COVID-19 keeps killing them, but first responders in SC are suing over vaccine mandates
At the Lee County Sheriff’s Office, it’s almost like Sgt. Mikkos Newman never left.
Deputies trail off in conversation when they tell a story and find themselves recalling how their fallen brother would have responded.
A plaque commemorating Newman’s recent induction into the South Carolina Law Enforcement Hall of Fame now sits on the sheriff’s desk, where the award waits to be delivered to one of Newman’s four children.
And when Sheriff David Simon put together a calendar for the department this year, he also put a photo of Newman on the front, where he appears like a shadow behind Simon and the agency where Newman used to report for duty.
Newman died on June 8, 2020, becoming the first law enforcement officer in South Carolina to die of COVID-19. He was 38, otherwise healthy and terrified of catching the coronavirus, his sheriff said.
“But if the vaccine was available back then,” the sheriff said in a solemn voice as he pulled up saved text messages from his former detective, “he would still be here with us today.”
The staying power of COVID-19 combined with the growing debate over vaccine requirements has created a challenging situation for first responders, who are dying from the virus in greater numbers nationwide but also are pushing back against vaccine mandates.
In Chicago, a police union chief on Tuesday urged officers to resist a COVID-19 mandate. In San Francisco, the union representing that city’s sheriff’s deputies claimed this summer that about 160 of its officers would either quit or retire early if they were forced to get a COVID-19 vaccine.
And in South Carolina, some 80 first responders in the Charleston area are pushing back against vaccine mandates in four separate lawsuits filed last month.
One of those legal fights was set for a federal hearing on Thursday.
As the attorney for 14 police officers and firefighters in North Charleston argues in a lawsuit, “forcing them to decide between their livelihoods and vindicating their statutory and constitutional rights is unconscionable and wrong.”
The lawsuits
Like the announcement of the vaccine mandates themselves, the lawsuits filed against these orders in South Carolina’s Lowcountry came in quick succession.
The suits, which were filed sometimes within hours of each other against the City of North Charleston, the City of Charleston, Charleston County and the St. John’s Fire District, all claim that a COVID-19 vaccine mandate violates state and federal constitutions.
The three local governments and the fire department have all imposed an order requiring their full-time and part-time employees to get vaccinated against the coronavirus or face possible termination. Though the exact deadlines vary, all employers picked compliance deadlines in November.
Employees also were given the option to file for medical or religious exemptions but had to do so by specified deadlines as outlined by their respective employer.
In the lawsuit against the city of North Charleston, the complaint claims city employees, like the 14 firefighters, police officers and EMS workers who joined the legal fight as plaintiffs, are “being forced to choose between their rights, privileges and liberties as citizens on one hand and their employment, careers and financial futures on the other.”
Their argument, though, raises a question: Why are the very people who swore to protect their communities fighting a requirement to take a vaccine that public health experts say is critical to saving lives and ending the pandemic for good?
Attorney Tom Winslow, of Pawleys Island, represents plaintiffs in each of the four cases, along with attorney Tom Fernandez.
Neither attorney made their plaintiffs available for comment for this article, but Winslow expressed the concerns of his clients in an interview this week with The State newspaper.
“This is not about a vaccine, or medicine or a virus. It’s not about employers or employees. It’s not about even a mandate,” Winslow said. “The question is where do you believe your ability to control your own body comes from?”
The lawsuits further claim the mandates violate public employees’ rights to free expression under the S.C. Constitution and free speech guaranteed by the U.S. Constitution.
Professor Joseph Seiner of the University of South Carolina School of Law, who specializes in labor and employment law, questions the legal reasoning and doubts that the mandates will be overturned by courts in the Palmetto State.
He points first to South Carolina being a proud at-will employment state, meaning that employers can fire employees at any time, with or without cause and with or without notice.
“It’s not unusual for employers to impose all kinds of mandates with respect to health clearance or vaccinations, especially when it is to protect against other illnesses,” Seiner said, noting as an example that such requirements can be found for employees who travel frequently for a company. “What’s new about it is the more widespread resistance to a specific vaccine.”
Further complicating the legal challenge in the Lowcountry, Seiner said, is the recent push by the Biden administration that would require employers with 100 or more workers to either be vaccinated or tested regularly for COVID-19.
Should that go into effect, it would certainly apply to Charleston and North Charleston — two of the state’s largest cities that each employ more than 1,000 people.
When asked why his clients, who take on dangerous jobs for the greater good of their communities, would be opposed to a vaccine mandate that could help their neighbors, Winslow disagreed with the question.
“The definition of the greater good is a definition of perspective. Is it greater to have a vaccine, or is it greater to have freedom? The fear will beget fear if you choose to be afraid of a situation, and unfortunately that’s where we are,” Winslow said.
He continued, “We have a problem that we need to come together as a country, come together as individuals, to make us united and create a solution that’s best for everyone. That would be the greater good. The greater good is not defined by one person, or dictate or mandate.”
North Charleston officials declined to comment on the pending litigation but referred The State to Mayor Keith Summey’s original Sept. 1 statement about his decision to require COVID-19 vaccinations for city employees.
Summey announced the vaccine requirement with an executive order, which did not require the support of city council.
“The ongoing pandemic has created an infectious disease threat to our community and to the world that is unprecedented in our time,” Summey said. “The recent surge in cases created by the delta variant and others evolving has further heightened a compelling interest in preventing the spread of this life-threatening disease.”
As of Monday evening, 59% of North Charleston employees were fully vaccinated, and 21% were partially vaccinated. In the neighboring city of Charleston, officials reported 71% of city employees are vaccinated as of Tuesday afternoon.
The North Charleston lawsuit had a hearing in federal court on Thursday. Hearing dates for the three other lawsuits have not been scheduled at this time.
Winslow said his clients are willing to lose their jobs over the mandates, which would create a ripple effect if decades of experience walk out the doors of those police stations and firehouses.
He said they deserve better.
“Their job is to risk their lives to benefit and help individuals within our community,” he said. “They wake up and don’t know if they’re going to have a bullet or a fire that might end their life that day. Why are we putting an additional risk and additional hurdles in their way when they’re willing to sacrifice who they are for us?“
But more than 100 miles away from Charleston, back in Lee County, Sheriff Simon sat at his desk and posed another question:
“Why do I want to put my community and my officers at risk?”
The ‘invisible enemy’
Simon, whose 26-person department is about 98% vaccinated, said his officers take the virus seriously after seeing one of their own die from it.
“It is that invisible enemy that is attacking us every day, and you can’t see it or smell it or hear it,” he said.
To date, more than 460 law enforcement officers in the U.S. have died of COVID-19, including seven in South Carolina, according the Officer Down Memorial Page that tracks line-of-duty deaths nationwide.
Last year, the virus was the No. 1 killer of law enforcement officers, and data compiled by the Officer Down Memorial Page notes that despite the rollout of vaccines, COVID-19 is still on track to hold onto that deadly title in 2021.
It’s a sad irony, since in South Carolina first responders had initial access to the vaccine as “mission critical” workers during the pandemic, due to the role they play in serving the public and the risk of contracting the virus they face through their job.
Rather than mandating vaccination, Lee County has taken a different approach: Carrots instead of sticks, incentives instead of mandates.
Simon said his deputies were eligible for a $500 one-time bonus if they got the vaccine. Last week, Simon said he got his booster shot.
A spokesman for the S.C. Department of Health and Environmental Control said the agency has not seen an uptick in vaccine hesitancy among first responders specifically in the state. However, the health department also recognizes that wariness about the vaccine persists in every demographic group, which heightens the need to provide accurate, updated information to the public.
“Information on the COVID-19 vaccine shows that it is effective and will stop the spread of severe COVID cases. So, we encourage everyone, including our first responders who work tirelessly to save South Carolinians, to get vaccinated so we can end this pandemic,” Ron Aiken, DHEC’s spokesman, said in a statement to the newspaper.
Unlike today’s first responders, Sgt. Mikkos Newman never got the chance to get inoculated against the virus that wound up killing him.
He died two weeks after he was exposed to COVID-19 while responding to a call about a reported shooting into someone’s home.
Simon pulled up a string of text messages from his fallen deputy.
“If Mikkos were here, he would tell you, I guarantee it, he would have encouraged you to take the vaccine. This is one of the things he feared,” the sheriff said. “If he had the opportunity to take the vaccine, I don’t know.”
He trailed off for a moment, letting the silence hang in the air before continuing.
“Maybe we wouldn’t be sitting here talking about his death. Maybe we’d be sitting here with him.”
This story was originally published October 14, 2021 at 5:00 AM.
