ProPublica

by Vernal Coleman

ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up for Dispatches, a newsletter that spotlights wrongdoing around the country, to receive our stories in your inbox every week.

Early one morning in June 2022, Earl Westforth sat down at a small table inside a hotel conference room in northwest Indiana and began defending his life’s work.

Fourteen months earlier, the city of Chicago had sued his namesake Westforth Sports Inc., alleging that the outdoor- and sports-equipment shop was negligent in how it screened gun buyers and had become an epicenter for the unlawful purchase of guns, which were flooding into the violence-wracked city.

Over 50 years, Westforth had helped grow the Indiana business into one of the state’s most successful gun retailers. Operating from a squat building located just a few miles from the Illinois border on land set between downtown Gary and its richer suburbs, Westforth Sports raked in millions selling ammo, fishing gear and, most notably, guns.

Over eight hours, lawyers representing the city peppered Westforth with questions about how he and his staff handled situations in which a customer tried to purchase a gun for illegal use or resale on the underground market. Westforth explained how he looked for signs of bad intent: cash being exchanged between two customers, or a customer who clearly was drunk or high.

But as he said time and again, often the decision came down to something less tangible.

“Gut feeling is one of them,” he said at one point.

“It’s a gut reaction,” he said at another.

And: “You just feel like something’s not right.”

He later elaborated: “The way their — eye movement, who they’re with, nervous.”

If customers did raise suspicion, the store’s process for keeping track of them was far from precise: Employees wrote notes with their observations and suspicions, then posted them at the store’s cash register. How long the notes remained there varied.

Sometimes, the notes were discarded at the end of the day, Westforth said. If the customer was someone an employee wanted to keep track of beyond one day, the note was moved to a back office.

“Certain ones we keep,” Westforth testified, “depending on how we feel.”

But there was no guarantee that his employees would check the back office for a note if the customer returned, he acknowledged. No rules for how long to keep those notes. No rules for maintaining what he called the “be on the lookout” list. No comprehensive system at all for spotting problem customers.

More than 60,000 retail stores and pawn shops sell firearms in the United States, according to the most recent federal data. This glimpse inside one, as provided by Westforth himself in the 2022 deposition and in other records, puts in stark relief the weakness of government safeguards designed to keep guns from slipping into illicit markets and into the hands of criminals.

Guidelines set by the Bureau of Alcohol, Tobacco, Firearms and Explosives, the federal agency that oversees gun retailers, expects licensed owners like Westforth to act as the first line of defense in stopping the flow of illegal guns into vulnerable cities and towns. But with little financial incentive to forgo transactions and limited administrative penalties for failing to prevent illegal ones, some retailers have proven incapable or simply unwilling to play gatekeeper.

Earl Westforth personally has remained silent over the years even as he faced legal battles, scrutiny from federal agents and heaps of public criticism. Ultimately, he was able to leave the gun-selling business on his own terms, announcing his retirement over the summer. He did not respond to repeated requests from ProPublica for comment.

In his deposition, the details of which have not previously been reported, Westforth portrayed himself as a well-intentioned business owner who adhered to the letter of the law. He said that over the years, he and his employees went “overboard” to prevent illegal sales and keep guns out of the wrong hands, many times rejecting potential customers.

But in the deposition, Westforth was forced to address how his methods failed to prevent straw sales — where a firearm is purchased with the intent to resell it, most often to someone who is prohibited by law from purchasing guns.

One notable example involved Darryl Ivery Jr., an Indiana resident who in 2020 purchased 19 firearms from Westforth, spending over $10,000 in just six months. Ivery, who later pleaded guilty to making false statements on federal background check forms in relation to the 2020 purchases, took most of those firearms about 12 miles west of Westforth’s shop and across the state line to Chicago, selling them illegally for profit.

It’s totally legal. Maybe the guy just likes guns.

—Earl Westforth, owner of Westforth Sports, about a customer who repeatedly purchased guns, several of which were recovered by police in Chicago

Despite Ivery regularly purchasing multiple guns and paying with cash — red flags for straw sales and gun trafficking, according to law enforcement — Westforth and his employees welcomed Ivery’s business again and again.

Asked in the deposition whether Ivery’s string of purchases should’ve raised concerns inside his store, Westforth hedged, pointing out that retailers are not required to determine someone’s intent before selling them firearms.

“It’s totally legal,” he said. “Maybe the guy just likes guns.”

It’s impossible to know how many guns trafficked by Ivery may still be in circulation. But several that have been recovered reveal a pattern that begins at Westforth Sports and ends on the streets of Chicago, where retail gun shops have been effectively prevented from opening inside city limits.

