This story by Sara Wilson appeared on Colorado Newsline on August 13, 2024.
A Pueblo County judge considered arguments Tuesday for and against a citywide ordinance to prohibit syringe exchange programs, three months after the Pueblo City Council passed the controversial measure.
The court’s decision on the merits of the case and whether to block enforcement of the ordinance will determine whether two syringe exchange programs in the city can continue to provide sterile injection equipment to people who use drugs.
Those sites are places where people who use drugs can access sterile needles and other paraphernalia for free, as well as get connected to resources and support services. The harm reduction approach at the sites intends to reduce disease transmission and prevent overdose deaths.
In May, Pueblo City Council voted 5-2 to effectively ban syringe exchange programs in the city.
Colorado Health Network and the Southern Colorado Harm Reduction Association then sued the city over the ordinance, and District Court Judge Tayler Marie Thomas granted a temporary restraining order on the ordinance ahead of the case’s first hearing on Tuesday.
Attorneys for CHN and SCHRA argued that a state law allowing syringe exchange programs to operate, and a 2020 amendment that allows experienced nonprofits to operate them without local interference supersedes the Pueblo ordinance. That state statute sets minimum requirements for syringe exchange programs, attorneys said, including that they have the ability to provide access to sterile injection equipment.
“This isn’t an issue where there’s some overlap between what state law authorizes and what the ordinance prohibits. The only thing it prohibits are activities that are authorized and exempted from prosecution under state law,” attorney James Albert Kelly said.
That satisfies the Colorado Supreme Court’s standard for “operational conflict” under the City of Longmont v. Colorado Oil and Gas Association precedent, Kelly said.
Additionally, the state has a declared interest in reducing the spread of blood-borne disease and preventing overdoses. Concerns about prohibitive ordinances are what led the Legislature to amend the statute in 2020 to allow nonprofits like CHN and SCHRA to operate a syringe exchange program without local health board approval.
“The state has just as much of an interest in preventing needless and unnecessary deaths from overdose whether those occur in Pueblo, Grand Junction, Denver or elsewhere,” Kelly said. “The ordinance gets in the way of it by creating large access gaps in the state.”
Attorneys for the city argue that the ordinance is narrowly tailored to the distribution of syringes, and does not affect the programs’ ability to offer services like disease testing, education and opioid antagonist distribution.
Attorney Geoffrey Klingsporn said the state statute and city ordinance need to be absolutely irreconcilable for the ordinance to be struck down, which he said the plaintiffs have not proved is the case.
“The ordinance’s main concern is clean syringes, empty syringes being handed out,” he said. “They need to point to a specific mandate in the state statutes that requires the plaintiffs hand those out. They haven’t met that.”
Under state statute, a syringe exchange program must have the ability to provide people with “access” to sterile injection equipment.
“Whether that access requires distribution is the textual question that the court must answer,” Klingsporn said. The city ordinance, he said, is concerned with distribution.
Thomas questioned, however, how a needle exchange program could be called such without the ability to exchange needles.
Additionally, Klingsporn argued that when read as a whole, the statute gives municipalities the power to opt out of a syringe exchange program, even if the program began under that revised subsection from 2020.
“As the City reads that subsection and that amendment, it does not create a zone completely outside local control,” he said. “It does not immunize a syringe exchange program from all regulation by the municipality in which it decides to land.”
Thomas said she will hand down her order on the matter within three weeks.