The Volokh Conspiracy

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Hostage Negotiations, Marijuana, and Police Officers' Rights in Disciplinary Proceedings

An interesting decision under the North Carolina's unusual constitutional provision protecting people's right to "the enjoyment of the fruits of their own labor."


From Mole' v. City of Durham, decided today by the North Carolina Court of Appeals, in an opinion by Judge Lucy Inman, joined by Judges Valerie Zachary and Jeffery Carpenter; note that the court ultimately holds for the police officer based on the alleged violation of his department-created procedural rights, not on any substantive protections for his conduct (however laudable the judges might view it to be, if I'm reading the tone of the opening paragraph right):

In his first experience negotiating the surrender of an armed and barricaded suspect, without another negotiator backing him up, Durham Police Sergeant Michael Mole' might have given up when the suspect's gun discharged at close range. He didn't, and two hours later he had persuaded the suspect to drop his weapon and surrender. The suspect, other citizens, and law enforcement officers were safe. But Sergeant Mole' was fired because he had secured the suspect's surrender by promising to allow him to smoke a marijuana cigarette once in custody, and he made good on the promise immediately following the arrest….

Sergeant Mole' sued the City of Durham …. Because the complaint alleges a colorable violation of Article I, Section 1 of the North Carolina Constitution, which protects each person's right to enjoy the fruits of their own labor, we hold the trial court erred in dismissing that claim….

On 28 June 2016, the Durham Police Department dispatched officers to an apartment in Durham to serve an arrest warrant on Julius Smoot …. After entering the apartment, officers discovered that Smoot had barricaded himself in an upstairs bedroom. Smoot yelled that he had a gun and that he would use it on himself in ten minutes unless he was allowed to see his wife and son. The officers retreated and requested a hostage negotiator.

Sergeant Mole' was the only hostage negotiator on duty at the time. He arrived at the apartment five minutes before Smoot's deadline and began negotiations with the primary goals of extending the deadline and keeping Smoot alive. During these negotiations, Smoot accidentally discharged his firearm.

Sergeant Mole' continued to negotiate with Smoot for approximately two hours. During this time, Smoot said he planned to smoke a "blunt," a marijuana cigarette. 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. 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.

The Durham Police Department launched an internal investigation of Sergeant Mole's actions following Smoot's peaceful surrender. On 24 October 2016, approximately four months after the incident, Sergeant Mole' was informed in writing that a pre-disciplinary hearing would take place the next day, despite Durham's written policy requiring advance notice of at least three days. Following the hearing, Sergeant Mole's immediate supervisors recommended that he be reprimanded. But Durham terminated him….

Sergeant Mole' argues that his termination violated his right to the fruits of his labor guaranteed by Article I, Section 1 of the North Carolina Constitution. This provision ensures each person the right to "life, liberty, the enjoyment of the fruits of their own labor, and the pursuit of happiness." 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 "fruits of their own labor" clause was added to our state constitution in 1868. 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. See John V. Orth, The North Carolina State Constitution with History and Commentary 38 (1995) (recognizing that the clause was "an addition that may have been intended to strike an ideological blow at the slave labor system").

Our appellate courts did not consider the clause until the 20th century, when it was applied to check the State's professional licensing powers. See generally, e.g., State v. Harris (1940) (dry cleaning); State v. Ballance (1949) (photography); Roller v. Allen (1957) (tile installation). 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. King v. Town of Chapel Hill (2014) 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 (2018) 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.

Tully involved a Wilmington police officer who was denied a promotion after he failed a mandatory examination that tested an officer's knowledge of the law. His exam answers were correct based on the current state of the law, but he failed the exam because the answer key was outdated. Written department policy laid out the promotion and examination procedures and provided that candidates could appeal any portion of the selection process, so the officer sought to appeal his test results. The City of Wilmington refused to hear the officer's appeal, determining the test results "were not a grievable item" and that nothing could be done.

