New Jersey cops are winning fight to use Cannabis while off duty
A state panel has ordered a cop reinstated after she was fired for using cannabis.
The first battle in the war over whether New Jersey law enforcement officers can use cannabis when they’re off duty is over, and the cops who want to partake in legal weed are winning.
Recent decisions from a state administrative law judge and the Civil Service Commission found in favor of a Jersey City cop who was fired after she used cannabis, with the judge ruling 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 just because they appear to be the first to wade into this controversy after a handful of local leaders came out against letting their officers partake in legal weed. They are also noteworthy because Jersey City’s Democratic mayor, Steve Fulop, is seeking to become the state’s next governor. Fulop has ignored a 2022 memo issued by Attorney General Matt Platkin that says cops can use cannabis when they’re off duty.
The attorney for the officer in question did not respond to a request for comment. He is also representing three other Jersey City police officers who were fired after using cannabis. Those three cases have yet to make it to the Civil Service Commission.
Joshua Bauchner, a Woodland Park-based lawyer who specializes in civil and cannabis litigation, called the city’s actions here “distasteful.”
“It’s a travesty that Jersey City would press this case. There’s no rational basis for it,” Bauchner said.
Other states have grappled with the conflict between state and federal laws on cannabis. In a wrongful termination case, the Nevada Supreme Court last year declined to recognize legal recreational marijuana use as a lawful activity, with the court citing the federal ban on the substance.
In 2015, the Colorado Supreme Court held state law does not bar employers from firing employees who use medical marijuana off duty, even when there is no evidence that cannabis use affected their job performance. A subsequent legislative push in Colorado to protect workers who use cannabis failed.
Norhan Mansour is the cop at the center of the commission’s decision. According to court documents, she was chosen for a random drug test on Sept. 20, 2022, that turned up positive for cannabis (this was five months after the state’s recreational cannabis market opened). During a disciplinary hearing in November, she conceded that she had ingested cannabis gummies the night before the test, and afterward she was fired, the documents show.
She challenged her termination and the case went before Administrative Law Judge Kimberly Moss. Attorneys for Jersey City argued federal law bars 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 Act.
Fulop has made those arguments himself, posting on social media in April 2022 in response to Platkin’s memo that allowing officers to use cannabis off duty would put the “community at risk.” Fulop’s view was echoed by other mayors, including state Sen. Paul Sarlo (the Wood-Ridge mayor) and the Ocean County Sheriff’s Office, which also said it would bar its officers from using cannabis ever.
“I have been a staunch supporter of legalization and we have made Jersey City the most flexible with regards to legalization for our community but responsible protections for our officer and community is important. The trust between police/community is fragile,” Fulop wrote.
In June, Moss ruled in Mansour’s favor. Her decision notes the “obvious conflict” between the state’s law and federal law, which still considers marijuana an unlawful controlled substance. But she said the state is not required to enforce federal law while state law directs police departments to comply with the CREAMM Act, which bars employers from firing workers for using cannabis.
Moss also noted that the city did not cite anything that showed off-duty cannabis use interfered with Mansour’s job performance.
“There is no proffered evidence that there was ever reasonable suspicion of cannabis use on the job by Mansour, nor were there any purported signs of intoxication, suspected drug use, or impairment during work hours,” she said.
Moss recommended that the Civil Service Commission reinstate Monsour, which it did in its Aug. 2 ruling. That decision also awarded Monsour back pay, benefits, and attorney’s fees.
The city has not put Monsour back to work. It can appeal the commission’s decision to the state’s Appellate Division, and Kimberly Wallace-Scalcione, Fulop’s spokesperson, said an appeal is in the works.
James Shea, the city’s public safety director, told the New Jersey Monitor the crux of the issue here is federal law that bars 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 bars cannabis users from using firearms, they cannot be police officers.
“Right now, it remains illegal for anyone who uses marijuana to own a firearm,” he said, adding the Civil Service Commission is “telling me to rehire them and to rearm them. By my reading of my federal law, they’re telling me to commit a crime. And they can’t make me commit a crime.”
Shea said he does not believe the administrative law judge who heard Mansour’s case properly addressed this issue.
Peter Paris, Mansour’s attorney, said in a brief filed with the Civil Service Commission that New Jersey police officers do not need federal approval to carry firearms, so even if a Jersey City police officer lost their federal firearms license, they could still lawfully carry their weapons on duty.
Bauchner said he believes the city will lose in the end, and he hopes it’s fought all the way up to the state Supreme Court so the justices can “put the issue to rest.”
“There’s no challenge they were impaired on the job, just that they were legally consuming,” Bauchner said. “I don’t know why Jersey City of all places would be the ones to challenge this.”