As noted above, California state law permits cities or counties to legalize syringe exchange programs by declaring a local emergency due to a critical health crisis. Human Rights Watch visited two counties in California, Lake and Sacramento counties, where this declaration had not been made and syringe exchange remained illegal.141 As a result, law enforcement officials targeted not only clients of the syringe exchange who were in possession of drug paraphernalia, but syringe exchange personnel as well. Injection drug users in Sacramento and Lake Counties described going to extreme measures to obtain any syringes, often settling for ones already used, at enormous risk to individual and public health. A senior public health officer in Sacramento told Human Rights Watch that when it comes to legalizing syringe exchange in that county, “It’s good to have facts and data, but that doesn’t convince decision makers.”142
Even in counties that have legalized syringe exchange programs by declaring a local health emergency, syringe exchange may still face restrictions in the form of zoning and other municipal bylaws. In Oakland (Alameda County), Human Rights Watch interviewed syringe exchange personnel, clients, and local authorities about restrictions placed on Casa Segura, the city’s only syringe exchange program. These restrictions exemplified the way in which political decisions about the appropriate placement of syringe exchange programs, like syringe regulations themselves, can be guided by arbitrary and discriminatory factors rather than sound health policy.
Although syringe exchange was illegal in Sacramento County as of this writing, a successful syringe exchange program had operated there since the mid-1990s. Known as the Sacramento Area Needle Exchange (S.A.N.E.), this program had developed a system of pager and delivery143 instead of establishing a fixed site that would be vulnerable to a police raid. Its executive director, Rachel Anderson, told Human Rights Watch that the program had grown to distributing up to 450,000 syringes per year by 2000 despite failed efforts to legalize syringe exchange in the county.144
In June 2001, S.A.N.E. suffered a serious setback as a result of the arrest and conviction of one of its most high-volume syringe distributors, Lynell Clancy. Clancy, forty-seven, began volunteering for S.A.N.E. in 1996; at the time, she told Human Rights Watch, she had been doing HIV and hepatitis C outreach and noticed that “the big missing piece was access to sterile syringes.”145 Injectors were sharing and reusing syringes “until they were just beyond recognition of what they were. Sharpening them on matchbook covers and sidewalks. It was not uncommon to talk to somebody who reused a syringe twenty or thirty times.”
Within a few years, and under constant risk of arrest, Clancy became one of Sacramento’s most relied upon syringe exchange volunteers. Clancy developed a system of delivering large numbers of syringes to satellite exchangers and having them distribute to their network. “When I was banging on all burners, it wasn’t uncommon to do 1600 to 2000 [syringes] in a four- to five-hour period,” she said. Rachel Anderson said that between 1996 and 2000, the number of new clients contacting the exchange more than tripled every year. Attracting this many new clients greatly decreased the number of people exposed to HIV through syringe sharing, preventing any increase in HIV prevalence in that community according to the county public health officer.146
On September 19, 2000, Clancy was arrested while delivering sterile syringes to a methamphetamine injector in north Sacramento. In a detailed account of her arrest, she told Human Rights Watch that, unbeknownst to her, officers of the Sacramento Police Department had been investigating the client’s residence as the site of a methamphetamine manufacturing operation. When she approached the client’s door with a brown paper grocery bag, an officer opened the door and began questioning her. “I kind of acted like I didn’t hear him,” she said. “And then he was like, ‘What’s in the bag?’”147 Clancy said she “was in such a panic” that she let the officer look in the bag without realizing she could have withheld her consent to search. The officer looked inside and said, “‘Well, what are all these syringes for?’”
Clancy told the officer that she was a volunteer for S.A.N.E. and that she had been distributing sterile syringes for the syringe exchange program in order to prevent the spread of disease. The officer patted her down, confiscated her syringes, and then confiscated an additional 600 syringes found in her car. Clancy was cited under section 4140 of California’s Business and Professions Code, which prohibits the unauthorized possession or control of hypodermic syringes or needles.148
Clancy said that her encounter with the police that day was not an isolated incident. “On more than half a dozen occasions,” she said, “I walked up to somebody’s house . . . and knocked on the door and [was] greeted by either a sheriff or a policeman.” She was arrested on only one other occasion, but she successfully fought that conviction on the grounds that the police had illegally seized her syringes. Eventually, she had no choice but to refuse certain clients because of the likelihood of a police presence on their property. Some of these clients, whose drug use Clancy described as “out of control,” were the ones at highest risk of HIV infection from the reuse and sharing of syringes.
