A New Jersey administrative law judge has dealt another blow to Jersey City’s police chief and mayor, ordering the reinstatement of another officer who was fired after testing positive for marijuana despite state constitutional protections.
The Jersey City Police Department has contested the state’s policy permitting off-duty cannabis use, including by law enforcement, and has fired several officers due to positive THC metabolite tests. But now two administrative law judges, as well as the Civil Service Commission (CSC), have overruled the department, upholding the constitutional protections that were enshrined under the state’s marijuana legalization law in 2021.
Accordingly, the department has been ordered to reinstate Norhan Mansour and Omar Polanco, with backpay. Mansour’s case was resolved by Administrative Law Judge Kimberly Moss earlier this month. And on Friday, Administrative Law Judge Joann Lasala Candido followed suit in Polanco’s case.
In both instances, the city tried to argue that federal statute prohibiting people from buying or possessing firearms if they’re an “unlawful user” of marijuana preempts the state’s laws. But as the judges pointed out, police are exempt from that rule, as they can obtain firearms after completing training at the Police Academy.
“I agree with the Mansour analysis by ALJ Moss and adopted by the Civil Service Commission that the federal law cited by the respondent in its brief does not preempt the [legalization law] as it applies to police officers in New Jersey,” Candido said, as Jersey City Times reported.
Jersey City Mayor Steven Fulop (D), who is running for governor, has also fought against the policy allowing police to use marijuana off duty, saying it April 2022 that it “will put our officers + community at risk with impaired judgement.”
3/5 law enforcement to smoke is an outlier nationally and one that will put our officers + community at risk with impaired judgement. Unlike alcohol where there are tests + timelines that can create clear protection between consumption + duty, w/marijuana that doesn’t exist.
— Steven Fulop (@StevenFulop) April 20, 2022
But as far as the state is concerned, the law is not ambiguous. And New Jersey Attorney General Matthew Platkin (D has made it clear that officers can consume off hours, issuing a memo in April 2022 that clarified the policy and codifying updated drug testing guidance for law enforcement earlier this year.
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Some lawmakers like Assembly Speaker Craig Coughlin (D) have previously signaled that they would seek to pass legislation to revise the state’s law with respect to law enforcement and cannabis, while others like Senate President Nick Scutari (D) have said that they wanted to preserve the off-duty carve-out.
Gov. Phil Murphy (D), for his part, said that he was “open-minded” about a potential policy change to revise the rules for police officers who use marijuana outside of work hours.
With respect to the city’s argument about federal preemption, the statute that they’re citing has been deemed unconstitutional by one federal circuit court and two federal district courts in recent months. The Justice Department continues to appeal the rulings.
In June, meanwhile, the New Jersey Supreme Court separately ruled that police officers improperly used the smell of cannabis as the basis to search a man’s car, allowing him to rescind his guilty plea.
Photo courtesy of Martin Alonso.