City police confiscated one 9 mm handgun purchased by Ivery from a teen found breaking into a South Side apartment. They collected another 9 mm from a man accused of brandishing the gun at a motorist during a traffic dispute. Officers responding to reports of a March 2020 shooting found a teen in possession of a .40-caliber handgun purchased by Ivery, this one bought at Westforth Sports less than 30 days before.

All three were arrested and charged with illegal possession of a firearm.

For years, Chicago officials have loudly complained about the gun retailers in nearby Illinois and Indiana towns whose shops are the source of illegal guns they say continue to fuel the crime and gun violence that have long plagued the city.

Studies by the University of Chicago found that Westforth Sports was the third-largest supplier of guns recovered by Chicago police. The research, which was conducted in cooperation with the city and focused on 2009 to 2016, linked just over 850 such guns to Westforth.

“These eye-popping numbers are not the result of bad luck or coincidence or location,” Chicago alleged in the complaint explaining its case. “They are the natural and predictable outcome of a business model that maximizes sales and profits by facilitating straw purchases and other illegal gun sales.”

The ATF views retailers as partners empowered with the discretion to decline any potential transaction they find suspicious, according to the agency’s best practices guide for retailers. That approach, as demonstrated by the transaction history of Westforth Sports and other retailers, has not halted gun trafficking.

At least 53 people, including Ivery, were indicted on federal gun trafficking charges over guns purchased at Westforth Sports between 2011 and 2021, according to a filing in the suit, which sought to compel Westforth to tighten store policies and pay unspecified monetary damages.

In May, less than a year after Westforth’s deposition, a county judge dismissed the suit, ruling that the Indiana business could not be sued in Illinois. The city has since appealed the court’s decision.

A decade ago, the ATF came close to forcing Earl Westforth to shut his doors.

After Westforth barely avoided losing his license a year earlier, a 2012 inspection found lingering problems. Agency interviews with Westforth employees, along with a review of the shop’s sales records, revealed repeated clerical errors and several serious breaches of federal gun laws.

Among them: After a customer failed a federally required background check, the shop allowed a person accompanying him to purchase the gun on his behalf.

A customer can buy as many [guns] as they want, It’s not our job to tell him no.

— Earl Westforth

In response, inspectors recommended revoking Westforth’s license — just as they had in 2011. But a more senior agency official again opted for a “warning conference” to help correct Westforth’s lapses and ordered a follow-up inspection.

As part of the conference — one of three that ATF has required for Westforth since 2007 — Westforth’s employees, at his request, underwent a two-hour training session provided by the ATF covering proper record-keeping to prevent straw purchases. Yet the shop continued to rack up violation after violation in the following years.

Those violations led to citations and harsh words from the agency, including letters warning that “future violations, repeat or otherwise, could be viewed as willful and may result in the revocation of your license.” But the agency continued to grant Westforth additional chances.

In 2017, inspectors determined that Westforth was keeping incomplete records and had made a sale without conducting a background check or verifying the customer’s identity, as required. Then, in 2021, inspectors found a wide range of violations.

Westforth employees, the ATF report concluded, had again violated federal guidelines by failing to report to the ATF sales where customers purchased multiple guns — a key component of the agency’s anti-trafficking efforts. As they combed through the shop’s records, inspectors found the source of the problem. Westforth employees had been submitting the forms by fax,which had led to several failed submissions. The inspectors later urged Westforth to submit the forms by email.

Westforth employees also continued to have problems fulfilling their role as caretakers of federal records. ATF agents witnessed an employee “rip up and discard” two purchasing forms containing customer information after a sale fell apart because buyers were using a credit card with someone else’s name. Information on those potential buyers could have been useful to agents trying to trace straw sales or guns intended for crimes.

Westforth initially denied that his employees were discarding the forms, which federal guidelines require retailers to maintain. Then ATF agents audited the shop’s records and found that additional forms were missing.

Meanwhile, sales at Westforth’s shop had reached a high. He told ATF inspectors that in 2020, as the pandemic peaked and civil unrest over police misconduct spread, customers began to “line up out of the store, across the parking lot and down the block” to purchase guns. That year Westforth’s annual sales of about 3,500 guns nearly doubled.

Westford Sports sold thousands of guns a year, according to this document submitted as an exhibit in Chicago’s lawsuit against the company. (Circuit Court of Cook County)

Agents remarked how the store was always busy. “The parking lot was always full and numerous customers were always present at any given time,” the ATF report said. “There were always vehicles present with out of state, Illinois, license plates.”

