A new lawsuit from two Jersey City police officers who were fired for testing positive for marijuana says that the city’s policy of punishing law enforcement for off-duty cannabis use—which defies a state-level policy—is merely an effort by Mayor Steven M. Fulop (D) to “win over more conservative voters needed for his gubernatorial campaign.”
Fulop, who launched his campaign for governor in April, announced that month that the city would terminate officers who tested positive for THC despite guidance from the state’s attorney general not to test officers for off-duty cannabis use.
The new legal challenge seeks to uncover more details by compelling Jersey City to release additional documents and records. In comments to Marijuana Moment on Tuesday, however, the mayor’s press secretary suggested the city had already made those items available to an attorney for the plaintiffs.
The legal challenge adds yet another layer to the conflict between state and local testing policies. Last month, Fulop and the city’s public safety director, James Shea, announced that Jersey City was suing the state in federal court over the policy. That lawsuit points to a federal statute that prevents people who use marijuana from acquiring firearms or ammunition, though it ignores a carveout appears to apply to government agencies.
The mayor said on social media at the time that there’s “no way to confirm whether cannabis was used an hour, a day, or week before a shift.”
The New Jersey Fraternal Order of Police, for its part, has called Jersey City’s action “an unfortunate waste of taxpayer dollars.”
The new lawsuit, from Jersey City police officers Nora Mansour and Omar Polanco, alleges that the city policy championed by the mayor is “solely a political decision.”
The complaint argues that the “unlawful employment policy is just a ruse done solely to bring attention to him and to assist his gubernatorial campaign to the detriment of Jersey City employees as well as taxpayers who are know [sic] footing the bill of hundreds of thousands of dollars in attorneys fees.”
Both Mansour and Polanco were fired as the result of positive THC drug tests, though both won reinstatement to their jobs after the state’s Civil Service Commission told the city to rehire them, noting that cannabis use is protected under New Jersey’s constitution.
“Mayor Fulop believes that his unlawful policy to violate the constitutional right of Jersey City police officers to use and possess regulated cannabis off-duty and defy multiple orders of the Civil Service Commission,” says the complaint, filed on Friday, “will win over more conservative voters needed for his gubernatorial campaign.”
As evidence of the political nature of the policy, plaintiffs pointed to an email from Fulop’s personal email account to Jersey City Public Safety Director James Shea from April, shortly after the mayor announced the new policy of terminating officers who test positive for marijuana.
“Little revolt we started,” Fulop says in the email, referencing a news story.
The lawsuit describes the comment as “flippant” and claims the city has withheld another 20 emails related to the matter, which plaintiffs are asking a judge to compel the city to release.
In an email to Marijuana Moment, Michael Rubas, a Manasquan-based lawyer representing the officers in the lawsuit, emphasized that Mansour and Polanco have both been reinstated to paid employment in Jersey City by orders of the Civil Service Commission.
“These are lawful orders that have not been stayed,” he said, noting that a motion to stay the order is pending. “Yet, Mayor Fulop who is running for and wants to be governor of New Jersey, the head of New Jersey Government, does not follow lawful orders.”
Reached by email Tuesday, a Jersey City representative alleged to Marijuana Moment that Rubas himself failed to follow up on the city’s offer to provide certain documents, pointing to an exhibit attached to the new lawsuit in which she said counsel “clearly offers” access and invites him to connect by phone.
“Instead of placing one simple phone call, Mr. Rubas—an attorney who is paid by the hour—chose to draft a 38-page complaint,” said Kim Wallace-Scalcione, press secretary for the mayor’s office. “No call was made.”
In a follow up email, Rubas replied: “Jersey City’s response deflects and doesn’t address the merits of the action. Further, why would I call when I put the request for a Vaughn index in writing to the person responsible for proving? And, if successful Jersey City will pay the fees pursuant to the [Open Public Records Act] statute.”
