Last month, President Trump signed an executive order reclassifying marijuana from a Schedule I drug to a Schedule III drug. This means that, under federal law, marijuana will now be treated with the same or lesser degree of restriction as drugs such as Adderall, Ritalin, anabolic steroids, and testosterone.

In past years, the high likelihood of declassification has led some law enforcement leaders to consider the ramifications of such a change to their current prohibitions on off-duty marijuana use by officers. Now that the declassification is imminent, it is vital that police leaders, particularly those in states where recreational marijuana is legal, determine how to approach current policies prohibiting marijuana use by officers.

Agency leaders should act now, in cooperation with local elected officials and the community that they serve, to: (1) determine whether off-duty marijuana use will continue to be prohibited in the face of federal declassification; (2) define the articulable job-related rationale for why this prohibition is necessary; and (3) create fair and legally defensible testing and screening policies.

 

The Impact of Federal Declassification on Law Enforcement Agency Policies

Marijuana, along with commonly used substances such as Ambien and Xanax, is a controlled substance, meaning that legal gun ownership requires that all citizens —including law enforcement hires—complete an ATF Form 4473 affirming that they are not an unlawful user of a controlled substance, including marijuana.[1]  As of last week, marijuana was a Schedule 1 drug, along with drugs including heroin and LSD.[2] Law enforcement agencies across the country often cite federal law in prohibiting off-duty marijuana use—most notably, under 18 U.S.C. § 922(g)(3), which states that no person “who is an unlawful user of or addicted to any controlled substance” may “possess . . . or . . . receive any firearm or ammunition.”[3]

However, the new declassification of the drug under federal law now brings into question the practicality of relying on gun ownership restrictions that would, in theory, apply to drugs such as ADHD medications and testosterone.

This legal development should not be entirely surprising in light of the continued increase in support for marijuana legalization across the country, and across the political spectrum. A recent Gallup Poll found that 68% of Americans are in favor of marijuana legalization.[4] And these polls indicate that support is increasing among Democrats, Independents and Republicans.

The tide of public opinion in favor of legalization does not mean that there are not any detractors—as evidenced by voters’ rejection of proposed legalization in North Dakota, South Dakota, and Arkansas. Despite 68% support for marijuana decriminalization, Americans are evenly split in their views about marijuana’s effect on society, with 49% considering it positive and 50% negative.[5] Many public health experts and scientists also continue to raise concerns about long-term marijuana use and cognitive ability.[6]

Your community may be strongly opposed to the idea of law enforcement officers using marijuana. But what this national trend does clearly indicate is that agency leaders will need to gauge community support for off-duty marijuana prohibitions and clearly articulate how this off-duty use impacts the public trust, such that regulating it is job-related and legally defensible. 

 

Defining the Nexus Between Off-Duty Marijuana Use and On-Duty Work

Even if recreational marijuana is legal in your jurisdiction, that does not necessarily mean that law enforcement officers cannot be held to a standard of conduct that is higher than what is the bare minimum of legal behavior. For well over a century, courts have recognized that police officers are routinely prohibited from engaging in behavior that would be otherwise lawful or even constitutionally protected. As far back as 1892, for instance, the Massachusetts Supreme Court held that, “[t]he petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.”[7]

“Conduct Unbecoming an Officer” standards exist, in large part, due to the recognition that the sensitive nature of police work requires officers to be held to a higher standard than the general public. Social media posts, inflammatory political activity, and countless other legally protected off-duty actions can, and do, result in legally defensible discipline—up to and including termination—when the unique authority of a law enforcement officer’s job responsibilities is taken into account.

For many law enforcement agencies, however, federal declassification will require a specific articulation of marijuana prohibition that has not been necessary in the past.  What seemed obvious 20 years ago is no longer so obvious, in light of legalization and cultural normalization.  Many law enforcement leaders point to the difficulty in testing for marijuana impairment—as opposed to alcohol impairment—as rationale for prohibiting its use.  But the simple fact that something is more difficult to test or detect seems unlikely to be a reasonable justification for prohibition in and of itself. 

Agency policies will need to clearly define how off-duty marijuana use is substantially detrimental to an individual’s ability to perform that individual’s duties and/or is substantially disruptive to agency operations. 

 

Practical Considerations

As we noted in a past article on trends in police staffing, the pool of qualified applicants for law enforcement positions is not only shrinking, but this problem shows no signs of turning around in the coming years.[8]  This means that police leaders will be required to make difficult decisions regarding recruiting and retention, in light of the realities of available applicants, in the years ahead.  