Westforth also described in his deposition how he handled an important task required by ATF — so-called “trace” requests, or instances where a law enforcement agency asks the ATF to track down the source and purchase history of a gun. This is potentially important information if in fact the person who police confiscated the gun from was not the one who initially purchased it.

But instead of researching in response to the requests, Westforth’s employees typically answered without consulting records, he said.

Memory sufficed, Westforth testified. And later, if that same buyer of the traced gun walked into the shop and wanted to buy another firearm, Westforth wasn’t particularly concerned.

“A trace, as explained to us by the ATF, could be for numerous reasons,” he said. “It doesn’t mean he’s a bad person.”

Multiple guns purchased by such a person wasn’t a concern either, despite federal guidance saying gun retailers should be on alert for customers who purchase several guns in one transaction. “A customer can buy as many as they want,” he said, adding, “It’s not our job to tell him no.”

That’s up to the ATF, Westforth said. But, in fact, the ATF does rely on gun retailers to assist by providing accurate paperwork and, in some cases, denying sales when there are clear signs or a reasonable belief of illegal intent.

ProPublica asked Edgar Domenech, a former ATF chief operating officer, to review Westforth’s deposition and his inspection record. He was taken aback.

“His license absolutely should have been revoked back in 2011,” said Domenech, whose 25-year stint at the ATF spanned both Democratic and Republican presidential administrations. “What he’s saying, the processes he talks about, they’re sloppy at best. This was a golden opportunity to correct his bad behavior, but the agency fumbled it.”

The ATF declined to comment on its inspections of Westforth Sports or their outcomes.

“ATF’s core mission is to protect the public from violent crime, particularly crimes involving the use of firearms,” it said in a statement to ProPublica. Enforcing federal laws and regulations is “critical” to that mission, the agency said.

But Peter Forcelli, a former ATF deputy assistant director, said that retailers typically only face penalties if they knowingly allow straw purchases, and proving that is difficult. Plus, scrutiny of retailers is limited by a shortage of ATF compliance inspectors, he said.

No more guns will come up there [to Chicago]. Hopefully not from me.

— Earl Westforth, on stopping sales to Illinois residents

The shortfall represents a “substantial challenge,” the ATF acknowledged in its statement. The agency employs about 800 inspectors. That’s not enough to meet the agency’s own goal of inspecting each licensed gun seller every three years, it said.

Moreover, said Forcelli, straw sales have been considered a low priority by some federal prosecutors. “It’s a jacked-up system,” he said, “but we can’t put it all on retailers.”

Gun dealers rarely lose their licenses. In fiscal year 2022, the last year for which there is complete data, less than 1% of the nearly 7,000 compliance inspections of federal licensees resulted in a revocation.

Vowing to get tougher on lax retailers, the Biden administration in 2021 announced a far stricter policy in which even one serious violation would result in the ATF moving to revoke a license. Multiple inspection reports on Westforth Sports include a violation that fits that description.

Chicago was’t the first city to sue Westforth Sports seeking remedies to gun crime and violence.

In 1999, the city of Gary filed a sweeping suit against gun manufacturers and local gun shops, including Westforth Sports, claiming the retailers chose to overlook obvious straw purchasers. Gary’s suit has wound its way through the state’s court system and continues to this day.

But cases against retailers and manufacturers are difficult to prove — in part because while retailers may make questionable sales, it can be difficult to show that those actions were intentional or negligent.

Westforth Sports and the city came to an undisclosed settlement in 2008, so the retailer was dropped from the case. Still, attorneys for Gary continue to hold up the shop’s sales history as evidence of industrywide negligence in preventing gun trafficking.

A 2004 analysis commissioned by the city of Gary examining a decade of sales records identifies over 100 Westforth customers who engaged in sales that exhibited red flags associated with straw purchases. More recently, the sides continue to battle in court over what records can and should be disclosed, with the city requesting more recent gun sale information from Westforth and other area retailers.

For its suit against Westforth, Chicago enlisted the help of Everytown for Gun Safety, a national nonprofit, and compiled a roster of straw buyers like Ivery who had purchased from the shop.

By 2021, with the city’s headline-grabbing lawsuit in full swing, Westforth had begun weighing retirement. He confessed as much to ATF agents during an inspection of the shop conducted that same year.

He’d taken over the shop, which opened in 1955, from his father, and had planned to pass it on to his sons, he told inspectors. But one of his sons had already left the company, and in the wake of the lawsuit and deluge of bad press that followed, the business had become “radioactive.”

