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New York City police have been ordered to stop arresting and charging drug users who participate in state-sanctioned hypodermic needle exchange programs. Southern District of New York Judge Robert W. Sweet, in a ruling released Wednesday, granted a declaratory judgment in favor of plaintiffs who alleged police were wrongly charging users with drug possession based on the residue of drugs found in used needles, and with illegal possession of hypodermic needles and syringes. “It would be bizarre to conclude that the legislative intent was to permit the creation of needle exchange programs in order to remove dirty needles, while at the same time frustrating that goal by making essential steps of participation criminal,” Judge Sweet said in the class action Roe v. The City of New York, 00 Civ. 9062. The issue before the court was the conflict between New York Penal Law sections criminalizing needle and drug possession and sections of the New York Public Health Law that empower the state Health Commissioner to establish a number of needle exchange pilot projects and designate classes of people who are allowed to obtain needles and syringes without a prescription. The goal behind the pilot projects was to reduce the transmission of HIV and other diseases through the sharing of dirty needles among users, who were given cards that attested to their participation in the program and were supposed to shield them from arrest. But plaintiffs alleged that police officers would ignore, or even tear up, the cards before arresting them for needle or drug possession, even though the New York City Police Department has operations orders recognizing the needle exchange programs. Those orders, Judge Sweet said, instruct officers that a person found in possession of syringes or needles and who has a needle exchange program card should not be charged with possession of a hypodermic instrument if that is the only charge. Sweet first rejected an argument by New York City that he should abstain from resolving the constitutional challenges made by the plaintiffs because there were disputed issues of state law that should be resolved first. The judge then said “there is an apparent conflict between the Penal Law and the Public Health Law that warrants a declaratory judgment.” “Common-sense and this record establish that used needles will contain some residue, a trace, of the substance injected,” he said. “Since needle exchange participants and staff must at some time possess dirty needles, they are apparently expected to violate the Penal Law.” The city had argued that participation in a needle exchange program under the Public Health Law provide only a defense to an arrestee and not an exemption from arrest and prosecution. On the other hand, the plaintiffs contended that the Public Health Law bars arrest for syringes with trace amounts of narcotics, and that to place someone under arrest for those trace amounts is a violation of the Fourth, Fifth and 14th Amendments of the U.S. Constitution. But Judge Sweet said the statutes could be reconciled. He examined the history behind the most recent legislative act on this subject, Public Health Law � 3381(b), which permits the purchase of needles without prescription. Part of that history is a report from the New York State Bar Association’s Special Committee on AIDS and the Law, he said, which cites research proving that access to sterile syringes does not increase drug abuse, and that needle exchange programs help some users seek treatment for drug abuse. “Since unlawful possession of a hypodermic needle is defined by reference to the Public Health Law and thereby the regulations authorizing registered participants, there is no underlying crime,” Sweet said. “Logically and as a matter of law there can be no probable cause.” “The purpose and intent of the statutes to reduce drug use and the spread of HIV/AIDS are to be given effect,” he said. “[A]nd criminal statutes must be construed narrowly.” Representing the plaintiffs were Corinne A. Carey and Doug Lasdon of the Urban Justice Center; Dennis H. Hranitzky and Helen Y. Kim of Debevoise & Plimpton; and Adam J. Wasserman of Swidler Berlin Shereff Friedman. Assistant Corporation Counsel Lisa J. Black represented the city.

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