All eyes on New Jersey as it grapples with letting cops use cannabis

Marijuana legalization is a hot topic in the United States and New Jersey has just become one of many states looking at how to implement it. The state’s governor, Phil Murphy, was sworn into office on Tuesday promising hope for cannabis users left high and dry by their own government under former President Trump.

All eyes on New Jersey as it grapples with letting cops use cannabis

A growing number of authorities want police to be prohibited from using marijuana.

AJ Jacobs came into the habit of popping open a drink after a long, stressful shift in the Phoenix suburbs during his decade in police enforcement.

Jacobs claimed he didn’t spend much time with his family since he was a “super policeman” who had to work all the time.

He had a career-ending back injury after 11 years on the police, and resorted to cannabis to relieve the agony from five herniated discs in his back. He claims that marijuana helps him deal with his PTSD and that he recommends it to cops.

“I’d prefer them come home and smoke a joint to relax and deal with their lives and their feelings than drink that handle of Jack Daniels and then repress everything,” said Jacobs, who is now the secretary for Arizona NORML, a national marijuana advocacy organization. 

In Arizona, police officers are not permitted to ingest marijuana, either recreationally or medicinally, therefore some of Jacobs’ former coworkers are unable to participate in the same way he does. More states, according to Jacobs, should follow New Jersey’s path. Acting Attorney General Matt Platkin recently reminded law enforcement commanders that the recreational marijuana statute in New Jersey allows officers to use it off duty.

While marijuana supporters around the country rejoice, claiming that the legislation would end the stigma surrounding the substance and help authorities to better understand it, certain communities in New Jersey are saying no way. Local officials in Jersey City, Wood-Ridge, Toms River, Kearny, Woodland Park, and elsewhere have announced that local cops would not be allowed to use cannabis either on duty or off. 

Gov. Phil Murphy, who signed the state’s recreational marijuana bill four years after promising to make cannabis legal, has indicated he’s “open-minded” considering changing the law to cut out police officers, as a rising number of politicians on both sides of the aisle share similar worries. 

Experts across the country said the conflict between federal law, which makes marijuana illegal, and the growing number of states that have legalized it has created some murky territory — though they couldn’t point to any incidents to back up some New Jersey mayors’ claims that allowing cannabis use would endanger public safety.

People like Jacobs believe that when police officers consume cannabis off duty, it benefits them.

“Putting additional prohibitions and limits on something that is genuinely there to benefit people, as long as it’s utilized in a safe and responsible manner,” Jacobs said, “might be a disservice.” 

All-eyes-on-New-Jersey-as-it-grapples-with-letting Gov. Phil Murphy speaks at Zen Leaf in Elizabeth on the first day of recreational cannabis sales in New Jersey. (Photo courtesy of New Jersey Governor’s Office/Edwin J. Torres).

 

‘Fear-mongering’

Eighteen states and the District of Columbia have legalized recreational marijuana, while 38 states have approved medicinal marijuana. 

Only five of them have approved legislation shielding workers from being fired for using recreational marijuana: New Jersey, New York, Connecticut, Montana, and Nevada. Twenty-one states have laws protecting medicinal marijuana users from being kicked off the program. 

Lawyers who talked with the New Jersey Monitor differed on how much latitude states should offer policemen who want to smoke, but they all agreed that cops should not consume cannabis off duty until politicians create clarifying legislation or the courts rule on what is lawful.

Brian Vicente, a lawyer with the Colorado-based cannabis law firm Vicente Sederberg, feels communities like Jersey City have no legal basis for prohibiting police officers from smoking a joint on their own time. Despite what New Jersey law states, Jersey City Mayor Steve Fulop stated officers who test positive for cannabis would be dismissed.

“Simply put, people have a state-granted freedom to consume cannabis without fear of penalties. Any town that refuses to participate seems to be setting themselves up for a lawsuit, according to Vicente. “I’m interested whether Jersey City will also prohibit off-duty officers from consuming alcohol. It doesn’t appear to make much sense.” 

The National Association of Police Organizations is led by attorney William J. Johnson. Johnson anticipates that police in New Jersey who are reprimanded after testing positive for cannabis would take their cases to arbitration, citing the legality of the drug. He does, however, urge care.

“My advise is that the law is in flux, and your jurisdiction’s handling of cannabis may vary from the federal government’s.” However, as a lawyer, I must warn you that it is still unlawful on a federal level. Go out and enjoy a drink or a glass of wine, but don’t use cannabis if you’re going to be tested at work until the federal legislation changes. “The area isn’t established enough for a definitive answer,” Johnson said.

