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In September 2022, Jersey City Police Department (JCPD) officers Norhan Mansour and Omar Polanco were randomly selected for drug testing. Both officers tested positive for cannabinoids (THC). During interviews by JCPD Internal Affairs, the officers admitted to using cannabis sometime before their drug tests. Both denied using unregulated cannabis. Mansour produced three receipts for lawful purchases of cannabis, and Polanco stated that he did not keep his receipts.
The JCPD suspended both officers, arguing their cannabis use prevented them from legally performing an essential function of their jobs — carrying and possessing firearms and ammunition. The JCPD did not allege that the officers used cannabis on duty or used unregulated cannabis.
In March 2023, the JCPD took final disciplinary action and terminated both officers. Both cases were transmitted to the Office of Administrative Law for review by Administrative Law Judges.
RELATED: N.J. court rules that officers previously terminated for using cannabis off duty can be reinstated
With respect to Mansour, [1] an Administrative Law Judge (ALJ) observed that the JCPD issued an order in April 2022 that prohibited officers from on- and off-duty cannabis use because the federal Gun Control Act (GCA) [2] makes it illegal for cannabis users to possess, carry or use firearms. The ALJ further noted that when Mansour was drug tested in September 2022, regulated cannabis was legal in New Jersey and could be purchased from in-state-approved stores.
Moreover, the ALJ recognized that New Jersey State law, N.J.S.A. 24: 61-52, (known as the CREAMMA statute) became effective in August 2021. This law prohibits any employer from taking any adverse action against employees, including discharge for using cannabis. [3] The statute further prohibits employer adverse action for the presence of cannabinoid metabolites in an employee’s bodily fluid. (See, N.J. S.A. 24:61-52 (a)(1).).
The ALJ ruled in favor of Mansour and rejected an argument by the JCPD that the discharge of the officers was justified based upon their claim that the New Jersey statute, (CREAMMA) that prohibited the discharge of the officers, was preempted by a federal statute that conflicted with CREAMMA. The ALJ concluded no “positive conflict” existed because “even if marijuana consumption remains unlawful under federal law, nothing in CREAMMA requires anyone to violate federal law.” Furthermore, although CREAMMA provides immunity from state prosecution and adverse employment actions, it provides no immunity for violation of federal law.
The court noted that the Civil Service Commission (CSC) reviewed the findings of Mansour’s and Polanco’s ALJs and “adopted … [their] factual and legal conclusions, reversing Mansour’s [and Polanco’s] removal. Accordingly, the CSC reinstated Mansour [and Polanco] ‘with mitigated back pay, benefits, and seniority’ and ‘reasonable counsel fees’ under the governing regulations.” The court further noted, “Thereafter the JCPD moved for reconsideration and a stay of the CSC’s August 2, 2023, decision, and Mansour [and Polanco] moved for enforcement.”
On July 24, 2024, the CSC issued a final administrative action denying the JCPD relief and granting Mansour and Polanco’s request for enforcement. In doing so, the CSC noted its previous decision was “further supported by 18 U.S.C. § 925(a)(1) of the [Federal] [GCA] which expressly exempts from its proscriptions, firearms or ammunition ‘issued for the use of . . . any State or . . . political subdivision thereof.’”
The court examined the JCPD claim that CREAMMA is preempted by federal supremacy law [5] because the JCPD cannot comply with both CREAMMA’s prohibition on termination for cannabis use and the federal Gun Control Act’s prohibition on possession of firearms and ammunition by any controlled substance user. In essence, the JCPD argued that the federal and state law created a direct conflict that prevented enforcement of the state statute.
The Civil Service Commission responded that the federal Gun Control Act contains an exemption for firearms issued for official state or local government use, including law enforcement work.[6] The JCPD responded in turn by stating that its officers are required by policy to purchase their own firearms.
The court rejected the JCPD’s argument and observed that, under 18 U.S.C. § 925(a)(1), firearms and ammunition issued for use by a police department are exempt from the restrictions contained in 18 U.S.C. § 922.
The court reviewed section 927 of the federal Gun Control Act and observed that the U.S. Congress inserted specific language in that section to the effect that Congress did not intend to preempt state law by its gun control legislation, “unless there is a direct and positive conflict between … [the federal statute] and the law of the state.”
