Four New Jersey police officers are preparing to sue Jersey City after being fired for testing positive for marijuana—despite being protected under the state’s cannabis legalization law and guidance from the state attorney general.
The Jersey City officers said that they used cannabis, purchased from licensed dispensaries, while off the job. That activity should be legally protected, as the state Constitution prohibits employers from taking adverse action against workers solely for marijuana activity that’s been made lawful.
But Jersey City officials contend that the department’s firearm policy puts them in a unique position to penalize the officers, who are required to buy their own guns, meaning that they’re individually subjected to federal rules that ban people who use cannabis from purchasing firearms.
Peter Paris, a lawyer representing the unnamed officers, told The Jersey City Times that the city’s arguments ignore the fact that the state’s entire legal cannabis market is illegal in the eyes of the federal government—and that state legislators and officials have already contemplated the employment implications of the reform.
Specifically, New Jersey Attorney General Matthew Platkin (D) issued a memo last year clarifying that state law prohibits law enforcement agencies from penalizing police who use marijuana in compliance with state law off the clock.
The attorney general’s office said in updated guidance released in February that officers cannot be punished for testing positive for marijuana unless there’s “reasonable suspicion” that they used “unregulated” products or consumed “during work hours.”
Again, the four officers maintain that they purchased marijuana from regulated retailers and consumed while off duty.
Further, the federal law that generally bans consumers of cannabis and other illegal drugs from accessing firearms also contains an exemption that would seem to apply to police.
It says that the prohibition “shall not apply with respect to the transportation, shipment, receipt, possession, or importation of any firearm or ammunition imported for, sold or shipped to, or issued for the use of, the United States or any department or agency thereof or any State or any department, agency, or political subdivision thereof.”
Jersey City may make the argument that their department’s unique policy of having officers buy their own guns means the federal exception doesn’t apply, but that dispute will likely need to be sorted out in court.
There have been some lawmakers who’ve called for amending the state law to create their own exemption to the employment protection for safety sensitive positions like law enforcement, but top legislators like Senate President Nick Scutari (D) have pushed back against the proposal.
Jersey City Mayor Steven Fulop (D) is among those who’ve argued that police should be barred from using cannabis regardless of the context, and he applauded the Jersey City Police Department for adopting an internal directive last year stipulating that officers can’t consume marijuana.
“This is a complicated issue as from our standpoint it is impossible to know whether they used Cannabis on the job, an hour before, or week before duty,” Fulop said on Saturday, adding that the city “offered each a desk job without their firearm but they refused.”
1/3 This is a complicated issue as from our standpoint it is impossible to know whether they used Cannabis on the job, an hour before, or week before duty. We offered each a desk job without their firearm but they refused. https://t.co/xZVNyo1YrU
— Steven Fulop (@StevenFulop) April 22, 2023
“Our concern is if you are allowed to carry a lethal weapon and tasked with split second decisions on use of force/ judgement we can not have residents at risk or doubting decisions bc of impaired judgement,” he said.
3/3 I have been a huge advocate of legalization and our actions speak to this in #JerseyCity. I’m interested in other’s views on this as I’m sure there are some will agree and sone that won’t but the job that I’m in is about making decisions that you think is in the best interest…
— Steven Fulop (@StevenFulop) April 22, 2023
Other cities like Newark have similarly implemented policies making it so police can be penalized for cannabis use, but the Jersey City cases appear to be some of the first examples where officers have been formally punished for testing positive for THC.
Paris, the Jersey City officers’ attorney, said that, to his knowledge, there’s only been one other city where an officer has been fired over marijuana since legalization took effect. He’s separately represented officers who were ultimately cleared of wrongdoing after testing positive but providing that they purchased cannabis from licensed stores.
He said that while the Jersey City officers would be entitled to back pay if they prevail in their petitions for reinstatement, the “emotional distress is not compensable,” likely necessitating further legal action.
Meanwhile, the federal law prohibiting all cannabis consumers from buying firearms is being actively challenged in several federal courts—and at least two Trump-appointed judges have deemed the ban unconstitutional.
Relatedly, a GOP congressman filed a bill last week to protect the Second Amendment rights of people who use marijuana in legal states, allowing them to purchase and possess firearms that they’re currently prohibited from having under federal law.
Meanwhile, New Jersey’s Senate president has indicated that he’s interested in revising the state’s legalization law in other ways, including potentially permitting limited home cultivation.
Gov. Phil Murphy (D) also has legislation on his desk that would allow licensed marijuana businesses to deduct certain expenses on their state tax returns, a partial remedy as the industry continues to be blocked from making federal deductions under Internal Revenue Service (IRS) code known as 280E.