He cited a trend in the private sector for companies to regard cannabis the same way they do alcohol.

“It’s not the company’s business if you want to use cannabis and get high on the weekend, as long as you’re an adult and it’s legal where you are,” Johnson said. “As long as you’re not at work under the influence or it doesn’t affect your work performance or cause a safety issue for you or someone else, it’s not the company’s business.” “However, law enforcement is a little different in that your profession is law enforcement and you’re still legally breaking the law.”

Las Vegas sought to terminate a cop who tested positive for marijuana in Nevada, where it is legal and employers are prohibited from discriminating against those who use it. He filed a lawsuit and won at trial.

His attorney, Adam Levine, has warned cops not to “light up just yet” until Nevada’s courts issue a final verdict on his client’s case – Las Vegas has appealed the trial finding. Levine is a lawyer who represents a number of police enforcement organizations.

He described it as “much ado over nothing.” “We’ve had legal usage in Nevada for five years — with a legislation prohibiting discrimination or firing workers — and there’s never been an incident.”

“It’s fear-mongering by your mayors,” he said of the increasing chorus of leaders in New Jersey who claim that officers using cannabis would endanger public safety.

 Sen. Paul Sarlo, who is also the mayor of Wood-Ridge, is one of the Democrats who wants to make it illegal for police officers to use marijuana either on duty or off. (New Jersey Governor’s Office/Edwin J. Torres)

 

Carve-out for the sake of safety?

Fulop and Wood-Ridge, for example, are mayors. Mayor and state senator Paul Sarlo cites a number of reasons why policemen should not consume cannabis off-duty, including a higher standard for officers, the possibility of federal funds withholding, and greater responsibility for municipalities. They point out that marijuana may linger in a person’s system for up to 30 days – what if a cop kills someone while on duty and marijuana is subsequently discovered in their system?

According to one legal expert, New Jersey legislators or courts will be forced to intervene at some point.

“Police agencies have a significant challenge in balancing the department’s safety demands with off-duty officers’ privacy concerns,” said Lisa Nagele-Piazza, senior legal editor at the Society for Human Resource Management.

According to Nagele-Piazza, several states that grant employment protections for off-duty cannabis use provide for exemptions for employees in safety-sensitive professions and enable employers to test for marijuana and sanction those who test positive.

“However, New Jersey does not,” she said. “I anticipate this issue to be challenged in court if the statute isn’t altered shortly to incorporate a safety-sensitive carve-out.” As the situation unfolds, all eyes will be on New Jersey.”

According to national police experts, New Jersey is an anomaly in this area. That’s because marijuana is still classified as a Schedule I drug by the federal government, which means it has a “high potential for abuse.”

The federal Gun Control Act of 1968, according to Jim Pasco, executive director of the National Fraternal Order of Police, prohibits anybody who uses illegal narcotics, such as medical or recreational marijuana, from having or purchasing weapons and ammunition (supporters of New Jersey law note federal law also has an exemption for people with handguns issued by government agencies).

“There are a lot of potential issues here.” I’m not proposing the DEA will swoop down on New Jersey and start arresting off-duty cops, particularly given the current administrator was the state’s attorney general,” Pasco said. “However, with such a convoluted connection with federal law, I find it legally perplexing that the state would offer an imprimatur.”

Officers’ cannabis usage, according to Pasco, will become a point of contention not just in disciplinary hearings, but also in criminal proceedings.

“Defense lawyers have a history of being opportunistic and innovative in their attempts to overturn verdicts,” Pasco said.

A spokeswoman for the state Agency of the Public Defender, Jennifer Sellitti, said her office had no official opinion on officers’ cannabis usage. However, she does not believe it will become a significant element in defense cases. 

“Just as with alcohol or illicit drugs, there may be legal grounds to question an officer’s behavior or veracity if we feel they are impaired,” she added. “With alcohol, it hasn’t been a typical occurrence, so I don’t see why marijuana would be any different.”

According to an April 19 Politico story, State Senate President Nicholas Scutari (D-Union), a proponent of marijuana legalization, termed it a “dangerous, slippery slope” to start controlling people’s actions on their own time. As Senate president, Scutari has control over which bills are brought up for a vote in the chamber.

However, after making those remarks, a rising number of Scutari’s Democratic and Republican colleagues have voiced reservations about allowing officers to consume cannabis.

“As we witnessed with the legislative disaster involving numerous votes on marijuana legalization, the Murphy gang and its collaborators in the Legislature have opened another can of worms that will have unfathomable legal repercussions for New Jerseyans,” state Sen. Michael Testa (R-Cumberland) said in a statement.

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