As we described in detail in the aforementioned article, it seems extremely unlikely that many agencies will be capable of providing the same law enforcement services that they have in the past if they continue staffing according to existing personnel policies. Is off-duty marijuana use similar to visible tattoos or beards—something once thought to be taboo for officers that has become permissible in light of new cultural norms? Are citizens unconcerned with whether an officer uses marijuana off-duty, if the alternative to accepting that behavior could mean increased wait times when calling 911 and a decreased police presence in their community? Or is off-duty marijuana use a more permanent red line issue for maintaining community support? This is a question that may well be answered differently for different jurisdictions. 

For those agencies that seek to take measures to minimize the risk of on-the-job impairment without instituting outright use prohibitions, the Federal Aviation Administration (FAA) approach to alcohol use for airline pilots offers a potential template. The “Bottle to Throttle” policy prohibits airline pilots from consuming alcohol within 8 hours of flying.[9] Many airlines have increased that timeframe to further decrease the likelihood that significant amounts of alcohol are still in a pilot’s system while on-duty.[10] Law enforcement agencies may want to consider a marijuana use policy similar to the “Bottle to Throttle” rule if they choose to place clear limits on off-duty use without opting for outright prohibition.

For those law enforcement leaders who will maintain a prohibition on off-duty marijuana use, it is necessary to lay out the community expectations and/or medical evidence of long-term impairment upon which the decision is based.  It is also necessary to consider the widespread use of CBD, which is widely legal and advertised as an alternative to traditional pharmaceutical treatment for a variety of ailments that contains less than 0.3% THC. CBD products promise to treat ailments without the “high” associated with heightened THC. However, many drug testing methods currently in use can result in a positive test when the only product used by the officer was CBD.[11] Agency policies should also address the use of CBD, in addition to the use of marijuana. Drug recognition techniques will likely need to be an integral part of drug testing and evidence of impairment may need to exceed a positive test result alone.

 

Conclusion

As law enforcement agencies grapple with how to respond to the federal declassification of marijuana, it seems clear that now is the time to develop policies and procedures in cooperation with the communities they serve.  Agency failures to ensure coherent policies concerning off-duty marijuana use are likely to see substantial discord and confusion if they are caught completely unprepared.

Views of personal marijuana use—whether from medical experts or the community at large—will continue to be contentious, and no attorney can ultimately answer these policy questions for your agency without understanding your particular community and agency priorities.  But the conversations around policy and procedure should begin now so that your agency is prepared to make legally defensible personnel decisions now that federal declassification is becoming a reality.

 

 

 

 

About the Author

Matt Dolan, J.D.

Matt Dolan is a licensed attorney who specializes in training and advising public safety agencies in matters of legal liability, risk management, and ethical leadership.  His training focuses on helping agency leaders create ethically and legally sound policies, procedures, and practices as a proactive means of minimizing liability and maximizing agency effectiveness. 

A member of a law enforcement family dating back three generations, he serves as both Director and Public Safety Instructor with Dolan Consulting Group.

In December of 2024, he published his first book, Police Liability: A Guide for Law Enforcement Leaders of All Ranks.

His training courses include Background Investigations in Law Enforcement, Supervisor Liability for Law Enforcement, and Internal Affairs: Legal Liability and Best Practices.

 

Disclaimer: This article is not intended to constitute legal advice on a specific case.  The information herein is presented for informational purposes only.  Individual legal cases should be referred to proper legal counsel.

 

 

 

References
________________________________________

[1] 18 United States Code, Subsection 922(g)(3). 

[2] U.S. Controlled Substances Act. 1971. Public law 91-513, Statutes at Large 84 Stat. 1236 a.k.a. 84 Stat. 1242.

[3] 18 U.S.C. § 922(g)(3).

[4]  Megan Brenan, “Support for Legal Marijuana Inches Up to New High of 68%.” Gallup News, November 09, 2020. Accessed December 30, 2025: https://news.gallup.com/poll/323582/support-legal-marijuanainches-new-high.aspx    

[5] Lydia Saad, “Americans Not Convinced Marijuana Benefits Society.” Gallup News. August 16, 2022. Accessed December 30, 2025: https://news.gallup.com/poll/396893/americans-not-convinced-marijuanabenefits-society.aspx

