A drug addict walks into a treatment center looking for help.
In her coat pocket is a used syringe containing a white powdery residue, later identified in a forensic laboratory as a minuscule amount of methamphetamine. The next day, workers at the drug treatment center find the syringe in her belongings.
Should they call the police?
In Pennington County, the answer is yes.
They did just that two years ago in the case of a 22-year-old, Native American Rapid City woman, who was charged with two felonies as a result.
Though it runs counter to procedure at other drug treatment centers in the state, notifying law enforcement has become established practice in the handful of similar cases that arise every year at the City County Alcohol Drug Program (CCADP) in Rapid City.
As a result of her felony conviction, the young woman — whose name is not being used in this article to protect her privacy — was locked up for more than 200 days in the county jail and state prison. Now, out of her cell and reportedly clean of drugs, the woman is claiming in a federal lawsuit that what happened to her was a violation of federal law.
Passed in 1972, federal regulation 42 CFR Part 2 requires drug treatment programs to maintain strict confidentiality of all patient records. The young woman’s lawsuit argues that her patient information was illegally divulged to the Pennington County Sheriff's office by employees of the county-run drug treatment center. That information was then used by the Pennington County State’s Attorney’s office to charge her with a crime in direct violation of 42 CFR Part 2, the lawsuit alleges.
Jennifer Giroux is a medical epidemiologist with the Northern Plains Tribal Epidemiology Center. She has become a fierce advocate for the young woman and is pursuing the federal lawsuit on her behalf. Giroux believes that a person who goes to a drug treatment center looking for help has a legally supported expectation to not be criminally charged for their drug or alcohol use.
“They’ve crossed over into a sanctuary,” Giroux said. “They’re reaching out for help, for treatment, and we fast track them to the criminal justice system?”
She views the problem of substance abuse as a public health crisis rather than a law enforcement problem.
“We’re traumatizing people,” she said, “which only fuels their substance abuse disorder.”
Up until recently, Giroux served as an active member on the Citizens Advisory Committee, a group organized by Rapid City Police Chief Karl Jegeris to improve communication between the Rapid City Police Department and the community at large.
Giroux resigned from the committee in April at the request of Jegeris, who described the parting as mutually agreed upon, and as a direct result of Giroux’s federal lawsuit. In her farewell letter to the committee, Giroux contended that the county drug treatment center was being improperly “transformed into an extension of law enforcement.”
“If an individual ... does not seek treatment for addiction disorders because they rightly fear that seeking treatment may result in criminal charges," Giroux wrote in her letter, "the crisis of substance abuse and the devastating consequences to all of us will continue unabated in our community.”
Pennington County Sheriff Kevin Thom said he doesn’t think there’s anything wrong with how her case, or others like it, have been handled.
“The notion that we’re trying to criminalize people getting treatment is absolutely not accurate,” Thom said. “We even have an amnesty box up there where people can put stuff in there and not be charged.”
The amnesty box Thom referred to can now be found inside the entrance vestibule of the drug treatment center on North Lacrosse Street. Before they enter, individuals seeking treatment at the facility are now offered the opportunity to discard any drugs or paraphernalia in their possession into the amnesty box.
But that box wasn’t there two years ago on the night the young woman returned with a syringe in her pocket. It was only installed within the last six months, according to Thom, and as a direct result of the young woman’s case.
“It felt great”
The young woman at the center of the federal lawsuit has struggled with depression and drug addiction for most of her adult life. For her, and many other substance abusers, the two have gone hand in hand.
As a child, she was molested by a member of her own family. Shortly before freshman year of high school, her brother committed suicide. Falling into a deep depression, she began covering her bedroom windows with black construction paper to keep out the light. When she was injured as a teen in a game of soccer, doctors gave her a prescription medication to dull the pain.
“It felt great,” she said. “That was the beginning.”
She was 20 years old on December 31, 2013, the day Giroux had her involuntarily committed to the county drug treatment center by order of the court. She was to complete an inpatient chemical dependency treatment regimen for a period not to exceed 90 days. Her use of drugs and alcohol, according to the court order, had become “incapacitating”.
“I was really lost,” the woman said.
Wanting help with her recovery, she willingly complied. Several weeks pregnant at the time, she left the county drug treatment center on Jan. 16, 2014 on a court-approved leave to undergo an abortion outside the state. She made the decision to terminate the pregnancy because she had contracted a serious illness and the medication prescribed by her doctors would have had severe negative effects on the unborn child’s development.
The procedure completed, she made her way back to Rapid City on Jan. 20, 2014. On her way back to drug treatment, she visited some friends.
“They were using drugs and they offered me some,” she said.
