By Mitch Kokai, Carolina Journal

 The case of a fired Durham police sergeant gives the N.C. Supreme Court a chance to consider constitutional protection of economic liberty.

The state's highest court agreed this month to take up the case of Michael Mole'. He argues Durham was wrong to fire him from his police job after a controversial 2016 hostage negotiation.

A trial judge dismissed Mole's complaints. But a unanimous three-judge panel of the N.C. Court of Appeals revived Mole's lawsuit last October.

While rejecting most of Mole's arguments, appeals judges agreed he should be allowed to continue his case under Article I, Section 1 of the N.C. Constitution. It guarantees that people in this state have the right to "the enjoyment of the fruits of their own labor."

Mole' is appealing the dismissal of his other claims. He says Durham violated his constitutional rights to due process and equal protection of the law. He also claims more than one violation of the "fruits of their own labor" clause.

Meanwhile, the city urges the state Supreme Court to reject all of Mole's arguments.

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 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 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.”

Inman delivered a 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.”

State appellate courts first considered the clause in the 20th century. Judges used it "to check the State’s professional licensing powers,” Inman wrote. “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.”

The state Supreme Court later extended the "fruits of their own labor" clause to strike down a cap on local towing fees in Chapel Hill. Then, in Tully v. Wilmington, the same clause helped a city police officer challenge a city's violation of its own promotion procedures.

Inman and her colleagues saw enough similarities to extend the state Supreme Court’s Tully decision 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’.”

Appellate judges did not order Durham to give Mole’ his job back. They would have sent the case back to a trial court.

Now the state's highest court has a chance to uphold or reject Inman's take on constitutional "fruits of their own labor" protections.

There's no deadline for a Supreme Court decision in the case.