Top NC court to decide whether fired Durham police sergeant can continue legal fight

The N.C. Supreme Court will decide whether a fired Durham police sergeant involved in a controversial 2016 armed standoff can sue to get his job back. The sergeant had allowed a suspect to smoke a marijuana blunt as the standoff ended.

“An officer with an exemplary record performed admirably to de-escalate and resolve a very dangerous situation, saving a suicidal man’s life, and he did so in full compliance” with Durham police rules, “and he got fired for doing that,” said attorney Travis Payne during oral arguments Thursday in Mole’ v. City of Durham. Payne represents Michael Mole’, the former Durham sergeant.

Attorney Travis Payne makes an oral argument at the N.C. Supreme Court. (Image from Supreme Court of North Carolina YouTube channel)

Mole’ argues that the dismissal violated his state constitutional rights in two ways. First, Durham violated his rights to have equal protection of the laws. Second, Durham violated his state constitutional right to enjoy the “fruits” of his labor.

“We respectfully submit that he’s also a hero and that his law enforcement service on that day was truly incredible and saved the life of Mr. Smoot,” said Michael McGuinness, also representing Mole’.

Michael McGuinness at N.C. Supreme Court
Attorney Michael McGuinness makes an oral argument at the N.C. Supreme Court. (Image from Supreme Court of North Carolina YouTube channel)

“Mole’, in his discretion, permitted a suspect who was in custody to smoke a marijuana cigarette in front of him before he took him in to be booked. The chief of police did not violate a City of Durham policy in making her decision to terminate Mole’,” answered attorney Henry Sappenfield, representing Durham.

Henry Sappenfield in N.C. Supreme Court
Attorney Henry Sappenfield represents Durham at the N.C. Supreme Court. (Image from Supreme Court of North Carolina YouTube channel)

If the court allows Mole’ to proceed with the “fruits of their own labor” claim, it would expand on the state Supreme Court’s 2018 ruling in Tully v. City of Wilmington. That case dealt with a city’s rules for police promotion.

“In what ways would you have us to do that without going further afield than we need to?” Justice Michael Morgan asked Mole’s lawyers.

Morgan also questioned the city’s apparent deviation from its policies when dealing with Mole’. “The city did not follow its own governmental policies because instead of waiting three days to have the pre-dismissal hearing, it held it the next day,” he said.

Justice Richard Dietz questioned whether Mole’s case should have relied on different constitutional protections. He suggested Mole’ might be protected by the state constitution’s “law of the land” provisions, rather than the “fruits of their own labor” language.  

“If the decision by the government in this case is truly arbitrary and irrational, it violates that {law of the land] principle, but perhaps not the one at the heart of ‘fruits of their own labor,’ which is about the government allowing people to compete freely in the marketplace,” Dietz said.

Justice Anita Earls asked how Mole’ could have known that his actions would end up getting him fired.

“Reading the policy that was in effect at the time, … where it clearly says the saving of human life is the primary goal in dealing with the hostage or barricaded suspect situations, all demands are negotiable, except the following situations, … which don’t apply here, how would an officer be on notice or have any knowledge that taking action which his training tells him to do, … how would he be on notice that that would then subject him to termination?” Earls asked.

Anita Earls, Tamara Barringer, and Trey Allen
N.C. Supreme Court Justice Anita Earls, left, asks a question as Justices Tamara Barringer and Trey Allen consider oral arguments. (Image from Supreme Court of North Carolina YouTube channel)

Justice Trey Allen asked lawyers on both sides of the legal arguments whether the case would be different if Mole’ had allowed the suspect to take heroin. He also probed a potential problem with the city’s argument.

“It seems to me that what you’re saying is that the agreement was OK, but honoring the agreement was a violation,” Allen said. “Do you see a problem with putting a negotiator in that position?”

The case stemmed from a June 2016 incident. Called in as a police hostage negotiator, Mole’ spoke for two hours with Julius Smoot. Smoot had threatened to shoot himself while barricaded in an apartment bedroom.

“During this time, Smoot said he planned to smoke a ‘blunt,’ a marijuana cigarette,” according to the N.C. Appeals Court opinion in the case. “Sergeant Mole’, reluctant to allow an armed and barricaded subject to impair his mental state, asked Smoot to refrain. Sergeant Mole’ promised Smoot that if he disarmed and peacefully surrendered, he would be allowed to smoke the blunt.”

“Smoot then dropped his gun, handcuffed himself, and surrendered to Sergeant Mole’ in the apartment,” the opinion continued. “Still in handcuffs, Smoot asked for his pack of legal tobacco cigarettes and lighter, which were on a nearby table, and Sergeant Mole’ handed those items to him. Smoot then pulled a marijuana blunt from behind his ear, lit it with the lighter, and smoked approximately half of it.”

Durham police investigated Mole’s actions. Four months after the incident, his supervisors gave him one day’s notice of a pre-disciplinary hearing. Departmental policy required three days’ notice. After the hearing, Mole’s immediate supervisors recommended a reprimand. The police chief fired him instead.

Mole’ filed suit against the city in November 2018. A trial court dismissed his complaint. But the Court of Appeals responded in October 2021 to Mole’s “fruits of their own labor” claim.

“Article I, Section 1 of the North Carolina Constitution, in a provision unique to that document as compared to the federal constitution, protects the people’s rights to enjoy the fruits of their own labor,” noted Judge Lucy Inman for the unanimous Appeals Court. “[W]e hold that Sergeant Mole’s complaint adequately pleads a claim for violation of Article I, Section 1.”

While reviving Mole’s claim under the “fruits of their own labor” provision, the Appeals Court rejected the rest of the fired officer’s arguments.

Mole’ hopes the state Supreme Court will revive all of his legal arguments against his dismissal.

“A law enforcement officer carried out his job duties in literal compliance with the pertinent Durham law enforcement operational policies, protected everyone’s safety, de-escalated the armed suicidal barricaded subject who had already fired off a shot with his gun – and was consequently terminated,” wrote McGuinness in August. “At its core, this is a case about the enforceability of law enforcement rules and policies designed to promote both officer and citizen safety.”

“As the streets of America and North Carolina have grown increasingly more dangerous and deadly, little is more important than effective law enforcement policies and procedures to safely manage police operations,” McGuiness wrote. “All North Carolina law enforcement officers, of every rank and position, are ethically mandated to “be exemplary in obeying the law and the regulations of my department.”

In addition to his claim that Durham violated his rights under the state constitution’s “fruits of their own labor” clause, Mole’ asserts violations of Article I, Section 19’s guarantee of “equal protection of the laws.”

Mole’s dispute involves Durham’s alleged violation of its own law enforcement policies, McGuinness argued in the August brief.

“Non-compliance with law enforcement policies often has deadly consequences both for first responders and for the public,” he wrote. “These enormously important law enforcement policies cannot be disrespected or ignored without jeopardizing public safety.”

“The law enforcement policies at issue in this case are especially worthy of protection because they promote the safety of everyone, including the public, suspects, and the officers involved,” he added.

There is no deadline for the state Supreme Court to issue a decision in the case.

The post Top NC court to decide whether fired Durham police sergeant can continue legal fight first appeared on Carolina Journal.


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