By then he had already made one concession following the complaints from Chicago. Westforth Sports was no longer selling guns to Illinois residents.

He said in his deposition that after being sued by Chicago, he had changed policies. “Just too much going on up there,” he said.

In the back-and-forth with the lawyer for Chicago, Westforth explained, “Well, when you hear about the shootings, you see the stuff on the news.”

And then he elaborated: “No more guns will come up there. Hopefully not from me. I’m not going to do it anymore.”

Ultimately, just as he told ATF he would, he shut down his business. Chicago lawyers hailed it as a victory for public safety. Westforth touted it as an opportunity for customers, announcing a “retirement sale” to liquidate the shop’s remaining inventory.

“Don’t miss these amazing deals,” the announcement read. “Once they’re gone, they’re gone forever.”

Mariam Elba contributed research.

by Brandi Kellam, Christopher Tyree and Louis Hansen, Virginia Center for Investigative Journalism at WHRO, and Lisa Riordan Seville and Mauricio Rodríguez Pons, ProPublica

This video was produced for ProPublica’s Local Reporting Network in partnership with the Virginia Center for Investigative Journalism at WHRO. Sign up for Dispatches _to get stories like this one as soon as they are published.

In the 1960s, when Newport News, Virginia, remained a largely segregated city, longtime Black residents wanted to expand their neighborhood, offering former farmland as plots to other middle-class families looking to build homes. 

The city had other plans. 

In a deliberate attempt to halt that growth, white city officials selected that same land as the location for a new college — and they wielded the power of eminent domain to make it happen. If the landowners didn’t want to sell, the city could take it. 

In “Uprooted,” a documentary short, James and Barbara Johnson tell the story of their beloved neighborhood, which was displaced by the creation and expansion of what is now Christopher Newport University. 

What happened in Newport News is by no means unique. In Chicago, Philadelphia, Norfolk, Virginia, and other cities across the nation, Black communities have been uprooted by colleges and universities, which were encouraged by federal policies that promoted the expansion of higher education at the expense of the surrounding neighborhoods. It is a legacy the country is only beginning to confront. 

Weaving the Johnsons’ story in with the wider history of Newport News and other universities, the film examines the legacy of racism and Black land loss that still reverberates today. James Johnson’s archive of photographs, newspaper clippings and documents animates the past, a reminder of the community he sees in his mind’s eye when he walks down Shoe Lane, the street where he was born and still lives as one of just five Black families who remain in the neighborhood. 

“Uprooted” is directed by Brandi Kellam, who grew up in the area and has spent more than two years investigating this story. She reported the story with Louis Hansen of the Virginia Center for Investigative Reporting at WHRO. It is produced by ProPublica’s Lisa Riordan Seville, with cinematography, editing and post-production by VCIJ’s Christopher Tyree and graphics by ProPublica’s Mauricio Rodríguez Pons. It premiered on WHRO Public Media in Virginia on Dec. 8.

Watch the documentary, and read all of ProPublica and VCIJ’s series, also called “Uprooted,” which explores how Virginia universities expanded by dislodging Black communities. 

Gabriel Sandoval contributed research and Lucas Waldron contributed graphics.

by Mary Hudetz

ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up for Dispatches, a newsletter that spotlights wrongdoing around the country, to receive our stories in your inbox every week.

The Biden administration has revised the rules that institutions and government agencies must follow to comply with the Native American Graves Protection and Repatriation Act — a law long hampered by limited funding and the unwillingness of many museums to relinquish Indigenous remains and burial items.

Interior Secretary Deb Haaland, the first Native American to hold a U.S. cabinet position, said Wednesday that the regulations will “strengthen the authority and role of Indigenous communities in the repatriation process” by requiring institutions to defer more to tribes’ knowledge of their regions and histories in their decision-making about repatriations.

Thirty-three years ago, Congress passed NAGPRA to prevent grave looting and push museums to return human remains and items excavated from Native American gravesites to tribes. But the promise of repatriation that many tribal nations once saw in the law has not been fully realized, with federal data showing institutions continue to store about half of the 200,000 ancestral remains they reported holding following passage of the 1990 law.

This year, ProPublica’s Repatriation Project investigative series revealed that archaeologists and scientists at some of the nation’s top universities and museums have exploited loopholes in NAGPRA to delay or resist turning over holdings reported under the law.

“Finalizing these changes is an important part of laying the groundwork for the healing of our people,” Haaland said in a written statement.

