OG Article: here
View our Fair Use Policy: here
An administrative law judge's decision reinstating a Jersey City police officer to her job after she was fired for off-duty marijuana use provides an argument for dismissing the city's lawsuit against the state in which it argues that federal law is at odds with New Jersey law, police officers say in a letter filed Monday in federal court.
Michael P. Rubas of Rubas Law Office, who represents five individual police officers in the Jersey City suit, wrote to U.S. District Judge Julien Xavier Neals, calling his attention to Administrative Law Judge Matthew G. Miller's decision Thursday in the case of Mackenzie Reilly, who was fired as a police officer for off-duty marijuana use. Judge Miller ruled that Reilly should be reinstated and awarded back pay. The ruling goes to the state Civil Service Commission, which can accept, modify or reject the decision.
"We are compelled to provide Administrative Law Judge Miller's thorough and well-reasoned opinion from the New Jersey Office of Administrative Law to the court," Rubas wrote to Judge Neals, adding that the opinion says that the plaintiffs do not have standing and that the state's Cannabis Regulatory, Enforcement Assistance and Marketplace Modernization, or CREAMM, Act is not preempted by federal law.
Rubas pointed out that three motions to dismiss are pending in the federal court case: one by the Police Benevolent Association, a second by five individual police officers represented by Rubas and a third by state Attorney General Matthew Platkin.
Jersey City maintains that the state CREAMM Act conflicts with the Federal Gun Control Act, which prohibits users of Schedule 1 drugs from possessing firearms. But the state CREAMM Act says law enforcement officers cannot be fired or disciplined for using pot while off duty, as long as they are not under the influence while working.
Judge Miller noted the apparent clash between the state and federal laws and then said: "However, the combination of (federal and state laws related to exceptions for law enforcement purchases of firearms) and the proposed rescheduling of marijuana to Schedule 3 from Schedule 1 leads me to conclude that there is no conflict of law between CREAMMA and the Federal Gun Control Act.
"Those two provisions demonstrate that there is a pathway for New Jersey police officers to obtain and possess (and for police departments to effectively supply) firearms without running afoul of the Federal Gun Control Act."
In February 2021, the New Jersey Legislature passed and Democratic Gov. Phil Murphy signed into law the CREAMM Act, which made recreational marijuana legal in the state.
Under the law, employers are prohibited from taking "any adverse action against any employee with respect to compensation, terms, conditions, or other privileges of employment because that person does or does not smoke, vape, aerosolize or otherwise use cannabis items."
Jersey City, with Public Safety Director James Shea as the lead plaintiff, filed suit against the state in October, arguing that the CREAMM Act is preempted by the Federal Gun Control Act, which prohibits users of Schedule I drugs, like marijuana, from owning or possessing firearms or ammunition. In January, the Jersey City Police Officers Benevolent Association joined the suit as a defendant.
The state and the five police officers the city terminated for violating the Gun Control Act for off-duty use of marijuana asked the court to toss the city's suit, saying that the federal law differentiates "between guns issued for private use and guns issued for government use: it lifts the vast majority of the act's provisions (subject to a few exceptions, none of which applies here) when a firearm or ammunition is 'issued for the use of' a government entity."
Comments