PAX Centurion - January / February 2013

www.bppa.org PAX CENTURION • January/February 2013 • Page 19 Legal Notes: Bryan C. Decker, Esq. Sandulli Grace P.C., Counsel to Members of the Boston Police Patrolmen’s Association Medical marijuana – not for cops? A s 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 in your District, officers should be aware that many departments are already taking steps to prohibit sworn police officers from using medi- cal marijuana. The purported basis for this action is that the drug remains a Schedule I controlled substance under federal law. As the Pax goes to press, the BPPA has not been approached by the BPD regard- ing a medical marijuana policy. However other departments have put forth detailed, and very similar draft policies, leading to speculation that theMassachusettsChiefs of PoliceAssociation or another management group is coordinating a response.Whatever the reason, this issue is one that all police unions in the statewill likelyneed to address. The ballot question which passed last year sets up a registration system whereby “qualifying patients” apply for a “registra- tion card” to be issued by the state Depart- ment of Public Health allowing them to grow and/or possess a “sixty-day supply” of marijuana. Under the law “a ‘Qualify- ing 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 inwriting by a qualifyingpatient’s physician.”A“‘ sixtyday 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 labor counsel to the BPPA, 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 depart- ments are already announcing an intention to say “No!” The purported abilityof departments toprohibit officers frombecom- ingmedical marijuana users is the federal classification of marijuana as a Schedule I controlled substance.While thismay be enough to prohibit medicalmarijuana use, such usemay also prevent officers fromlawfully 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: Anumber 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 con- trolled substance (as defined in section 102 of theControlled SubstancesAct (21U.S.C. 802)) fromshipping, transporting, receiving or possessingfirearms or ammunition.Mari- juana is listed in the Controlled Substances Act as a Schedule I controlled substance, and there are no exceptions in Federal law formarijuana purportedlyused formedicinal 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 leg- islation 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 officersmay not bemedical marijuana users, as such a status would re- voke their right topossess afirearm, which is a conditionof employment. Even apart from the question of whether an officer may be a “quali- fied patient,” it is likely that departments will further seek to prohibit officers frombeing “personal caregivers.”While personal caregivers are notmarijuana 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 depart- ments, 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, whichwould 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 anymedicalmarijuana 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, andmust be bargained before be- ing implemented.As always the BPPAwill be ready to bargainwith the BPD if and when approached to ensure that no policy is implemented that unnecessarily infringes on the rights of BPPA members.