[6]  See, for example: Hall, W., Lynskey M. (2016). Long-term marijuana use and cognitive impairment in middle age. JAMA: Journal of the American Medical Association: Internal Medicine, 176(3), 362–363; Hernandez, Caesar M., Caitlin A Orsini, Shelby L Blaes, Jennifer L Bizon, Marcelo Febo, Adriaan W Bruijnzeel, & Barry Setlow. (2022). Effects of repeated adolescent exposure to cannabis smoke on cognitive outcomes in adulthood. Journal of Psychopharmacology, 35(7), 848-863; Meier, Madeline H., Avshalom Caspi, Annchen R. Knodt, Wayne Hall, Antony Ambler, Hona-Lee Harrington, Sean Hogan, Renate M. Houts, Richie Poulton, Sandhya Ramrakha, Ahmad R. Hariri, & Terrie E. Moffitt. (2022). Long-term cannabis use and cognitive reserves and hippocampal volume in midlife. American Journal of Psychiatry, 179(5), 362-374; Morrison, Paul D., & Robin M. Murray. (2022). Cannabis points to the synaptic pathology of mental disorders: how aberrant synaptic components disrupt the highest psychological functions. Dialogues in Clinical Neuroscience, 22(3), 251-258; Salmanzadeh, Hamed, S. Mohammad Ahmadi-Soleimani, Narges Pachenari, Maryam Azadi, Robert F. Halliwell, Tiziana Rubino, & Hossein Azizi. (2020). Adolescent drug exposure: A review of evidence for the development of persistent changes in brain function. Brain Research Bulletin, 156, 105-117.

[7] McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 220 (1892).

[8] Dolan, Matt, & Richard R. Johnson. (2022) Weathering the Storm in Police Staffing? Raleigh, NC: Dolan Consulting Group. Accessed December 30, 2025: https://www.dolanconsultinggroup.com/news/weathering-the-storm-in-police-staffing/

[9]  Hetter, Katia, & Marnie Hunter. “What are the alcohol rules for US airline pilots?” CNN, August 1, 2019. Accessed: https://www.cnn.com/travel/article/airline-pilot-alcoholpolicies/index.html

[10] Ibid.

[11] Booth, Jessica & Jessica Cho, M.D. “Does CBD Show Up on a Drug Test?” Forbes, June 16, 2022, Accessed December 30, 2025: https://www.forbes.com/health/body/does-cbd-show-up-on-a-drugtest/#:~:text=On%20cbdMD’S%20Website,Can%20CBD%20Use%20Lead%20to%20a%20Positive%20Result%20on%20a,uncommon%20 as%20you%20might%20think.  

 

Pervasive staffing shortages have led some law enforcement leaders to resort to lowering hiring standards and cutting corners in background investigations and field training simply to fill positions and get “boots on the ground.” These compromises in hiring standards carry serious consequences, as may well be evidenced by the many 2025 headlines highlighting the damage caused by apparent failures in properly vetting new officers.

In May of 2025, a rookie officer with the San Francisco Police Department was fired following his arrest for his involvement in a drunk driving accident less than 48 hours after graduating from the police academy.[1] In June, a probationary Providence Police Department officer, who began working for the department 9 months before, was fired after being arrested on multiple narcotics charges off-duty.[2] In July, four Atlanta Police Department recruits were dismissed after being involved in an off-duty altercation resulting in one of the officers allegedly discharging a firearm after eluding police custody outside a bar.[3]

In September, a newly-hired Walbridge, Ohio officer was terminated for being intoxicated on-duty. This officer had been hired despite multiple past incidents of misconduct involving alcohol while employed as an officer in nearby Toledo.[4] One local outlet reported that the mayor of Walbridge stated “he was unaware of past issues…with TPD,” and said he “had confidence in the background check conducted by Walbridge police personnel at the time.”[5] And over the course of just 8 days in late October and early November of 2025, two probationary officers were fired by the San Antonio Police Department as a result of unrelated off-duty criminal charges.[6]

These stories point to misconduct, both on-duty and off-duty, that occurred so early in an officer’s career that burnout—cumulative stress related to the job—seems to be an implausible explanation. Common sense dictates that, if an individual cannot manage to get through the academy and the probationary process without making headlines for misconduct, something was likely missed in the hiring process.

Negligent hiring is a foundational issue affecting all facets of law enforcement operations, both in the short term and over time. Often, the greatest opportunity to mitigate liability across an officer’s career is presented to police leaders during the hiring phase, with particular emphasis on thorough background investigations and field training.

The 2025 stories referenced above come in the wake of recommendations of a Department of Justice (DOJ) report in October of 2023 which urged law enforcement leaders to “modernize eligibility requirements.”[7] These “modernization” recommendations included removing barriers to entry such as physical fitness, past drug use, ability to pass a written test, past criminal offenses, and much else.[8] In other words, the DOJ report from the previous administration formally touted what too many agencies have adopted informally—lowering hiring standards to fill open officer positions.  