In her legal defense, Clancy sought to introduce evidence that her illegal possession of sterile syringes “was justified by the necessity to combat the transmission of HIV and other blood-borne diseases within the population of injection drug users.”149 Clancy argued that while California law provided a regime for the legalization of syringe exchange through the declaration of a local emergency, that emergency had not been declared despite extensive political lobbying; thus, she had no choice but to exchange syringes illegally. The judge rejected the necessity defense and on June 20, 2001, Clancy was convicted of unlawful possession of syringes and needles. Clancy was placed on informal probation for three years, the conditions of which require her to obey all laws and not engage in the distribution of hypodermic syringes or needles. Clancy’s probation permits her to conduct HIV and hepatitis C prevention that does not involve the possession or distribution of syringes.150
Though Clancy chose to fight her conviction, other syringe exchangers in Sacramento said they had pleaded guilty to charges of syringe possession. Dedra S., a forty-seven-year-old woman originally from North Carolina, said that on one occasion the police caught her with syringes while they were conducting a routine parole check on her roommate.
I had two boxes and they went into my room and they asked me was I diabetic, and why did I have needles. And I told him, “No, sir, I’m on the needle exchange program, I exchange needles.” And he said, “Well, you know it’s against the law.” And he arrested me. It was a misdemeanor. Possession of hypodermic syringes. Nothing else. New syringes. . . . And I had two years probation.151
This conviction did not deter Dedra S., who regarded herself as performing a necessary, life-saving service. She said that she had been convicted of syringe possession “four or five times” and that she continued to exchange syringes while on probation.
I felt like I needed to do it. I took my chances . . . because they need them. Because I have got so many friends who can’t find needles, and they swell up, they swell up a lot. And they hurt, and they break, and then the HIV starts, you know. Because I know a few people with it. There are people that have got HIV and will not use anything but a new needle, and those are the kind of people I like to have some for. Because I know they’ve got it, and they know they’ve got it, and they don’t want to pass it. But when they can’t get them, what are they to do?
Lynell Clancy told Human Rights Watch she had appointments with syringe exchange clients lined up until the day of her conviction, at which point she finally had to stop. “I had to call them and tell them, ‘Can’t do it. I have to see if I can find somebody else to do it’,” she said. “I hate it. I feel like I’ve bailed on them.”
According to S.A.N.E. personnel and public health experts interviewed by Human Rights Watch, Lynell Clancy’s conviction had a uniquely devastating impact on AIDS prevention among Sacramento’s injection drug users. In 2002, S.A.N.E. distributed 29 percent fewer syringes than it had distributed in 2000, the year before Clancy was arrested.152 The amount of time clients have to wait for new syringes increased from a maximum of seventy-two hours before Clancy’s arrest to nearly two months. “I’ve got calls from people saying they’ve been calling for two months and haven’t even got a call back yet,” Rachel Anderson said. “We just don’t have the capacity to pick up new people. And that’s been the most difficult thing.”153
The recent scarcity of sterile syringes in Sacramento has led many injection drug users to reuse and share syringes, potentially infecting themselves and others with HIV or hepatitis C. Thirty-two-year-old Maricela C., who had been injecting heroin and methamphetamines for nine years, told Human Rights Watch she was using the same syringes “over and over” because “there are no new ones out there.”154 Maricela C. lived in an area of Sacramento’s Oak Park known for its significant drug activity; her home was described to Human Rights Watch by harm reduction outreach workers as “a pit stop for hookers, cranksters155 and heroin users.” Maricela C. said that she gave used syringes “to whoever needs one,” and that she frequently saw people sharing syringes without cleaning them. Two days earlier, she said, she gave all of her used syringes away. “I reuse and share because I can’t get new needles,” she said. “I haven’t gotten needles from the needle exchange for a while.”
Human Rights Watch met Lenore T., fifty-eight, in a trailer park off of Stockton Boulevard in south Sacramento. The park where Lenore T. lived was filled with dilapidated, singlewide trailers set very close to one another and was known for its concentration of sex workers. She said that two days earlier she witnessed a woman she knew, a sex worker, digging a used syringe out of a dumpster.
I saw two people I know, two of the hookers, who’ll dig them out of the trash, dirty, and use them. As a matter of fact I saw it two days ago, because I was down at my niece’s house.... And she was out there digging, looking for them. She was looking for something to shoot up with... and she knows there are a lot of drug addicts out there, so she dug and she found her an outfit [syringe] . . . she told me that’s what she was looking for . . . . And she came up and asked me if I had one. I told her, “no.” And she said, “Damn, I didn’t want to have to do this,” and she started looking.156
Lenore T. herself had recently had difficulty finding new syringes, she said, because she couldn’t make contact with the syringe exchange program. “Before I took a hundred, used them once, broke them and threw them away,” she said. “That’s why you don’t see any railroad tracks on me.”157 Lately, she said, “I can’t find them. Matter of fact I’ve been checking here for about a month. . . . I get them other places, but not that often, and then I have to use them again.”
