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New Jersey AG Declares Police Officers Cannot Face Discipline for Off-Duty Cannabis Consumption

By: Mira Baylson, Meghan Stoppel and Gianna Puccinelli

As the highest-ranking law enforcement officer, a state’s attorney general sets the tone for other state and local law enforcement agencies at all levels, by not only setting broad policy initiatives but also interpreting laws that impact officers in their day-to-day duties.  Nowhere is this more apparent than in the area of cannabis legalization, where AGs are stepping in to reshape enforcement practices—and deeply-held beliefs—for a previously illegal drug.

For example, on April 13, 2022, acting New Jersey AG Matthew Platkin issued a memorandum to police chiefs reminding them of their obligations towards their employees under the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (the “CREAMM Act”), which legalized the regulated use and sale of marijuana.  As initially reported by the Asbury Park Press, the memorandum stated that, under the CREAMM Act, law enforcement agencies “may not take any adverse action against any officers because they do or do not use cannabis off duty.”  Nevertheless, the memorandum underscored that “there should be zero tolerance for cannabis use, possession, or intoxication while performing the duties of a law enforcement officer . . . .  And there should be zero tolerance for unregulated marijuana consumption by officers at any time, on or off duty, while employed in this state.”  Thus, officers suspected of using cannabis while on duty could be subject to drug testing, with a new drug testing policy that complies with the state’s cannabis laws forthcoming.

It is important to underscore that AG Platkin’s memorandum did not establish any new policies; the CREAMM Act explicitly prohibits employers from taking disciplinary action against employees for their consumption of cannabis, but allows employers to maintain a drug-free workplace and drug-test those whom they believe to be intoxicated.  But by explicitly reminding law enforcement that they, too, were subject to this provision, the AG sent an important message to the industry:  everyone is required to accept, if not embrace, the legalization of cannabis.  Both law enforcement officials, such as Middle Township Police Chief Christopher Leusner, and legislators, such as Assemblywoman Beth Sawyer, have expressed their disapproval of the policy underlying the memorandum.  However, as Chief Leusner acknowledged, “The voters have spoken.  As law enforcement officers, our role is to enforce the law.”  And, in this instance, he and other law enforcement officials will need to follow the AG’s lead as New Jersey enters the murky waters of cannabis legalization.