At a news conference last week announcing a federal lawsuit seeking to overturn recent rulings reinstating police officers fired for off-duty cannabis use, Mayor Steven Fulop argued that allowing such off-duty cannabis use “exposes Jersey City to millions of dollars in potential liabilities, and that’s just unacceptable to us.”
“There is no way for a police department to know if somebody ingested or consumed cannabis-related products one hour, one week, or three weeks prior to their shift,” explained the mayor.
Director of Public Safety James Shea backed up Fulop. “Alcohol we have tests for. It can tell us whether you consumed alcohol … (but with) marijuana, there is no existing test. If anyone wants to become a billionaire, invent that test.”
While Fulop and Shea appear to be correct that a reliable test to detect cannabis impairment does not exist, two law professors think that both men nonetheless misunderstand the law when it comes to Jersey City’s liability. Indeed, without a reliable test for cannabis, the task for a plaintiff’s lawyer suing the city might, if anything, be harder.
“The plaintiff’s attorney would be left arguing, ‘Well, the city of Jersey City allowed them to smoke marijuana, and he may have smoked marijuana, and his smoking marijuana may have affected what he did to my client.’ How is that going to carry the day under any burden of proof?” said Seton Hall Law School Professor Denis McLaughlin.
Rutgers Law Professor John Leubsdorf largely agreed with McLaughlin. If there is no reliable test for cannabis impairment, he said, a plaintiff’s lawyer would have few ways of establishing that cannabis use had anything to do with the officer’s conduct short of the officer’s admitting that he was high or someone’s seeing him use cannabis immediately before the occurrence.
Said Leubsdorf, “It requires all sorts of assumptions as to how you know and how strong the influence (of the officer’s off-duty use) is.” McLaughlin and Leubsdorf both noted that speculation as to whether the officer was impaired wouldn’t be allowed in court.
Leubsdorf thinks the city’s rationale for penalizing cops for what is now a state constitutional right could theoretically open the door to other types of discrimination. “To what extent can government get around (objections) by saying, ‘Well, we’re not prohibiting you from smoking off the job exactly, we’re just removing you because you increase the likelihood of liability.’ You could say that about all sorts of things that the government isn’t supposed to be considering. Suppose you say, for instance, ‘We’re not going to hire Black police officers, not because we object to Black police officers but because we see that as a matter of statistics and empirical evidence, when police officers are sued, Black officers are more likely to be held liable because jurors are prejudiced against them.’” That would be plainly illegal, says Leubsdorf.
There are other issues, says the city. Without a reliable marijuana test, police investigations would also be hamstrung, according to Shea. “If, God forbid, one of our officers is in one of those split-second life-or-death decisions, the Hudson County Prosecutor, if they suspect alcohol use, can immediately order a test.” Fulop agreed. “After those incidents, the police officers are tested ultimately. So there is exposure to us with regard to litigation that happens afterwards if THC is in their system.”
The argument strikes police union attorney Peter Paris, as disingenuous at best. “Over the past 14 years, I have represented officers all over the state in dozens of fatal and non-fatal shootings and motor vehicle accidents, and I have never seen an officer drug tested without evidence of visible intoxication.” Others agree. Such tests are, indeed, exceedingly rare say sources within the police department.
Shea offered an alternative justification seemingly at odds with his claim that police officers’ use of cannabis off duty presents an inherent risk from a liability and public safety perspective. “They have not been terminated because they used marijuana. They have been terminated because they can no longer carry a firearm and perform the duties of a police officer in the state of New Jersey” said Shea.
“We immediately noticed a conflict with…the 1968 Gun Control Act…which makes it illegal for any individual in the United States of America to possess, transfer, own a firearm” if they are a user of marijuana. Thus, he said, a police officer who used marijuana could not be armed with a weapon without breaking federal law. The law, said Fulop in a tweet, is the same one Hunter Biden ran afoul of when he certified on a federal gun permit application that he didn’t use a controlled substance.
What Fulop and Shea didn’t mention is that New Jersey law exempts municipal police officers from the obligation of obtaining a gun permit and the concomitant requirement that they certify that they do not use a controlled substance. Moreover, in August, a federal appeals court in the case of United States v. Daniels found the law barring users of controlled substances from owning guns unconstitutional. Several other federal courts have agreed.
In all of this, attorney Michael Rubas, who has represented several of the officers fired by Jersey City for off-duty cannabis use, sees gross hypocrisy. “While claiming that, in prohibiting the use of cannabis by officers they are merely enforcing federal law,” Rubas wrote in a recent court filing, “Shea’s police department ignores federal law when it performs a review and approval process for all security systems for cannabis establishments and distributors in Jersey City.”
But Jersey City may be guilty of more than hypocrisy. An administrative law judge has pointed out that the constitutional amendment that legalized personal use of cannabis in New Jersey “expressly directs law enforcement agencies in New Jersey not to cooperate with or assist the federal government in enforcing these federal laws.”