Fired Durham police sergeant bolsters his case to N.C. Supreme Court

Image from Durham Police Department YouTube channel
  • A fired Durham police sergeant is asking the N.C. Supreme Court to permit his lawsuit accusing the city of violating his state constitutional rights.
  • Michael Mole' ended an armed standoff by allowing a suspect to smoke a marijuana blunt. Months after the incident, the police department fired Mole'.

A Durham police sergeant fired after he allowed a suspect to smoke a marijuana blunt has filed new paperwork with the N.C. Supreme Court. The sergeant reminds the court that his controversial action helped end an armed standoff.

“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 attorney Michael McGuinness in his latest filing Monday on behalf of fired officer Michael Mole’. “At its core, this is a case about the enforceability of law enforcement rules and policies designed to promote both officer and citizen safety.”

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. Durham 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. “This provision was recently applied by our Supreme Court in Tully v. City of Wilmington. Following the Supreme Court’s reasoning in Tully, we 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.

Now Mole’ is appealing to the state Supreme Court.

“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 in Monday’s brief. “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.”

“Durham has offered no case that provides support for its assertion that Sergeant Mole’s complaint fails to state any claim for relief, either the Fruits of Labor claim or Mole’s’ equal protection claim,” McGuinness wrote. “Both are enumerated claims under Article I, Sections 1 and 19 of the North Carolina Constitution, and both are grounded in historical precedent.”

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

“The respect for and compliance with law enforcement policies by everyone, is arguably far more important than the enforcement of employment policies,” he wrote. “Non-compliance with law enforcement policies often has deadly consequences both for first responders and for the public. 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.

Monday’s brief marks the final paperwork scheduled in Mole’s case. The state Supreme Court has announced no timetable for addressing Mole’s arguments moving forward.

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