As written, an ordinance to restrict Lewis County’s sole needle exchange program “likely” violates state and federal law, according to a pair of letters sent to the board of county commissioners.
“Because syringe exchange programs are authorized by statute, we believe Ordinance 1354 is likely preempted by state law,” the American Civil Liberties Union (ACLU) of Washington wrote in a letter dated March 25.
The letter comes after Kaplan and Grady, a law firm specializing in civil rights, claimed in a letter dated March 18 that the ordinance “as written, likely violates federal civil rights laws.”
“If implemented, it will likely lead to a federal civil rights lawsuit for violations of the Americans with Disabilities Act (ADA), the Rehabilitation Act (RA), and the Equal Protection Clause of the United States Constitution,” David Sinkman, an attorney at the firm, wrote.
The letter from Kaplan and Grady, Lewis County Deputy Prosecutor Robert Bradley said, was addressed during an executive session this week. On Tuesday, Bradley recommended the board further discuss the ACLU letter in executive session, “considering the litigation history.”
The risk of legal action comes as the Lewis County commissioners again delayed a decision on adopting the ordinance, this time until April 16, after Commissioners Lindsey Pollock and Scott Brummer signaled they’d like to see additional amendments, changes that were not completed before Tuesday’s meeting.
As drafted, the ordinance would ban mobile needle exchange programs, require program operators to offer “on-site counseling or referrals for an approved substance use disorder treatment program,” and ban needle exchange programs from use as a “safe or supervised injection site,” among other requirements.
Currently, Gather Church operates the only mobile needle exchange program in Lewis County.
The ordinance would require the needle exchange to operate as a one-for-one — meaning to get a new needle, a participant would have to turn in a used one — and would forbid “other drug paraphernalia” from being “issued or distributed in any manner.”
“We have to do things differently. The numbers are going the opposite way,” said Commissioner Sean Swope, who first proposed the ordinance. “Record high overdoses. We need more treatment in our community, and we need to get people into treatment. This isn’t to penalize anyone. This is just a pivot and to say we need a change in our community because we want to save lives.”
According to Bradley, Pollock submitted “a list of proposed amendments” on Friday, which amount to “significant changes” to the proposal.
“There are enough changes where I’m going to submit, basically, an alternate chapter,” Bradley said Tuesday.
An amended ordinance is expected by the end of the week. Despite the legal risks, Swope encouraged his seatmates to move forward on Tuesday.
“To be very clear, I know that we’re probably going to have some type of litigation with this,” Swope said. “It’s important to make change in our community.”
Swope called for a vote on the ordinance as written during Tuesday’s meeting and voted against the motion to recess until April 16, though he was overruled in both instances by his seatmates.
“I think the ordinance will withhold any legal challenge, and I think it will save lives, as well,” Swope said. “And that’s the most important piece of this. We have to have accountability and we have to move people in the right direction.”
According to Centralia Police Commander Andy Caldwell, the number of overdoses in Centralia nearly doubled from 2021 to 2023, increasing from 34 to 65. In the first two-and-a-half months of 2024, Centralia has had 19 overdoses.
“We do not need to be like Seattle, Portland and Olympia and experiment because, as we can see, and I hope everyone can see, that is a failed experiment,” Police Chief Stacy Denham said Tuesday, adding that syringe exchange programs need additional regulation. “We are not those areas. We are Lewis County, and we’re Lewis County Strong.”
The potential for litigation comes as Lewis County considers becoming the first county in the state to adopt stricter regulations on such programs.
“For the sake of some other organization coming in and operating a (syringe services program), I’m very much in favor of some kind of ordinance,” Cole Meckle, the pastor of Gather Church, said Tuesday. “Again, it just has to be thoughtful, not punitive.”
Kate McDougall, a member of both the Chehalis City Council and the Lewis County Behavioral Health Advisory Board, said she opposed the ordinance as written.
“I would not pass the ordinance today. I think that we need more work on it,” McDougall said. “I think we need to do more work, and I would ask for more time to look at this ordinance to keep everything holistically safe.”
According to Commissioner Brummer, the commissioners have received more than 50 pieces of written public comment, with more than 40 in support of the ordinance “in its current form.”
“I think that it is prudent for the protection of the people, and the taxpayers, that we do our due diligence to ensure that, as best we can, we have carefully looked at all aspects of this ordinance before its passage,” Brummer said. “At this point, I am well in support of it as written, but as I’ve said, I would like to see your proposed amendments, Commissioner Pollock.”
Potential conflict with state law
In a three-page letter to the Lewis County commissioners, the ACLU of Washington wrote that the proposed ordinance “will greatly inhibit the viability of syringe exchange programs currently existing in Lewis County.”
As written, three or more violations of “any portion” of the ordinance could result in a misdemeanor charge for needle exchange operators in Lewis County, a charge that could result in a penalty of up to 90 days in jail and a monetary fine.
“I don’t want Lewis County taxpayers to have to pay money to try and defend an ordinance that has components in it that are not legal,” Meckle said. “It’s not the ordinance itself, it’s the criminalization of these activities, which itself is not legal.”
Like Meckle, Pollock voiced concern about the ordinance’s enforcement mechanism.
“I get really concerned when we’re talking about the criminalization of health care after the debacle that we’ve been through in the past four years,” Pollock said.
According to the ACLU of Washington, the potential criminal charge places the ordinance “in direct conflict with the Uniformed Controlled Substance Act as the lawfulness of needle exchange programs are expressly authorized under RCW 69.50.4121(3).”
“The ACLU of Washington trusts that the Lewis County Commissioners will develop alternative methods to ensure the safe implementation of harm reduction services that do not run afoul of state law,” the letter reads. “Moreover, it is our hope that the commissioners consider reasonable alternative measures for the greater good of the county and all its constituents.”
Potential conflict with federal law
In a seven-page letter addressed to the clerk of the board, Sinkman states that both the Americans with Disabilities Act (ADA), and the Rehabilitation Act (RA), protect the program “unless there is objective evidence that Gather Church and its patients pose an actual risk of a direct harm to others (not themselves).”
“Ordinance 1354 is not supported by any report, testimony, photo, or other evidence documenting any public safety danger caused by the operations of the one mobile syringe service exchange in Lewis County,” Sinkman wrote. “Rather, it appears driven by animus against syringe service exchanges and the people they serve and by unfounded fears of increased drug use, crime, and the number of unhoused in the county.”
According to the letter, a federal challenge to a restrictive zoning ordinance resulted in the town of DuBois, Pennsylvania, paying $132,800 in damages and over $270,000 in attorney fees and costs.
“To avoid the risk of protracted and expensive litigation and possibly a federal investigation, Lewis County should not enact Ordinance 1354 as written,” the letter states.