A Vaughn index is a document prepared by agencies in response to public records requests to justify the withholding of public documents.
New Jersey’s attorney general released revised drug testing policies for law enforcement agencies in February that generally barred screenings for marijuana in most circumstances following the state’s enactment of legalization. Under the guidance, officers can still be tested for THC if there’s reasonable suspicion that they used cannabis during work hours, or if there’s a federal requirement.
Under the revised guidance from state Attorney General Matthew Platkin (D), law enforcement officers must be screened for THC if there’s “reasonable suspicion of the officer’s use of a cannabis item while engaged in the performance of the officer’s duties” and if there’s a “finding of observable signs of intoxication related to the use of a cannabis item while engaged in the performance of the officer’s duties.”
Drug screening can include the detection of cannabis metabolites if the officer is part of a federal task force, holds a federally regulated license that requires testing such as those for pilots or if they’re required to be screened “by the terms of a federal contract or federal grant.”
Platkin’s office had released an earlier memo asserting that the legalization of marijuana in New Jersey meant agencies couldn’t penalize officers for off-duty cannabis use—an advisory that sparked some pushback among critics.
Some lawmakers, like Assembly Speaker Craig Coughlin (D), signaled that they would seek to pass legislation to address the issue. Others, such as Senate President Nick Scutari (D), 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.
In its federal lawsuit, Jersey City points to a U.S. law barring people who use marijuana from acquiring firearms or ammunition. It argues that city officials would be forced to violate federal law under the state policy, “because they would be required, at minimum, to provide ammunition to officers who they know are users of cannabis.”
The suit also says that police who use cannabis are themselves committing felonies because they “must possess and receive a firearm and ammunition in order to be a police officers [sic].”
A plain reading of the federal firearms policy, however, suggests a different standard applies when firearms are distributed by government agencies.
Here’s the federal policy for people seeking to purchase or possess firearms with respect to marijuana:
“It shall be unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person…is an unlawful user of or addicted to any controlled substance…”
“It shall be unlawful for any person…who is an unlawful user of or addicted to any controlled substance…to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.”
And here’s the relevant exception that could apply to local law enforcement officers:
“The provisions of this chapter, except for sections 922(d)(9) and 922(g)(9) and provisions relating to firearms subject to the prohibitions of section 922(p), shall not apply with respect to the transportation, shipment, receipt, possession, or importation of any firearm or ammunition imported for, sold or shipped to, or issued for the use of, the United States or any department or agency thereof or any State or any department, agency, or political subdivision thereof.”
The question of gun ownership and marijuana use is one that’s worked its way through federal courts in recent years, although rulings have reached different conclusions.
In August, a federal appeals court panel for the U.S. Court of Appeals for the Eleventh Circuit heard oral arguments in a case around gun ownership by medical marijuana patients. In that matter, plaintiffs are appealing a lower court judge’s ruling that upheld the federal ban.
The U.S. Court of Appeals for the Fifth Circuit, however, ruled in August that the federal ban on firearms by cannabis users is unconstitutional. A disagreement between the two circuit courts could lead the U.S. Supreme Court to take up the issue.
The Department of Justice has advised the Eleventh Circuit that it feels the Fifth Circuit ruling was “incorrectly decided,” and at oral argument asserted that “there are some reasons to be uncertain about the foundations” of that decision.
Some district courts have also ruled against the federal prohibition.
The U.S. District Court for the Western District of Oklahoma ruled in February that the ban prohibiting people who use marijuana from possessing firearms is unconstitutional, with the judge stating that the federal government’s justification for upholding the law is “concerning.”
In U.S. District Court for the Western District of Texas, a judge ruled in April that banning people who use marijuana from possessing firearms is unconstitutional—and it said that the same legal principle also applies to the sale and transfer of guns, too.
This story has been updated with comments from the press secretary for the mayor’s office.
Here’s the full complaint against Jersey City filed last week by lawyers for the two police officers: