By Erin Sherbert
By Erin Sherbert
By Leif Haven
By Erin Sherbert
By Chris Roberts
By Kate Conger
By Brian Rinker
By Rachel Swan
"In blunt terms," he wrote in vetoing the 1993 bill, "is it worth reducing the risk of infection to intravenous drug users at the potentially far greater cost of undermining all our other preventive anti-drug efforts? ... What are [young people] to think when ... we give formal sanction to a project which facilitates drug use?"
Thwarted by the governor, but encouraged by a friendly legislature, frustrated city officials took matters into their own hands 26 months ago: They place San Francisco under a legally effective semipermanent state of emergency.
The city charter bestows rather sweeping powers upon the mayor and the director of public health to stop threats to the general well-being. These powers, typically used to combat cholera, typhus, and civil disorder in the wake of disasters, were enlisted to fight the AIDS epidemic after Mayor Frank Jordan and then-director of public health Dr. Raymond Baxter checked with city attorneys. On March 11, 1993, Jordan declared a state of emergency in the city and county of San Francisco, sending the declaration to the Board of Supervisors for approval, which did so four days later.
The Government Code requires the Board of Supervisors to recertify the emergency every 14 days, so with monotonous regularity the board has extended the lives of the needle exchanges at two-week intervals ever since. The city now funds just over $300,00 of Prevention Point's budget, while the San Francisco AIDS Foundation makes up another $150,000 from its fund-raising activities - the AIDS Wallk, the AIDS Dance-a-Thon, and private donors.
As early as January 1992, prior to the declaration, the San Francisco Police Department said it would not "actively look for violations" of state prescription laws. The current policy is to not harass needle exchangers; unless you're dumb enough to shoot up where a cop can see you, it's difficult to get busted for the possession of a needle. (The city's tolerant stance has made Police Chief Anthony Ribera and Mayor Frank Jordan minor heroes in harm-reduction circles. In New York, store-front needle-exchange programs receive state "waivers" for their work; in Washington, a county director of public health successfully sued the state to allow the legal existence and funding of the Tacoma exchange.)
Other local governments have followed San Francisco's lead: Sonoma County declared a state of emergency in March 1994; Richard Riordan, the Republican mayor of Los Angeles, declared one last Sept. 6; Santa Clara County did so a week later; and Santa Cruz County did the same on May 23.
San Francisco is the "volume dealer" of the bunch, moving a vastly greater number of needles, setups, and condoms than any other program in the U.S. It lacks the resources to offer other services except vitamins at its Sixth Street site. The Santa Cruz exchange adds hot soup and bagels, and a couple of times a week Odwalla drops off some fresh juice. The Lower East Side Harm Reduction Center in Manhattan features a full-time acupuncture center and women-only exchange hours one day a week.
The local "emergencies" haven't made the needle exchanges a done deal in California. In response to a hypothetical question by Assemblywoman Barbara Alby (R-Fair Oaks), Attorney General Dan Lungren issued a 10-page opinion of the subject on June 7. He concluded that needle-exchange programs violate state law, that city-declared public health emergencies like San Francisco's are void, and that the "necessity defense" - basically, esoteric cases of breaking the law in order to prevent an imminent specific threat to life - is invalid.
San Francisco public health director Dr. Sandra Hernandez dismisses Lungren's notions as political rantings, criticizing the governor and Lungren for "continuing to promote an illegality notion."
"It's an opinion," Hernandez says.
"Until it goes to court, it's not illegal. The attorney general is an elected official and has a certain agenda. What you have is one attorney general and one governor who are staring at all this [favorable] evidence ... that it is a good public health program. It's a tragedy when good public health policy is considered illegal." She adds that the legislature's passage of needle-exchange bills is more indicative of the people's will than the governor's vetoes.
"[Needle prescription laws] passed 50 or 150 years ago did not take into account [a] social situation" like AIDS, she says.
District Attorney Arlo Smith interprets the law differently, telling the Bay Area Reporter that "[e]nforcement is a local issue ... juries have been unanimous in accepting the defense of medical necessity." Jordan is equally adamant about preserving needle exchanges.
But Lungren has his allies, like Alameda County Sheriff Charles Plummer, a 47-year law enforcement veteran who asked Lungren for a needle-exchange opinion at about the same time as did the assembly-woman. As recently as 1994, Plummer was busting needle exchangers, in spite of the wishes of the Oakland and Berkeley city councils, both of which had issued San Francisco-style emergency declarations. Former Alameda County District Attorney Jack Meehan would then prosecute, even though many prosecutions ended in acquittals.
Mindful of his oath "to support the laws and the Constitution," Plummer warned the police chiefs in Alameda County not to ignore needle laws, saying, "If they blatantly ignored that, than I'd send in the deputies and make the arrests."