Mole v. City of Durham

• Decision Date: 05 October 2021
• Docket Number: No. COA 19-683,COA 19-683
• Citation: 866 S.E.2d 773,279 N.C.App. 583
• Parties: Michael MOLE’, Plaintiff, v. CITY OF DURHAM, North Carolina, a municipality, Defendant.
• Court: North Carolina Court of Appeals

279 N.C.App. 583

866 S.E.2d 773

Michael MOLE’, Plaintiff,

v.CITY OF DURHAM, North Carolina, a municipality, Defendant.

No. COA 19-683

Court of Appeals of North Carolina.

Filed October 5, 2021

The McGuinness Law Firm, Elizabethtown, by J. Michael McGuinness, and Edelstein & Payne, Raleigh, by M. Travis Payne, for Plaintiff-Appellant.

Kennon Craver, PLLC, by Henry W. Sappenfield, Durham, and Michele L. Livingstone, for Defendant-Appellee.

Essex Richards, P.A., Charlotte, by Norris A. Adams, II, for North Carolina Fraternal Order of Police, amicus curiae.

INMAN, Judge.

¶ 1 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.

¶ 2 Sergeant Mole’ sued the City of Durham, alleging that his employer violated his rights under the North Carolina Constitution. The trial court dismissed his complaint pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure.

¶ 3 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. We otherwise affirm the trial court because binding precedent precludes a holding that Sergeant Mole’ has a constitutionally protected interest in continued employment under theories of due process or equal protection.

I. FACTUAL AND PROCEDURAL HISTORY

¶ 4 The complaint pleads the following facts:

¶ 5 Sergeant Mole’ began working for the Durham Police Department in May 2007. He received hostage negotiation training in May 2014, but he did not negotiate a barricaded subject or hostage situation until the events giving rise to this case.

¶ 6 On 28 June 2016, the Durham Police Department dispatched officers to an apartment in Durham to serve an arrest warrant on Julius Smoot ("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.

¶ 7 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.

¶ 8 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.

¶ 9 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.

¶ 10 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.

¶ 11 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. The trial court entered an order granting Durham's motion to dismiss the complaint under Rule 12(b)(6) on 22 May 2019. Sergeant Mole’ appeals.

II. ANALYSIS

¶ 12 Sergeant Mole’ argues that the facts pled in his complaint support claims for violations of his state constitutional rights to due process, equal protection, and the fruits of his labor. 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. This provision was recently applied by our Supreme Court in Tully v. City of Wilmington , 370 N.C. 527, 810 S.E.2d 208 (2018). 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. We are constrained by binding precedents to affirm the trial court's dismissal of his remaining constitutional claims.

A. Standard of Review

¶ 13 We review an order granting a 12(b)(6) motion to dismiss de novo to determine whether the complaint states a claim under which relief can be granted. Wells Fargo Bank, N.A. v. Corneal , 238 N.C. App. 192, 195, 767 S.E.2d 374, 377 (2014). We liberally construe the complaint and take the material factual allegations as true. Id. Legal conclusions, unlike factual allegations, are not presumed valid. Id.

B. Fruits of One's Labor

¶ 14 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." N.C. Const. art. I, § 1 (emphasis added). 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. See infra Parts II.C (1) and (2).

¶ 15 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").

¶ 16 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 , 216 N.C. 746, 6 S.E.2d 854 (1940) (dry cleaning); State v. Ballance , 229 N.C. 764, 51 S.E.2d 731 (1949) (photography); Roller v. Allen , 245 N.C. 516, 96 S.E.2d 851 (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. Roller , 245 N.C. at 518, 96 S.E.2d at 854 ; Ballance , 229 N.C. at 769-70, 51 S.E.2d at 735.

¶ 17 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 held that a town ordinance capping towing fees was arbitrary and violated tow truck drivers’ rights to enjoy the fruits of their labor. 367 N.C. 400, 408, 758 S.E.2d 364, 371 (2014). 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. 370 N.C. at 539, 810 S.E.2d at 217.

¶ 18 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. 370 N.C. at 528-29, 810 S.E.2d at 211. His exam answers were correct based on the current state of the law, but he failed the exam because the answer key was outdated. Id. 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. Id. at 529-30, 810 S.E.2d at 211. 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. Id. at 529, 810 S.E.2d at 211 (quotation marks omitted).

¶ 19 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."

Id. at 535-36, 810 S.E.2d at 215. 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

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