The court concluded that the JCPD could comply with both the federal Gun Control Act and CREAMMA, finding no federal preemption conflict that justified the officers’ termination for off-duty use of regulated cannabis.
The court ruled in favor of the fired officers and affirmed the State Civil Service Commission decision that the officers were discharged in violation of state law. The court found no constitutional Supremacy Clause conflict between federal and state law that would require termination of officers because they possessed firearms after using state regulated cannabis.
Importantly, the ruling does not prevent agencies from disciplining officers for on-duty impairment, unsafe conduct or violations involving fitness for duty. The decision instead focused on off-duty use of regulated cannabis and adverse action based solely on cannabinoid test results.
The court further concluded that firearms issued for official state government use fell within an exemption contained in the federal Gun Control Act. This, notwithstanding the fact that the JCPD required its officers to purchase their own firearms for duty purposes.
Unless the case is overturned by the Supreme Court of New Jersey, the decision is binding on all non-federal law enforcement agencies within the state. [7] While the ruling carries no mandatory authority outside New Jersey, it will likely be cited by attorneys representing officers disciplined or terminated for off-duty use of state-regulated cannabis in other legalized states. In those jurisdictions, the case may serve as persuasive authority in similar litigation involving employment protections, cannabis legalization and federal firearms law.
With recreational cannabis legalization continuing to expand nationally, law enforcement agencies should anticipate increased litigation, policy disputes and employment challenges involving off-duty cannabis use by sworn personnel. Agencies considering discipline or termination based on alleged conflicts between state cannabis laws and federal firearms restrictions should closely examine 18 U.S.C. § 925(a)(1) and the New Jersey court’s interpretation of that exemption.
According to the New Jersey appellate court, when firearms and ammunition are issued for official government use, many provisions of the federal Gun Control Act do not apply. The court cited 18 U.S.C. § 925(a)(1), which states that the law does not apply to firearms or ammunition “imported for, sold or shipped to, or issued for the use of” a state or political subdivision. The appellate court concluded that this exemption resolved the conflict asserted by the JCPD between federal firearms restrictions and New Jersey’s employment protections for lawful off-duty cannabis use.
References
1. With respect to Polanco a separate ALJ reviewed his case and ruled in his favor with the same rationale that was used by Mansour’s ALJ.
2. 18 U.S.C. §§ 921-934. See Specifically, 18 U.S.C. § 922 (d)(3) and (g)(3).
3. The court stated that the ALJ also observed that ”CREAMMA ‘authorizes drug testing of employees by their employer when there is reasonable suspicion of the employee’s use of cannabis while working or when there are observable signs of intoxication; and random drug testing is also permitted but only to determine use during prescribed work hours.’”
4. In the matter of Norhan Mansour and Omar Polanco, Jersey City Police Department, (Nos : A-3876-23; A-3886-23) (May 1, 2026).
5. According to the court, “Pursuant to the Supremacy Clause of the United States Constitution, ‘Congress is empowered to preempt state law.’ Altice, 253 N.J. at 416; see also U.S. Const. art. VI, cl. 2. Because ‘States are independent sovereigns in our federal system,’ Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996), however, ‘the preemption analysis begins with the ‘assumption that the historic police powers of the States [are] not to be superseded by [a] [f]ederal [a]ct unless that was the clear and manifest purpose of Congress.’”
6. See 18 U.S.C. § 925(a)(1).
7. It is not known whether the Jersey City Police Department is interested in submitting a petition for certification (i.e. review) of this matter to the New Jersey Supreme Court. Unless the Appellate Division court of record determines that a case involves a substantial question implicating federal or state constitutional law, the N.J. Supreme Court is not obligated to accept lower court cases for review. Under normal circumstances petitions for certification must be approved by three justices of the Supreme Court before certification is granted.
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John Michael Callahan served in law enforcement for 44 years. His career began as a special agent with NCIS. He became an FBI agent and served in the FBI for 30 years, retiring in the position of supervisory special agent/chief division counsel. He taught criminal law/procedure at the FBI Academy. After the FBI, he served as a Massachusetts Deputy Inspector General and is currently a deputy sheriff for Plymouth County, Massachusetts. He is the author of two published books on deadly force and an upcoming book on supervisory and municipal liability in law enforcement.
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