The debate around marijuana legalization is intensifying, especially in the context of law enforcement recruitment. With California’s AB 2188 and SB 700 marking a significant shift in employment discrimination laws regarding cannabis use, the issue has become a hotbed for discussion.
In those states where marijuana is legalized, should police officers be allowed to consume pot off-duty? That is the question our experts debate in this month’s State Your Case. Email your thoughts on this topic to editor@police1.com.
The ground rules: As in an actual debate, the pro and con sides are assigned randomly as an exercise in critical thinking and analyzing problems from different perspectives.
Our debaters: Jim Dudley, a 32-year veteran of the San Francisco Police Department where he retired as deputy chief of the Patrol Bureau, and Chief Joel Shults, EdD, who retired as chief of police in Colorado.
Jim Dudley: Effective January 1, 2024, California Assembly Bill 2188 (AB 2188), as amended by Senate Bill 700 (SB 700), makes it unlawful for an employer to discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalize a person if the discrimination is based on either of the following:
- The person’s use of cannabis off the job and away from the workplace
- An employer-required drug screening test that has found the person to have non-psychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids.
AB 2188 further makes it unlawful to request information from job applicants relating to their prior use of cannabis.
To some law enforcement officers or prospective officers in California, AB 2188 may seem like a progressive and realistic approach to outdated laws. California, like many other states, have decriminalized marijuana for a decade or more. Many candidates in their early 20s have become accustomed to marijuana use because “it’s legal.”
It is another terrible, short-sighted law that undermines the oath of a law enforcement officer who swears to “support and defend the Constitution of the United States and the Constitution of the State of California against all enemies, foreign and domestic.”
Firstly, there is a conflict between the US Constitution, which still recognizes marijuana as a Schedule 1 prohibited drug and the California State Constitution, which allows the use of marijuana. Clearly, the US Constitution supersedes the state in this area.
Secondly, the work of a law enforcement officer must be done with clarity and precision, especially considering they have the authority to deprive people of freedoms and may use force as situations dictate, even up to and including lethal force. LEOs possess and may use weapons, drive at high speed and must make split-second decisions when their or the lives of others are in jeopardy.
According to the Centers for Disease Control, “Marijuana use directly affects the brain, specifically the parts of the brain responsible for memory, learning, attention, decision-making, coordination, emotion, and reaction time.”
Tetrahydrocannabinol (THC), the active ingredient in marijuana may remain in a person’s body for days to weeks, depending on the amount and frequency of use. Using marijuana off duty and going back to work the same day or the next day could lead to disastrous conclusions.
Joel Shults: Jim, let me take a moment to remind our readers about the importance of these debates. When I see comments on some of the headlines of our “State Your Case” articles (because too many commentators hit the keyboard before digesting the column), I frequently see remarks like, “Why is this even a question?” All I have to do is point to the California legislature to show that what might have been unimaginable a decade ago is becoming law and policy in many jurisdictions. Maybe all the ex-hippies in Sacramento are just chanting a revision of John Lennon’s lyrics: “All we are saying is give pot a chance.” Since I lost the coin toss, let’s look at some arguments for liberalizing the marijuana use standard.
First, the law enforcement profession is constantly revising hiring standards. We are dropping college requirements, accepting candidates with minor criminal records and reducing physical requirements. Reducing the exclusion of marijuana users can expand the applicant pool at a time when recruiting is a challenge, if not an outright crisis.
Secondly, the West Coast is on the leading edge (for better or worse) of experimenting with legalization and decriminalization of previously felonious drug use. Former Attorney General Robert Kennedy famously said that “Every community gets the kind of law enforcement it insists on” so, if the legislature is the voice of the people, so be it.
Thirdly, do we know whether marijuana use inevitably diminishes police performance? There are a lot of people in responsible positions who are using pot and seem to continue to perform — maybe your doctor or counselor, even. Even if I actually, factually supported this new law, I still would object to the provision that prohibits asking about previous use. Since this is a significant change in hiring, how can we establish whether impairment of pot users exists if we fail to establish a known baseline of cannabis users versus non-cannabis users except waiting for post-incident drug testing?
Jim Dudley: Joel, of course, California seems to come up with some absurd ideas — but some eventually spread through the rest of the country and most certainly will reach the states with marijuana decriminalization policies.
There are so many details in the law that current or prospective partakers of marijuana may not realize. An important issue for prospective law enforcement candidates is the fact that an agency may still reject an applicant based on background information of that prior use.
Another issue, most important, is that although the law does provide that the user may carry a firearm for employment, the federal Gun Control Act of 1968 prohibits those who violate federal standards of controlled substance drug use from owning personal firearms off-duty.
One look at the CDC website and other medical research sites, and you will find adverse psychological and physical effects from marijuana use by different percentages of the population who use marijuana, often exacerbated by heavy and chronic use. The CDC cites the harms of marijuana use as negative consequences to the brain, heart, lungs and mental health. It further documents affected driving, the risk of leading to other drug use, poisoning, impact on pregnancy and other harms.
Clearly, there are additional moral and ethical considerations regarding sworn officers using marijuana. In prior Police1 polls, a majority of officers indicated that they did not partake in marijuana. Still, I have been attacked on social media by advocates of drug use to aid as PTSD relief for cops and veterans. I am not convinced. In many regards, the decriminalization and legalization of marijuana is somewhat of a social experiment that we have yet to see the results of through the smoky haze.
Joel Shults: An age-old argument for the legalization of marijuana has been the comparison of cannabis to alcohol, including the failure of Prohibition. As we have swung from the infamous depiction of the pot-induced insanity depicted in the 1936 “Reefer Madness” movie to the stereotype of the stoned surfer dude munching Doritos and harming no one, we have moved culturally, if not scientifically, to a point of perception of not only the relative harmlessness of marijuana but claims of health benefits from the plant. What is missing is substantial science around the subject:
- Are we seeing dangerous results from other workplaces regarding marijuana use?
- Have we determined at what level of impairment can be presumed, as with alcohol?
- Is it fair to say that it presents a greater hazard than our largely ignored use of legal anti-depressants and pain medications?
- Are we being hypocritical to single out THC?
Let’s watch this issue carefully to make sure we are selecting and maintaining the best and brightest candidates for whom we provide the best mental and physical health support that we can. If we can do that and still allow an off-duty magic brownie for dessert, time will tell. I wish everyone would affirm for themselves that living drug-free is best, but until there are enough Captain Americas out there, we’ve got to select from a pool of regular humans.
“Having a legal drug become a barrier to increasing law enforcement seems like it’s a bad policy,” a county official stated
Police Recruitment
Several northeast Ohio departments will continue to screen for marijuana, as the law permits employers to bar applicants who use it
Under the proposal, the first $40 million in adult use marijuana tax revenue each year over the next two years would go to Law Enforcement Assistance Fund for training
A judge pointed out that the city failed to provide any evidence demonstrating that the officer’s off-duty cannabis use had an impact on her job performance
An advisory council suggested reducing the time requirement for a recruit to not have consumed marijuana within 12 months and three years for drugs
