With overdoses on the rise during the pandemic, Pa. law is moving in the wrong direction | Opinion

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By Christopher Welsh and Sean Fogler

As overdose deaths from the opioid crisis surge during the pandemic, the policies meant to prevent unnecessary deaths are moving in the wrong direction.

In 2014, the Legislature passed “David’s Law,” commonly known as the “Good Samaritan Law”, to encourage people to call 911 to report an overdose when a person is in crisis.  The law provides immunity from arrest and prosecution to 911 callers and drug overdose victims where the caller reports an overdose to prevent death or serious injury, shares their name and location, remains with the overdose victim, and cooperates with authorities.

The fundamental purpose of David’s Law  – to remove the threat of criminal penalties when someone is in the midst of an overdose – has been undermined by recent Superior Court decisions, the prosecutor’s office that argued for the narrowest interpretation of the law, and recently proposed amendments to the statute in the Pennsylvania Legislature.

As its name implies, the law encourages people to render aid to those in need.

When someone is overdosing, the law prioritizes the moral imperative to care for a stranger’s wellbeing over society’s desire to arrest and prosecute. By removing fear of arrest and prosecution, the law encourages people to focus on the emergency at hand and call for help. Removing that fear saves lives.

The need for this law has only increased during the pandemic.

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During the pandemic there have been significant increases in overdose deaths in almost every state. Social isolation, unemployment, and a distressed economy during COVID-19 outbreaks are sending “diseases of despair” to unprecedented levels and have exacerbated a deadly environment for people who use drugs.

As the situation on the ground worsened, a three-judge panel of the Pennsylvania Superior Court issued a pair of decisions that struck a blow to David’s Law and undermined its intent.

Following the arguments advanced by the Delaware County District Attorney, the Court upheld criminal convictions in Commonwealth v. South and Commonwealth v. Nunez, in which fast food employees called 911 to report that customers struggled to maintain consciousness inside their restaurants.

In South, a syringe and silver spoon visibly protruded from the overdose victim’s coat pocket. In Nunez, the 911 caller described the overdose victim as “extremely high.” Fortunately, first responders arrived quickly, (in one case administered Narcan) and both overdose victims survived.

Unfortunately, police arrested both overdose victims, the Delaware County District Attorney prosecuted them, a trial judge convicted, and the Superior Court panel affirmed.

The District Attorney and judges at each level claimed immunity should not apply because it was unclear whether the 911 callers knew that the victims were actually overdosing. As the Superior Court stated in a previous case, this position is “divorced from reality,” and it undermines the entire purpose of the law.

The average layperson is not a healthcare expert, and the law does not require them to be one. The statute requires only a layperson’s “reasonable belief” that someone is experiencing a drug overdose at the time of the 911 call.

In both South and Nunez, it is not only reasonable to believe that the 911 caller thought they were witnessing an overdose, it requires speculation to find an alternate reason for calling 911.

In addition to this step backwards in the Superior Court, the Pennsylvania House recently passed legislation (HB137) sponsored by by Rep. Chris Quinn, R-Delaware, which would reauthorize law enforcement to arrest and prosecute an overdose victim in all circumstances.

Now before the state Senate Judiciary Committee, Quinn’s legislation offers immunity as a reward only if the victim later proves they sought drug treatment.

These amendments miss the point. Our moral obligation to our fellow citizens is to save their lives, not make sure they answer for their disease through the criminal justice system. If these amendments become law, they might cause a witness to hesitate before calling 911, and lives might needlessly be lost.

COVID-19 is exacerbating the opioid epidemic. Arrest is not the answer. Prosecution is not the answer. Shame, stigma, and discrimination are not the answers. There is no better moment to permanently eliminate obstacles to treating drug overdoses and saving lives.

Pennsylvania’s appellate courts should revisit and reverse the decisions in South and Nunez to restore the lifesaving potential of David’s Law. The Pennsylvania Senate and Gov. Tom Wolf’s Office should likewise reject Quinn’s legislation.

That moment is today. Tomorrow could be too late.

Christopher Welsh is the Chief Public Defender in the Delaware County Public Defender’s Office. Dr. Sean Fogler is the former director of Development and education at the Pennsylvania Harm Reduction Coalitions and Co-founder of Community Health Strategies.