Judge throws out Atlantic City's anti-AIDS needle exchange
Thursday, September 2, 2004

BY SUSAN K. LIVIO
NJ Star-Ledger Staff

A judge invalidated an Atlantic City ordinance yesterday that authorized the local health department to distribute hypodermic needles to help prevent intravenous drug users from contracting AIDS.

Superior Court Judge H. Valerie Armstrong said municipalities lack the authority to institute such programs. Her ruling, which the city plans to appeal, also raises doubt about a similar ordinance approved by Camden this summer but not yet implemented.

The decision came as lawmakers were working with Gov. James E. McGreevey on a plan to change New Jersey law to make hypodermic needles legally available to drug users. On Tuesday, McGreevey said he would seek to legalize needle exchange programs before he leaves office Nov. 15.

Assembly Majority Leader Joseph Roberts (D-Camden) said yesterday that Armstrong's ruling "is the most recent indicator that the Legislature needs to confront the issue of syringe exchange in New Jersey. People -- innocent babies -- are dying."

New Jersey ranks fifth among the states in the number of AIDS cases. State health officials say 60 percent of those cases can be attributed to drug use -- twice the national average.

The idea of giving addicts clean syringes has been debated by state officials for the past decade. New Jersey and Delaware are the only states that ban all forms of needle distribution and decriminalization.

Atlantic City officials enacted an ordinance in June allowing the health department to distribute needles to bring under control what they say is an HIV epidemic. One in 33 city residents is infected with the virus; 60 percent of the city's cases are linked to drug use.

In her decision, Armstrong said she was not evaluating whether such a program was sound public policy, only if it comported with state law. Without a prescription, syringes are drug paraphernalia and illegal to possess without a prescription, she said in her 29-page opinion.

"It is abundantly clear that the Ordinance permits what is expressly forbidden by (state law) ... the distribution of hypodermic syringes by a municipality to persons not authorized to possess them, namely intravenous users of illegal drugs," she wrote.

Atlantic County Prosecutor Jeffrey Blitz, who sued to overturn the ordinance, said the judge's decision was "fully anticipated. We advised the city early on they exceeded their authority."

Atlantic City is expected to appeal, Robert Sandman, one of the city's attorneys, said yesterday.

The city argued that syringes are not clearly identified in state law as drug paraphernalia. It also said the city had the right to "exercise its broad police powers" and pass the ordinance to address a public health emergency.

Philadelphia and Pittsburgh used that rationale when those cities created syringe exchange programs, Roseanne Scotti, director of the Drug Policy Alliance of New Jersey, said. Scotti helped draft Atlantic City's ordinance.

The ruling "is going to be a disappointment to everyone in Atlantic City who worked so hard for this -- community members, the clergy," Scotti said. "This squarely puts the ball in the Legislature's and the Governor's court."

In Camden, officials are awaiting the outcome of Atlantic City's appeal before moving forward on their own program. "We will put our heads together, and join with them in their appeal," Councilman Ali Sloan-El said yesterday.

Roberts said a draft bill could be ready by the end of next week. The options include permitting over-the-counter sale of syringes; creating a pilot program; and allowing municipalities to operate their own distribution sites supervised by the state.

Opponents who see needle exchange as condoning drug use are mobilizing to block the effort. Sen. Ronald Rice (D-Essex) called on other urban lawmakers to defeat the bill. "In Newark, we see the effects of drug abuse everyday in our streets. Government subsidizing of such a dangerous practice as needle use can only spell trouble for areas already battling the war on drugs," he said.

Another opponent, John Tomicki, executive director of League of American Families, said needle exchanges are a "a very unhealthy and risky government policy" and added: "I sincerely doubt there is the support within the Legislature to pass such a controversial and unhealthy program."

Assembly Speaker Albio Sires (D-Hudson) said he would support needle exchange legislation and allow the proposal to be voted on by the Assembly in the fall. Senate President Richard Codey (D-Essex), who will take over as acting governor in November, wants to see what the bill says before he takes a position, said his spokeswoman Kelly Heck.