Medical Marijuana – Not for Cops?

(Please note, a version of this article will appear in the upcoming edition of the Pax Centurion, the paper of the Boston Police Patrolmen’s Association, a client of Sandulli Grace, PC)

As I’m sure you are aware, Massachusetts voters approved a medical marijuana ballot question last November.  Despite inaction from Beacon Hill or the executive in the form of regulations regarding the new law, it went into effect on January 1.  So, Massachusetts residents may now become medical marijuana users.  However, before making a run on the Doritos in the vending machine at the station, officers should be aware that many departments are already taking steps to prohibit sworn police officers from using medical marijuana.  The purported basis for this action is that the drug remains a Schedule I controlled substance under federal law.

Several departments have put forth detailed, and very similar draft policies, leading to speculation that the Massachusetts Chiefs of Police Association or another management group is coordinating a response.  Whatever the reason, this issue is one that all police unions in the state will likely need to address.

The ballot question which passed last year sets up a registration system whereby “qualifying patients” apply for a “registration card” to be issued by the state Department of Public Health allowing them to grow and/or possess a “sixty-day supply” of marijuana.  Under the law “a ‘Qualifying patient’ shall mean a person who has been diagnosed by a licensed physician as having a debilitating medical condition.”  A “debilitating medical condition” is one of a number of conditions or “other conditions as determined in writing by a qualifying patient’s physician.”  A “‘ sixty day supply’ means that amount of marijuana that a qualifying patient would reasonably be expected to need over a period of sixty days for their personal medical use.’”  In addition to defining qualifying patients, the statute also anticipates that others will care for the patients.  A “‘personal caregiver’ shall mean a person who is at least twenty-one (21) years old who has agreed to assist with a qualifying patient’s medical use of marijuana. Personal caregivers are prohibited from consuming marijuana obtained for the personal, medical use of the qualifying patient.’”

As a union lawyer, I won’t attempt to get into the law enforcement implications of the medical marijuana law.  However, the employment implications are obvious – what if an officer, or an officer’s loved one, seeks to become a medical marijuana user?  Many departments are already announcing an intention to “Just Say No!”

The purported ability of departments to prohibit officers from becoming medical marijuana users is the federal classification of marijuana as a Schedule I controlled substance.  While this may be enough to prohibit medical marijuana use, such use may also prevent officers from lawfully possessing a firearm, which would lead departments to contend that they are ineligible to be officers.  Specifically, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) has issued an “Open Letter to All Federal Firearms Licensees” indicating that the DOJ takes the position that medical marijuana users are prohibited from possessing firearms.  The Letter, issued in September, 2011, over a year before the Massachusetts vote, states in relevant part:

A number of States have passed legislation allowing under State law the use or possession of marijuana for medicinal purposes, and some of these States issue a card authorizing the holder to use or possess marijuana under State law…

As you know, Federal law, 18 U.S.C. § 922(g)(3), prohibits any person who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)) from shipping, transporting, receiving or possessing firearms or ammunition. Marijuana is listed in the Controlled Substances Act as a Schedule I controlled substance, and there are no exceptions in Federal law for marijuana purportedly used for medicinal purposes, even if such use is sanctioned by State law…

Therefore, any person who uses or is addicted to marijuana, regardless of whether his or her State has passed legislation authorizing marijuana use for medicinal purposes, is an unlawful user of or addicted to a controlled substance, and is prohibited by Federal law from possessing firearms or ammunition.

Therefore, departments are likely to take the position that officers may not be medical marijuana users, as such a status would revoke their right to possess a firearm, which is a condition of employment.

Even apart from the question of whether an officer may be a “qualified patient,” it is likely that departments will further seek to prohibit officers from being “personal caregivers.”  While personal caregivers are not marijuana users, under the definition in the statute it is likely that they will possess marijuana.  Again, marijuana possession remains a federal crime.  Given the amount of federal money relied upon by most departments, departments will likely want to prohibit officers from engaging in activities that in any way violate federal law.

Finally, at least one department has proposed a rule that an officer must notify the department if any member of his or her household is a medical marijuana user.  This type of requirement, which would require an officer to provide private medical information regarding a family member, shows just how thorny the issues raised by this statute can get.

Whatever position that a department stakes out, police unions should demand to bargain before any medical marijuana policy is implemented.  Regardless of federal law, such a policy impacts on health care decisions by officers and potentially their families.  As such, the policies implicate terms and conditions of employment, and must be bargained before being implemented.  As always, Sandulli Grace stands ready to assist our clients to ensure that no policy is implemented that unnecessarily infringes on the rights of union members.