Hostage Negotiations, Marijuana, and Police Officers’ Rights in Disciplinary Proceedings
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 thre
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