Blue Flu is Illegal and Immoral

Atlanta police officers walked off the job on June 17 to protest the prosecution of Officer Garrett Rolfe. “The union, we would never advocate this. We wouldn’t advocate a blue flu,” a union representative said. “We don’t know the numbers. Apparently we’re learning that command staff are asking outlying counties for support and aren’t getting it.” A department spokesperson said, “the department is experiencing a higher than usual number of call-outs with the incoming shift.”

What Happened?

The call-outs occurred in the area of the June 12 shooting of Rayshard Brooks by Officer Rolfe. Brooks was drunk in his car. Officers attempted to arrest him. He violently resisted, stole a taser, and punched officers before running with the taser. He turned to shoot the taser at the officer, who shot him with a handgun. The shooting was recorded by several cameras and was broken down in the video below.

Protesters believe that the shooting was unjustified because Brooks was running away. The death sparked protests in the city and led to Police Chief Erika Shields’ resignation less than 24 hours later. Police believe that the shooting was justified because of Brooks’ violent resistance and taser use. Rolfe’s record also shows an additional use-of-firearms incident, in 2015, without note of any disciplinary action.

Officer Garrett Rolfe was fired and charged with felony murder. In fact, Fulton County District Attorney Paul Howard charged Rolfe with a total of 11 counts, including aggravated assault with a deadly weapon.  The felony murder charge carries a possible death sentence or life in prison. Aggravated assault can come with a penalty of up to 20 years.

Police in Atlanta Go on Strike

Hours after the charges were announced, some Atlanta police officers began calling in sick just before their night shifts started. “This is not an organized thing, it’s not a blue flu, it’s not a strike, it’s nothing like that,” Vince Champion, a spokesman for the International Brotherhood of Police Officers, told NBC News. “What it actually is is officers protesting that they’ve had enough and they don’t want to deal with it any longer.” The “blue flu” describes a situation when a large group of officers simultaneously call in sick. It is not a formal strike, but accomplishes the same result.

“Blue Flu” Police Strikes are Illegal in Georgia

It is illegal for police to go on strike in Atlanta. Title 45, Chapter, 19, Article 1 of the Georgia Code governs strikes by public employees. Section 2 is titled, Public employees not to promote, participate in, or encourage strikes.” It reads, “[n]o public employee shall promote, encourage, or participate in any strike.” It is not a complicated law. Section 3 forbids supervising personnel to “authorize, approve, or consent to a strike.”

The punishment for violating this section is harsh. Violators “shall forfeit his or her civil service status, job rights, seniority, and emoluments, if any.” O.C.G.A 45-19-4 (2010). Moreover, anyone fired for striking cannot be rehired for three years. If a violator is rehired, they are at will for five more years.

The Georgia Code also criminalizes people who encourage public employees to strike, whether or not those people are public employees themselves. “Any person who is not a public employee and who shall knowingly incite, agitate, influence, coerce, persuade, or picket to urge a public employee to strike shall be guilty of a misdemeanor.”

I hope this guy isn’t in Georgia

The Georgia State University Law Review has an article explaining how this law was passed. The rationale applies squarely to the “blue flu” protests today.

In 1997, the City of Atlanta School Board chose not to award salary increases to most “classified employees,” such as school bus drivers, cooks, and custodians, after it conducted a study concluding that Atlanta’s classified employees were earning more money than many of their suburban peers. On September 10, 1997, 204 of the 317 school bus drivers employed by the City of Atlanta called in sick to retaliate against the School Board’s decision to withhold raises that year.

In other words, school bus drivers retaliated against the School Board in the same way that police officers are now retaliating against the district attorney’s office.

The strike left thousands of children stranded on street corners. Some [students] waited for nearly two hours for bus drivers to make extra runs to pick them up.

Furious legislators learned that the strike was legal. There was no way for them to force the bus drivers back to work. Representative Earl Ehrhart said, “this is the perfect example of why [public employees] are not allowed to strike. [The danger to the children] was frightening.” Representative H. Doug Everett said, “We don’t want police, firemen, public safety workers, or even trash patrol workers to strike …. Their jobs are vital. They have people in the palms of their hands. People in those positions should not be able to endanger the safety and welfare of other citizens.”

What About California?

The California Supreme Court has held that strikes by nonessential employees are generally legal, except in cases where the strike poses an “imminent threat” to public health and safety. (County Sanitation District No. 2 of Los Angeles County v. Los Angeles County Employees Association (1985) 38 Cal.3d 564, 586.) This was a change to the former rule that all public-employee strikes were illegal. (Id. at p. 585.) However, this did not legalize strikes by police. The court “immediately cautioned […] that the right of public employees to strike is by no means unlimited.” (Id.) The court used the following standard:

“Strikes by public employees are not unlawful at common law unless or until it is clearly demonstrated that such a strike creates a substantial and imminent threat to the health or safety of the public.”

(County Sanitation District, 38 Cal.3d at p. 586.)

Public employees, “such as firefighters or law enforcement personnel, whose absence from their duties would clearly endanger the public health and safety,” still cannot strike. (Id. at p. 586-587.)

Blue Flu Police Strikes are Immoral

The Georgia Legislators are right about bus drivers and they are right about police officers. The jobs they hold are too important to the public to be withheld in a labor dispute. If you don’t like what your boss is doing, you can’t endanger public safety to get your boss to change. If a policeman doesn’t like the charges brought by the DA, they can’t stop patrolling until he changes his mind. The people hurt by police strikes are innocent. They paid for a public service that they are not getting. Why? Because the person they paid wants to leverage their suffering in some way. In this case, some officers in Atlanta want to leverage the suffering of Atlanta crime victims in order to save their fellow officer from prosecution. That is easy to understand and obviously wrong.

Police know that they are forbidden from striking. And even thinking about this issue for a few minutes would be enough for them to understand the rationale. That’s why the phrase “blue flu” is going around. They want to strike anyway, even though they know it is illegal. But to admit they are striking is to admit they are breaking the law. So they are using a euphemism. “We are not striking, we just all have the flu at the same time.” It is dishonest.

That’s what bothers me the most about this situation. Breaking the law bothers me, of course, I’m a prosecutor. Breaking the law when you are supposed to be enforcing it bothers me even more, it’s hypocrisy and betrayal. And then lying about the fact that you are breaking the law you are supposed to enforce is the icing on the cake.

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