Jersey City sues New Jersey in bid to halt cops from using cannabis

by Terrence T. McDonald, New Jersey Monitor

The state’s second biggest city has gone to federal court in a bid to prevent officers on its police force from using cannabis off duty.

In an 18-page complaint filed Monday, Jersey City Public Safety Director James Shea argues that because federal law prevents anyone who uses a controlled substance like cannabis from possessing a firearm, Jersey City cannot employ police officers who use legal cannabis.

“Every citizen in the state of New Jersey has the right to use marijuana. If one of our officers wants to do that, they could smoke as much as they want — they can no longer perform the duties of a police officer, and we will have to terminate them if we become aware,” Shea told reporters Tuesday at Jersey City’s public safety headquarters.

The lawsuit sets up a battle between defendants New Jersey and Attorney General Matt Platkin — who has told law enforcement officials that state law requires them to allow officers to use cannabis off duty — and Jersey City Mayor Steve Fulop, who is seeking the Democratic nomination for governor in 2025.

It comes more than two months after the state Civil Service Commission decided that Jersey City must rehire a police officer it had fired after she tested positive for cannabis. The commission argued that nothing in the state’s legalization law — known as the CREAMM Act — allows employers to fire someone who uses cannabis outside of work, so Jersey City can’t fire officers who test positive for cannabis.

At least three other officers fired for the same reason have also challenged their terminations.

Shea said even though neither side is disputing the facts behind the terminations, the Civil Service Commission is “refusing to acknowledge the conflict between the federal law and the state law.” The lawsuit notes that the supremacy clause of the U.S. Constitution forbids states to override federal statutes.

“We all agree that they smoked, they utilized marijuana, cannabis, or THC. We all agree that they would need to carry a firearm to be police officers,” he said. “So it should be as simple as a judge clarifying the supremacy clause.”

Gov. Phil Murphy’s office declined to comment on the lawsuit, as did the Civil Service Commission.

New Jersey is the only state in the country with legal marijuana that doesn’t bar certain professions like police officers or school bus drivers from using cannabis. Fulop said he wants New Jersey lawmakers to amend the law to include those exemptions, though he did not say he would launch such an effort himself if he is elected governor in 2025. 

“I would hope this is corrected before that,” Fulop said, adding he’s looking only for “reasonable carve-outs.” 

Marijuana is a Schedule I drug under federal statute. And despite a growing number of states legalizing cannabis, the Bureau of Alcohol, Tobacco, Firearms and Explosives said as recently as March in response to a marijuana law in Minnesota that people who use marijuana are ineligible to possess firearms or ammunition under the federal Gun Control Act of 1968.

Jersey City officials noted there is no drug test that can tell when someone who has tested positive for cannabis last used the drug. People may test positive for marijuana more than four weeks after consuming it, raising concerns that an officer could have used it before making “split-second decisions between life and death,” Fulop said. 

Shea said the terminated officers were all offered jobs in his department that would not have required them to use guns, but the city will not reinstate them to their old jobs.

He said they were terminated not because they used cannabis but because they can no longer carry a firearm and so are not eligible to be police officers.

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