State your case: Should off-duty police officers be permitted to use marijuana in legalized states?

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 [email protected].

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officers or prospective officers in California, AB 2188 may seem like a progressive and realistic approach to outdated laws.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.

[Police1 wants to know: Do you think off-duty police officers should be permitted to use marijuana in legalized states? Please complete the poll and we’ll use your responses in an upcoming article.]

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.

What are the risks of CBD use for law enforcement? In the video, which is available online, Gordon Graham highlights what police officers should know about CBD use.

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.

Police1 readers respond

Email your thoughts on this topic to [email protected].

• In response to the informal poll taken about off-duty use of marijuana by cops, I would like to see some evidence presented instead of hysterical negative assertions about the supposed dangerous consequences marijuana use could bring. Despite what most cops seem to believe, being a police officer is not the only nor is it the most dangerous job there is. Commercial fishing and forestry work, for example, rank higher in overall bodily risk than police work does.

  How have workers in those professions been effected by off the clock marijuana use? I would guess that the answer would be something to the effect that outside of work marijuana use has not been shown to be a factor in work related injuries or deaths in those industries.

  Let’s do some real research instead of relying on outdated suppositions and come to a conclusion based on evidence just like we would if we were investigating anything else where facts were important.

• As a 30-year police officer, this topic has weighed heavily on my conscience as well as my generation of police officers. I spent the majority of my career arresting and then prosecuting people for the possession, use and distribution of marijuana. Just because it has been made legal by the stroke of a pen, for me, does not make it OK for police officers to use it recreationally. Without getting into the debate over its medicinal value or the Schedule designation by the DEA, the fact remains it’s just another means for men and women in a highly stressful job to have a “legal” substance at their disposal with the potential for abuse.

  There are many arguments for and against this. For me, it is a moral decision. If the lawmakers were to make prostitution legal with all the same taxes and fees and regulations associated with legal weed, would that make it OK? Look what legalized sports betting has done. You can’t watch on television a professional sporting contest without the bombardment of commercials or color analysis on bookmaking odds and websites promising payouts.

  Many of my younger officers in their 20s-30s, openly admit to using recreational cannabis off-duty as it is now allowed in the State of New Jersey. I just feel like it´s just one more thing to weaken the character and morality of the one profession that used to be the role model for society.

• Yes but with restrictions that last use should be at least 18 hours, possibly even 24 hours, before duty shifts. This allows for use on “weekends” and vacation time while limiting use during normal back-to-back shift days. While vaped or smoked marijuana may wear off in 1 to 4 hours, ingested marijuana may take considerably longer. Further, marijuana potency may vary and is usually an unknown unlike alcohol which has a proof rating. Personally, alcohol should be treated similarly. Law enforcement officers deal with uncountable serious or critical situations, have to make split-second decisions and in today’s day and age, have to live up to public expectations of perfection, whether reasonable or not. Being on the job while still impacted by marijuana, alcohol or any other substance is a detriment to the public, the officer and their partners.
• As a retired 43-year Oregon law enforcement officer and former police chief, my answer is short: “NO, full stop!!!”
• If the answer is based solely on federal law, then we have to say no. Marijuana is still not recognized at the federal level. And let’s face it, most law enforcement agencies receive federal money to operate. So, the federal government can say they won’t provide funding if a department opts to allow officers to use marijuana off duty. If departments don’t receive federal funding in any way, then it should be left up to the individual state where it is legalized. However, I don’t believe agencies should just let prior use slide. If it was used illegally, the matter should be looked at. If marijuana was used in a state where it is legal, then departments need to consider that as well. I’m going to use a curfew violation as an example in my state. I was popped (as a juvie) for a curfew violation. It was later deemed to be unconstitutional. But I violated the law when it was in place. Just because it’s unconstitutional now, does change the fact that I violated the law many, many years ago. I knew it was a violation, but I did it anyway. Departments also need to consider the amount of times a person used. Was the potential candidate a wake-and-bake kind of marijuana user? Was the candidate using marijuana to help sleep? Was it used just at parties? The same should be considered for alcohol consumption when you get right down to it.
• My oath says obey the laws of my state and the United States. It’s still illegal under federal law.
• As a LEO, I have always held that one must be above reproach in performing the duties of an LEO. How would it look if an LEO arrested someone for being under the influence of marijuana or any chemical substance if they themselves are under the influence of said chemical substance. There is a double-edged sword when it comes to prescribed medications as they can be mood altering substances that also can have an effect on judgment. It short it doesn’t matter which side one supports, the individual making the decision will be wrong. I personally don’t care if an LEO takes a toke off a marijuana cigarette off duty but I do care if the LEO is the least bit under the influence while on duty. Therein lies the rub: Alcohol levels can be tested with a breathalyzer with a defined parameter. One cannot test marijuana the same way. What is a shift commander going to do? Have every officer tested by a DRE as they report for duty? I can see the eyes roll now… In the long run, a definite no could be the safest position an agency could take.
• As a DRE and career police officer, I know first hand what cannabis does to a person who is under the influence of it. The duration of effects still cannot be judged like alcohol, as no one knows the simple diffusion of cannabis as there is with alcoholic beverages. As for officers using it and hoping and praying that they will be sober if they have to work is ludicrous. No use of controlled substances is acceptable for officers even if the state has made it legal.
• As always, an interesting debate but with that said, as a profession, we must not tolerate our officers using marijuana. Is this a hard-line stance? Yes, absolutely. I can understand easing up a bit in relation to recruitment. In today’s world, it is extremely hard to find a young person who has not used marijuana — i.e., the individual has only used it a few times and the last time of use was at least a year before applying for the job. However, we all know medical experts say that long-time marijuana use affects cognitive abilities, that’s not counting myriad other medical issues that can crop up. While I understand that it does help some people with certain cancer treatments, PTSD, etc., usually that person is not carrying a gun for a living.