Lynell Clancy told Human Rights Watch that about twenty-five of her former clients had told her they were sharing syringes since she stopped doing exchange. She also noticed that in doing outreach with drug users after her arrest, she saw and more people with track marks and abscesses—signs that they were reusing and sharing syringes. “They have to use them over and over and over again, like hammering a nail into their arm,” she said. “It’s like, I see them and I see the abscesses, and I see the huge line of track marks that weren’t there before because they were able to use, they had access to syringes.”158 The day before, Clancy witnessed somebody assembling the parts of others people’s used syringes into a makeshift syringe. “It’s a crapshoot as to whose she’s getting,” Clancy said.
Satellite exchangers interviewed by Human Rights Watch after Clancy’s conviction said that they could no longer deliver syringes to their networks because there simply weren’t any available. Fifty-five-year-old Sam P., who had previously distributed sterile syringes in the trailer park referred to above, said that he had not seen the syringe exchange in six months. He had previously developed a weekly routine of picking up syringes from S.A.N.E. and distributing them to a network of about thirty people. The exchange “needs to get over here,” he said, “because we cover a lot of people.”159
Earl B., fifty, also a satellite exchanger, said that he had received regular supplies of new syringes from S.A.N.E. until about two years previously. “Then someone got busted over here. . . . a lady,” he said. “She gave me needles, is all. Just exchanging needles, keeping people alive if you ask me.”160 Earl B., who had hepatitis C, said that he continued to exchange sterile syringes whenever he could obtain some from a diabetic friend. “I take a high risk of going to jail,” he said. “You know, you get caught with a needle, you’re going to do ninety days at least. For saving somebody’s life.” Even though he had a criminal record and “would probably go to prison” if he were caught, Earl B. said the risk was worth it.
I see too many people sharing, that’s why I give them out. A lot. Just the other day... they were at the house, and I turned around and they were sharing. Some friends, I’m not mentioning any names. About three. People gamble too much with their lives. That’s why they need a place to access [sterile syringes]. I’ll take the risk until they legalize it. They will eventually legalize it, because too many people are dying. . . . All it takes is one person to have AIDS and sharing, and it’s all over everywhere.
Injectors who succeeded in obtaining sterile syringes in Sacramento said that they were too scared to carry syringes around, leaving them without a sterile syringe in case they needed one. “I am more afraid of carrying a needle than sharing one,” said Cody F., who had been arrested for syringe possession four times. “I’m afraid of getting stopped by police.”161 Cody F. said he had shared syringes “at least fifty times,” because he “didn’t have needles” with him. “I stopped carrying because I was paranoid of getting busted,” he said.
On September 10, 2001, approximately nine months before Lynell Clancy’s conviction, Sacramento’s County Health Officer, Dr. Glennah Trochet, issued a memorandum titled “Consequences to the Health of Sacramento if the Current Underground Syringe Exchange Program Ends.” In it, Trochet warned that HIV prevalence among injection drug users in Sacramento could increase by 5.9 percent per year if the county lost its syringe exchange program. Within five years, HIV prevalence in this population would reach approximately 20 percent, whereas at the time it stood at 4.2 percent. The fact that HIV prevalence had not increased in recent years was a testament to the efforts of the county’s illegal syringe exchange program. “There is no question,” Trochet wrote, “that well run syringe exchange programs decrease the incidence and prevalence of blood borne pathogens such as HIV, Hepatitis B and Hepatitis C. They do not increase injection drug use, and they do increase the number of people seeking treatment for addiction.”162
Trochet submitted her memorandum to Jim Hunt, the director of public health for the Sacramento County Department of Health and Human Services, who then forwarded it to the head of the department and the county board of supervisors. She received no response. She told Human Rights Watch that had Clancy been permitted to put forth a defense of necessity, she would have testified at the trial. Sacramento’s district attorney, Jan Scully, “did not need to prosecute, but she chose to prosecute,” Trochet said.163 She recalled an earlier meeting with Scully in which she presented research data on the benefits of syringe exchange. “The district attorney didn’t even want to talk about it,” Trochet said. “She took my information and said, ‘Well, Doctor, I guess we’re going to have to agree to disagree on this one’.”
S.A.N.E. volunteers told Human Rights Watch that following Clancy’s conviction, they had tremendous difficulty reaching injection drug users and had to decline some requests for new syringes.164 They also had difficulty recruiting additional volunteers, one said, because “people don’t want to take the chance of getting arrested for doing syringe exchange.”165 Rachel Anderson estimated that S.A.N.E. needed twenty-five volunteers to meet the demand for sterile syringes in Sacramento County; as of this writing, the exchange had only two volunteers. Former drug users who might make good volunteers because of their rapport with current users often had to be disqualified, Anderson said, because existing criminal records would put them at risk of lengthy incarceration. Clients with a criminal history also had to be reconsidered, because, as Clancy’s arrest illustrated, volunteers could not afford to be greeted by a police officer on making a delivery of sterile syringes.