Haaland described NAGPRA as an essential tool for the “return of sacred objects and ancestral remains to the communities from which they were stolen,” though senior administration officials also acknowledged that getting institutions to comply with the law has long been a challenge.

As we reported this year, institutions have dismissed tribes’ oral histories and other evidence of a connection to the ancestors they sought to claim, saying that not enough information was available to conduct repatriation. In these cases, museums have declared the human remains and items “culturally unidentifiable,” which allowed them to be used for scientific research over tribes’ objections.

ProPublica also found that since the 1990s researchers have routinely obtained federal research grants to conduct radiocarbon dating, DNA extractions and bone chemistry analyses on Native American remains that Congress expected would have been repatriated within a decade of the law’s passage. This research gives scientists insight into the diets, ages and genetics of ancient populations but requires destroying small portions of bone. Tribes have long asked to be consulted on such research or opposed it altogether because the destruction of ancestral remains, like grave looting, violates deeply held religious beliefs.

“We know that research and scientific studies have been conducted on most, if not all, of our stolen ancestors and their burial property,” Mark Fox, chairman of the Mandan, Hidatsa and Arikara Nation in North Dakota, wrote in a letter to Haaland earlier this year. “We also know that is why NAGPRA is almost 33 years old, and many museums and all of the federal agencies are still not in full compliance with the Act.”

The new regulations will direct institutions to defer to tribal nations’ knowledge of their customs, traditions and histories when making repatriation decisions. The rules will also eliminate the “culturally unidentifiable” designation. Museums will be required to determine, in consultation with tribes, which community can rightfully claim human remains or items in their collections. If a museum finds that it still cannot make a determination, it would have to say why in a notice filed in the Federal Register, said Melanie O’Brien, program manager of the National NAGPRA Program, an office within the Interior Department’s National Park Service.

The regulations are largely consistent with draft rules the department proposed late last year. However, some changes have been made following a monthslong public comment period and a year of heightened media attention on repatriation in response to ProPublica’s reporting.

The law initially required institutions to inventory the human remains and belongings of Native American ancestors and burial items and identify those that might be repatriated. The new regulations will give institutions five years to update those inventories and publish them in the Federal Register. Initially, the Interior Department proposed a two-year deadline, but it extended it after tribes and museums said this would not allow enough time for the consultations between museums and tribes that the law requires before repatriation.

The final regulations also include firmer mandates for institutions to obtain tribal consent before allowing Native American remains and items held in museum collections to be used for research.

Last year, the Interior’s proposed regulations said institutions should limit scientific research “to the maximum extent” feasible at the request of a tribe. The regulations will now require institutions to seek or obtain “free, prior and informed consent” from tribes before allowing any research to happen.

The finalization of the new federal regulations was publicly announced Wednesday during the White House Tribal Nations Summit, an annual meeting in Washington of tribal leaders and federal officials. The regulations are set to go into effect next month.

by Patrick Lohmann, Source New Mexico

This article was produced for ProPublica’s Local Reporting Network in partnership with Source New Mexico. Sign up for Dispatches to get stories like this one as soon as they are published.

Donato Sena and his wife, Maria Luisa, spent a recent afternoon loading furniture into the new mobile home placed on their land in Rociada, one of the areas hit hardest by New Mexico’s massive wildfire last spring.

The task was tiring for the couple, both in their 70s, and came after months of struggle to rebuild a semblance of their former lives stolen by the Hermits Peak-Calf Canyon Fire. They’d fought with contractors, bureaucrats, lawyers and sometimes each other as stress mounted and time stretched on.

That afternoon, however, Sena was happy.

“Finally, things are coming around,” Sena told his wife as they drove back to the house in Las Vegas, New Mexico, where they’ve lived since the fire. Even though their bills were mounting and their home was far from ready, maybe they’d get to spend a night there by Christmas, they told each other.

That night, Sena collapsed as he walked toward the front gate of their home since the fire, holding bags of groceries. He died. “I kind of knew he was already gone,” Maria Luisa Sena tearfully recalled of the moment she rushed to hold him on the sidewalk.

The cause of death hasn’t been determined, but his family believes a heart attack caused him to fall and hit his head. His wife and daughter, Nicole Sandoval, said in an interview that they believe the stress of trying to rebuild played a role.

“I strongly believe that, yes,” Maria Luisa Sena said. “Absolutely,” Sandoval added.

Like thousands of others from the area, Sena and his family are still awaiting payment from a $3.95 billion fund Congress established late last year to compensate victims of the wildfire, which was started by the U.S. Forest Service after it lost control of two prescribed burns.

Survivors of the fire told Source NM and ProPublica that the delays leave them in limbo. Many are desperate for compensation but unsure whether they can trust the Federal Emergency Management Agency after its initial disaster response last year. Few households received FEMA trailers while the agency was ramping up the claims office, and then it took too long to finalize regulations and begin to process claims, fire survivors said.

This summer, attorney Antonia Roybal-Mack convinced a federal judge to allow her to depose Sena and five other elderly or infirm clients, an effort to preserve their testimony should they die before getting paid or suing the federal government.

Sena’s death underscores the high stakes of delays in compensation and the tragedy befalling the aging, rural communities severed from the land they cherish. Some of them, like Sena, may never get to return to the land where their families lived for generations.

Data from the state Department of Health shows the two counties most affected by the disaster have been losing population for years, and local elected officials are concerned the slow recovery is accelerating that trend.

As of Nov. 30, FEMA, which is overseeing the compensation fund, had paid out $137 million, or about 3.5% of the total. Most of that has been paid in recent months, and frustration has grown among fire victims now waiting more than 18 months after the fire began for compensation.

Sena had submitted his claim more than five months ago. Roybal-Mack noted that the 74-year-old had been in precarious health as he waited for money to trickle out of the fund. He’d endured four bouts with cancer, most recently of the colon.

“Donato had one goal and that was to make it a single night in his new rebuilt home. I think what the government did here,” Roybal-Mack said, referring to the fire and the time it’s taken for FEMA to compensate people, “is unforgivable.” She is now pushing for payment on the claim.

Donato Sena in front of the replacement home he and his wife bought with their savings to return to Rociada, New Mexico (Photo courtesy of Maria Luisa Sena)

In response to the attorney’s criticism, the FEMA office handling claims for fire victims offered its “deepest condolences” to Sena’s family and friends and said it would continue to work hard to compensate victims of the disaster.

Sena, whom family and friends call Frank, met his wife in high school in Las Vegas; they were married 54 years ago. The couple moved into their home in Rociada in 1991, about the time he retired as the police chief in nearby Las Vegas.

The couple fixed up the century-old adobe outbuilding they lived in and added rooms over the years. The home became the gathering place for their two children, four grandchildren and eight great-grandchildren.

On July 17, Sena sat for a deposition with his lawyers and those for FEMA. He recounted under oath seeing a massive plume of smoke through his picture window on April 25, 2022, and immediately fleeing his home with his wife and dogs. He later got a call from a sheriff’s deputy telling him his home had burned hours after they fled. “We were lucky to get out of there,” he said.

Sena also recounted his frustration with FEMA. He said that he appealed denials three times before being awarded $10,000 in FEMA disaster assistance, and that he had grown so distrustful of a separate federal disaster loan program that he decided to withdraw his application. Under cross-examination by Jordan Fried, a FEMA lawyer, Sena expressed his wish to return home as quickly as possible.

“My goal just this year is to get over there, and we want to live there. We want to move back,” he said, according to the deposition transcript. He wanted to get as much done as possible by the fall, he said, because winter would stall progress for months.

In an interview two weeks before his death, Sena told Source NM that he was exhausted after being repeatedly denied by FEMA and was running out of savings while he rebuilt without any financial assistance. The stress took a toll on his marriage, but he and his wife said they found a way never to go to bed angry.

“I think the only thing that saved us is we’ve been together forever. It’s not in our interest, no? Why would we want to leave each other over this?” he told Source NM. “But that’s how, that’s how bad it’s felt sometimes. I was a cop for 46 years, and let me tell you, this has been the worst, worst time in my life.”

With his cancer in the rearview mirror, he said, he was looking forward to finally coming home.

“Hopefully I can live to at least 85. That’s a long life,” he said after listing off his relatives who lived until their 80s or 90s. “I’m not ready to go yet.”

His death leaves his wife in charge of the logistics of recovery and the prospect of returning alone. She said she feels she owes it to her husband to move into the mobile home they bought with savings, turn on the lights and take in the views from their new picture window overlooking the Rociada valley.

They positioned the new home on their property to maintain the view, like they had before the fire.

“We angled it north and south so that we could have the view to the valley, because it was so beautiful,” Maria Luisa Sena said. “It is still beautiful.”

More than 100 people packed into the Our Lady of Sorrows Church on Nov. 13 for Sena’s funeral. He received an honor guard from his former police colleagues, and his coffin was draped with an American flag to honor his service in the Navy.

The family had decided not to bury him in the veterans cemetery in Santa Fe, alongside his parents and brothers. Instead, he was laid to rest in the Rociada cemetery, just a short walk from his old home.

