New Jersey Police Officers Plan To Sue After Being Fired Over Marijuana

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.

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New Jersey Attorney General’s Memo On Marijuana Use By Police Sparks Pushback As Legal Sales Launch

Marijuana sales for adults launched in New Jersey on Thursday to great fanfare—but a recent memo from the state attorney general clarifying that police can’t be punished for off-duty cannabis use is prompting some pushback. Regardless of the fallout, the state’s top prosecutor is standing by his office’s position, even in light of moves to defy the state policy by local officials.

Ahead of the start of retail sales, Acting Attorney General Matthew Platkin (D) put out a memo last week clarifying that state law prohibits law enforcement agencies from taking adverse actions against police who use marijuana in compliance with state law off the clock.

Reports on that policy clarification ruffled some feathers, with Assembly Speaker Craig Coughlin (D) saying he expects to see legislation filed in his chamber to address the issue.

And the chair of the Senate Budget Committee said he wants to “modify the law to match all the other states that have zero tolerance for use of off duty cannabis by police.”

Let me be clear the directive is a product of the law that was enacted. I am hopeful we can modify the law to match all the other states that have zero tolerance for use of off duty cannabis by police.

— Paul Sarlo (@PaulASarlo) April 15, 2022

Even Gov. Phil Murphy (D), a pro-legalization official who celebrated the launch of adult-use sales on Thursday, signaled that he’s “open-minded” about a potential policy change targeting off-duty cannabis use by law enforcement.

But while off-duty marijuana use by police might be seen as problem by some officials, Senate President Nick Scutari (D) said recently that he’s opposed to explicitly banning law enforcement from using cannabis when they’re not working.

Several GOP senators who sent a letter to the state’s top prosecutor expressing concerns about the law enforcement marijuana exemption cited federal policy as a reason the state should continue to prohibit cops from consuming cannabis.

The attorney general’s memo “fails to mention that marijuana users are federally prohibited from purchasing or possessing firearms, an omission that may put officers unknowingly at risk of criminal prosecution,” they wrote.

But what seems to be getting lost in the discussion is that 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.

Civilians are required to fill out a federal background check before they purchase a gun, and the federal Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) has made clear that checking “yes” on a question about marijuana use renders a person ineligible for the sale. The penalty for lying is up to five years of incarceration.

But a different standard applies when firearms are distributed by government agencies.

Here’s the existing federal policy for people seeking to purchase or possess firearms with respect to marijuana: 

“It shall be unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person…is an unlawful user of or addicted to any controlled substance…”

“It shall be unlawful for any person…who is an unlawful user of or addicted to any controlled substance…to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.”

And here’s the relevant exception that could apply to law enforcement: 

“The provisions of this chapter, except for sections 922(d)(9) and 922(g)(9) and provisions relating to firearms subject to the prohibitions of section 922(p), 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.”

In a related development, Florida’s agriculture commissioner on Wednesday filed a lawsuit against the Biden administration over the application of the gun ban on medical cannabis patients, arguing that the federal government is unconstitutionally depriving them of their Second Amendment right to purchase and possess firearms.

In New Jersey, media reporting on the police exception for firearms and marijuana use has stirred the pot, with local officials across the state pushing back against the notion that their cops should be able to get high on their own time.

Jersey City’s mayor, for example, touted a local directive from a city agency banning such use.

Directive issued today below. There will be no ambiguity on how JCPD will approach this + we will pursue legally if tested via the federal court system. Bottom line is trust is fragile between communities/police + we should make sure that there isn’t compromised judgement + NJ is https://t.co/GG28wgW3wEpic.twitter.com/wBo7r0Mqsm

— Steven Fulop (@StevenFulop) April 20, 2022

The mayor of Bayonne followed suit with its own statement opposing off-duty marijuana use by police.

Glad others are following what we did yesterday in #JerseyCity . Newark taking action today as well. Trenton should revisit the legislation and make the necessary carve outs for law enforcement similar to other states have done. https://t.co/aD9AX450TShttps://t.co/4IVEAGf9kB

— Steven Fulop (@StevenFulop) April 21, 2022

And the mayors of Kearny and Weehawken also announced they will be moving to institute bans.