  To me, the most important part of this is simply what happens if an officer becomes involved in an OIS or something similar where they are possibly facing criminal charges or a civil suit, and everything that officer has done in their lives up to that point will go under the proverbial microscope. If the department allows its officers to use marijuana in an off-duty capacity, are they opening themselves up to civil litigation? If we as a profession are foolish enough to think that prior marijuana use or recreational marijuana use while off duty will not come into play, then we are truly blind. In today’s litigious society it doesn’t take much to find our officers at fault (yes, some are truly at fault). Is it possible that we may lose qualified immunity (yes, I realize we only get this approximately 35% of the time and its purpose is about if we were following the law and department policy at that time)? Am I stretching this too far? I’m not sure, but before we as a profession cede this argument in favor of allowing its use among officers, we must look at every angle.

  I know people raise the issue about alcohol but at this point, I don’t believe that it is a valid comparison as they are two very different issues. I will say this though, I think all of us at some point in time have said dealing with an individual who is stoned on marijuana is a heck of a lot easier than dealing with a drunk.

  In closing, I truly believe as a profession we should not give in to the tide regarding marijuana usage. If we do, then what is next? Cocaine? (For the record, I do know of some departments that are waiving the use of cocaine if not done within the last couple of years.) Heroin? Meth? I want to know that the officer I work with has all their mental facilities intact. I also want to know, should I need an officer to respond to my home for something, that officer has a clear head and is capable of handling whatever the call is for. Usage of marijuana, other drugs (including prescription), and alcohol are not conducive to that goal and present a danger to all of us.

• I am both a retired U.S. Army military police officer and chief of police. The question itself is skewed because it does not take into consideration how the respondent feels about the issue since we have people on both sides of the fence. Should marijuana be a legalized drug used for consumption as we do alcohol, which is not classified as a drug? Should we consider the fact we have always believed marijuana is a “gateway” drug to other more potent drugs when some researchers say marijuana is not? Do we need more research to settle that argument? To a layperson, you could articulate that both alcohol and marijuana produce the same type of effects when in fact they don’t. The medical long-term effect of marijuana is unknown and have not resulted in known effects (as we now know with alcohol such as psoriasis of the liver) since no longitudinal studies of people like Willie Nelson and others has not been conducted, at least not to my knowledge.

