NJ AG says off-duty cops can toke up, despite federal law

(AP Photo/Ted S. Warren, File)

Despite the fact that cannabis remains a Schedule 1 drug under federal law, police officers in New Jersey can toke up when they’re off the clock, at least when recreational sales become legal in the state, according to a new opinion from acting New Jersey Attorney General Matthew Platkin.

The opinion, which was released late last week in the form of a memo to police chiefs across the state, warns that departments “may not take any adverse action against any officers because they do or do not use cannabis off duty,” even though under federal law gun owners are not allowed to use the drug, either medicinally or recreationally, as the folks at the US Concealed Carry Association have outlined.

Federal law prohibits medical marijuana users from possessing or buying firearms and ammunition — even if state law allows the drug’s use. An individual can’t have both licenses. Under federal law, any marijuana user is an unlawful user of a controlled substance. The 9th Circuit Court of Appeals has upheld this rule. Marijuana in any form is illegal under federal law. Users of marijuana are prohibited persons. Checking ‘no’ on question 11(e) on the Form 4473 would be a lie if you use marijuana, which is a federal offense. See this ATF letter on the topic.

As it turns out, however, there may be a law enforcement loophole that, ironically enough, would allow police officers to use marijuana while continuing to lock up any and all gun owners who dare to do the same.

In September 2011, the Bureau of Alcohol, Tobacco, Firearms and Explosives issued a memo overtly stating that firearms licenses cannot be issued or sold to any “unlawful user of or addicted to any controlled dangerous substance,” even if that person is a card-carrying medical marijuana patient in their home state.

For the past decade, regulators in numerous states have pointed to that ATF memo as the reason police officers couldn’t become medical marijuana patients.

Recreational marijuana use, in states that legalized weed, has been seen as falling under the same guidelines.

But the federal firearms statutes do include an exception for firearms “issued for the use of the United States or any department or agency thereof or any state or department, agency or political subdivision thereof.”

The ATF did not immediately return a request for comment or clarification.

My non-attorney interpretation of that exception is that police officers could legally toke up, as long as they only gun they possess is their department-issued weapon. Even if that’s what the law currently provides, it’s still a glaring double-standard, and only serves to highlight the need for Congress to quit kicking this can down the road and pass legislation that recognizes the state-level legalization of cannabis and removes the prohibitions on legal gun owners’ lawful use of marijuana.

Unfortunately, that’s going to be an uphill battle. The late congressman from Alaska, Don Young, had introduced the GRAM (Gun Rights and Marijuana) Act last fall, along with two other Republicans, but so far that bill has gone nowhere, and hasn’t even attracted any co-sponsors since its introduction.  The legislation is pretty simple; changing the Gun Control Act of 1968 to specify that one cannot be an ‘unlawful user of or addicted to any controlled substance’ as long as they’re under the jurisdiction of a state that has legalized its use for medicinal or recreational purposes (or both).

Now, it would be even simpler to remove cannabis from the list of Schedule 1 drugs, but honestly, I don’t know that there’s any more appetite in Congress to do that than to adopt the GRAM Act and address the issue on a state-by-state basis.

What I do know is that if the only gun owners who can legally use cannabis are those with a badge, then something’s gotta give. I know far too many gun owners, including members of my own family, who would benefit from using cannabis to reduce the side effects of chemotherapy but are afraid of running afoul of the law, but honestly, I don’t have a problem with recreational users being able to exercise their Second Amendment rights too. The same rules of gun safety still apply (don’t handle a firearm when you’re intoxicated by any drugs or alcohol), obviously, but I don’t see any public safety benefit in turning legal gun owners into criminals because they eat an edible to help them sleep at night instead of pounding down several cocktails.

Perhaps the absurd situation laid out by New Jersey’s Attorney General will actually prompt some genuine action to fix this problem, but I highly doubt it… at least on the part of the congresscritters on Capitol Hill. We could, however, see New Jersey’s new “cannabis for cops” rule lead to a lawsuit by legal gun owners arguing that they too, should have the ability to possess both a gun and a gram or two of marijuana without having to either become a cop or a felon.