Eric Weil blew fentanyl into the air.
Some of it might have settled on the uniform of Alton police Officer Jamie Fellows, who later testified that he could taste the powder and experienced a headache and sore throat as a result.
And while a Belknap County jury decided in September that Weil was therefore guilty of reckless conduct with a deadly weapon — a felony carrying a maximum possible sentence of seven years in prison — the case is back in court.
Judge James D. O’Neill believes the jury’s decision ran contrary to the evidence. He’s given prosecutors 60 days to find an expert who will convince them otherwise, but the Belknap County Attorney’s office might have a problem: The experts are pretty squarely against its position.
“The scientific consensus is that there is almost no risk to a first responder from unintentional exposure to these drugs,” said Dr. Andrew Stolbach, a professor of emergency medicine and toxicology at Johns Hopkins University.
In 2017, he was one member of an expert working group convened by the U.S. Department of Homeland Security to address how police officers, EMTs and other emergency personnel should handle the powerful synthetic opioids they encounter in the course of their work.
“As scientists and physicians and toxicologists we’ve been harping on this for a long time,” Stolbach said. “We keep seeing these (stories about) unintentional police exposures, and they’ll go to the hospital and claim these symptoms that don’t really fit opioid exposure.”
That would include headaches and sore throats, he added.
Exposure claims doubted
Opioids like heroin, fentanyl and the even more potent carfentanil work by interacting with receptors in the brain. To do that, they have to enter the bloodstream, which is why most people addicted to the drugs inject them intravenously.
There are fentanyl patches designed to introduce the opioid to the bloodstream through the skin, but both the drug and the patch are specially engineered to do so. Fentanyl powder on the skin, or even the mucous membranes in the eye, will have essentially no effect and can easily be washed off with water, experts say.
Nevertheless, situations like the one involving Weil and Fellows regularly make headlines.
In September, Louisville, Ky., police arrested 36-year-old Shannon Thorpe for drug possession and added an additional charge of first-degree wanton endangerment after an officer searching her car allegedly encountered fentanyl and became ill.
While executing a search warrant in May, a Fayetteville, N.C., officer allegedly began experiencing symptoms of an overdose after encountering fentanyl in a home.
“The unfortunate thing with fentanyl, just a small amount absorbed through the skin can be deadly, and that’s what happened today,” Fayetteville police Sgt. Shawn Strepay told local TV station WRAL at the time.
But such claims run contrary to the evidence, toxicologists say.
Not long after the incidents in North Carolina and Kentucky, the American College of Medical Toxicology released a position paper in which it stated that “the risks of clinically significant exposure to emergency responders is extremely low” and that to date it had “not seen reports of emergency responders developing signs or symptoms consistent with opioid toxicity from incidental contact with opioids.”
Nathan Lents, a biology professor at John Jay College of Criminal Justice, said none of that should be construed to mean that fentanyl isn’t dangerous — 20 milligrams of the powder could kill someone with no tolerance if introduced into the bloodstream properly.
In the case of powdered fentanyl, that would mean injection or inhalation through the nose. Contact with the skin or even swallowing the powder would not deliver dangerous doses to the brain.
“If somebody has got it on their finger and they’re blowing it off, they’re not blowing a lethal dose, for sure,” he said, adding that the Alton case sounds like an example of overzealous prosecution. “I don’t think the officer was ever in any danger at all.”
Assistant County Attorney Adam Woods, who is prosecuting Weil’s case, declined to comment.
There are other examples of criminal charges for exposures that critics say aren’t backed by science.
There are 10 states, for example, in which prosecutors can bring additional charges or ask for heavier sentences if a person with HIV bites or spits on another person, even though HIV isn’t transmitted via saliva, according to the U.S. Centers for Disease Control and Prevention.
Police take precautions
Law enforcement groups in New Hampshire and the state Attorney General’s office have discussed the proper preventative measures police officers should take when they are preparing to enter a home or area that might contain fentanyl, said Tuftonboro police Chief Andrew Shagoury, the immediate past president of the New Hampshire Association of Chiefs of Police.
The protocols call for first responders to wear glasses and nitrile gloves, and to cover exposed skin wherever possible. Shagoury said he is not aware of any instance in New Hampshire in which a person has tried to weaponize a powdered opioid against officers.
In the Alton case, prosecutors didn’t argue that Weil was trying to harm the officer. He had called 911 after discovering that a family friend staying in his home was using fentanyl. Weil’s attorney told jurors that he blew fentanyl into the air because a portion of it got on his finger.
Shagoury said he could not comment on the Alton case because he wasn’t familiar with the details, but in general reckless conduct and endangerment charges require some evidence of intent.
“To be able to do that, you have to be able to show their culpable state of mind,” he said. “You have to show some kind of intent. And if it’s there, like anything else where it’s a deliberate act, then it could be (a crime).”