The N.C. Constitution’s protection of economic liberty could help a fired Durham police sergeant in his lawsuit against the city. A unanimous three-judge panel of the N.C. Court of Appeals has overturned a trial court’s ruling against the fired officer.

Michael Mole’ will be able to pursue his claim that Durham violated his rights under one piece of Article I, Section 1 of the state constitution. The state’s governing document guarantees that all people have the right to “the enjoyment of the fruits of their own labor.”

Mole’s case stemmed from a June 2016 incident. He was called in as a hostage negotiator. Mole’ spoke for two hours with a man, Julius Smoot, who had barricaded himself in an apartment bedroom and threatened to shoot himself.

“During this time, Smoot said he planned to smoke a ‘blunt,’ a marijuana cigarette,” according to the court opinion. “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, he was given a one-day notice of a pre-disciplinary hearing, despite a departmental policy of giving three days notice. After the hearing, Mole’s immediate supervisors recommended a reprimand. Durham fired him instead.

“In November 2018 Sergeant Mole’ filed a complaint alleging Durham had violated his state constitutional rights to due process, equal protection, and the fruits of his labor under the North Carolina Constitution,” according to the court opinion.

A trial court dismissed Mole’s complaint. But the Court of Appeals will allow Mole’ to continue to pursue the “fruits of his 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 in the court opinion. “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.”

Inman explained the unique nature of the claim. “Unlike the due process and equal protection provisions of our state constitution, which have been interpreted to provide the same protection as provisions in the federal constitution, this guarantee has no analogous federal constitutional clause.”

The judge offered a brief history lesson. “The ‘fruits of their own labor’ clause was added to our state constitution in 1868,” she wrote. “It was adopted the same year the Fourteenth Amendment to the United States Constitution was ratified, at a time when formerly enslaved persons were newly able to work for their own benefit.”

“Our appellate courts did not consider the clause until the 20th century, when it was applied to check the State’s professional licensing powers,” Inman added. “These decisions recognized a person’s ability to earn a livelihood as a protected constitutional right and struck down licensing restrictions not rationally related to public health, safety, or welfare and not reasonably necessary to promote a public good or prevent a public harm.”

“In recent years, our Supreme Court has extended application of the fruits of one’s labor clause beyond licensing restrictions to other state actions that interfere with one’s right to earn a livelihood,” Inman explained. “King v. Town of Chapel Hill held that a town ordinance capping towing fees was arbitrary and violated tow truck drivers’ rights to enjoy the fruits of their labor. Tully v. City of Wilmington held that a municipal police department violated a public employee’s constitutional right to enjoy the fruits of his own labor when it failed to follow its own promotion procedures.”

The Tully case dealt with promotions, but Inman and her colleagues saw enough similarities to extend the state Supreme Court’s reasoning to Mole’.

“Tully detailed the underlying constitutional injury in that case in terms broader than the promotional process, and the logic employed in that decision applies with equal force to the disciplinary action taken against Sergeant Mole’,” Inman wrote. “Our understanding of Tully and its
rationale, combined with its instruction to ‘give our [state] Constitution a liberal interpretation in favor of its citizens with respect to those provisions which were designed to safeguard the liberty and security of the citizens in regard to both person and property,’ leads us to hold that Article I, Section 1 applies to the disciplinary action taken against Sergeant Mole’.”

The Tully ruling, citing an earlier precedent, explained that “[t]he right of a citizen to live and work where he will is offended when a state agency unfairly imposes some stigma or disability that will itself foreclose the freedom to take advantage of employment opportunities.”

“It is undeniable that unreasonable employee discipline — including termination — by a government employer implicates this same right and raises the same concerns,” Inman wrote.

Appellate judges did not order Durham to give Mole’ his job back. The case will head back to a trial court.

“We only hold that Durham must follow its own disciplinary procedures — created to protect its legitimate governmental interest in treating city employees fairly — in discharging Sergeant Mole’,” Inman wrote. “If the evidence shows that Durham failed to do so and that Sergeant Mole’ was harmed by that failure, Article I, Section 1 of our Constitution provides a remedy.”

The Appeals Court rejected Mole’s other claims, so his case rests on the potential violation of the “fruits of their own labor” clause.

Inman ran as a Democratic candidate for state Supreme Court in 2020. Carolina Journal has reported on Inman’s likely run for the state’s highest court again in 2022.