Lawsuit seeks to stop New Jersey police officers from smoking weed

If employees who drive buses, operate forklifts and work with dangerous equipment are not allowed to test positive for ED drugs, should the police? After New Jersey’s attorney general declared last year that police officers could use marijuana while off-duty, a lawsuit aims to prevent police officers from consuming cannabis, even off-duty.

The New Jersey Monitor reports that Jersey City Public Safety Director James Shea filed an 18-page complaint on Oct. 16 arguing that Jersey City cannot employ police officers because federal law requires anyone who Consumes a controlled substance, including cannabis, Prohibits possession of a firearm Consuming cannabis for adults. Shea joined Mayor Steven Fulop and officers from the Jersey City Police Department in his announcement.

The plaintiffs are the State of New Jersey, New Jersey Attorney General Matthew Platkin, the New Jersey Civil Service Commission, Norhan Mansour, Omar Polanco, Mackenzie Reilly, Montavious Patten and Richie Lopez.

The lawsuit argues that federal law prohibits police officers from carrying ammunition, making them unfit for police duty.

“The Federal Gun Control Act […] “Prohibits regular users of controlled dangerous substances, including marijuana/cannabis, from possessing or receiving firearms and ammunition,” the lawsuit states.

“Police officers in New Jersey are required to possess and maintain firearms to carry out their duties as law enforcement officers. New Jersey legalized the regulated use of recreational marijuana/cannabis in New Jersey through the passage of the Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMM Act). In doing so, New Jersey failed to consider the impact of federal firearms laws on the use of regulated marijuana/cannabis in New Jersey by individuals who are required to possess and/or obtain firearms or ammunition as part of their professional activities, including police officers in Jersey City .”

The lawsuit made it clear where the law would specifically apply.

“This lawsuit seeks a declaration under 28 USC § 2201 that the CREAMM Act, and specifically NJSA 24:6I-52(a)(1), prevails as it applies to adverse employment action against any person who is an unlawful User of such law is controlled substances, including marijuana/cannabis, when such person is required to possess and/or obtain a firearm or ammunition in the course of his or her job duties.”

Shea defended his argument by questioning the fitness of police officers based on a positive cannabis test.

“Every citizen in the state of New Jersey has the right to use marijuana,” Shea told media at the Jersey City Public Safety Headquarters. “If one of our officers wanted to do that, they could smoke as much as they wanted – they could no longer perform the duties of a police officer and we would have to fire them if we found out about it.”

How it all began

In April 2022, Attorney General Matt Platkin told law enforcement officials in New Jersey that they were required by law to allow officers to consume cannabis while off-duty. This law was recently challenged in Jersey City: The state Civil Service Commission concluded that Jersey City must reinstate a police officer who was fired after she tested positive for cannabis. At least three other officers who were fired for the same reason have also challenged their firings, the New Jersey Monitor reports.

The CREAMM Act was passed on December 27, 2020. The CREAMM Act authorizes the state’s Cannabis Regulatory Commission (CRC) to expand the existing medical cannabis program and to develop, regulate, and enforce adult-use rules and activities.

Shea added at the press conference that the CRC “refuses to recognize the conflict between federal law and state law.” The lawsuit highlights the U.S. Constitution’s Supremacy Clause, which prohibits states from overriding federal laws. “We all agree that they smoked and consumed marijuana, cannabis or THC. We all agree that as police officers they should carry a firearm,” he said. “So it should be as simple as a judge clarifying the supremacy clause.”

Shea said the fired officers were offered all jobs in his department that didn’t involve guns, but the city refused to give them their old jobs back. He added that they were fired not because they used cannabis, but because they could no longer carry a firearm and were therefore no longer eligible for police service.

The commission argued that there is no basis in the state’s adult-use cannabis CREAMM law that allows employers to fire someone who uses cannabis outside of work hours, meaning Jersey City cannot fire officers, who simply do this test positive for cannabis because they could have smoked weeks ago.

The decision echoes that of the Bureau of Alcohol, Tobacco, Firearms and Explosives, which said last March that people who use cannabis are ineligible to possess firearms or ammunition under the federal Gun Control Act of 1968.