Do overdose immunity laws save lives or delay deaths? Police, lawyers, lawmakers disagree

Posted July 24, 2017

When he overdosed on heroin last year, the unconscious 31-year-old Middletown man was brought to a local hospital by a friend.

Falls Lt. Nelson Whitney

The hospital staff reversed the overdose and saved his life. Then, Bristol Township police arrested the man who overdosed for possessing five baggies of fentanyl, a powerful opioid often found in street heroin. 

Because the friend who took him to the hospital wasn't in possession of drugs, he didn't need to use a 2014 law that guarantees limited immunity to people who seek medical help for someone overdosing on opioids like oxycodone or opiates like heroin, according to court documents. But prosecutors in the case argued that since the friend didn't need immunity, the man who overdosed shouldn't get it, either.

A Bucks County judge disagreed last month and dismissed the misdemeanor drug possession and paraphernalia charges against the man who overdosed. 

In his June 8 opinion, Bucks County Judge Clyde Waite wrote that it is clear the Legislature intended the overdose immunity law to apply to both the "Good Samaritan" and the person who overdosed on controlled substances if they comply with the law's requirements, including cooperating with police. It was the second time in two years a Bucks County judge used the overdose immunity law to drop charges against someone who overdosed.

"We must also recognize the anomaly presented by a case of this nature where acknowledged criminal behavior is, at least, ostensibly met with the reward of immunity unless the legislature clearly intended that as the intended result of services of a higher purpose," Waite wrote. 

While the Bucks County District Attorney's Office says there are no plans to appeal the latest decision, prosecutors and some lawmakers are raising concern about the Legislature's original intentions and how the law is being applied. 

Pennsylvania is among at least 36 states and the District of Columbia with so-called Good Samaritan laws encouraging bystanders to seek medical assistance for someone overdosing on drugs, by removing any fear of arrest for the person who seeks help.

But law enforcement officials and some lawmakers are concerned about whether the immunity should cover the person who overdoses even if the bystander doesn’t need the immunity because he doesn't possess drugs or drug paraphernalia. The law doesn't address that issue, though one of its cosponsors said the immunity is intended to apply “across the board.”  

Bucks County prosecutors oppose the "across-the-board" interpretation as too broad. Police say it makes it harder to slow the flow of cheap and powerful heroin fueling the drug epidemic by giving immunity to the person who ODs as well as the Good Samaritan. State politicians question whether the law created an unintended treatment barrier for drug users at a moment when they might be most open to it. And there's little long-term data on the effectiveness of the laws since they are relatively new. 

Immunity laws' aim

Overdose immunity laws are part of a drug abuse prevention strategy known as "harm reduction,” which focuses on reducing the consequences of drug use, such as death, disease transmission, drug-exposed births, criminal activity and incarceration.

The movement is rooted in the public health philosophy that accepts addiction as a reality but doesn't condone drug abuse, according to a 2015 study in the Yale University Journal of Biological Medicine. Strategies include creating laws encouraging bystanders to act if they see an overdose; widespread distribution of naloxone, a drug that reverses opioid and opiate overdoses; and adopting prescription drug monitoring programs that track how opioid medications like oxycodone are dispensed.

Research shows that fear of being arrested often discourages drug users from seeking medical assistance for someone experiencing an overdose. Among the latest research is an Indiana study that found many of the 1,300 people surveyed had administered Narcan, the overdose antidote, to a person, but didn't call 911 for fear they'd be arrested themselves because they had drugs. 

Generally, immunity laws protect people from arrest or prosecution for minor drug offenses if they help someone who overdoses on drugs or alcohol. The laws typically require the bystander to remain with the overdosing person until assistance arrives and cooperate with police and emergency workers.

The laws don't provide blanket immunity for all drug-related crimes. In most states, police can arrest individuals for suppression of evidence of crimes unrelated to the overdose and drug offenses that they learn about independently of the overdose call. In Pennsylvania, police can charge someone with delivery of controlled substances or drug-delivery resulting in death, if they gave the person the drug that caused the overdose.

