New Jersey may have legalized the sale of marijuana, but as we all know by now, it still remains illegal under federal law for Garden State gun owners to toke up or eat an edible. As New Jersey firearms attorney Evan Nappen has said, residents have to choose between “bang or bong” if they want to keep their rights intact.
Despite the federal prohibition, the state’s Civil Service Commission and an administrative law judge have given the green light for law enforcement officers to imbibe, so long as they’re not on duty. The move follows New Jersey Attorney General Matthew Platkin’s 2022 directive that off-duty officers can use cannabis as long as they’re sober when they report to work. Several municipalities disputed Platkin’s order, including Jersey City, where Mayor Steve Fulop issued a directive of his own stating any officer who tested positive for marijuana would be dismissed from the force.
Not long after Fulop’s directive came down, four Jersey City officers were fired after allegedly testing positive for marijuana. The officers have appealed their termination, and so far the state’s bureaucracy has taken their side.
Jersey City is one of a few police departments that requires its officers to purchase their own guns, and city officials claim that federal law prevents them from legally owning a gun because of cannabis use, a report by the Jersey City Times said.
However, recent rulings by administrative law judges and the Civil Service Commission have sided with fired officers Norhan Mansour and Omar Polanco, saying they should both be reinstated with back pay.
The CREAMM Act “precludes employers from terminating their employees solely due to the presence of cannabinoid metabolites in the employee’s system,” wrote Administrative Law Judge Kimberly A. Moss in a June decision supporting Mansour’s claim for reinstatement.
The state Civil Service Commission also granted Mansour’s appeal in a decision Aug. 2. And last week, Administrative Law Judge Joann Lasala Candido ordered Polanco reinstated, per the Jersey City Times.
Federal law “does not preempt the CREAMM Act as it applies to police officers in New Jersey,” Candido wrote.
In her June decision, Judge Moss acknowledged the federal statutes in question, but noted that the CREAMM Act “expressly directs law-enforcement agencies in New Jersey not to cooperate with or assist the federal government in enforcing these federal laws.”
The respondent asserts that despite the language in the CREAMM Act, federal law prohibits the receipt or possession of a firearm or ammunition by users of marijuana, and that the respondent properly terminated the appellant for using marijuana due to his “unbecoming use of such substance in dereliction of federal law.” The respondent argues that federal law preempts the CREAMM Act as it relates to discipline of police officers’ use of marijuana because federal law prohibits those officers from fulfilling their job duties by receiving and possessing firearms and ammunition if they use marijuana. The respondent further asserts that Mansour cannot continue as a police officer if she is a user of marijuana because federal law prohibits her from possessing a firearm or ammunition, which are required job duties.
With regard to the preemption issue raised by the respondent, Jersey City specifically references 18 U.S.C. §922(d) and 18 U.S.C. §922(g), and argues that the US Congress enacted legislation prohibiting certain individuals from possessing or receiving firearms or ammunition, and prohibiting individuals from providing firearms or ammunition to such an individual based upon the person’s drug use. Moreover, the respondent notes that marijuana is a Schedule I controlled dangerous substance under federal law ( 21 U.S.C. §812), and the US Department of Justice Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) has advised that under the federal firearms law “any person who uses or is addicted to marijuana, regardless of whether his or her State has passed legislation authorizing marijuana use for medicinal purposes, is an unlawful user of or addicted to a controlled substance, and is prohibited by Federal law from possessing firearms or ammunition.” (September 21, 2011, open letter to all firearms licensees.) The respondent argues, therefore, that conflict preemption nullifies the CREAMM Act because the CREAMM Act might suggest that police officers can utilize marijuana while continuing to work in a position that requires receipt of or possession of a firearm and ammunition.
I am not persuaded by the respondent’s arguments that the federal law cited by the respondent in its brief preempts the CREAMM Act as it applies to police officers. There is an obvious conflict between the CREAMM Act, which legalizes the personal use of marijuana in New Jersey, and federal law, which still considers marijuana an unlawful controlled substance, and this conflict was recognized by the State of New Jersey Legislature when it enacted the CREAMM Act.
In other words, DOJ could still charge Mansour and other law enforcement officers who partake of the peace pipe with violating 18 USC § 922(g)(3), but that violation is not grounds for dismissal under the CREAMM Act.
Ironically, while officials like former New Jersey Attorney General Gurbir Grewal have bashed Second Amendment sanctuaries, the CREAMM Act turned the state of New Jersey into a Second Amendment Sanctuary of sorts, at least when it comes to 922(g)(3), by directing “law enforcement in New Jersey to not cooperate with federal agencies enforcing The Controlled Substances Act for activities solely authorized by the Act.”
Theoretically, these decisions put all gun-owning residents in the state on a level playing field, though I have my doubts that the law will be routinely ignored when it comes to non-law enforcement officers caught with a firearm and a small amount of marijuana. If nothing else the status quo is yet another reminder of the screwy status of marijuana at the federal level and the selective enforcement of the federal prohibition in states that have chosen to legalize the drug. The easiest way to end this hypocrisy would be for Congress to simply remove marijuana from the list of Schedule 1 narcotics, but with cases like U.S. v Daniels that challenge 18 USC § 922(g)(3) making their way through the federal court system, it may be that SCOTUS that steps in and invalidates the federal statute that the cops in question are apparently violating. Either way, Nappen is right that for now it’s either “bang or bong”, at least as far as DOJ is concerned, and while New Jersey gun owners may be able to toke up without fear of losing their job, they could still lose their Second Amendment rights as a result.