  I live in a blue state that legalized marijuana but did not consider the ramifications of law enforcement traffic stops. Every department needs several Drug Recognition experts (DREs) to conduct the required tests under the law for a successful prosecution and they don’t. The reasons vary but the elected officials have ignored that fact to advance their agenda. Because police departments lack the DREs for successful prosecutions, it appears no one is being prosecuted. Therefore, sheriffs and chiefs of police must evaluate the benefits and purpose of permitting the use of marijuana by the very officers that are sworn to enforce the law. As with any first responder, police officers are on call 24/7 in case of an emergency so if a recall is conducted for an event like an earthquake, hurricane, or other natural disaster, how can any organization be confident that people with the legal authority to use deadly force are in the right state of mind to perform their duties?

  As a young private in the Army, I experimented with marijuana, Hashish, uppers and downers. I used these drugs often and know the effects they had on me and knew that the effects vary with each person. My situation was unique because of a controlled environment and the threat of a monthly urinalysis test, which the civilian world does not have unless the organization or business they work for does. After several months of using those drugs, I reached the conclusion that it was foolish and stupid of me to risk a career and future for something that did nothing to help my work performance and quit. Soon after, I found myself far more alert and mentally capable of multi-tasking and focusing on my work, which is contrary to what many who partake in marijuana say about their performance, which is reported as being in a state of mind of clarity and almost super-human ability.

  If I were still an active chief of police, I would expect a professional police force with people capable of performing their duties whenever required. I would also vehemently tell my elected officials that I would not permit such conduct and would use administrative punishment to include terminating the employment of any officer or support staff worker who does. If the elected officials enacted some policy or law that tied my hands (which they like to do to get what THEY want), I would make it policy that anyone on duty suspected of being under the influence (and the odor that emits from them would constitute as probable cause) would be relieve of their duty and given the choice of either admitting to being under the influence (and administrative punitive action is taken to include counseling), take a urinalysis test to either confirm or deny they are under the influence (like a DWI), or be terminated on the spot due to probable cause. The legalities of my policy would be clearly identified and addressed to ensure I upheld my duty as a senior supervisor and did not violate anyone’s rights.

  So, should police officers be permitted to consume marijuana while off duty? My answer is a resounding no since the lives of those we serve could be at stake.

• The majority of published opinions seem to be coming from people who are proud retired 30/40+ yr administrators and bureaucrats. Although I respect their contributions to history, they have zero experience with modern policing. Much like I would not expect them to understand procedural justice when their idea of de-escalation was a billy club upside the head. Perhaps they’re worried because cops showing up drunk or drinking alcohol while on shift was still a thing back in their day. Marijuana use has been legal in NJ for over a year with no issues. Coming to work still drunk from the night before is no longer acceptable, and the same goes for marijuana. Yes, there’s no blood or urine test for a per se violation, but that’s why we’ve had DREs for the past few decades.
• I am currently a police officer who has been working for nine years. I live in a legal state. More importantly, before I became a cop, I was an infantry squad leader in the United States Army. During a combat deployment, I was wounded by an IED. I suffer from daily back pain, TBI and PTSD. Because of my status as a law enforcement officer, I cannot use medical or recreational cannabis. I have a high VA disability rating, though I am still capable of doing my job as a cop. I WANT to use cannabis off duty! I want to be clear here, I am not advocating for cannabis use before or on duty.

  The reason my department doesn’t allow cannabis off duty is because of drug testing, which only detects metabolites, not impairment. I have reached out to numerous organizations but none seem to care or help. Everyone talks about helping cops who suffer from different mental and physical health issues. But nobody cares about those cops who served in the military and now serve their local communities. PLEASE TALK ABOUT THOSE COPS WHO ARE COMBAT VETERANS and suffer daily! I know cannabis would greatly help me. Canada has a smart and common sense approach when it comes to cannabis for their law enforcement officers and active duty military, no use during work but off duty is your privacy. This is America, land of the free, yet I don’t have the freedom to use cannabis. Help!

• The answer is YES. Off-duty officers should be able to use cannabis off duty on their own discretion or use in their homes in regards to their job that in much cases can cause trauma disappointment and depression. Cannabis should be consumed as prescribed by a doctor.