Confusion, objections 

In Pennsylvania, the law has sparked widespread confusion among law enforcement and the public.

“The information about the immunity act, I think, has been slow to spread,” Falls police Lt. Nelson Whitney said. “I think there has been a lot of misunderstandings among the public and law enforcement alike about the immunity statute."

Bensalem Director of Public Safety Fred Harran said he believes immunity laws interfere with the ability of law enforcement to identify major drug suppliers by removing an incentive for small dealers and drug users to cooperate with police in exchange for reduced criminal charges.

“People who abuse narcotics don’t tend to help you unless they get something out of it,” Harran said. “If you don’t get to the higher drug dealers, it’s possible for every one life that is saved (with the immunity law), two are lost.”

The Bucks County District Attorney’s Office believes county judges are improperly applying the law to people who overdose where there is no evidence the bystander who intervened is at risk for arrest, prosecutor Daniel Sweeney said.

Since the law took effect, Sweeney estimated between two to four drug cases each trial term — at least 32 cases a year — are dismissed against individuals who overdosed. The dismissals can be the basis of civil suits against police and prosecutors, he said. 

Last month, a northeastern Pennsylvania woman filed a federal lawsuit against the Wyoming County District Attorney’s Office and the Tunkhannock Township Police Department for arresting her last year on drug and paraphernalia possession charges after she overdosed on heroin. The woman’s mother brought her to the hospital and gave the drugs and paraphernalia to hospital staff, who called police. A county judge eventually dismissed the charges.

“While it’s a well-intentioned law, its goals are not going to be met,” Sweeney added. “The law needs to be rewritten to say protect the caller or the person who transports, but not necessarily the person who overdoses,” Sweeney said. “I know it sounds callous, but people don’t kick an opiate addiction on their own.”

Free pass?

There also appears to be confusion among state lawmakers over how the immunity law was to be applied.

Montgomery County Rep. Todd Stephens, R-151, of Horsham, and a former Montgomery County prosecutor, said he supported the bill because he interpreted it as providing immunity only to bystanders — if the bystander was at risk of arrest.

“It’s probably something we should take a closer look at,” Stephens added. “A criminal prosecution is one way to ensure that people are provided treatment options through the criminal justice system.”

Sen. Gene Yaw, R-Williamsport, one of the bill's cosponsors, recalled that lawmakers involved with the legislation believed the immunity would be applied “across the board to everybody,” but that it wasn’t something they considered deeply.

“I don’t think we ever really thought about it when the original bill was passed,” Yaw said. “We never thought this is one of those consequences that came about after the fact. We thought people being saved would be grateful, frankly.”

The one aspect of the law its cosponsors were clear about is that they wanted to remove any question that someone who sought medical attention for an overdosing person could be arrested for minor drug charges, Yaw said. “We didn’t want to make it a legal question, where someone runs through their mind, ‘Should I call my lawyer, before I call 911?’” he said.

But after hearing growing concerns from first responders, Yaw said the law needs to be amended to assure that individuals who overdose seek treatment. Earlier this year, he introduced a bill that would extend immunity to individuals who overdose only if they enter drug treatment within 30 days after the incident. Yaw’s bill is in the Senate Judiciary Committee.

“We can no longer give individuals suffering from an opioid or other drug-related overdose a free pass, only to have them overdose a second or subsequent time and risk dying,” Yaw wrote in the bill’s co-sponsorship memo. “It is vitally important that we get them into treatment as quickly as possible.”

However, demand for inpatient drug treatment beds in Pennsylvania far exceeds current capacity, and it’s hard to find an open detox bed anywhere in the state, especially on weekends, said Rep. Gene DiGirolamo, R-18, of Bensalem, chairman of the House Human Services Committee and a longtime advocate for expanded drug treatment.

DiGirolamo, who supported the original law, said he believed its purpose was to save lives immediately, but it may be time to rethink that approach.

“We need to get that person (who is overdosing) into treatment,” DiGirolamo added. “Maybe what we should be looking at is kind of that the person who overdoses only gets that limited amount of immunity if you agree to get a (drug) assessment. To me, that makes a whole lot more sense.”