The fire had blackened the cemetery’s soil, scorching trees and dumping ash on white gravestones. But Maria Luisa Sena said it’s the only place he could be at peace.

“It’s burnt. It’s all burnt. But he’s there. We took him back to Rociada,” she said, holding back tears. “Because he wanted to go back.”

Sena was buried at the Camposanto del Santo Niño Cemetery in Rociada. The cemetery was badly burned in the fire. Neighbors have since added sandbags and removed some trees to prevent future damage. (Patrick Lohmann/Source NM)

by Isabelle Taft, Mississippi Today, and Mollie Simon, ProPublica

This article contains depictions of self-harm and discussion of mental illness.

This article was produced for ProPublica’s Local Reporting Network in partnership with Mississippi Today. Sign up for Dispatches to get stories like this one as soon as they are published.

Butch Scipper is haunted by the deaths of three men.

As chancery clerk of Quitman County in the Mississippi Delta, he coordinates a legal process in which people are ordered into treatment for serious mental illness or substance abuse — a common way for Mississippians, especially poor people without insurance, to access inpatient care.

Dozens of times a year, people ask Scipper for help because they are afraid sick family members will hurt themselves or others. Up until a few years ago, he sent many of those family members to jail as they waited to be evaluated and treated.

Jailing people with no criminal charges during the civil commitment process is common in Mississippi because many county officials see no other option when publicly funded mental health facilities are unavailable. In jail, Scipper figured, people going through the commitment process would be prevented from harming themselves or others.

Yet three men — Tyrone Compton, Brandon Raymond and Brian Sneed — killed themselves in the Quitman County jail. Compton and Raymond died the same way, in the same cell, just seven months apart in 2006 and 2007. Sneed died in 2019.

“These three guys run back and forth across my head,” Scipper said. Sending them to jail, he now believes, “was not the right thing to do.”

Since 2006, at least 14 Mississippians have died after being placed in jail during the civil commitment process, purportedly for their own safety. Nine of them, including those three men, died by suicide. Twelve had not been charged with a crime.

It’s not easy to know what goes on inside Mississippi jails — unlike in many states, they’re not subject to mandatory health and safety standards — but lawsuits and Mississippi Bureau of Investigation reports provide some visibility.

Mississippi Today and ProPublica read sworn testimony by family members, jail staffers, administrators, sheriffs and other inmates regarding deaths in jail during the commitment process. We reviewed medical and jail records. We compared suicide prevention policies to nationally recognized guidelines. And we shared key facts about these cases or the policies in effect at the time with a dozen experts in correctional health care, including psychiatrists and other physicians.

Before 11 of the deaths, the medical care and suicide prevention measures fell short of national standards, sometimes shockingly so, according to experts and a review of those standards. (The care provided before the other three deaths, including the most recent one in August, is unclear.)

Before most of the nine suicides, staff didn’t take some basic steps to prevent people from killing themselves, according to those experts and nationally accepted guidelines. And when people going through the commitment process exhibited serious medical issues, jail staff didn’t get them the help they needed, experts said after reviewing the circumstances of those deaths drawn from a Mississippi Bureau of Investigation report, depositions and records filed in court. Staff didn’t review medical histories. They interpreted signs of medical distress as manifestations of mental illness or the influence of drugs or alcohol. They failed to act.

Nakema Fox died in 2007 after being held in the DeSoto County jail, leaving behind her high school sweetheart and husband, Terry Fox (right), her daughter, Faith Fox (middle), her son Janauris Blanch (left) and two other children. Nakema Fox had been diagnosed with schizophrenia and was awaiting transportation to a state psychiatric hospital when she died. Over 11 days in jail, she barely ate, according to a Mississippi Bureau of Investigation report. Fox died of a pulmonary embolism soon after a jail employee noticed her coughing and called a nurse. DeSoto County officials declined to comment on Fox’s death, though a sheriff’s department official said staff keep track of when inmates refuse meals and have medical staff evaluate them. (Eric Shelton/Mississippi Today)

When you see somebody that ain’t eating, you can’t just let them sit there and do that. ... They’re still somebody. They’re still a human being.

—Terry Fox, husband of Nakema Fox, who died of a pulmonary embolism in jail

Local officials in Mississippi say they sometimes need to jail people during the commitment process to keep them safe. But according to the experts we interviewed, jails not only fail to guarantee safety for people with serious mental illness, they can be particularly dangerous for them.

“There’s a whole lot more to safety than just bars and shackles,” said Dr. Robert Greifinger, the former chief medical officer for the New York state prison system.