While there are undoubtedly agencies that need to reevaluate some of their eligibility requirements—such as those pertaining to maximum age limits, college credit hours attained, or other requirements which seem to bear little or no relationship to an applicant’s character, competence, or integrity—the eligibility items highlighted by this former DOJ report implied that now is the time to lower standards, hire “warm bodies,” and deal with the fallout later. Law enforcement leaders should, instead, follow their ethical compasses and apply common sense. They should look to their own experiences within their agencies, and to the history of modern American policing, and subsequently reject this short-sighted and unethical philosophy of rushed hiring and lowered standards.

At this moment, the law enforcement profession, and the citizens who depend on it, need agency leaders to meet the ethical challenge of resisting the temptation to hire unqualified applicants. In the long run, these applicants have the potential to inflict tremendous damage on agencies, the profession, and the communities that these agencies serve. 

Neither officers nor the public benefit from unqualified law enforcement hires who undermine the profession instead of advancing its duty to protect and serve. The short-term accomplishment of swearing in more recruits and announcing their arrival to communities eager for more police services, pales in comparison to the long-term damage caused by hiring people right now instead of ensuring that they are hired the right way. Through careful reflection on past errors, awareness of common hiring pitfalls, and an understanding of the enduring consequences of negligent hiring, agency leaders can maintain professional integrity while avoiding harm to their agencies and the communities they serve.

 

 

 

You Cannot Outsource Negligent Hiring Liability

 

In recent years, many states have attempted to assist local law enforcement agencies in identifying officers with past misconduct issues in an effort to prevent bad actors from moving from agency to agency and being hired without proper regard for their past actions. The legislation passed in these states includes certification and de-certification processes, increased funding and resources for state-wide accreditation bodies, as well as mandates for local agencies to better communicate with one another in service of more thorough background investigations for lateral hiring.

Illinois is one of the many states that has passed legislation in recent years aimed at preventing the hiring of officers with checkered histories.[9] But the reality remains that local law enforcement agencies are still ultimately responsible for engaging in legally and ethically defensible hiring practices.

This local responsibility in hiring officers, and the consequences of failures in legally and ethically defensible hiring practices, were brought to national attention following the fatal shooting of Sonya Massey in 2024. Massey, a mentally ill, unarmed woman, was shot and killed by a Sangamon County Sheriff’s deputy who was hired in spite of past misconduct issues in his personal life and as a law enforcement officer at other Illinois agencies. The fatal shooting occurred less than 4 miles from the Illinois State Capitol where the aforementioned legislation was passed.[10]

The now-former Sheriff of Sangamon County, who eventually stepped down in the wake of Massey’s death and subsequent evidence of the deputy’s checkered past in law enforcement, defended the deputy’s hiring in a local news interview as follows:

“There is absolutely nothing in his background that would decertify him from working in law enforcement,” Campbell said. “The State of Illinois, the State Standards Board had certified him six times over and over and over again to continue working with law enforcement. There was nothing that we could have predicted.”[11]

But in February of 2025, Sangamon County settled a lawsuit filed by the family of Sonya Massey for damages in the amount of $10 million. The county and its sheriff’s office, whose leaders had hired and deployed the deputy to the scene were liable for the incident – not the State of Illinois, its law enforcement accrediting body, or any other outside entity tasked with assisting local police leaders in their hiring decisions. [12] 

Hopefully, state accreditation bodies will continually improve in assisting individual agencies in the hiring process—particularly as it pertains to hiring laterals from within that state. However, it is clear that when negligent hiring practices lead to the deployment of individuals unfit for the job, the fallout from their subsequent negligence or misconduct falls first and foremost on the agencies that hired them, the agency name which is displayed on the badges that they wear, and not the state body that has certified them.

 

 

If We Are Hiring Applicants Without Leaving the Office—

We Are Doing Something Wrong

 

Technological advancements have undoubtedly made it possible for background investigators to disqualify applicants with increased efficiency and decreased time commitment. Many dishonest statements on a personal history record form can be readily identified by checking various databases online. Social media activity can be checked for blatantly disqualifying conduct without the necessity of an investigator leaving the office. But these advancements tend only to assist investigators in disqualifying candidates, rather than approving them for hire. These tools are generally limited to identifying automatic disqualifiers and the kind of commonsense disqualifiers that are obvious to anyone with internet access.

The real work for background investigators, which must be done before approving a candidate, requires an out-of-office-experience. Technological advancements have not replaced traditional methods including, but not limited to, a home visit, neighborhood canvass, and interviews with past supervisors, FTOs, and firearms instructors.

