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Cops and Cannabis - Part I

Case update: NJ Police Officers and Cannabis Use

In April of 2022, the NJ Attorney General issued a memo stating that police officers could not be disciplined for testing positive for cannabis and were allowed to use cannabis recreationally. Many, including the Jersey City mayor, objected to the Attorney General's guidance and stated that officers should be fired if they use cannabis. Jersey City is a Civil Service municipality and is subject to Civil Service laws and regulations, which include review of major discipline by an Administrative Law Judge and then the Civil Service Commission itself.

In the attached decision, the Administrative Law Judge somewhat unsurprisingly overturned Jersey City's decision to terminate an officer who tested positive for pot but who was not intoxicated in the workplace. Jersey City argued unsuccessfully that federal law, under which cannabis is still illegal, preempts NJ law with respect to law enforcement officers - who carry weapons.

Jersey City may have fumbled by not charging the officer with being untruthful by indicating prior to his drug test that he had not used cannabis, insofar as he came up positive (note: positive testers have historically claimed that they haven't smoked but could have tested positive because they were "at a party" where people were smoking). Because the charge in the disciplinary case as set down by Jersey City was based solely on the positive drug test, the ALJ did not delve into whether there was a sufficient basis to prove the officer lied to his department.

Takeaway 1 - if you are a local agency, you might want to see how municipalities on the bleeding edge, such as Jersey City, fare in their attempts to terminate cops for recreational cannabis use before following suit.

Takeaway 2 - if an officer tests positive for drugs, use the IA procedure to pin the officer down on when, where and how they ingested the substance. If dishonesty is apparent, make sure that dishonesty is one of the charges.

Jersey City pot case 1.19.23
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