January 28, 2003.
112 See also, the testimony of Hugh S., above. Indiscriminate sweeps of urban areas, ostensibly intended to identify parole and probation violators, violate individuals’ constitutional right to due process unless conducted with reasonable suspicion of a parole violation. On April 3, 2003, the American Civil Liberties Union of Southern California and the National Lawyers Guild won a restraining order against the Los Angeles Police Department proscribing such sweeps in the city’s Skid Row. See “In a Victory for ACLU/SC, National Lawyers Guild, Federal Judge Grants Temporary Restraining Order Against Police Sweeps in Skid Row Area,” [online], http://www.aclu-sc.org/news/releases/press.html (retrieved May 15, 2003).
113 A BID is a geographical area in which property owners agree to tax themselves to finance various services and improvements to their neighborhood.
114 Human Rights Watch interviews with Elnora D., Los Angeles, California, February 6, 2003; HHCLA volunteer, February 6, 2003; Peggy Roman-Jacobson, Clean Needles Now, Los Angeles, California, February 6, 2003.
115 Human Rights Watch interview with Saundra O., San Francisco, California, January 27, 2003.
117 Human Rights Watch interview with Selena C., Ukiah, California, February 3, 2003.
118 Human Rights Watch interview with Julio L., Oakland, California, January 28, 2003.
119 Human Rights Watch interview with Clayton M., San Francisco, California, January 28, 2003.
120 The rate was 205 per 100,000 people. See Mendocino County AIDS Volunteer Network (MCAVN), “Application for Federal Assistance: Rural Health Outreach Grant Program,” September 26, 2001.
121 H.O.P.E. stands for Health Outreach Prevention Education. H.O.P.E. is a project of the Mendocino County AIDS Volunteer Network (MCAVN).
122 Human Rights Watch interview with Jose F., Ukiah, California, February 3, 2003.
123 Human Rights Watch interview with Maurice T., Ukiah, California, February 3, 2003.
124 Human Rights Watch interview with Scott Turner, Project H.O.P.E., Ukiah, California, February 3, 2003.
125 Human Rights Watch interview with Dean N., Ukiah, California, February 2, 2003.
126 Human Rights Watch interview with Scott Turner, H.O.P.E., Ukiah, California, February 3, 2003.
127 Human Rights Watch interview with Gordon H., Fort Bragg, California, February 3, 2003.
128 Human Rights Watch interview with Lorrie H., Fort Bragg, California, February 3, 2003.
130 Human Rights Watch interview with Jim Britten, Sacramento, California, January 31, 2003. Britten added that in many cases, satellite exchangers exchanged more syringes overall than the syringe exchange’s “primary” volunteers. Though often referred to as “secondary exchangers,” Britten said he refers to his program’s satellite exchangers as the “primaries.”
131 Human Rights Watch interview with Kurt C., Ukiah, California, February 3, 2003.
132 Human Rights Watch interview with Carlene N., January 27, 2003.
133 Human Rights Watch interview with Lorrie H., February 3, 2003.
134 Human Rights Watch interview with Carlene N., January 27, 2003.
135 Human Rights Watch interviews with Otis S., Alicia R. and Marco S., Los Angeles, California, February 7, 2003.
136 Human Rights Watch interview with Wendell R., Los Angeles, California, February 7, 2003.
137 Human Rights Watch interview with Tyrone H., Los Angeles, California, February 6, 2003.
138 In Roe v. City of New York, 232 F.Supp.2d 240 (S.D.N.Y., 2002), a federal judge in Manhattan ruled that the police department may not arrest individuals who are carrying syringes containing drug residue if they are clients of a syringe exchange program.
139 Human Rights Watch interview with Wesley A., Oakland, California, January 28, 2003.
140 See, e.g., B. Prince, “Law enforcement and risky injection behavior”; R.N. Bluthenthal, “Collateral damage...”; Lisa Maher and David Dixon, “Policing and Public Health: Law Enforcement and Harm Minimization in a Street-level Drug Market,” British Journal of Criminology, vol. 30, no. 4 (Autumn 1999), pp. 488-512.