Our Supreme Court held that this denial of process violated the officer's constitutional rights under Article I, Section 1, reasoning the provision applies "when a governmental entity acts in an arbitrary and capricious manner toward one of its employees by failing to abide by promotional procedures that the employer itself put in place." It established the following requirements to plead such a constitutional claim:

"[T]o state a direct constitutional claim grounded in this unique right under the North Carolina Constitution, a public employee must show that no other state law remedy is available and plead facts establishing three elements: (1) a clear, established rule or policy existed regarding the employment promotional process that furthered a legitimate governmental interest; (2) the employer violated that policy; and (3) the plaintiff was injured as a result of that violation." …

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'…. Presnell v. Pell (1979) … recognized an allegedly unreasonable termination of a public school teacher implicated "the right to engage in any of the common occupations of life, unfettered by unreasonable restrictions imposed by actions of the state or its agencies." …. It is undeniable that unreasonable employee discipline—including termination—by a government employer implicates this same right and raises the same concerns….

Sergeant Mole's complaint alleges several policy violations of varying stripes, namely: (1) the acting watch commander failed to deploy the hostage negotiation team, the Special Enforcement Team, or stage fire and emergency medical services; (2) the watch commander negotiated with Smoot without Sergeant Mole's knowledge; (3) an "after-action report/critical incident critique" was not completed; (4) Sergeant Mole' took Smoot into custody because the designated tactical personnel were never deployed; (5) Sergeant Mole' was not offered psychological services following the incident; (6) other officers failed to secure prior written consent to conduct the search that initiated the standoff with Smoot; (7) the incident should have been designated a high-risk warrant service but was not; (8) Sergeant Mole' was not provided quarterly training and he did not meet annually with the department's Special Enforcement Team as required for hostage negotiators; and (9) Durham gave Sergeant Mole' only 24 hours' notice of his pre-disciplinary conference instead of the minimum 72 hours' notice mandated by policy.

The first eight policy violations alleged above put Sergeant Mole' into an untenable position, but they do not state a claim under Tully. Tully protects public employees from unreasonable violations of employment policies, not field operating or training procedures that do not bear upon internal processes governing the employer-employee relationship.

But Sergeant Mole's allegation that he was given improper and inadequate notice of his pre-disciplinary hearing does fall within Article I, Section 1's protections. This shortened notice period violated Durham's own employment disciplinary procedures. Sergeant Mole' further alleges that these pre-disciplinary procedures were designed to further a legitimate government interest, namely that its employees be treated fairly in the administration of discipline. Sergeant Mole' has thus pled a redressable violation of his employer's disciplinary procedures designed to further a legitimate governmental interest, in satisfaction of the first two elements from Tully.

Sergeant Mole' has likewise satisfied the final element, injury, based on a liberal construction of his complaint. Sergeant Mole' specifically alleges that "[h]ad [he] been afforded his opportunity … to prepare at a minimum of three days instead of less than 24 hours, Sergeant Mole' would have had reasonable notice and could have better prepared and provided a more comprehensive response." From there, he asserts Durham "failed to comply with mandatory conditions precedent before proceeding with dismissal … [and] did not comply with its own stated [disciplinary] policies," before alleging Durham's "conduct including actions and omissions in its treatment of Sergeant Mole' w[as] arbitrary, capricious, irrational and predicated upon selective enforcement of personnel and law enforcement policies and disparate treatment in discipline and thereby deprived Sergeant Mole' of the fruits of [his] labors." These allegations are similar to those held adequate to demonstrate a claim in Tully, and we therefore hold Sergeant Mole' has sufficiently alleged he "was injured as a result of [Durham's procedural] violation[s]."

We acknowledge North Carolina's general policy of at-will employment, long established in common law. We do not hold that Durham could not terminate Sergeant Mole' based on the conduct at issue, or that Durham could not terminate Sergeant Mole' without cause. Given the stage of proceedings, "we express no opinion on the ultimate viability of [Sergeant Mole']s claim." Like the Supreme Court in Tully, "we [do] not speculate regarding whether [Sergeant Mole'] would [not have been terminated] had [Durham] followed its own [disciplinary] policy." At this early stage of litigation, we do not address whether Sergeant Mole' must be reinstated or what relief must be afforded to him should he prevail, as "[i]t will be a matter for the trial judge to craft the necessary relief." 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'. 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….