The Supreme Court Says Cannabis Use Alone Cannot Disarm You. What Does that Mean for California Cops?

California peace officers now stand at the intersection of two bodies of law that pull in opposite directions. State law shields their right to use cannabis when they are not on duty, while federal law forbids anyone who uses cannabis from possessing the very firearm that their profession demands. The Supreme Court has just unsettled the federal side of that equation in United States v. Hemani, and its decision invites a fresh look at whether an officer who lawfully uses cannabis away from work may still be denied the badge and the gun. United States v. Hemani, 146 S. Ct. 1677 (2026) The answer is not yet clear, and the competing arguments deserve careful attention.

The Legislature spoke plainly when it enacted Assembly Bill 2188 and Senate Bill 700, which amended Government Code section 12954 and took effect on January 1, 2024. That statute makes it an unlawful employment practice for an employer to penalize a worker for using cannabis off the job and away from the workplace, and it forbids reliance on a drug test that detects only the nonpsychoactive cannabis metabolites that linger in the body long after any effect has passed. Gov Code § 12954. The Legislature exempted only employees in the building and construction trades, and it said nothing at all about peace officers. Because the Legislature expressly excluded one occupation and left every other unmentioned, officers possess a legitimate argument that the omission of their profession was deliberate and that the new protection reaches them. The statute therefore begins from a position that appears to favor the officer who uses cannabis on personal time.

That favorable starting point gives way, however, to several exemptions that may prove decisive for law enforcement. Section 12954 does not permit an employee to use or to be impaired by cannabis on the job, it preserves an employer's authority to maintain a drug free workplace, and it expressly leaves intact any other rights or obligations that state or federal law places on the employer. The statute also declines to preempt any state or federal law that requires controlled substance testing as a condition of employment, and it removes from its protection any position that requires a federal government background investigation or security clearance. The difficulty is that the ordinary municipal or county officer completes a state background investigation for good moral character under Government Code section 1031, not the federal investigation that the exemption describes, and Government Code section 1029 disqualifies only those convicted of a felony rather than those who use cannabis. Whether these provisions carve officers out of the statute or leave them comfortably within it remains genuinely uncertain.

The sharpest tension arises not from the employment statute but from the firearm that every sworn officer must carry. Federal law makes it unlawful for any person who is an unlawful user of a controlled substance to possess a firearm, and cannabis remains a Schedule I controlled substance under federal law no matter how completely California has legalized it. An officer who uses cannabis therefore appears, at least on the face of the statute, to be a person whom Congress has forbidden to hold a tool that the job requires. That same officer who buys a personal weapon must attest truthfully on the federal firearms transaction record that he is not an unlawful user of marijuana, and a false answer carries federal criminal exposure. The firearm requirement, far more than anything in the employment code, is what has long threatened to place cannabis-using officers outside the protection that Assembly Bill 2188 seems to promise.

For years the governing federal authority in California cut sharply against the officer. The Ninth Circuit in Wilson v. Lynch, 835 F.3d 1083 (9th Cir. 2016) applied a two-step inquiry and intermediate scrutiny and upheld the federal restrictions that keep marijuana users, including the holders of a state medical marijuana card, from acquiring firearms. The court reasoned that these laws burden the Second Amendment only minimally and incidentally, and it concluded that the Constitution tolerates such modest collateral burdens. Wilson supplied a straightforward answer that a cannabis user could be kept from the firearm and therefore from the job. That answer, however, rested on the Ninth Circuit’s Second Amendment analysis that the Supreme Court has rejected.

The ground shifted when the Supreme Court decided New York State Rifle and Pistol Association v. Bruen and directed courts to measure firearm regulations against the Nation's historical tradition rather than against tiers of scrutiny. United States v. Hemani, 146 S. Ct. 1677 (2026), decided on June 18, 2026, applied that framework to the very statute at issue here. Ali Hemani used marijuana a few times a week, and the government sought to imprison and permanently disarm him on that basis alone, without any claim that he was an addict, that he was intoxicated while armed, or that he had ever posed a danger to anyone. The Court held that the prosecution could not stand, because the historical laws the government invoked, the old regimes that restrained habitual drunkards through vagrancy, civil commitment, and surety bonds, targeted persons whose intoxication left them incapacitated and operated only after some form of legal process. Section 922(g)(3), by contrast, automatically disarms any regular user of any controlled substance without proof of incapacity, intoxication, or dangerousness, and the Court concluded that this automatic and status driven ban does not fit within the Nation's historical tradition of firearm regulation. Applying the statute to Hemani on those facts therefore violated the Second Amendment.

The Court took evident care to confine its ruling. It did not decide whether Congress may disarm those who are addicted or presently intoxicated, it did not disturb the separate prohibition on firearm possession by convicted felons, and, most importantly for officers, it did not resolve whether the government may proceed under the statute when it offers individualized proof that a person's drug use renders him a danger to himself or others. The holding thus dismantles one categorical justification for disarming cannabis users while expressly preserving room for a narrower approach that rests on individualized findings.

Arguably, if the federal firearm ban cannot constitutionally reach a person merely because he uses cannabis, then an agency can no longer prohibit marijuana use based on the contention that such an officer is legally incapable of possessing their duty weapon. Under this argument, the exemptions from section 12954 may not apply, because they preserve only employer obligations that federal law genuinely imposes, and under Hemani federal law may not impose a firearm disability based on cannabis use alone. The earlier Ninth Circuit rule in Wilson, resting on a repudiated legal framework, looks increasingly invalid after Hemani. Thus, an officer disciplined solely because he or she uses cannabis may run afoul of the categorical prohibition that the Supreme Court has now rejected. Read together, Assembly Bill 2188 and Hemani suggest the officer may be protected from discipline.

However, the application of Assembly Bill 2188 to peace officers remains unclear. Hemani decided only an as applied challenge that turned on the complete absence of any individualized showing, and the Court pointedly left open a prosecution supported by individualized proof of dangerousness. An agency may contend that an officer who carries a loaded firearm in public every single day presents exactly the individualized safety concern that the Court declined to reach, so that the reasoning of Hemani may provide officers no shelter at all.

Section 12954 independently preserves the employer's right to maintain a drug free workplace and to honor any obligation that federal law and regulation impose, and Government Code section 1031 must be read and applied consistently with federal law. Cannabis also remains unlawful under federal law even where a prosecution under section 922(g)(3) would fail, and the officer who purchases a personal firearm still confronts the sworn federal form and the criminal exposure that a false answer invites. 18 U.S.C.A. § 922. Wilson, while legally suspect, remains binding in the Ninth Circuit until that appellate court or the Supreme Court squarely overrules it, and an agency may reasonably continue to rely upon it.  

The honest conclusion is that the law has not settled and that officers and their employers alike should proceed with caution. Hemani has weakened the categorical federal bar that once made this analysis simple, yet it has deliberately left open the individualized path to enforcement. More importantly, the California exemptions remain untested in any court.

Public safety unions should resist any suggestion that their members must surrender the protections that the Legislature extended, and they should insist that any adverse action rest on an individualized assessment of fitness and risk rather than on cannabis using status alone. Officers, for their part, should remember that cannabis remains unlawful under federal law and should weigh that stubborn reality before they place their careers in the hands of an unsettled disciplinary dispute. Until the Legislature or the courts clarify this issue, prudent officers should tread lightly regarding off-duty cannabis use.