In reflecting on her arrest, Clancy expressed her frustration at being prohibited from performing a service whose benefits she had witnessed first-hand. “It’s having access to something that I know can help them and not being able to get it to them,” she said. “Not being able to hook them up with a service that they have every right in the world to have. . . . You know that they’re using like old, rusty nails.”
In Lake County, an hour’s drive north of Sacramento, police efforts to suppress illegal drug use had as of this writing driven the county’s one syringe exchange program completely underground. Unlike in Sacramento, syringe exchange personnel in Lake County had not openly lobbied for the legalization of syringe exchange and, for fear of arrest, would not identify themselves by name. Drug users in Clearlake, most of them methamphetamine injectors, told Human Rights Watch that constant surveillance by the police, as well as total enforcement of drug paraphernalia laws, made it prohibitively risky to carry sterile syringes to and from their homes. As an alternative, although far from ideal, some users said they would congregate at the homes of satellite exchangers, who received clandestine deliveries from a central syringe exchange coordinator.166 These homes often became sites of dense drug activity, increasing the likelihood of police surveillance.167 Injectors said that, while the availability of sterile syringes had greatly increased since the establishment of the underground syringe exchange program, the fear of being arrested for storing or carrying drug paraphernalia still led to significant reusing and sharing of syringes.
Numerous injection drug users interviewed by Human Rights Watch expressed fear of being caught by Lake County police with a sterile syringe. “I’ve never felt a fear like that before,” said twenty-nine-year-old Tanya L., a client of the syringe exchange program.168 She said she never carried syringes on her, not only because “I don’t want to get busted with it,” but also because “they treat you like real dirt if they find you with it.” Tanya L.’s friend, thirty-one-year-old Melisa S., a satellite exchanger, said that injectors rarely took as many syringes as they needed, “because they’re afraid to walk across town with them, or drive across town.”169
Injectors in Lake County also expressed the view that in enforcing drug paraphernalia laws, local police seemed not to be motivated by genuine law enforcement concerns, but instead by a general disdain for drug users. “They look at you like you’re lesser than dirt,” Melisa S. said.170 She recounted an incident in which a police officer pulled over her and a friend, a known drug user, and started insulting them. “He . . . tells him, you know, ‘You’re nothing but a criminal. You’ll never be anything but a criminal. . . . We’re going to get you if you break any law, you know . . . . If you spit on the sidewalk I’ll arrest you, if you fart on the sidewalk I’ll try to find a code [violation] to get you’.”
Melisa S. added that “especially with a syringe,” if the police find someone with drug paraphernalia “they treat you like real dirt. More so with syringes than even over drugs.” One illustration of this phenomenon was provided by fifty-three-year-old Lorraine L., who said that she witnessed an incident in which a Lake County police officer confiscated a drug user’s sterile syringes but, spitefully in her view, left him with his drugs.171 “They’ll leave the dope with you, but they’ll take the syringes,” she said, adding:
Does that make sense to you? . . . Some people had gotten stopped in a car, and they had product and paraphernalia on them. . . . [The police] found the stuff on them, and snickering about it, and went about and gave it back to them, and said you can have that back but you can’t have these, we’re taking these. A couple packages172 each. It hadn’t been long since we had just gotten back from the needle exchange across town. You had to go scrounge up more or use one of the old ones you had at home, leftover.173
Catherine D., thirty, whose husband was an injection drug user, said “you wouldn’t believe some of the things” injectors did when they couldn’t obtain sterile syringes. “People who use the same ones over and over and over and just beat themselves up because of that. Oh god, it’s awful,” she said.174 She recalled having recently witnessed a friend trying to inject with a syringe she estimated was “a good couple of weeks” old.
It looks like they are just physically hurting themselves, because they stay with the same one, because they don’t have anywhere to turn it in, or exchange it, or get a new one. Today . . . a girlfriend of mine . . . her arms were just so bruised, and oh . . . I can’t even describe it . . . and I was sitting there talking to her . . . but it was so hard for her to push the needle in, and, you know, I just wanted to cry. It was awful.
Thirty-six-year-old Rick V., who had been on parole until January 20, 2003, said that he risked going back to jail if Lake County police caught him with a sterile syringe. “I’m still nervous as hell,” he said.175 Because injectors often exchanged sterile syringes in places deemed by the police to be “high drug areas,” Rick V. risked violating the conditions of his parole every time he went to obtain sterile syringes. “I don’t want them to hunt me down, don’t want to be around that area,” he said. “Anywhere that’s near a known syringe exchange. That’s automatic grounds for a parole violation.” Determined nevertheless to protect himself from HIV, Rick V. gave an account of sneaking through bushes and back roads to get to the syringe exchange program.
Through trails . . . you got bush trails all over Clearlake. Cops are aware of them, too, you hide at the exits and entrances. You’ve got pathways through, like, the orchards and through cross-streets. Little hideaways all the way around town. . . . You’re stopping at every bush. . . . I would hide in every bush, every time you see headlights, dive.
