Here’s how the NC Supreme Court ruled on the Durham cop fired for letting suspect smoke pot

After a complicated legal odyssey that reached North Carolina’s highest court, a former Durham police officer will proceed with his lawsuit against the city that fired him after he let an armed suspect smoke marijuana if he surrendered his weapon.

The N.C. Supreme Court, with a new Republican majority elected last fall, ruled last week that it should not have granted “discretionary review” in the case of former Sgt. Michael Mole’, or basically, that it should not have considered the case.

But it also ordered that a lower court’s 2021 decision in the case will be “unpublished,” or essentially erased from the records and not be used as precedent in any future cases.

The court’s unsigned, two-sentence order prompted Justice Michael Morgan to dissent, calling the move to unpublish “unprecedented.” He also lamented the court’s decision against reviewing the case, which would “would have provided crucial direction into uncharted constitutional terrain.”

While the court’s majority did not elaborate on its decision, or name the justices who formed it, a concurring opinion written by Justice Richard Dietz called it an ordinary path in cases where contrasting views on the court could only produce a messy result.

“I am not fond of unpublishing a Court of Appeals decision,” he wrote, referring to the 2021 ruling that went partly in Mole’s’ favor, “Having said that ... there will be rare cases where it is appropriate for this court to do so because doing otherwise would only make things worse.”

What happened in the case

In June 2016, Julius Smoot barricaded himself in an apartment and gave Durham police a grim warning: Let him see his wife and son in 10 minutes or he would shoot himself in the upstairs bedroom.

The officers, there to serve an arrest warrant, called the only hostage negotiator on-duty: Sgt. Michael Mole’, who arrived in five minutes.

Mole’ spent two hours talking to Smoot, then 29, trying to keep him alive. During that time, the suspect’s gun fired accidentally.

Finally, Smoot told Mole’ he wanted to smoke a marijuana cigarette, and the officer agreed as long as Smoot gave up.

Smoot, while in handcuffs, smoked the “blunt” he had kept behind his ear — which ultimately got Mole’ fired from the Durham Police Department.

What the lower courts said

Mole’ sued in 2018, but his lawsuit was quickly dismissed.

In his case before the Court of Appeals, the officer argued Durham had violated his rights to “the fruits of his labor,” which are guaranteed by the state constitution.

That court’s three-judge panel ruled that the trial court erred by dismissing Mole’s complaint on that issue. The opinion, written by Judge Lucy Inman, noted that Mole’ received only a day’s notice of his disciplinary hearing rather than the minimum three guaranteed by city policy.

But the appeals court did not side with Mole’ on every issue he argued, and he sought further clarity from the Supreme Court on what he described as major issues before the state.

The appeals court also wanted the Supreme Court to weigh in on how and when to apply the state’s Equal Protection Clause.

In his lengthy dissent, Morgan spoke of the court’s “unusual passiveness” on reviewing constitutional subjects and its “sensational aggressiveness” to unpublish what was done at the lower level.

“The complexity of the issues and interests involved in this case, the intrinsic nature of which creates discomfort for the majority to render a binding opinion here, provides a detectable reticence of the majority to proverbially bury its head in the sand and to neglect this Court’s obligation,” Morgan wrote.

Speaking on background, lawyers said the court’s action means Mole’ will start over at the trial court level, though with a narrower set of arguments than he had sought.

Justice Anita Earls also joined in the dissent, and Justice Philip Berger Jr. joined in Dietz’ concurring opinion. None of the other justices’ names appear.