In a case highlighting the tension between legal recreational marijuana use and the needs of employers, four Jersey City police officers are fighting for reinstatement after testing positive for cannabis.

The officers, who asked to remain anonymous while their petitions are pending before the Civil Service Commission, all deny using marijuana on the job, says their Princeton, New Jersey lawyer, Peter Paris. According to papers reviewed by The Jersey City Times, the city has not alleged their use of marijuana while at work.

Instead, the city is arguing that the officers failed to follow departmental orders not to use cannabis at all. In addition the city claims that because they use cannabis, they cannot legally own a gun under federal law, making them unable to serve. Jersey City is one of small number of police departments that require its officers to purchase their own guns.

To a layperson, the firing of the officers would appear to run afoul of a constitutional amendment approved by New Jersey voters in 2020, allowing for the recreational use of marijuana. Legislation enacted in 2021 expressly barred employers from taking “adverse employment actions” against employees who test positive for cannabis. In an April, 2022 letter, the New Jersey Attorney General warned police departments that “law enforcement agencies may not take any adverse action against any officers because they do or do not use cannabis off-duty.”

Unsurprisingly, Paris is dismissive of the city’s argument that federal law allows it to fire his clients. “They’re saying that despite what the attorney general says, despite what the constitution says, despite what the statute says, in Jersey City, because we make you buy a gun, it doesn’t apply to us.”

According to Paris, who represents police officers across the state, police officers don’t need a license to carry a duty weapon. Furthermore, he says that Jersey City’s invocation of federal law to justify firing of the officers is disingenuous given that “everything about legal cannabis under the New Jersey Constitution…is technically unlawful under federal law.”

Police brass have pushed back. In an Op-Ed last year, the president of the New Jersey State Association of Chiefs of Police called for an exemption to allow for such firings for “safety-sensitive” professions, such as policing.

In April last year — before the firings — Mayor Fulop warned officers not to light up, saying “New Jersey’s policies allowing law enforcement to smoke is an outlier nationally and one that will put our officers + community at risk with impaired judgment.”

To Paris, Jersey City is the outlier. He says he is aware of only one other police department in the state that has fired someone for testing positive for cannabis. Conversely, Paris has represented police officers in other New Jersey jurisdictions who tested positive but faced no disciplinary action after proving that the cannabis was purchase lawfully. In this case, Paris says all four officers purchased their cannabis at licensed dispensaries.

Legislation to allow the firing of police officers for off-duty cannabis use hasn’t moved forward. Last year, State Senate President Nick Scutari said he opposed such legislation. “You open up this box where you start regulating people’s behavior when they’re on their own time. I think that’s a very dangerous, slippery slope, that I’m not willing to go down.” Some of Scutari’s Senate colleagues have a different view, however, according to New Jersey Monitor.

Shortly after the third and fourth Jersey City officers were fired, the Attorney General issued new guidelines banning cannabis testing for law enforcement except where there is “reasonable suspicion” that the officer is high on the job.

Whether a test based upon such reasonable suspicion will be useful remains open to question, however. While numerous companies are working to develop a simple marijuana intoxication test that would be as easy to administer as a breathalyzer, no foolproof test yet exists. Further complicating detection for purposes of employment is the fact that marijuana stays in the system for weeks after use.

Jersey City officials did not respond to a request for comment.

Meanwhile, the four officers remain off the force. Should the petition for reinstatement succeed, they will be granted back pay, says Paris. But, he adds, “The emotional distress is not compensable.”

Aaron is a writer, musician and lawyer. Aaron attended Berklee College of Music and the State University of New York at Purchase. Aaron served as a Peace Corps volunteer in Ecuador. He received a J.D....