Asked where he felt safest obtaining syringes, Rick V. said, “my dresser drawer. Walking anywhere to get them, I’m nervous as hell. . . . It’s still a misdemeanor, you can still go to jail for it.”
The coordinator of Lake County’s underground syringe exchange program, who insisted on anonymity, said the program relied on satellite exchangers to reach people like Rick V. who were scared to obtain new syringes. But program clients said that some satellite exchangers in Lake County were prevented by fear of police from delivering their syringes reliably. “They get spooked, and they hide stuff until you can’t get to it, because they’re worried of being raided,” said Dustin P., fifty-nine, who had been injecting off and on for thirty-three years.176 “It’s not going to be a sure process every time, and there’s a whole lot of people who are hesitant to talk about it, because they don’t want anyone knowing they’re doing it.” Melisa S. added that when the syringe exchange was first established about three years earlier, “I was a little bit cautious of it at first, just like everybody else . . . of it being a set-up for the police, just another set-up. And a lot of people are still kind of scared. You know, they work with me, but they’re scared to go any further than that with it, because any kind of authority figure here is looked at as the enemy.”177
In January 2003 one of Lake County’s satellite syringe exchangers, Rebecca Rosencrans,178 was arrested and charged with possession of drug paraphernalia. Rosencrans, who is thirty-nine and is awaiting trial as of this writing, told Human Rights Watch that before her arrest she had exchanged approximately 600 syringes per month to several different people. On the day of her arrest, she said, police found a supply of new syringes in her motor home while investigating an unrelated offense.
I had parked my motor home at a house on Cobb Mountain. There were all kinds of people staying out there who had problems with the law. The cops were looking for “Buzz” and refused to believe I wasn’t associated with him. They did their bully routine, said they had the right to search and that they would bring out their drug dogs.179
Rosencrans told the police she was a volunteer for Lake County’s underground syringe exchange. “They acted like jerks about the needle exchange,” she said. “I said I had needles and did needle exchange, and the guy said, ‘So you help people break the law?’ And I said, ‘No, hep C is wild in this town. My friend just died of AIDS and I wanted to do a charitable act’.” Rosencrans said that the police then confiscated her new syringes and arrested her on one count of possessing hypodermic needles without a prescription, and one count of distributing hypodermic needles without a license, both under California’s Business and Professions Code. She spent three days in jail and was released with a trial date.
Human Rights Watch interviewed Sgt. Todd Miller, an officer with the Clearlake Police Department, about the attitude of local law enforcement toward syringe exchange programs and drug paraphernalia laws. Miller said that he was not aware that California law authorized syringe exchange in some circumstances. He viewed drug paraphernalia laws as assisting law enforcement officers in their efforts to control drug use, as a syringe is “a lot easier to find” on someone than a small amount of methamphetamine.180 He described syringes as “a warning sign, saying this person is using drugs.” Miller added that an “unbelievable hazard” in Clearlake was the disposal of used syringes in places where people could step on them and experience a needle-stick injury. Asked whether the legalization of syringe exchange might contribute to the safe disposal of syringes, Miller questioned whether people “spun on drugs” could dispose of syringes safely. He also suggested that people bleach their syringes as an alternative to legalizing syringe exchange, even though he confessed he did not know if bleach was effective at reducing the risk of HIV and HCV infection.
What’s wrong with getting a little bleach and water and bleaching out your needles? . . . I don’t know if it’s effective or not, but I think it is. Even then, what are you doing sharing your needles? There are no excuses. I’ll buy them the damn peroxide, but I can’t see someone walking by a school with a syringe, saying, “You can’t arrest me, because it’s legal.” What kind of message is that sending to kids? With a hundred bucks I could buy enough hydrogen peroxide to clean every dirty needle in Clearlake.181
Despite legal obstacles and local opposition to syringe access programs, Lake County’s underground syringe exchange program had made tremendous progress in reducing high-risk injection practices among the county’s drug users. “A lot of people I know now only use them one time and dispose of them,” said Melisa S., who distributed “at least 1000 syringes a month” to other injectors. At the same time, Melisa S. speculated that local authorities would continue to obstruct the syringe exchange program as long as they saw no value in protecting the lives of drug users. “That’s the general attitude of the police force here,” she said. “That’s why they’re not too concerned with the syringe exchange, because it’s like, ‘Why save a bunch of drug addicts?’ And that’s really sad, because it’s not just drug addicts it saves.”182
In jurisdictions where syringe exchange is legal, finding an appropriate location for syringe exchange programs can ignite a political controversy involving community groups, planning commissions and local politicians. Such groups may have genuine fears about the impact of syringe exchange on public order, for example whether syringe exchange contributes to an increase in improperly discarded syringes in the street. As discussed below, however, these fears are not supported by available public health research.184 It is important that the process of implementing legal syringe exchange programs not privilege misplaced fears and misinformation over the health needs of injection drug users and other members of the community.