She took a syringe of methamphetamine and left the house. Before going back to the county drug treatment center, she stopped in a public restroom and injected the contents of the syringe into her blood stream — one last hurrah before going clean, she said.
Absentminded and under the influence of the drug, she put the used syringe in her coat pocket and returned to the county drug treatment center.
Staff members did not search her that day, according to documents submitted to the court by Giroux. Sheriff Thom declined to comment on this and other details related to the case, citing the Health Insurance Portability and Accountability Act, or HIPAA, a federal law passed in 1996 that protects the confidentiality of an individual’s health information.
Before she went to sleep that night, the young woman found the syringe in her coat pocket and panicked. From the days she’d already spent at the treatment center, she knew it was common for staff members to do random searches of clients’ belongings.
She removed the syringe from her coat and tangled it in a ball of yarn, hoping staff members wouldn’t find it. If they did, she knew she would be in serious trouble.
Looking back on it now, she knows something else she didn’t know then.
“If I had turned it in to them anyway,” she said, “I would have still gotten in trouble.”
Trace amount found
The next day, staff members received a tip that one of the female clients had brought drugs into the facility. Each female client was then searched, according to an internal incident report written by a staff supervisor. In the young woman’s duffel bag, staff members found a bundle of yarn wrapped around a syringe containing a "white powdery substance."
Staff members asked her to produce a urine sample, then quickly reported the finding to the Pennington County Sheriff’s office, which oversees the locally funded drug treatment center at 725 N. Lacrosse St., known colloquially as detox.
Sheriff's Deputy Paul Stevens arrived at 9:20 p.m. Drug treatment staff cooperated with his investigation, readily supplying him with evidence and confidential information about the young woman.
The staff supervisor “showed me the yarn with the syringe,” Stevens said in his report. He snapped some pictures, took the syringe as evidence and escorted the young woman into the medication room, where he began to question her.
She confessed that the syringe had been given to her by a friend, and that the “trace amounts of substance” inside it was methamphetamine. She had tried to “conceal it in the yarn when she realized it was in her pocket as she did not want to get in trouble,” Stevens wrote in his report.
She told him that she “had used methamphetamine during her scheduled furlough,” and that her last use had been the previous day. She “had not used in the facility but due to her drug use forgot she had the syringe on her person,” Stevens stated in his report.
After several minutes, Stevens “came out and wanted to know the details of her stay at the county drug treatment center,” the staff incident report states. “He was provided this information,” and given a copy of the court order for the young woman’s involuntary commitment to the facility, the report said.
Stevens did not arrest her at that time. “I felt it was best for (her) to continue her treatment,” he stated in his report, “rather than remove her from that environment and place her in jail.”
Stevens explained to the staff supervisor that though he was recommending against criminal charges, he would submit his report and a warrant request for possession of a controlled substance. It would then be up to the Pennington County States Attorney’s Office to decide whether to pursue criminal charges.
According to Giroux, the young woman was taken out of her treatment program and detained in an isolation room at the facility for three days until deputies returned to take her into custody.
“Not even measurable”
Using a Gas Chromatography Mass Spectrometer, drug analyst Richard Wold with the Rapid City Police Department was able to determine that the substance within the syringe was indeed methamphetamine.
In his report, Wold used the word “residue” to describe the syringe’s contents, a subtle but significant contrast to the "trace amounts" noted in Deputy Stevens' incident report.
Neither Wold nor Sheriff Thom would disclose the exact measurement of methamphetamine found in the young woman's syringe. However, when asked what "trace amount" typically refers to, Wold said it would be a measurement "less than .050 grams."
On the other hand, a residue of the kind officially recorded in Wold's report is such a small amount that, according to Wold, it isn't even measurable.
"If I can't scrape it up in a pile and measure, it's a residue," Wold said.
Sheriff Thom agreed with this summation.
“It probably wouldn’t even be measurable, so to speak, in terms of a significant weight,” Thom said of the syringe's contents.
But, Thom added, possession is possession in the eyes of the law, whether it’s an immeasurable residue or a whole bag of methamphetamine. In that light, Thom believes pursuing criminal charges was the correct course of action.
Acting on Stevens’ warrant, Deputy County State's Attorney Sarah Morrison charged the young woman with two felonies: possession of a controlled substance and ingestion of a controlled substance. Morrison, who is named in the federal lawsuit along with Deputy Stevens, did not respond to multiple requests for comment.
The ingestion charge was eventually dropped. The young woman spent 18 days in the Pennington County Jail before Giroux secured her release. The court suspended the imposition of her sentence and placed her on probation, allowing her to undergo treatment for her substance abuse provided she met certain requirements.
