Port Authority police, which patrol areas in both New York and New Jersey. Credit: Jason Lawrence / Flickr

During his decade in law enforcement, AJ Jacobs fell into a trap of cracking open a beer after a long, stressful shift in the suburbs of Phoenix.

Jacobs didn’t spend much time with his family — he had the “super cop” mentality to work all the time, he said.

But after 11 years on the force, he sustained a career-ending back injury, and turned to cannabis to alleviate the pain from five herniated discs in his back. He said marijuana also helped him work through PTSD, and he recommends it to police officers.

“I would rather them come home and smoke a joint to decompress and deal with their life and their emotions, as opposed to drinking that handle of Jack Daniels and then suppressing everything,” said Jacobs, now the secretary for Arizona NORML, a nationwide marijuana advocacy group. 

In Arizona, police aren’t allowed to consume marijuana, recreationally or medicinally, so some of Jacobs’ former colleagues can’t partake like he can. Jacobs thinks more states should follow New Jersey’s lead. Acting Attorney General Matt Platkin reminded law enforcement chiefs recently that the New Jersey law allowing for recreational marijuana permits cops to consume it off duty.

As marijuana activists nationally celebrate — they say the law will remove the stigma around cannabis and allow cops to better understand the drug — some towns in the Garden State are saying, no way. Officials in Jersey City, Wood-Ridge, Toms River, Kearny, Woodland Park, and elsewhere said they are barring local police from using cannabis, on or off duty. 

As a growing number of lawmakers on both sides of the aisle echo those concerns, Gov. Phil Murphy, who signed the state’s recreational marijuana law four years after pledging to make cannabis legal, has said he’s “open-minded” about revising the law to carve out police officers. 

Nationwide, experts said the conflict between federal law that makes marijuana an illegal substance and the rising number of states that have legalized it has created some murky territory — though they couldn’t point to any incidents that back up the claim by some New Jersey mayors that permitting cannabis use would endanger public safety.

People like Jacobs think cannabis, when used off duty, helps police officers.

“This could be a disservice by putting more laws and restrictions on something that’s really there to help people, as long as it’s used in a safe and responsible way,” Jacobs said. 

Eighteen states and Washington, D.C., have legalized recreational marijuana, and 38 states have given the OK to medical marijuana. 

Just five of them — New Jersey, New York, Connecticut, Montana, and Nevada — have passed laws protecting employees from being fired for recreational marijuana use. Twenty-one states protect medical marijuana patients from termination. 

Lawyers who spoke with the New Jersey Monitor have different opinions on the leeway states can give to cops who want to smoke, but all agreed police should not use cannabis off duty until lawmakers pass clarifying legislation, or courts decree what’s legal.

Brian Vicente, a lawyer with Colorado-based cannabis law firm Vicente Sederberg, said he believes municipalities like Jersey City that are barring their police forces from lighting up a joint on their own time have no basis to do so. Jersey City’s mayor, Steve Fulop, said cops who test positive for cannabis will be fired, despite what New Jersey’s law says.

“Simply, there’s a state right given to individuals allowing them to use cannabis and not face repercussions. Any municipality that opts out of this seems to be teeing themselves up for a lawsuit,” Vicente said. “I’m curious if Jersey City is going to ban alcohol by their cops off duty, too. It seems to not make much sense.” 

Attorney William J. Johnson heads the National Association of Police Organizations. Johnson expects New Jersey officers who get disciplined after testing positive for cannabis will challenge their cases in arbitration, citing its legality. Still, he advises caution.

“My advice would be — here’s the law, and it’s in flux, and your jurisdiction may be different from the federal government’s treatment of cannabis. But as a lawyer, I would have to tell you it’s still illegal federally. Go out, have a beer, have a glass of wine, but until the federal law changes, don’t use cannabis if you’re going to get tested at work. The area just isn’t settled enough for there to be a clear-cut answer,” Johnson said.

He pointed to a movement in the private industry for employers to treat cannabis like alcohol.

