News: CJ Exclusives

HOPE Act heads to governor but civil liberties concerns remain

The HOPE Act would allow local police to access without a warrant the medical records of drug suspects.

Senate Bill 616 passed the House on Thursday, June 14, and was sent to the governor.

The bill would allow local investigators to access the Controlled Substances Reporting System — an online database of patient prescription records — without judicial oversight for suspects involved in an active drug investigation.

The CSRS in North Carolina lists drugs under categories set by federal regulators in Schedules II through V. Those drugs range from narcotics with a high potential for abuse such as morphine to common prescription cold medications and antidepressants.

The lack of oversight ignited concerns among civil liberties advocates and legislators, who have become concerned over Fourth Amendment rights.

Rep. Robert Reives, D-Lee, introduced an amendment Wednesday to require a court order before police could access the CSRS, but the amendment failed, 48-55.

Reives was concerned the HOPE Act would allow law enforcement to view the medical records of anyone involved in an drug investigation, including witnesses.

“That’s a really uncomfortable step forward on how we treat privacy,” Reives said. “If you can’t get into my iPhone [without a court order], it seems like you shouldn’t really be able to get into my prescription records. To me, your medical records are as personal as they get.”

Jettisoning judicial approval is key because criminals disappear across state lines long before law enforcement can catch up, said the bill’s sponsor, Sen. Jim Davis, R-Macon.

“The amendment would have left us, generally speaking, in the status quo, which is a concern with the timeliness of these investigations,” said Brandon Zuidema, president of the N.C. Association of Chiefs of Police. “We’re not trying to reduce the requirement to get access to that information, we’re trying to expedite the process.”

Some lawmakers weren’t convinced.

“That’s how you eat an 800-pound elephant, one bite at a time. That’s how you lose your liberty, one bite at a time,” Rep. Michael Speciale, R-Craven, said on the House floor Wednesday night.

No one mentioned it at the time, but the American Civil Liberties Union had pointed to a debacle in Utah, where similar legislation went wrong. In 2013, a detective accessed the medical records of 480 employees of the local fire department, misinterpreted their information, and charged two firefighters with crimes they didn’t commit.

“That really put those first responders through a really painful and horrible experience, because the records were broadly accessed by law enforcement without a warrant,” said Sarah Gillooly, ACLU N.C. director of Political Strategy and Advocacy. “We have seen that permissiveness [with access to the CSRS] in other states, and we have seen it be abused or misused.”

Utah overhauled the law in 2015, reinstalling a probable cause warrant from a court as a requirement for accessing the CSRS.

Other states also have what Gillo0ly considers lenient standards for accessing the CSRS, but the HOPE Act would make North Carolina the first state to allow law enforcement such broad, sweeping access without a warrant.

“The problem with the HOPE Act was that it allows warrantless searches. There were not constraints in place to protect confidentiality or privacy,” said Rep. Pricey Harrison, D-Guilford. “You’re on a slippery slope when you start chipping away at the Fourth Amendment.”

Critics wonder why politicians are giving the police access to the CSRS now, when police crackdowns have already driven many addicts out of pharmacies and into the black market.  

“Allowing local law enforcement access to CSRS data presents a potential threat to civil liberties not outweighed by any possible benefit to North Carolinians … especially now that the largest threat to public safety and health is illicit heroin and fentanyl,” the Addiction Professionals of N.C. said in its newsletter, the Empowered Advocate.

Police responded by citing growing concerns over gang activity.

“Formalized gangs like the Bloods or the Crips, they pick up individuals, generally homeless people, drop them off at a pharmacy, and have them get a prescription pills and bring them back out. For a couple bucks, they get those pills,” High Point Police Chief Kenneth Shultz said. “By the time we get the information back, it is too late, and these people have already cleared out of our area.”

It’s an oft-repeated refrain from lawmakers, who say they can’t arrest their way out of the opioid epidemic. But civil liberties advocates worry the HOPE Act would do little more than make it easier for law enforcement to make arrests.

“The HOPE Act represents a backwards culture shift away from treating substance use disorder as a disease and toward criminalizing illness,” SUD Foundation said in an email to its members.

“I don’t think it’s true that users are the ones getting arrested. All my focus is on dealers right now,” Shultz said. “There is an accountability aspect here. If you’re doing something wrong, we’re trying to hold you accountable.”

Shultz isn’t the only officer who mourns the loss of an felony charge provision in HOPE Act, which civil rights advocates called draconian. The original draft would allowed the state to prosecute dealers with murder if their drugs killed users.

“We have seized what we have thought was heroin from individuals that turned out to be 100 percent fentanyl,” Shultz said. “If that is going out there, that’s killing people. And they need to be held responsible for that. If we can put some more pressure on them, they would have to weigh getting rich with getting charged with murder if someone dies.”

That provision would have become particularly relevant in the coming years.

“We anticipate that as we reduce the prescriptions of illegal opioids out there, people who are addicted are going to go to heroin and fentanyl,” said Davis, acknowledging the possibility overdoses could spike as a result. “But if we can minimize the number of people who are addicted to prescription opioids, we think that it will reduce the market for heroin and fentanyl.”

Davis and Murphy said they have already begun work on the “third chapter” of legislation continuing the push of the HOPE Act and the STOP Act.

“It’s still to early to make any predictions, but this is a dynamic process,” Davis said. “Our work will never be done until this opioid epidemic is over, and I don’t anticipate that being anytime soon.”

Davis said legislators are considering opioid sentencing reform, as well as adjusting the quantity of drugs that classifies holders as dealers. He said it was unlikely North Carolina would consider putting time delays on prescriptions. Among other states, Arizona requires patients to wait five days before filling a prescription for the first time.

“At first blush, I would be reluctant to tie the hands of providers,” Davis said. “After surgery, pain medication is certainly an appropriate treatment regimen. It would be unfair to make people wait three days to get medication.”