Moral High Ground?

It sounds like it would be an open-and-shut case. Two police officers are fired after it was discovered they had smoked pot during off hours.

But this happened in Jersey City in New Jersey, where recreational marijuana was legalized by referendum in 2020. Before legal sales began in 2022, New Jersey’s attorney general sent a memo to remind law enforcement officials across the state that officers were allowed to use the now-legal substance when they weren’t on duty. That, however, is not a view shared by Jersey City. Since legalization, the municipality has fired five officers for using pot during off-duty hours.

This article appeared in the May/June issue of OFFICER Magazine. Click Here to subscribe to OFFICER Magazine.

In February, the two officers who were terminated filed a lawsuit to force the city to reinstate them following a 2023 ruling by New Jersey’s Civil Service Commission. Jersey City’s mayor and police chief insist that they won’t capitulate with the prohibition on off-duty weed. In fact, the state’s second-largest city has filed a federal lawsuit claiming that the municipality is within its right to restrict police from using pot while not on duty because federal law prohibits anyone using a controlled substance from possessing a firearm.

Welcome to policing in the early 21st century. The Jersey City case illustrates the kind of legal and, in some cases, ethical quagmire law enforcement officials are having to navigate as more states begin to relax pot restrictions. While cannabis remains illegal at the national level, 38 states have legalized its use medically and 24 states allow the drug’s recreational use. The situation has become even more delicate because of the struggles agencies face when it comes to recruiting, and the prospect of losing otherwise qualified applicants over the use of a now-legal substance can be a painful pill to try to swallow.

OFFICER Magazine spoke with officials from the regulatory agencies responsible for setting the standards for law enforcement officers in two states where marijuana is legal, and they discussed the challenges they’ve faced.

Nevada

Nevada has been one of the states at the forefront of pot legalization. Medicinal marijuana became legal in 2001 after ballot measures were passed in consecutive elections in 1998 and 2000. Recreational marijuana was legalized in 2017, after multiple failed initiatives dating back to 2002.

Although the state was ahead of much of the nation concerning legalized marijuana, the Nevada Peace Officers Standards and Training (POST) agency didn’t feel the need to immediately address officer marijuana use, says Mike Sherlock, the group’s executive director. At the time, applicants were disqualified from becoming law enforcement officers if they were convicted of a crime, including marijuana offenses. But since then, those regulations have evolved.

“What has happened since the decriminalization is we’ve had agencies that contacted us that would say, ‘Look, we’re looking at a guy that has a perfect background. Yet the only disqualifier was when he was 18 years old, he got cited for less than an ounce of marijuana and under our current regulations, we could not hire them,” Sherlock tells OFFICER.

“Based on those comments, we did change our regulations that basically removed our drug conviction that’s an automatic disqualifier and removed marijuana convictions that today would be legal and leave that up to the agency whether they want to use that conviction as the qualifier but not forcing them. … Since that time, our legislature has passed a law that prohibits agencies from using the use of marijuana—even if it’s not a conviction—as an automatic disqualifier. But again, if it’s an issue of character rather than just simply the use of marijuana, that person could still be disqualified.”

When it comes to why Nevada POST felt the need to revisit its regulations in light of pot legalization, Sherlock puts the blame on a single culprit: law enforcement’s struggles attracting new recruits.

“All of our pressure is a direct result of the absolute difficulty of finding and getting qualified applicants. There’s no doubt in my mind,” he says. “That’s being said, there is an issue with the decriminalization of marijuana. How does that affect us? And so there is that pressure, but it just magnifies it when these law enforcement agencies are just having trouble recruiting.”

As a regulatory body, Nevada POST sets the minimum standards for officers; agencies are free to raise them, so long as they don’t violate any laws or regulations. And Sherlock believes communities should take a strong hand when it comes to setting the bar for its police officers. He knows first hand how views about the marijuana debate aren’t the same across the state.

“I worked in narcotics my whole career, and this belief that somehow marijuana is no worse than alcohol is just not true,” says Sherlock. “And I’ve said this, on a personal level, I don’t want the guy that’s been smoking weed as the guy that patrols my neighborhood. I just hate to see it permeate policing in this country. We should be held to a higher standard, in my opinion.

Arizona

Matt Giordano doesn’t think making allowances for an applicant’s past marijuana use lowers law enforcement officer standards. Instead, the executive director of Arizona POST looks at it as modernizing standards to meet changing community expectations. Not as quick to dip a toe in the legalized cannabis pool as Nevada, Arizona began allowing medicinal marijuana in 2010 and recreational marijuana 10 years later.

“As I got here—I started Arizona POST at the end of October of 2018—it was already on our radar that it was becoming more problematic,” Giordano tells OFFICER. “And then, as the state moved toward legalizing marijuana recreationally, we realized it was really going to become an issue for us, not only for existing officers, but for potential recruits.

“And then it really came to the forefront after the legalization. As some of the surrounding states—Nevada and California—already had legalized recreational marijuana, we were seeing recruits from those states coming in here applying for police officer positions, disclosing that they used marijuana very recently, and they were shocked to find out that that was going to inhibit them becoming peace officers in Arizona for a certain time period based on our rules.”

As state law enforcement leaders began seeing marijuana use cropping up as an issue among potential recruits, Arizona POST re-evaluated its regulations governing the substance.

“We were losing good candidates because when I first got here, the rule was you could not have used marijuana three years prior to appointment, and there are a whole bunch of other rules on the number of times you used it, how you ingested it, that we asked applicants, and they were disqualified or given longer periods of time they had to wait in between their last use and appointment,” says Giordano. “The board was very good and allowed us to change to two years from the last date of use to appointment to a police agency, and what we were finding was we were still continuing to lose what I believe to be potentially really good police recruits because of that time frame. If you talk to a 23-year-old, who wants to be a police officer and you tell them, ‘Hey, based on your marijuana usage, you’re going to have to wait two years to reapply, that’s a lifetime for a 23-year -old, and they will either look to go to a different state that has less active pre-employment, drug-use standards or to look to go to a different career.”

Giordano is quick to point out that he doesn’t believe law enforcement recruiting struggles are the only—or even the most significant—driver of changes in police standards in Arizona or the rest of the country.

“I just think that societal expectations have changed, and in my clearly informal polling of people not in the law enforcement profession, they just don’t care,” he says. “They just don’t care that men and women that want to become police officers have used marijuana in the past because it’s legal. You’re not buying it in a dark alley or a a park late at night. You’re buying it at a reputable business, and you’re doing it in broad daylight, and it’s a lawful exchange. I think society as a whole doesn’t seem to be that concerned with it for their police officers.”

The future

In the near future, do Sherlock or Giordano see a time when their respective states adopt an off-duty marijuana policy similar to New Jersey? Both officials believe that’s a bridge too far.

“We’re in Arizona. We’re just not there yet,” says Giordano. “There hasn’t been any discussions about allowing current peace officers to use marijuana. What that looks like in the future, I just don’t know.”

Even if marijuana is legalized at the national level, Sherlock feels that the drug should remain off limits for law enforcement officers, regardless of the political climate.

“My belief (is) there’s no place for marijuana in policing at all,” he says. “And I think it is politically a problem, because oftentimes you’re outnumbered on this issue, and you have to stick with your convictions.”