The court eventually changed its position when she was arrested for a DUI in a non-moving vehicle in May of 2014, breaking the terms of her probation.
From that point forward, the young woman spent her days transitioning to and from Giroux’s care, various drug treatment programs, the Pennington County Jail, and eventually the South Dakota Women’s Prison when she was arrested for a second DUI in a non-moving vehicle in December 2015. She was incarcerated there for 60 days, according to Giroux’s records.
“You meet all these people who are so broken,” the young woman said of her time in prison. “They’re criminals for trying to fill that void in their lives with drugs.”
Prior to her arrest at the county drug treatment center in January 2014, the only infraction on her criminal record was a speeding ticket.
Federal law in play?
According to a 1994 publication by the US Department of Human Services, the rationale behind federal code 42 CFR Part 2 is that individuals will be more likely to seek treatment for substance abuse disorders if they have no fear of reprisal.
The law is stricter than most other rules regarding confidentiality, including HIPAA, and violators could be subject to a $500 fine for the first offense, $5000 for the next. It is a violation of the law for a drug-treatment program to even reveal the fact that an individual is enrolled in the program.
The regulation only allows disclosures of confidential patient records to police under a set of narrowly prescribed circumstances; primarily, when a serious “threat to life or bodily injury” has been or is about to be committed on the premises of a drug treatment center. The law lists homicide, rape, kidnapping, armed robbery, assault with a deadly weapon, and child abuse as examples of the types of crimes law enforcement can be immediately called in to a drug treatment center to address.
In most cases however, the law calls for the issuance of a court order before a criminal investigation of someone enrolled in drug treatment can be initiated. No such court order was issued in the young Rapid City woman’s case.
One of the burdens placed on law enforcement seeking confidential patient records is they must show “the potential injury to the patient is “outweighed by the public interest and the need for disclosure.” According to the law, even when disclosures are allowed, great pains must be taken to provide the patient due process and to keep their identity confidential.
The Legal Action Center, a national nonprofit law and policy organization that advocates for the rights of addicts, sent the Journal the following written statement regarding 42 CFR Part 2:
“The purpose of the federal substance use disorder confidentiality law (42 CFR Part 2) is to encourage people to enter and stay in treatment. Reporting clients who seek help while still in possession of small amounts of drugs does not further that objective.”
“That’s not our problem”
Giroux has spent the last two years voicing concerns to authorities that the young woman's rights as laid out in 42 CFR Part 2 have been violated by Pennington County authorities. She has had multiple meetings with Thom and Brenda Wood, the director of the county run drug treatment center, and corresponded with the Pennington County State's Attorney's Office, the South Dakota Department of Social Services, and the U.S. Department of Justice.
The most frequent response she has received is that the county drug treatment center did nothing wrong.
In a letter sent last April, DSS explained that it would not investigate because the "agency followed their policy," presumably referring to the treatment center's practice of seeking criminal charges against any person who comes through the front doors with drug contraband in their possession.
But there is no written policy at the county drug treatment center that requires such action be taken. Written or unwritten, Giroux argues that the policy in use in Pennington County is in violation of 42 CFR Part 2.
Attorney Randolph J. Seiler, with the U.S. Department of Justice, told Giroux in February that no injustice was perpetrated against the young woman because she herself had committed “a crime on the premises.”
“Information related to crimes committed on premises may lawfully be disclosed and used for prosecution,” Seiler stated. “That is the end of our office’s jurisdiction over this matter. Your complaint that a crime was committed was not substantiated.”
Gioroux is unsatisfied with this response, pointing out that a crime as defined by 42 CFR Part 2 was not in fact committed by the young woman.
She was similarly rebuffed by the Department of Justice and State's Attorney's offices, which Thom points to as proof that the county drug treatment center did nothing wrong.
"We feel we’ve been exonerated already by those two entities," he said.
In an email sent to Pennington County State’s Attorney Mark Vargo on Dec. 5, 2015, Giroux wondered if perhaps the young woman's case was just “the tip of the iceberg.”
“How many more folks were illegally funneled into the criminal justice system and are still there?” Giroux said.
Similar cases do occur, but in Thom's view, they are rare to the point of insignificance. According to the sheriff, three or four individuals are arrested every year at the facility for having drugs or drug paraphernalia in their possession.
Staff do not have discretion to handle the situation in a variety of ways, Thom said. The outcome is the same 100 percent of the time.
“If they find drugs, they report it to law enforcement,” he said. “No agency policy covers every possible scenario.”
Other drug treatment centers in eastern South Dakota are reluctant to apply a one-size-fits-all approach to dealing with clients who have drugs in their possession, but Sheriff Thom has no misgivings about how things are done here in Pennington County.