The story of Casa Segura, which in April 2003 obtained approval to use a new building from the Oakland city council, illustrates this dilemma.185 Casa Segura is, as of this writing, Oakland’s only syringe exchange program; it has traditionally operated syringe exchange sites in the neighborhoods of East Oakland, Fruitvale and West Oakland. Following its legalization in 1999, Casa Segura’s drop-in center in Fruitvale began encountering significant opposition from community groups and political representatives of District 5, home to a Business Improvement District (BID) along the city’s International Boulevard. This opposition culminated in 2001 in the burning down of the drop-in center in a case of suspected arson. Since that time, Casa Segura has operated a mobile syringe exchange while struggling to open a building that complies with rigid zoning ordinances set out by the Oakland city council and planning commission.
On February 1, 2002, after Casa Segura had purchased a new building in the city’s District 6, city councilor Moses Mayne introduced a ninety-day “emergency ordinance” requiring organizations to obtain a major conditional-use permit if they intended to serve predominantly drug users. The ordinance required that programs targeting drug users notify surrounding residents and businesses, participate in a public hearing, and submit to any conditions imposed by the city council. Its enactment followed a period of organized opposition against the syringe exchange program, culminating in a meeting of the district’s Neighborhood Crime Prevention Council in which syringe exchange supporters were booed loudly. An official of the Alameda County health department described Mayne’s ordinance as “the most onerous ordinance ever adopted on organizations working with active injection drug users.”186
In contrast to the city’s response to its injection-driven AIDS epidemic, Mayne’s ordinance proceeded with great speed. The ordinance was approved in February 5, two business days after it was introduced, and was extended for an additional ninety days on April 25. It subsequently went to the planning commission for permanent addition to the planning code. In April 2003, more than a year after the ordinance was first approved, Casa Segura obtained a conditional-use permit from the planning commission and received approval from the city council to operate.
Although Casa Segura eventually satisfied the requirements of the major conditional use permit, individuals interviewed by Human Rights Watch expressed concern that the substance of the emergency ordinance, as well as the process by which it was adopted, allowed community opposition to trump public health needs. While not insurmountable on their face, the ordinance’s requirements did not apply to comparable health services that targeted populations other than drug users. As an assistant to an Alameda County supervisor put it, “People aren’t looking at [services for drug users] as a health care service that’s important to the community. They’re looking at it as another liquor store . . . another prostitute on the corner.”187 Even where the requirements of the major conditional-use permit could be satisfied, activists said, the ordinance imposed an administrative burden on service providers that could cut into the services provided by syringe exchange programs and drug treatment centers.
Procedurally, the ordinance requiring the conditional-use permit was passed under a provision in Oakland’s Sunshine Ordinance Act allowing the requirements of public notification and consultation to be waived in cases of “emergency.” The stated basis for the emergency, however—that services for injection drug users “will pose a direct threat to the health or safety of the surrounding community, including children who may be seriously harmed by contact with a discarded needle”—not only lacked evidentiary support, but was withheld from the city council until after the ordinance was introduced. The only council member who voted against the ordinance, Nancy Nadel, described this justification as “a manufactured emergency.”188 One civil liberties attorney argued that the only exceptions to the public’s “fundamental right to notice and to participate in government” existed where “failing to act immediately will result in dire consequences to the public health and well being,” a standard that clearly had not been met in this case.189
One observer interviewed by Human Rights Watch, referring to the fact that local opposition had overshadowed the health needs of injection drug users, described the emergency ordinance process as “a lesson in NIMBYism.”190 Moses Mayne provided support for this view when he told the press, “I support Casa Segura, but I don’t support them in this location.”191 The city council remedied the procedural defect when it voted on April 25, 2002 to extend the ordinance, at which point the Oakland office of the Drug Policy Alliance dropped a lawsuit it had threatened to file.
Oakland is not the only city in which legal syringe exchange programs are challenged through the municipal zoning process. In Los Angeles, Human Rights Watch interviewed volunteers and clients of Clean Needles Now, a syringe exchange program in Hollywood that had attracted opposition from community groups, including the Hollywood secession movement.192 At the time of Human Rights Watch’s visit, Clean Needles Now was operating out of a car near Santa Monica Boulevard, having just vacated a fixed site nearby. The move followed a complaint by a nearby resident that syringe exchange clients had been responsible for the burglary of his building.193 As in Oakland, the result of having to move outside had been an increased police presence near the syringe exchange, as well as greater difficulty attracting clients. “Once they lost their building a couple times, I had trouble finding which street [the syringe exchange was on],” said forty-one-year-old Wade R., a client of Clean Needles Now.194 He said that not long before, he had to share a syringe with his boyfriend because they could not find the syringe exchange. “I bleached it of course,” Wade said. “I love him, but I’m not insane.”
