New Jersey cops are winning the battle to use cannabis while on duty

The first battle in the war on whether New Jersey law enforcement officers they can use cannabis when they are off duty it’s over, and the cops who want to partake in legal weed are winning.

Recent rulings by a state administrative law judge and the Civil Service Commission found in favor of a Jersey City police officer who was fired after using cannabis, and the judge ruled against the city’s claim that it can fire officers even if they use the substance legally and not on duty.

The decisions are significant not only because they appear to be the first to wade into this controversy after a handful of local leaders spoke out against letting their agents dabble in legal weed. They’re also notable because Jersey City’s Democratic mayor, Steve Fulop, is looking to become the state’s next governor. Fulop has ignored issued a 2022 note from Attorney General Matt Platkin saying police officers can use cannabis while off duty.

An attorney for the officer in question did not respond to a request for comment. He also represents three other Jersey City police officers who were fired after using cannabis. These three cases have not yet reached the Civil Service Commission.

Joshua Bauchner, a Woodland Park attorney who specializes in cannabis and civil litigation, called the city’s actions here “disgusting.”

“It’s a travesty for Jersey City to press this case. There’s no rational basis for it,” Bauchner said.

Other states have struggled with the conflict between state and federal cannabis laws. In a case of wrongful terminationthe Nevada Supreme Court last year refused to recognize the legal use of recreational marijuana as a legal activity, and the court cited the federal ban on the substance.

In 2015, the Colorado Supreme Court held State law does not prohibit employers from firing employees who use medical marijuana off-duty, even when there is no evidence that cannabis use affects their job performance. A subsequent legislative push in Colorado to protect workers who use cannabis failed.

Norhan Mansour is the policeman at the center of the commission’s decision. According to court documents, she was chosen for a random drug test on September 20, 2022, which tested positive for cannabis (this was five months after the state’s recreational cannabis market opened). During a disciplinary hearing in November, she admitted to ingesting cannabis gummies the night before the test, and was later fired, documents show.

He challenged his termination and the case went before Administrative Law Judge Kimberly Moss. Attorneys for Jersey City argued that federal law prohibits its officers from possessing firearms and ammunition if they use cannabis, and that the federal law preempts the state’s marijuana legalization law, known as the CREAMM Law.

Fulop has made these arguments himself, social media post in April 2022 in response to Platkin’s note that allowing officers to use off-duty cannabis would put the “community at risk.” Fulop’s opinion was echoed by other mayors, including state Sen. Paul Sarlo (the mayor of Wood-Ridge) and the Ocean County Sheriff’s Office, which also said it would. ban their officers from ever using cannabis.

“I have been a strong supporter of legalization and we have made Jersey City the most flexible on legalization for our community, but responsible protections for our officer and community are important. Police/community trust is fragile,” Fulop wrote.

In June, Moss ruled in favor of Mansour. His decision points to the “obvious conflict” between state law and federal law, which still considers marijuana an illegal controlled substance. But he said the state is not required to enforce federal law while state law directs police departments to comply with the CREAMM Act, which prohibits employers from firing workers for using cannabis.

Moss also noted that the city cited nothing to show that off-duty cannabis use interfered with Mansour’s job performance.

“No evidence is offered that Mansour was ever suspected of using cannabis on the job, nor were there any alleged signs of intoxication, suspected drug use or impairment during work hours,” he said.

Moss recommended that the Civil Service Commission reinstate Monsour, which he did on his own Judgment of August 2. That ruling also awarded Monsour back pay, benefits and attorney fees.

The city has not brought Monsour back to work. He can appeal the commission’s decision to the state Appellate Division, and Kimberly Wallace-Scalcione, Fulop’s spokeswoman, said an appeal is pending.

James Shea, the city’s director of public safety, told the New Jersey Monitor that the crux of the issue here is federal law that prohibits anyone from using firearms if they also use cannabis or other similar controlled substances. New Jersey police officers must be able to carry firearms, Shea said, so if federal law prohibits cannabis users from using firearms, they cannot be police officers.

“Right now, it’s still illegal for anyone who uses marijuana to own a firearm,” he said, adding that the Civil Service Commission “is telling me to rehire them and re-arm them . When they read my federal law, they tell me to commit a crime. And they can’t make me commit a crime.”

Shea said he doesn’t think the administrative law judge who heard Mansour’s case properly addressed that issue.

Peter Paris, Mansour’s attorney, said in a filing with the Civil Service Commission that New Jersey police officers do not need federal approval to carry firearms, so even if an officer Jersey City police officer lost his federal firearms license, he would still be able to legally carry his service weapon.

Bauchner said he thinks the city will lose in the end and hopes it’s fought all the way to the state Supreme Court so the justices can “put the issue to rest.”

“There’s no challenge that they were impaired at work, just that they were consuming legally,” Bauchner said. “I don’t know why Jersey City of all places would be the one to challenge this.”