When asked if it is reasonable to expect a certain percentage of clients to have drugs in their possession, either on purpose or inadvertently, before entering into substance abuse treatment, Thom answered in the negative.
“If you’re going to turn yourself in for treatment, why would you have drugs on you?” he said. “Someone chooses to bring contraband into a secure facility, that’s not our problem, that’s their problem. They created that, not us.”
Different practices elsewhere
Other drug treatment agencies in South Dakota agree with Thom that it is exceedingly rare to see someone walk through their doors with drug-related contraband in their possession. Some of them disagree, however, with the sheriff’s ideas about how those individuals should be dealt with.
Johnny Ray is the clinical supervisor of the Sioux Falls Treatment Center, which provides outpatient care for addicts. If a client brings drugs with them, police might be called, but not 100 percent of the time as is done in Rapid City.
The police, Ray said, “are concerned of course about the dynamics with drugs in our community, so they reach out to all the providers in our city, and I think we have a positive relationship with them. But at the same time, we want to make sure this is a place where individuals can go and receive the treatment they need to receive, and in that process experience a reduction in criminal activity.”
Justin Fallon is the executive director of Tallgrass, a privately run Sioux Falls-based inpatient treatment center for persons suffering from substance abuse disorders. A therapist for the last 20 years, Fallon approaches the question from a public health perspective rather than a law enforcement one. As he sees it, a range of actions are available in instances where someone brings drugs to a Tallgrass facility.
In very rare situations, the drugs might simply be disposed of and the person allowed to enter, though this would be a major exception to the rule, Fallon noted. Most of the time, the person will simply be barred from entering the facility. If drugs are found among the belongings of an enrolled client, that person would be discharged. Even in those cases, Fallon said, Tallgrass employees are instructed to do the best they can to make sure the individual gets help somewhere else.
“We would want to connect them to the emergency room, or detox, or a higher level of care,” Fallon said. “We don’t just kick people out and say ‘good luck’, because that’s really irresponsible.”
That doesn’t mean Fallon would never call the police. Extraordinary circumstances might warrant such a call. “But,” he said, “that is not always my first reaction.”
Every situation is unique, but having written policies to fall back on, Fallon said, is key. “And our policy says if you’re under the influence and you have drugs, you can’t be here. We wouldn’t just kick them out. We physically get them to another facility. I can’t stress how important that is, that we don’t just show them the door.”
It can be a difficult balancing act, but Fallon tries to help every person who comes to his door looking for treatment, even the ones who bring drugs with them.
“You have to get rid of the drugs,” he said. “But it doesn’t necessarily mean you can’t help them. I take pride in the statement that if we’re not the right program, we’ll find one that is.”
The young woman is a little older and perhaps a bit wiser now. Sitting in a Starbucks on a recent July afternoon, she doesn’t look like a convicted felon who used to abuse drugs. Her clothes are vibrant, clean cut and professional. She's going to school again. She recently became a homeowner, who enjoys cooking and gardening in her free time. She hasn’t touched drugs for nearly a year, and she plans to get married to her boyfriend soon.
“You know you’re doing well,” she said, “when you can tell your story without crying.”
She sees who she was two years ago as a completely separate person from who she is now. But that former persona continues to have a significant impact on who she is today and what she can become tomorrow.
Being a felon has made it difficult for her to get jobs. She has lost the right to vote. Every time she wants to set foot across Pennington County lines, she has to get prior approval from a probation officer.
As far as the new amnesty box, the woman said she would have used it that day to dispose of the syringe.
Meanwhile, the federal lawsuit against the county drug treatment employees, the Sheriff’s Office, and the Pennington County State’s Attorney Office is in limbo. Giroux’s attorney has dropped out, and the defense has put in a motion to dismiss.
But Giroux is unshaken. Even if the lawsuit fails, she will continue to protest the City County Alcohol Drug Program's institutionalized practice of seeking criminal charges against clients who she believes haven't done anything wrong.
“I will not stop until it is stopped,” she said.
Giroux recently received a response from the Office for Civil Rights, a federal agency that protects an individual's civil and privacy rights. Like the other groups she has reached out to, the OCR said in its letter that it will not take any punitive action, but with one crucial difference.
Based on Giroux's description of events, the letter acknowledged that a breach of federally protected confidentiality had indeed occurred. The OCR informed Giroux that it has closed its case against the Pennington County drug treatment center with one caveat:
If it receives another complaint alleging that Pennington County drug treatment staff have broken the confidentiality rights of their clients, “OCR may initiate a formal investigation of the matter.”