141 We also interviewed clients of a syringe exchange in San Diego that, because of the parameters of that county’s emergency declaration, was not legal.
142 Human Rights Watch interview with Dr. Glennah Trochet, Sacramento County Health Officer, Sacramento, California, January 30, 2003.
143 As noted above, this is a system whereby clients page the syringe exchange program to request syringes and arrange a rendezvous point with a volunteer.
144 Human Rights Watch interview with Rachel Anderson, executive director, Sacramento Area Needle Exchange (S.A.N.E.), Sacramento, California, January 29, 2003.
145 Human Rights Watch interview with Lynell Clancy, Sacramento, California, January 30, 2003.
146 Memorandum from Dr. Glennah Trochet, county health officer, to Jim Hunt, director, Sacramento County Department of Health and Human Services, September 10, 2001.
147 Human Rights Watch interview with Lynell Clancy, Sacramento, California, January 30, 2003.
148 As noted above, violation of this statute is a misdemeanor punishable by a fine of not less than U.S.$200 or more than U.S.$2000, or by imprisonment of not less than thirty days nor more than six months, or both by fine and imprisonment. See Business and Professions Code, sec. 4321.
149 Under California law, Clancy was permitted to introduce this evidence if it could demonstrate that (1) the act charged as criminal was done to prevent a significant and imminent evil (in this case, the spread of infectious disease through injection drug use); (2) there was no reasonable legal alternative to the commission of the act; (3) the reasonably foreseeable harm likely to be caused by the act was not disproportionate to the harm avoided; (4) she entertained a good-faith belief that her act was necessary to prevent the greater harm; (5) that belief was objectively reasonable under all circumstances; and (6) she did not substantially contribute to the creation of the emergency. See California Jury Instructions-Criminal (CALJIC) 4.43; see also, In re Eichorn, 69 Cal.App.4th 382, 389, 81 Cal.Rptr.2d 535, 539 (1998); People v. Trippet, 56 Cal.App.4th 1532, 1538, 66 Cal.Rptr.2d 559, 563 (1997); People v. Pepper, 41 Cal.App.4th 1029, 1035, 48 Cal.Rptr.2d 877, 880 (1996); People v. Pena, 149 Cal.App.3d Supp. 14, 25-26, 197 Cal.Rptr. 264, 271 (1983).
150 Letter from Judge Richard H. Gilmour, Judge of the Superior Court of California, County of Sacramento, to Diana K. Butler, Warden, Folsom State Prison, August 2, 2001.
151 Human Rights Watch interview with Dedra S., Sacramento, California, February 4, 2003.
152 According to Rachel Anderson, S.A.N.E. distributed approximately 450,000 syringes in 2000 compared to 320,000 syringes in 2002. It is estimated that 3,000,000 syringes distributed annually would saturate the population of injection drug users in the county. Human Rights Watch interview with Rachel Anderson, January 29, 2003; Human Rights Watch interview with Neil Flynn, M.D., January 29, 2003.
153 Human Rights Watch interview with Rachel Anderson, January 29, 2003.
154 Human Rights Watch interview with Maricela C., Sacramento, California, January 30, 2003.
155 “Crankster” is a colloquial term that refers to people who inject methamphatamines.
156 Human Rights Watch interview with Lenore T., Sacramento, California, January 30, 2003.
157 The reuse or sharing of blunted syringes can leave visible track-shaped marks on the surface of the skin, often referred to as “tracks,” “track marks” or “railroad tracks.”
158 Human Rights Watch interview with Lynell Clancy, January 30, 2003.
159 Human Rights Watch interview with Sam P., Sacramento, California, January 30, 2003.
160 Human Rights Watch interview with Earl B., Sacramento, California, January 30, 2003.
161 Human Rights Watch interview with Cody F., Sacramento, California, February 4, 2003.
162 Memorandum from Dr. Glennah Trochet to Jim Hunt, September 10, 2001.
163 Human Rights Watch interview with Dr. Glennah Trochet, Sacramento, California, January 30, 2003.
164 Human Rights Watch interview with Gail Wally, Sacramento, California, January 30, 2003; Human Rights Watch interview with Jim Britten, Sacramento, California, January 31, 2003.
165 Human Rights Watch interview with Lynell Clancy, Sacramento, California, January 30, 2003.
166 Human Rights Watch interview with Melisa S., Lake County, California, February 1, 2003; Human Rights Watch interview with Dustin P., Lake County, California, February 1, 2003.
167 Human Rights Watch interview with Dustin P. February 1, 2003. Human Rights Watch researchers also observed this taking place at the home of a satellite exchanger in Lake County.