The Newark City Council passed a resolution on Wednesday urging the mayor to issue an order prohibiting police from using marijuana while off duty, contrary to state law.

Platkin, the acting attorney general, said in a statement to Marijuana Moment that “public safety is my top priority, and I share concerns about how legal cannabis impacts the role of police in our State” but suggested that cities moving to ban officers from exercising their legal right to consume marijuana could face legal action.

“As I explained in my memo to law enforcement chief executives last week, New Jersey’s law legalizing and regulating cannabis is clear and we are obligated to comply. I welcome conversations on how best to protect public safety,” he said. “Any efforts by local governments to subject officers to additional requirements in the interim, however, may present employment law issues that we anticipate will be handled between those governments and officers in the appropriate course.”

In the meantime, the New Jersey State Association of Chiefs of Police is asking lawmakers to pass a ban on police and other people in safety-sensitive jobs from using marijuana, even while off duty. And the New Jersey State Policemen’s Benevolent Association is also urging members to refrain from using cannabis.

Concerns about off-duty marijuana use by police notwithstanding, Scutari and Coughlin attended an event with the governor on Thursday celebrating the launch of the state’s adult-use market.

Scutari said he was “thrilled” to participate in “today’s momentous and historic” launch. He previously said that delays in the rollout of legalization were unacceptable, and he announced he’d be forming a special legislative committee to explore the issue through oversight hearings.

The Senate president also told reporters that he will “probably” buy recreational marijuana “at some point.”

“Not today,” he said. “I’m not gonna wait in line.”

CRC was initially expected to approve a first round of adult-use retail licenses for certain existing dispensaries last month, but they temporarily decided against it. The commission separately gave conditional approval to 68 marijuana cultivators and manufacturers last month.

“We expect 13 locations for the entire state will make for extremely busy stores,” CRC Executive Director Jeff Brown said in a press release. “The dispensaries have assured us that they are ready to meet the demand without disrupting patient access, and with minimal impact on the surrounding communities, but patience will be key to a good opening day.”

“We encourage everyone to be safe—buy only from licensed dispensaries and start low and go slow. Remember that the laws against impaired driving apply to being high,” he said. “Our guests from neighboring states should remember it is illegal to transport cannabis across state lines.”

There’s been a mix of feelings about the timeline for legalization implementation among stakeholders. As regulators have worked to approve the first round of licenses, some advocates have pushed for expediency while others said that they felt it was important not to rush the process to ensure that the industry that emerges is equitable and not dominated by large corporations.

The governor previously stressed that “equity is a huge part of our proposition here, and I know that may take longer than folks otherwise would like.” He’s also talked about being open-minded to permitting adults to grow their own marijuana for personal use down the line, but that it would take action by the legislature. Murphy similarly talked about being open to home grow late last year.

CRC Chair Dianna Houenou said earlier this month that regulators remain “committed to social equity.”

“We promised to build this market on the pillars of social equity and safety,” she said. “Ultimately, we hope to see businesses and a workforce that reflect the diversity of the state, and local communities that are positively impacted by this new and growing industry.”

Separately, U.S. Rep. Donald Payne (D-NJ) recently criticized New Jersey regulators about diversity issues in the marijuana market, saying he’s “outraged” over the lack of minority representation in the industry.

With respect to equity for the market, Murphy also recently touted the fact that the courts have expunged more than 362,000 marijuana cases since July 1, when a decriminalization law took effect that mandated the relief for people who have been caught up in prohibition enforcement.

Last month, CRC also held a series of public meetings where it received feedback on how best to allocate marijuana tax revenue after the recreational market opens.

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New Jersey Mayors Demand Social Equity In Marijuana Legalization Bill

Legal marijuana is so close in New Jersey you can almost smell it. But does soon-to-be-filed legislation do enough to ensure social equity under a legal cannabis system?

Newark Mayor Ras Baraka (D) isn’t so sure. And he’s calling on fellow mayors to join him in pressing for stronger social justice protections such as the expungement of records for marijuana offenses and permitting those with cannabis-related convictions to obtain business licenses to participate in the legal industry.