“If you want to use cannabis and you want to get high on the weekend, if you’re an adult and it’s legal where you are, it’s not the company’s business, 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,” Johnson said. “But law enforcement is a little bit different, because your job is law enforcement and it’s still technically illegal.”

In Nevada, where cannabis is legal and state law bars employers from discriminating against people who use it, Las Vegas attempted to fire an officer who tested positive for marijuana. He sued and won at trial.

His attorney, Adam Levine, said until Nevada’s courts make a final decision on his client’s case — Las Vegas has appealed the trial ruling — he has advised officers “don’t light up quite yet.” Levine represents a host of law enforcement unions.

“It strikes me as much ado about nothing,” he said. “We’ve had legal use here in Nevada — plus a statute that prohibits discriminating or discharging employees — for five years and there’s never been an incident.”

About the growing chorus of officials in New Jersey who say cannabis use among cops will harm public safety, he said, “It’s fear-mongering by your mayors.”

Safety-sensitive carve-out?

Mayors like Fulop and Wood-Ridge Mayor and state Sen. Paul Sarlo list a range of reasons why cops shouldn’t use cannabis off the clock: police should be held to a higher standard; the federal government could withhold funding; and increased liability for towns. Marijuana can stay in someone’s system for 30 days, they note — what if an officer kills someone on duty and marijuana is later found in their system?

One legal expert predicts New Jersey lawmakers or judges will eventually have to act.

“Police departments are in a difficult position as they try to balance the safety needs of the department with privacy considerations for off-duty officers,” said Lisa Nagele-Piazza, senior legal editor at the Society for Human Resource Management.

Many states that provide employment protections for off-duty cannabis use allow for exemptions for employees in safety-sensitive roles and permit employers of those workers to test for marijuana and discipline those who test positive, Nagele-Piazza noted.

“But New Jersey does not, at least not yet,” she said. “If the law isn’t amended soon to include a safety-sensitive carve-out, I expect this issue to be tested in court. All eyes will be on New Jersey as this issue develops.”

National policing experts say New Jersey is an outlier here. That’s primarily because marijuana remains illegal federally as a Schedule I substance, which the government defines as having “a high potential for abuse.”

Jim Pasco, executive director of the National Fraternal Order of Police, pointed to the federal Gun Control Act of 1968, which bars anyone who uses prohibited substances — including marijuana, medicinal or recreational — from possessing or buying firearms and ammunition (supporters of New Jersey law note federal law also has an exemption for people with handguns issued by government agencies).

“The potential problems here are very significant. I’m not suggesting the DEA is going to swoop down on New Jersey, especially since the current administrator was the attorney general in New Jersey, and start arresting off-duty officers,” Pasco said. “But it’s legally puzzling to me that the state would give an imprimatur with that kind of a complicated relationship with federal law.”

Pasco predicted officers’ cannabis use will become an issue not only in arbitration over discipline, but also in criminal cases.

“Defense attorneys have been historically opportunistic and creative in their efforts to overturn cases, and I expect this would be another area they will consider,” Pasco said.

Attorney Jennifer Sellitti, a spokeswoman for the state Office of the Public Defender, said her office has no official position on cops’ cannabis use. But she doesn’t expect it to become a major factor in defense cases. 

“Just like alcohol or illegal substances, there could be legal grounds to challenge an officer’s conduct or credibility if we suspect they are under the influence,” she said. “That has not been a common occurrence with alcohol, so I do not see why marijuana would be different.”

State Senate President Nicholas Scutari (D-Union), a champion of legalizing marijuana, called it a “dangerous, slippery slope” to start regulating people’s behaviors on their own time, according to an April 19 Politico report. As Senate president, Scutari has power over what legislation comes before a vote in that body.

But since he made those comments, a growing number of Scutari’s colleagues, Democrats and Republicans, have expressed concern about allowing cops to use cannabis.

“As we saw in the legislative debacle which unfolded with multiple votes on pot legalization, the Murphy crew and its enablers in the Legislature have opened another can of worms which will result in untold legal consequences for New Jerseyans,” state Sen. Michael Testa (R-Cumberland) said in a statement.

This article was published with permission of the New Jersey Monitor.


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