Molè v. City of Durham

April 26, 2023   |   Sam McGee

Attorneys for the Case: J. Michael McGuinness and M. Travis Payne

Amicus Brief Writers: Narendra K. Ghosh and Trish Pande

N.C. Supreme Court, Docket No. 394PA21

Amicus Brief Entry


Sergeant Michael Molè was called in as a negotiator to diffuse a situation with a barricaded gunman who planned to kill himself in 5 minutes. After lengthy negotiations (during which the gunman accidentally discharged his weapon on one occasion), Molè successfully negotiated a peaceful ending to the situation. During the incident, the gunman stated he had a marijuana cigarette and planned to smoke it. Fearing the effect that drugs could have on the situation, Molè agreed to let the gunman smoke the joint already in his possession if he would surrender his gun. Eventually, that is exactly what happened. 

The police department’s written policies for this type of negotiation did not prevent this action, and in fact stated that only a specific set of restrictions were placed on a negotiator like Molè. These restrictions did not prohibit allowing the smoking of marijuana. Nonetheless, Molè was fired by the department. 

Molè’s claims included violations of sections 1 (fruits of one’s labor clause) and 19 (equal protection clause) of Article I of the North Carolina Constitution. The Court of Appeals found that Molè stated a fruits of his labor claim for the City’s failure to give adequate notice of his disciplinary hearing, but limited that claim only to violations of employment policies, rather than operational policies like the police department’s policies governing negotiations with barricaded gunmen. The Court of Appeals also affirmed the dismissal of Molè’s equal protection claim, limiting “class of one” equal protection claims by following federal law and concluding that said claims are unavailable in the employment context. 

On discretionary review, NCAJ filed an amicus brief, as did groups representing law enforcement, paramedics and firefighters. The NCAJ brief argued that the Court of Appeals — though correct in recognizing the fruits of one’s labor claim as to adequate notice — erred by: (1) failing to recognize such a claim for violations of policies other than employment policies, and (2) failing to recognize “class of one” equal protection claims in the employment context. 

Molè followed stated policy and achieved the desired result. Not only should law enforcement officers have confidence that they may proceed pursuant to policy in dangerous situations, but punishing Molè for his “by the book” success itself undermines public safety. NCAJ argued that this unreasonable violation of the department’s own policy should support a fruits of one’s labor claim. 

Moreover, as to equal protection, it has long been understood that North Carolina’s Constitution may, and often does, provide more rights than the federal Constitution. Thus, NCAJ contended it was error for the Court of Appeals to simply follow federal authority in rejecting Mole’s “class of one” equal protection claim. Where an employer treats people differently with no rational justification, such a claim should be available, including in the employment context. 

On April 6, 2023, the Supreme Court of North Carolina issued an order holding that discretionary review was improvidently granted, and further holding that the opinion of the Court of Appeals would remain undisturbed but have no precedential value. 

Although this was a per curiam opinion, there was a concurrence and two dissents, which focus in large part on the Court’s decision not to consider the merits, and to essentially “unpublish” the opinion of the Court of Appeals. Although Court of Appeals opinions are sometimes left intact without precedential value, this occurs when recusals on the Supreme Court result in there either being a tie in the high court or a lack of a majority of the whole court. Here, there have been no such recusals, nor is there a corresponding inability for a majority of the Court to decide the case. The various opinions debate the propriety and potential consequences of the Court’s decision to reverse its prior grant of discretionary review without discussion of the reasons for doing so, as well as the Court’s decision to unpublish the Court of Appeals opinion. 

As to merits of this case, however, the Court of Appeals ruling is binding on the parties only, and the scope of claims under Sections 1 and 19 of Article I of the North Carolina Constitution remain unresolved.