Law enforcement leaders should be prepared to defend their hiring practices by describing their efforts, outside of minimal in-office background checks, to identify possible character, integrity, and competence issues revealed by past conduct. This is particularly true in light of the financial and public trust costs associated with bad hires, when compared to the costs associated with a thorough background investigation. 

 

 

 

 

 

About the Author

Matt Dolan, J.D.

Matt Dolan is a licensed attorney who specializes in training and advising public safety agencies in matters of legal liability, risk management, and ethical leadership.  His training focuses on helping agency leaders create ethically and legally sound policies, procedures, and practices as a proactive means of minimizing liability and maximizing agency effectiveness. 

A member of a law enforcement family dating back three generations, he serves as both Director and Public Safety Instructor with Dolan Consulting Group.

In December of 2024, he published his first book, Police Liability: A Guide for Law Enforcement Leaders of All Ranks.

His training courses include Background Investigations in Law Enforcement, Supervisor Liability for Law Enforcement, and Internal Affairs: Legal Liability and Best Practices.

 

Disclaimer: This article is not intended to constitute legal advice on a specific case.  The information herein is presented for informational purposes only.  Individual legal cases should be referred to proper legal counsel.

 

 

 

References
_____________________________________________

[1] Jonah Owen Lamb and Garrett Leahy, “Rookie cop fired after high-speed DUI crash,” San Francisco Standard, May 20, 2025. Accessed December 19, 2025 at: https://sfstandard.com/2025/05/20/rookie-cop-fired-after-high-speed-dui-crash/

[2] Gino DeAngelis, “Probationary Providence Police officer arrested on multiple narcotics charges,” ABC 6 Providence News, June 27, 2025. Accessed December 17, 2025 at: https://www.abc6.com/probationary-providence-police-officer-arrested-on-multiple-narcotics-charges/

[3] Dan Raby and Aungelique Proctor, “Atlanta police recruits dismissed after altercation at East Point business, officials say,” Fox 5 Atlanta News, July 24, 2025. Accessed December 19, 2025 at: https://www.fox5atlanta.com/news/atlanta-police-recruits-dismissed-altercation-east-point-business

[4] Melissa Andrews and Brian Dugger, “Fired Walbridge police officer previously resigned from Toledo after 3 separate incidents involving alcohol, records show,” WTOL 11 News, September 24, 2025. Accessed December 19, 2025 at: https://www.wtol.com/article/news/investigations/11-investigates/fired-walbridge-officer-resigned-toledo-alcohol-incidents-ervin/512-7d1839e5-4bcb-4352-a8cb-8d4560b44466

[5] Ibid.

[6] Dillon Collier and Joshua Saunders, “SAPD probationary officers fired after drunken incident days apart,” KSAT News, November 24, 2025. Accessed December 26 at: https://www.ksat.com/news/ksat-investigates/2025/11/24/sapd-probationary-officers-fired-after-drunken-incidents-days-apart/

[7] Bureau of Justice Assistance and Office of Community Oriented Policing Services, Recruitment and Retention for the Modern Law Enforcement Agency: Revised (Washington, DC: Office of Community Oriented Policing Services, 2023).

[8] BJA and COPS, Recruitment and Retention for the Modern Law Enforcement Agency, 4.

[9] NBC Chicago, “Here’s What to Know About Illinois’ SAFE-T Act and the NEW Changes Coming,” NBC Chicago News, December 2, 2024. Accessed December 23, 2024 at: https://www.nbcchicago.com/news/local/heres-what-to-know-about-illinois-safe-t-act-and-the-new-changes-coming/3011535/

[10] Sangamon County Sheriff’s Office Press Release, “Illinois State Police Announce Investigation into Officer Involved Shooting Continues,” Sangamon County Sheriff’s Office, July 10, 2024: Accessed on December 30, 2024 at: https://sangamonil.gov/departments/s-z/sheriff/sonya-massey-information#:~:text=On%20July%206%2C%202024%20at,deceased%20at%20an%20area%20hospital.

[11] Danny Connolly, “Sheriff Campbell Planning Policy Changes After Deputy Shooting of Sonya Massey,” WCIA News, August 1, 2024. Accessed December 23, 2024 at: https://www.wcia.com/news/sheriff-campbell-planning-policy-changes-after-deputy-shooting-of-sonya-massey/

[12] Janelle Griffith, “$10 million settlement in Sonya Massey shooting case gets final approval,” NBC News, February 12, 2025. Accessed December 19, 2025 at: https://www.nbcnews.com/news/us-news/10-million-settlement-sonya-massey-shooting-case-gets-final-approval-rcna191825