March 2, 2024

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Are States Not Asking Cops About Pot Use Asking for Trouble?

All the states that have moved to legalize cannabis have thumbed their nose at federal law and gotten away with it. As federal authorities have looked the other way, some of those states have even begun passing laws that do away with asking questions about marijuana consumption on police department job applications. But is that asking for trouble?

Cannabis consumption has historically been a no-no for police officers. The reasoning is pretty simple: police officers carry sidearms. Yet federal law prohibits possession of a firearm by anyone who has used, or currently uses, illegal drugs. Federal law still considers marijuana illegal. Therefore, gun-carrying police officers cannot use it.

State Nondiscrimination Laws

California became one of the more recent states to enact a nondiscrimination law that, among other things, removes the marijuana question from law enforcement job applications. Individuals hoping to be hired by California police departments will no longer have to answer any questions about past cannabis consumption. It’s not clear if they will be asked about current consumption, though drug testing is also no longer required in the state.

This could mean both current and future officers using cannabis off the job. Whether or not doing so impairs their ability to perform as police officers is one thing. The fact that using cannabis and possessing a weapon is a violation of federal law is something entirely different. Perhaps federal law enforcement will continue turning a blind eye.

Things May Change

As things currently stand, states deciding to pass nondiscrimination laws benefiting marijuana users are banking on the fact that Washington will continue to forego its enforcement authority. But at some point, that may change. There may come a point in time when federal law enforcement decides the states have gone too far.

I can only assume that federal authorities continue turning a blind eye under the assumption that Congress will eventually get around to legalizing marijuana. But there are no guarantees. If the climate in Washington suddenly turns conservative, and there’s a very strong possibility of that happening in 2025, things could change dramatically. The DOJ could quickly begin going after states that allow police officers to use cannabis.

Cannabis and Other State Jobs

Nondiscrimination laws are less of an issue with other types of state jobs. For example, off-the-job cannabis consumption isn’t a big deal for office workers. It shouldn’t be a problem for landscaping crews, maintenance crews, and the like. Even some types of first responder jobs shouldn’t be affected by off-the-job marijuana use.

The owners of the Beehive Farmacy in Salt Lake City, UT, say their state lawmakers recognized as much when they passed a nondiscrimination bill in 2022. Lawmakers passed the bill in response to an incident in which a local firefighter’s job was threatened after his superiors discovered he possessed a medical cannabis card.

Utah law now prohibits discriminating against government employees who use medical cannabis, with only a few exceptions. One exception is law enforcement. Firefighters can use medical cannabis off the job as long as it does not affect their performance. Police officers cannot. Utah lawmakers have decided not to take their chances given the fact that law enforcement officers carry guns.

Is it possible that states giving police officers the right to use cannabis are asking for trouble? I think so. If I were a state lawmaker, I would not vote in favor of removing the no cannabis requirement for law enforcement employment. As long as federal law prohibits marijuana users from owning or possessing guns, I wouldn’t want to take any chances.