168 Human Rights Watch interview with Tanya L., Lake County, California, February 1, 2003.
169 Human Rights Watch interview with Melisa S., February 1, 2003.
170 Human Rights Watch interview with Melisa S., Lake County, California, February 1, 2003.
171 A similar incident was recounted by the coordinator of Lake County’s syringe exchange program, who said that on one occasion Lake County police confiscated a supply of sterile syringes during a drug raid but left alone a visible supply of used syringes. Both of these incidents suggest an indifference to or ignorance of the health consequences of leaving drug users to inject with used injection equipment.
172 New syringes often come in packages of ten, as in this case. Some syringe exchanges also band together individually wrapped syringes into packages for their clients to take with them.
173 Human Rights Watch interview with Loraine L., Lake County, California, February 1, 2003.
174 Human Rights Watch interview with Catherine D., Lake County, California, February 1, 2003.
175 Human Rights Watch interview with Rick V., Lake County, California, February 1, 2003.
176 Human Rights Watch interview with Dustin P., February 1, 2003.
177 Human Rights Watch interview with Melisa S., February 1, 2003.
178 This is her real name.
179 Human Rights Watch telephone interview with Rebecca Rosencrans, February 2, 2003.
180 Human Rights Watch interview with Sgt. Todd Miller, Clearlake Police Department, February 1, 2003.
181 Ibid. As noted above, chlorine bleach is effective at disinfecting syringes of HIV but not HCV. According to a 1994 study, hydrogen peroxide is not an effective alternative to bleach compared to liquid dish detergent or rubbing alcohol. N. Flynn et al., “In Vitro Activity…”, Table 1.
182 Human Rights Watch interview with Melisa S. February 1, 2003.
183 “NIMBY” is an acronym for the popular phrase “Not In My Back Yard,” referring to the attitude of community members who may support certain social services in theory but object to their being established in their neighborhoods.
184 See “Arguments Against Sterile Syringe Programs,” below.
185 The following account is based on Human Rights Watch interviews with the following individuals: Joy Rucker, director, Casa Segura, on January 16, 2003 (by telephone); Dan Abrahamson and Alexandra Cox, Drug Policy Alliance, on January 28, 2003; Susan Black, Alameda County Public Health Department, on January 29, 2003; Maria Chavez, Harm Reduction Coalition, on March 12, 2003 (by telephone); and Joe DeVries, assistant to county supervisor Nate Miley, on April 10, 2003 (by telephone). It is also based on numerous press accounts, including: Laura Counts, “HIV cause on hold till Segura gets permit,” Oakland Tribune, February 7, 2002, [online] http://www.millsmontnews.com/SeguraGetsPermit-7feb02.htm (retrieved May 3, 2003); “City extends ban on home for drug program,” Oakland Tribune, April 25, 2002, [online] http://www.millsmontnews.com/casasegura-tribune-25april02.htm (retrieved May 3, 2003); and Tali Woodward, “NIMBYs against sunshine: Oakland creates obstacles for drug-treatment centers,” San Francisco Bay Guardian, May 3, 2002, [online] http://www.sfbg.com/36/22/news_drug_treat.html (retrieved May 3, 2003).
186 Human Rights Watch interview with Susan Black, Alameda County Public Health Department, January 29, 2003.
187 Human Rights Watch telephone interview with Joe DeVries, assistant to county supervisor Nate Miley, April 4, 2003.
188 The likely explanation for the emergency, activists said, was that councilor Mayne had been seeking reelection and introduced the ordinance, his first in a year, in response to a period of organized community opposition to the proposed syringe exchange. Mayne subsequently lost the election to Desley Brooks, who represents District 6 as of this writing.
189 Tali Woodward, “NIMBYs against sunshine...”, quoting attorney Thomas Burke. Even if the possibility of a child coming into contact with a discarded syringe met the standard of an “emergency” required by the sunshine law, there is no evidence that health services for drug users, including syringe exchange, increase the number of discarded syringes on the street. In fact, the opposite is more likely the case. See “Opposition to Syringe Access Programs,” below.
190 Human Rights Watch interview with Susan Black, January 29, 2003.
191 Laura Counts, “HIV cause on hold...”.
192 Human Rights Watch interview with Shoshanna Scholar, Clean Needles Now, Los Angeles, California, February 6, 2003. See also, Judith Lewis, “Hollywood’s Clean Needle Program Drawn Into Secession Politics,” LA Weekly, November 1, 2002. The Hollywood secession movement is a coalition of residents, business leaders, community activists, educators, and neighborhood organizations dedicated to the creation of a City of Hollywood independent and separate from Los Angeles.
193 Human Rights Watch interview with Shoshanna Scholar, February 6, 2003. The allegation that syringe exchange programs cause drug users to congregate in certain areas, thus increasing property theft and other crimes, is also examined in “Opposition to Syringe Access Programs,” below.
194 Human Rights Watch interview with Wade R., Los Angeles, California, February 6, 2003.