We’ve been covering the contradiction between state and federal law when it comes to marijuana and gun use for several years now, with little progress to report. But a new lawsuit filed in federal court by Jersey City Mayor Steve Fulop against the state of New Jersey could bring the issue to a head before long.
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Under federal law, it’s illegal to possess a firearm as a user of “unlawful” drugs. That includes marijuana use, even in those states that have legalized it for medical and/or recreational use. You might not violate state law by owning a gun and consuming cannabis, but as we’ve seen, the DOJ is still enforcing the federal prohibition on a regular basis. In fact, the DOJ just filed a cert petition with the Supreme Court seeking to overturn a Fifth Circuit Court of Appeals decision that found the statute to be a violation of the Second Amendment.
When New Jersey approved retail sales of cannabis a couple of years ago, it also forbade police departments from disciplining officers who toke up off-duty. Jersey City PD has refused to go along with that mandate, and dismissed at least five officers for using marijuana on their personal time. The state’s Civil Service Commission has so far ordered two of the officers to be reinstated, but now Fulop is challenging that decision in federal court, arguing that the order violates the federal Gun Control Act and its prohibitions on gun use and possession for “unlawful” drug users.
At a news conference Tuesday, Fulop and Jersey City Public Safety Director James Shea argued that taxpayer dollars would be on the line if the city were to be sued over officer misconduct and the officer in question tested positive for marijuana use.
“When you talk about $20 million lawsuits, which we see, those come out of taxpayer dollars ultimately, and when you talk about situations of use of a gun or a firearm that could result in death, those lawsuits that we see are beyond $20 million,” Fulop said. “You’re talking about a huge, huge liability for the residents here. Huge.”
The state, the state attorney general, the state civil service commission and the five officers the city terminated are all named as defendants.
The attorney for the five terminated officers described the lawsuit as the real waste of taxpayer dollars.
“After losing multiple cases in state court and incurring hundreds of thousands of dollars in legal fees and back pay orders for the officers who have been reinstated, Jersey City is now wasting additional taxpayer resources on this frivolous complaint,” said Michael Rubas, who represents the officers. “If Jersey City believed so strongly in its position, it would not have waited 18 months after the start of legalized sales to file this action.”
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I hate to say it, but as asinine as the federal law might be, it is still the law, and Fulop has a minor point in his favor when he talks about the potential for lawsuits. Unlike alcohol, there’s no easy way to test the intoxication level of someone who’s using cannabis, but tests can determine whether someone has smoked in the recent past, so even an officer who consumes marijuana solely off-duty could still end up accused of being high on the job.
The other issue, of course, is that marijuana use remains illegal under federal law, so it’s entirely possible that a police officer in New Jersey who’s allowed by the state to imbibe off-duty could still face federal charges for doing so, even if it’s not a fireable offense according to the Civil Service Commission.
I’m less concerned about the liability for Jersey City than I am with the two-tiered standard for gun possession and marijuana use established by the state. While New Jersey doesn’t explicitly prohibit marijuana users from obtaining a Firearms ID card, pistol purchase permit, or concealed carry license, those legal documents can be denied by any licensing authority if they believe it’s in the “interest of the public health, safety or welfare”, so long as they declare that the applicant “is found to be lacking the essential character of temperament necessary to be entrusted with a firearm.” That’s an awfully open-ended statement that any anti-gun official could easily use to deny someone access to their Second Amendment rights.
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If the average New Jersey resident is forced to choose between exercising their Second Amendment rights and using marijuana either medicinally or recreationally, why should cops be exempt?
The simplest fix would be for Congress to remove the prohibition on cannabis use and gun ownership, at least in those states that have legalized the drug. There was some hope that the Senate would include the Gun Rights and Marijuana Act in a bill that would allow cannabis-based businesses greater access to financial institutions, but with the chambers nearly at a standstill because of the lack of a House Speaker, who knows if or when that will actually happen. The Supreme Court could also settle the issue if it accepts the Daniels case I mentioned above, but for the time being, gun owners (even police officers) in the Garden State and every other state that’s legalized marijuana are still going to have to choose between their Second Amendment rights and their freedom to spark up.