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Colorado’s new U.S. attorney wants law enforcement to treat overdose deaths as homicides as he focuses on opioids

Jason Dunn, appointed by President Trump, laid out some of his office’s redoubled tactics in an interview with The Colorado Sun — his most extensive remarks to the news media since taking office

ason Dunn, Colorado’s new U.S. attorney, has made stemming the state’s opioid epidemic a top focus of his office, encouraging law enforcement in the state to investigate overdose deaths as homicides.

He is also digging into data on doctors and nurses who prescribe unusually large quantities of opioid painkillers, with an eye toward prosecuting those who are illegally diverting the drugs and, he feels, adding to the scourge of heroin.

Jason Dunn. (Provided by Brownstein Hyatt Farber Schreck)

“You have dealers who either know they are selling fentanyl instead of heroin or know that it has already caused death and continue to sell it,” Dunn said in an interview with The Colorado Sun Friday in his downtown Denver office, where he offered his most detailed remarks since taking office in October. “We think they’ve met the required element that they can be charged.”

The tactics mark a redoubling of efforts that began in Colorado’s U.S. Attorney’s Office under Dunn’s predecessors and amid growing efforts statewide to tackle an epidemic that killed 560 Coloradans in 2017. They also come after Dunn warned Denver against a proposal to allow a supervised drug consumption site where people could inject heroin under the watch of a medical professional in an effort to reduce overdose deaths.

“We created a task force within our office that’s both criminal and civil,” Dunn said. “The civil side is really interesting because it’s focused on the diversion of opioids — from doctors, pharmacies, nurse practitioners. Clearly, if we can get people to stop abusing prescription opioids, then we can have a huge impact on the heroin problem.”

Federal prosecutors in Colorado have been combing through Medicare and Medicaid databases, as well as the records of Tricare, the military health insurance program, to find out which medical professionals are prescribing the most opioids, including OxyContin, in the state. They are also looking to see if they have patients who are traveling long distances, an indication that a person might be seeking out drugs for illicit reasons.

“You can see, when you start charting it, where the top people are,” he said. “… There’s a three-drug cocktail of opioids that apparently enhances the opioid high. We look at, OK, which doctors are prescribing that three-drug cocktail the most. Because there’s really no reason you would do it other than for illegitimate purposes. So we’re using that data and we’re starting to see some success with that.”

Colorado Sun’s interview with Jason Dunn

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In terms of what those successes are, Dunn said, “most of it, I can’t go into detail because they’re ongoing investigations.”

“While there are a lot of U.S. attorneys around the country that are doing that data mining, we’ve taken it to kind of another level,” Dunn said.

Dunn said his attorneys have been working to get access to Colorado’s state-level opioid prescribing database, which has far more information. But the information is only available via subpoena, which the federal prosecutor called a “hindrance.”

The tree of life at the Harm Reduction Action Center is dedicated to those who have survived an overdose. (Marvin Anani, Special to The Colorado Sun)

“There’s a state statute that says law enforcement can’t get access to that database without a subpoena and only in a specific investigation. So we’ve served subpoenas and gotten it on a specific case-by-case basis,” he said. “But we really would love to have that data, even if it’s anonymized initially to mine it and see where the statistical outliers are. We’ve had conversations with the state about that.”

State Sen. Brittany Pettersen, a Lakewood Democrat who is heavily vested in ending the opioid crisis, said she would like to see enforcement action focused on pharmaceutical companies and not on doctors and nurses. She said charging those medical professionals could lead to more problems.
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“More people will die because they will be cut off from their prescriptions,” she said. “They will go to heroin to deal with their withdrawal.”

Dunn calls his plan to approach overdose deaths as homicides a “street-level” approach.

There’s currently a national debate about charging drug dealers in overdose deaths. Opponents worry that doing so would prevent people from seeking help in an overdose situation and question if it really serves as a deterrent.

Pettersen, whose mother has struggled with heroin addiction, cautioned against criminalizing the issue. She says she has nothing but hatred for the man who introduced her mom to heroin and would give the drug to her, even while she was in the hospital. But Pettersen said she recognizes that he, too, had a problem.

State Sen. Brittany Pettersen, D-Pettersen, talks to reporters about the introduction of the red flag gun bill on Feb. 14, 2019. (Jesse Paul, The Colorado Sun)

“It’s incredibly complicated,” she said. “A lot of people who are dealing drugs are also addicted and trying to feed their habit. They are doing desperate things to feed their disease. Throwing these people in jail is not going to solve the opioid crisis.”

Many states, Colorado not among them, either have specific laws on the books to use in those situations or are considering them. The federal government also has a distribution of heroin resulting in death charge.

Fifth Judicial District Attorney Bruce Brown, a Democrat whose territory covers Summit and Eagle counties and surrounding areas, has been using this tactic for years. His office has successfully pursued a number of cases against people who provided the heroin used in fatal overdoses, charging defendants with criminally negligent homicide, manslaughter or drug distribution offenses.

“Generally speaking, the law enforcement community customarily treated people who overdosed not so much as victims of crime, but maybe victims of their own criminality,” Brown said. “I have tried and worked very hard with our local law enforcement to convince them that they are homicides and the people who overdose have a health issue.”

Brown said Colorado’s safe-harbor law should prevent people who call 911 in an overdose situation from facing charges. But, he said, whether the tactic serves as a deterrent is a difficult question to answer, though he’s hopeful.

“Our goal is that the dealers think twice,” Brown said. “I do think that in some way there’s a likelihood that we’re saving lives. Can we definitely say that? No.”

Dunn said his office has set up a training program to encourage local law enforcement in Colorado to treat overdose deaths not as accidents, but as potential homicides with crime scenes.

He is urging law enforcement officers to check fatal overdose scenes for pill bottles or cellphones with information that might point investigators toward the drug supplier.

“We’re trying to encourage local law enforcement to actually contact us,” Dunn said. “We’re actually giving them the name of one of our attorneys here that, even in the moment at the scene, to call him and he can say, ‘Look, do this, this, this and this at the scene and treat it like a homicide.’”

Dunn’s office already has successfully prosecuted one Denver-area heroin dealer in a case involving an overdose and in which a woman’s body was dumped in an alley. A second person also has been charged in that case.

During the interview, Dunn re-emphasized his opposition to a supervised drug-consumption site in Colorado. That idea, an attempt to bring a first-in-the-nation program to Denver following a similar effort in Vancouver, Canada, has been shelved.
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“I think a safe-injection site is a bad idea,” he said. “Again, we don’t weigh in on specific legislation or city ordinances, but I felt like it was important to let people know that we take that very seriously and that the Department of Justice takes it very seriously. I felt like the right thing to do was, working with the Drug Enforcement Administration, to let the city and the state and the public know that we will treat that seriously and that federal law enforcement will engage if such a facility were opened.”

Dunn said that if such a site were to open, there are a range of options he could take to push back. “It ranges from everything from asset seizure — seize the facility — to civil under the Controlled Substance Act all the way to criminal (charges) for individuals.”

A pamphlet at the Harm Reduction Action Center depicts a diorama of a booth at a safe injection site where IV drug users would inject heroin or methamphetamine. (Marvin Anani, Special to The Colorado Sun)
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