In a letter to the NJ Urban Mayors’ Association, Baraka said “there remain serious issues of social justice and equity; municipal self-determination and finances that are not adequately addressed in the pending legislation.”

Here's the letter @StevenFulop@rasjbaraka@RaviBhalla are sending to NJ lawmakers re: including expungement & other #socialjustice issues in upcoming marijuana legislation @NJTVNewspic.twitter.com/QE4HvCvj5x

— Briana Vannozzi (@BriVannozziNJTV) September 6, 2018

“While I support legalization, I can only support legislation that goes even farther to remedy the damage to communities of color caused by years of cannabis prohibition,” he wrote to his fellow Garden State mayors. “I urge you to join me in seeking passage of stronger legislation.”

The letter outlines seven policies that Baraka hopes will be featured in the marijuana legalization bill, which legislative leaders have said they hope to introduce and pass as soon as this month. Besides expungements and licensing requirements, the mayor also wants to ensure that people who are in jail for possession are automatically released and to strengthen parts of the bill that deal with “impact zones.”

“Social Impact Zones to compensate the people whose areas have been damaged by the marijuana prohibition is a necessary idea,” Baraka wrote. “But the concept needs teeth lacking in proposed legislation,” he said, referring to details that have emerged so far about the yet-to-be introduced bill.

Jersey City Mayor Steven Fulop (D) was among the first to voice his support for Baraka’s proposals, tweeting that New Jersey “needs Newark, Jersey City and urban mayors to be fully engaged to meet their state projections.”

Let me be the first to say I stand with @rasjbaraka on this. The state of NJ needs #Newark , #JerseyCity and urban mayors to be fully engaged to meet their state projections. These provisions outlined here are important to us to move 4ward. Period. https://t.co/MTPznzTMz1

— Steven Fulop (@StevenFulop) August 30, 2018

“These provisions outlined here are important to us to move 4ward,” he wrote. “Period.”

Just two months ago, Fulop attempted to decriminalize marijuana in Jersey City—only to be rebuffed by New Jersey Attorney General Gurbir Grewal (D), who overruled the policy and argued that a municipal prosecutor does “not have the legal authority to decriminalize marijuana or otherwise refuse to criminally prosecute all marijuana-related offenses.”

Fulop and Hoboken Mayor Ravinder Bhalla (D) appeared alongside Baraka in support of his efforts during a press conference on Thursday.

Proud to join @rasjbaraka & @StevenFulop to urge the NJ Legislature to strengthen social justice provisions with pending cannabis legislation. The disparate impact & unjust consequences against our Black and Latino neighbors must be addressed in the final version of the bill. pic.twitter.com/a16W45fWHD

— Ravinder S. Bhalla (@RaviBhalla) September 6, 2018

The mayors emphasized the importance of remediating the long-lasting harms of prohibition and empowering communities that have been disproportionately affected to participate in the legal marijuana system.

Pro-legalization advocacy group New Jersey United for Marijuana Reform live-tweeted some of the statements that came out of the event.

“We need to expunge records for possession and distribution of any amount IMMEDIATELY.” – Mayor @rasjbaraka#LegalizeItNJ

— NJ Marijuana Reform (@NJU4MR) September 6, 2018

.@RaviBhalla: “As the @ACLUNJ reports, blacks are arrested at disproportionate rates for poss. I urge the Legislature to strengthen the provisions on racial and social justice.” #LegalizeItNJ#Hobokenpic.twitter.com/bNn20XJdcM

— NJ Marijuana Reform (@NJU4MR) September 6, 2018

Where do things go from here?

New Jersey Senate President Steve Sweeney (D) said that he’s confident he’ll get the votes to pass a legalization bill before the end of September. But for now, the full bill text is not currently available, and so it’s unclear whether the legislation will include all of the provisions the mayors are demanding.

Shortly after Grewal rejected Jersey City’s attempt to decriminalize citywide, he issued a seemingly contradictory guidance memo to municipal prosecutors on marijuana enforcement policy last week, suggesting that they can use prosecutorial discretion in deciding whether or not to pursue cannabis cases.

Gov. Phil Murphy (D) made marijuana legalization a centerpiece of his election campaign last year.

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Photo courtesy of Philip Steffan.