Jersey City, the second biggest city in New Jersey, is suing the state in federal court in order to be able to screen and fire police officers for using marijuana. But its complaint seems to ignore a relevant exception to federal firearms policy that could apply to the case.
Earlier this year, New Jersey’s attorney general released revised drug testing policies for law enforcement agencies that prevented the testing of police officers for off-duty cannabis use in accordance with the state’s legalization law. Since then, at least two Jersey City officers have had their jobs reinstated after being fired for positive THC tests.
In the new lawsuit filed Monday, Jersey City and its public safety director, James Shea, are asking a judge to declare that federal law preempts New Jersey’s cannabis law and the attorney general’s testing policies. The complaint points to a federal statute that prevents people who use marijuana from acquiring firearms or ammunition.
Jersey City Mayor Steven Fulop (D), who is running for governor, said on social media that the action cites “the same federal law that Hunter Biden was indicted under with regards to firearms,” referring to President Joe Biden’s son, who is facing federal charges related to allegedly possessing a gun while being an active consumer of cocaine.
The mayor said in his post that there’s “no way to confirm whether cannabis was used an hour, a day, or week before a shift.”
“No city in NJ has been more supportive of cannabis overall but we should have common sense as well,” he wrote.
There is no way to confirm whether Cannabis was used an hour, a day, or week before a shift and it will take one questionable judgement call by a police officer that tests positive that will expose the city to massive liability. No city in NJ has been more supportive of Cannabis…
— Steven Fulop (@StevenFulop) October 16, 2023
The lawsuit asserts that Jersey City and its personnel are forced to violate federal law “because they would be required, at minimum, to provide ammunition to officers who they know are users of cannabis.”
A reading of 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 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].”
Of course, any New Jersey resident technically commits a violation of federal law by merely possessing or using marijuana, which remains a Schedule I controlled substance.
City officials held a press conference on Tuesday about the filing of the lawsuit.
The Jersey City Police Department has terminated several officers over positive THC metabolite tests and has stood firm against the state’s policy permitting off-duty cannabis use. But two administrative law judges, most recently in August, have ruled against the city and ordered the reinstatement of two fired police officers, with backpay.
Per the attorney general’s guidance, police 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. “Agencies must undertake drug testing when there is reasonable suspicion to believe a law enforcement officer is engaged in the illegal use of a controlled dangerous substance,” it says, “or is under the influence of a controlled dangerous substance, including unregulated marijuana, or cannabis during work hours.”
But as Jersey City officials emphasized at the Tuesday’s press conference, no test is available to reliably show whether an officer is impaired by cannabis during work. Allowing law enforcement officers to use marijuana, officials said, puts public safety at risk and exposes the city to legal liability.
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.
Earlier this month, 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.
Shortly before the Eleventh Circuit hearing, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) reportedly sent a letter to Arkansas officials saying that the state’s recently enacted law permitting medical cannabis patients to obtain concealed carry gun licenses “creates an unacceptable risk,” and could jeopardize the state’s federally approved alternative firearm licensing policy.
After Minnesota’s governor signed a legalization bill into law in May, the agency issued a reminder emphasizing that people who use cannabis are barred from possessing and purchases guns and ammunition “until” federal prohibition ends.
In 2020, ATF issued an advisory specifically targeting Michigan that requires gun sellers to conduct federal background checks on all unlicensed gun buyers because it said the state’s cannabis laws had enabled “habitual marijuana users” and other disqualified individuals to obtain firearms illegally.
Meanwhile, attorneys for Hunter Biden—who has been indicted on a charge of buying a gun in 2018 at a time when he’s disclosed that he was an active user of crack cocaine—have previously cited the court ruling on the unconstitutionality of the federal ban, arguing that it applies to their client’s case as well.
Republican congressional lawmakers have filed two bills so far this session that focus on gun and marijuana policy.
Rep. Brian Mast (R-FL), co-chair of the Congressional Cannabis Caucus, filed legislation in May to protect the Second Amendment rights of people who use marijuana in legal states, allowing them to purchase and possess firearms that they’re currently prohibited from having under federal law.
Senate Majority Leader Chuck Schumer (D-NY) has committed to attaching that legislation to a bipartisan marijuana banking bill that advanced out of committee last month and it pending floor action.
Meanwhile, Mast is also cosponsoring a separate bill from Rep. Alex Mooney (R-WV) this session that would more narrowly allow medical cannabis patients to purchase and possess firearms.
Here’s the city’s full complaint filed Monday in federal court: