If employees who drive buses, operate forklifts, and work with hazardous equipment aren’t allowed to test positive for pot should the police? After New Jersey’s Attorney General said that law enforcement officers can consume pot off-duty last year, a lawsuit aims to block officers on police forces from consuming cannabis, even off the clock.

The New Jersey Monitor reports that Jersey City Public Safety Director James Shea, filed an 18-page complaint on Oct. 16, arguing that because federal law prohibits anyone who uses a controlled substance including cannabis from possessing a firearm, Jersey City cannot employ police officers who consume adult-use cannabis. Shea was joined in his announcement with Mayor Steven Fulop and Jersey City Police Department officials.

The State of New Jersey, Matthew Platkin as Attorney General of the state of New Jersey, The New Jersey Civil Service Commission, Norhan Mansour, Omar Polanco, Mackenzie Reilly, Montavious Patten, and Richie Lopez are listed as the plaintiffs. 

The lawsuit argues that federal law prohibits police officers from carrying ammunition, thus making them ineligible to be police officers.

“The Federal Gun Control Act […] prohibits regular users of controlled dangerous substances, including marijuana/cannabis, from possessing or receiving firearms and ammunition,” the lawsuit reads. 

“Police officers in New Jersey are required to possess and receive firearms in order to fulfill their duties as law enforcement officers. New Jersey legalized the regulated use of recreational marijuana/cannabis in New Jersey through passage of the Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMM Act). In doing so, New Jersey failed to address the impact of the federal firearm laws on the use of regulated marijuana/cannabis in New Jersey for persons who are required to possess and/or receive firearms or ammunitions as part of the job duties, including police officers in Jersey City.” 

The lawsuit clarified where specifically the law would need to be applied.

“This action seeks a declaration pursuant to 28 U.S.C. § 2201, that the CREAMM Act and specifically N.J.S.A. 24:6I-52(a)(1) is preempted as it applies to adverse employment action to any individual who is an unlawful user of any controlled substance, including marijuana/cannabis, where such person is required to possess and/or receive a firearm or ammunition as part of his or her job duties.” 

Shea defended his reasoning in challenging police officers’ eligibility based on testing positive for cannabis.

“Every citizen in the state of New Jersey has the right to use marijuana,” Shea told the media at Jersey City’s public safety headquarters. ”If one of our officers wants to do that, they could smoke as much as they want—they can no longer perform the duties of a police officer, and we will have to terminate them if we become aware.”

How This All Started

In April 2022, Attorney General Matt Platkin told law enforcement officials in New Jersey that state law requires them to allow officers to consume cannabis off-duty. This law was recently challenged in Jersey City: The state Civil Service Commission concluded that Jersey City must rehire a police officer who was fired after she tested positive for cannabis. At least three other officers fired for the same reason have also challenged their terminations, the New Jersey Monitor reports.

The CREAMM Act was passed on December 27, 2020. The CREAMM Act authorizes the state’s Cannabis Regulatory Commission (CRC) to expand the existing Medicinal Cannabis Program, and develop, regulate, and enforce adult-use rules and activities.

Shea added at the press conference that the CRC is “refusing to acknowledge the conflict between the federal law and the state law.” The lawsuit highlights the supremacy clause of the U.S. Constitution, banning states from overriding federal statutes. “We all agree that they smoked, they utilized marijuana, cannabis, or THC. We all agree that they would need to carry a firearm to be police officers,” he said. “So it should be as simple as a judge clarifying the supremacy clause.”

Shea said the officers who were fired were all offered jobs in his department that did not involve guns, but the city refused to give them their old jobs back. He added that they were fired not because they used cannabis but because they can no longer carry a firearm, thus becoming ineligible to be police officers.

The commission argued that there is no basis in the state’s adult-use cannabis law, the CREAMM Act, which allows employers to fire someone who uses cannabis outside of the scope of work on the clock, meaning Jersey City can’t fire officers who simply test positive for cannabis because they could have smoked weeks ago.

The decision aligns with the Bureau of Alcohol, Tobacco, Firearms and Explosives, which said last March that people who consume cannabis are ineligible to possess firearms or ammunition under the federal Gun Control Act of 1968.

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New Jersey residents have the opportunity to provide input on upcoming adult-use cannabis rule updates—input that officials say can have a real impact on the outcome of the final rules.

Public comment on proposed updates to the rules for New Jersey’s adult-use cannabis marketplace is now open from the state’s Cannabis Regulatory Commission (CRC). New Jersey residents have until September 30 to provide input.

The proposed rule amendments—contained in a 325-page document—provide changes to licensing processes for delivery, distribution, and wholesale operations. The proposed amendments also cover safe-use information, waste management, and advertising and promotion.

WHYY reports that under the proposed rule amendments, cannabis retailers and delivery services would be able to sell or deliver no more than one ounce of usable cannabis, five grams of solid cannabis concentrate or five milliliters of cannabis oil. Retailers could also not be able to sell vape formulations containing more than five milliliters of cannabis oil, ingestible cannabis products containing more than 1,000 milligrams of THC, or more than one ounce of any combination of usable cannabis and cannabis products.

The New Jersey Cannabis Regulatory, Enforcement, Assistance, and Marketplace Modernization Act, also known as CREAMM Act, was passed on December 27, 2020. New Jersey is one of 18 states to legalize adult-use cannabis.

The CREAMM Act authorizes the CRC to expand the existing Medicinal Cannabis Program, and develop, regulate, and enforce adult-use rules and activities. The public comment period will provide insight into the outstanding issues that may arise.

“The New Jersey Cannabis Regulatory Commission has submitted updated rules for the state’s personal-use cannabis market for public comment,” CRC posted in a news release. “New Jersey residents are being invited to give their feedback on the proposed rules up to Friday, September 30, 2022.”

“The rules, which amend the initial regulations adopted by the NJ-CRC in August 2021, establish licensing instructions for cannabis wholesale, distribution, and delivery businesses. They also clarify the working space for microbusinesses to exclude the square footage of bathrooms, enshrine the adopted Universal Symbol, and simplify labeling requirements for cannabinoids to ensure consumers can make informed choices.”

The CREAMM Act requires that the CRC’s 2021 rules be adopted, amended, or readopted prior to an expiration date that takes place on August 19, 2022.  But a notice of proposed readoption extended the expiration date to February 15, 2023. Public input collected during the 60-day comment period may have an actual effect on the rules as they are currently written.

New Jersey 101.5 reports that some of the new changes include reformulated classes of licenses for delivery and manufacturing operations. Local lawyer Todd Polyniak, from Parsippany-based Sax LLP, provided some insight.

“You can go from growing it to manufacturing it to wholesaling it to distributing it, and then finally selling it in retail or delivering it to a final customer,” Polyniak said.

He said that problems remain, such as social equity startups that have little time to convert a conditional license into an annual license.

“I think the state still needs to come through with some type of way of funding these startups, especially the social equity startups,” Polyniak said. “They have 120 days plus 45 days to actually execute on that conditional license and convert it into an annual license. So that’s not a whole lot of time to get everything done.”

The full language of the rules and the link to register to provide feedback are available on the website. Residents who wish to comment can register through the CRC’s website.

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