That point has long been made by sheriffs and jail administrators in Mississippi, too. In 1999, for instance, a 43-year-old man killed himself in the Union County jail as he waited to be taken to Mississippi State Hospital near Jackson for psychiatric treatment.

"He was under watch, but you can't watch him every minute," Joe Bryant, then sheriff of the north Mississippi county, said at the time. "It just brings to light a problem that county jails face: There should be some means besides a county jail to house mental patients. A jail is not equipped for this."

Nearly a quarter-century later, the problem persists. A law passed in 2009 requiring jails to meet state standards if they hold people awaiting psychiatric treatment has resulted in just one jail that’s certified among the 71 that detained about 800 such people in the year ending in June 2023.

When someone dies in jail awaiting treatment, litigation is the primary way families can try to hold officials accountable. Yet none of the nine lawsuits filed over deaths since 2006 have resulted in a court ruling that held county or jail officials responsible. Four were settled. One is ongoing. The rest were dismissed or lost at trial.

Legal experts say such suits rarely succeed, in part because it’s so hard to prove that jail medical care was so bad that it violated someone’s constitutional rights.

But the failure to meet a legal standard doesn’t mean there isn’t a problem. Correctional health care experts said Mississippi’s practice of jailing people solely because they’re mentally ill or addicted to drugs or alcohol has caused deaths that could have been prevented.

"It’s taking people with a suspected health problem and putting them in a place that is likely going to increase their risk of dying from that health problem. The health risks of jail are well established, and they include suicide,” said Dr. Homer Venters, former chief medical officer of New York City jails.

“It’s a terrifying practice."

Unwatched and Unprotected

(Vanessa Saba, special to ProPublica. Source image obtained by Mississippi Today and ProPublica.)

After Scipper took office as Quitman County chancery clerk in 1992, he started handling up to 100 civil commitments a year. He instructed family members on how to file the paperwork, waited for judges to order people into treatment and, if families didn’t want them at home, figured out where to hold them in the meantime. “We used to just automatically put them in the jailhouse,” he said.

In 2006, a man came to Scipper’s office to file commitment papers after his son attacked him. The father was concerned the young man, Tyrone Compton, would hurt himself. Later that day, Compton hanged himself from a set of bars mounted in front of a window in his cell.

Seven months later, Brandon Raymond hanged himself from the same bars as he waited to be taken to a state hospital for drug rehab. It wasn’t until after his death that a piece of metal was welded onto the bars, even though the jail administrator had warned county officials about the danger after the first suicide, according to a deposition in a lawsuit filed over Raymond’s death.

It was an obvious shortcoming. For years, suicide was the leading cause of death in U.S. jails, primarily from hanging. Long-accepted standards direct jail staff to keep people who are at risk of suicide away from bars or protrusions.

A review of court filings and investigations related to the suicides points to shortcomings in how people going through the commitment process were screened for suicide risk, where they were held and how they were monitored.

Suicide prevention policies that address these issues have long been recognized as an essential element of jail medical care. But the former Quitman County jail administrator testified that he didn’t know about any policies whatsoever at the time of Compton and Raymond’s deaths.

David Fathi, an attorney who has worked on litigation over jail and prison conditions for more than 25 years and now serves as director of the ACLU’s National Prison Project, reviewed suicide prevention policies that were in effect at five Mississippi jails where several people died by suicide. Some, he said, were “among the worst policies I’ve ever seen.” One policy said staff could turn off water in a cell to reduce the risk of self-harm — a practice Fathi said has resulted in deaths by dehydration of people with mental illness.

“To send people to jail because they have mental illness, and to send them to a jail that has either flagrantly inadequate suicide policies or no suicide policy at all, is a recipe for disaster,” Fathi said.

If you or someone you know needs help:

• Call the National Suicide Prevention Lifeline: 988
• Text the Crisis Text Line from anywhere in the U.S. to reach a crisis counselor: 741741

Screening inmates for suicide risk is a key part of such policies, and it’s a standard part of the booking process at jails across the country. Staff should ask inmates multiple questions, ranging from explicit ones about whether they have considered suicide to less direct ones like “Have you ever wished you were dead or wished you could go to sleep and not wake up?”

At least six of the nine people who killed themselves, including Compton and Raymond, weren’t screened at all or underwent screenings that didn’t meet national standards, according to depositions and jail records.

For nearly three years after Raymond died without being screened, staff still did not conduct screenings for medical or psychiatric issues, according to depositions. Jail policy had required such screenings for years, but employees, including the former jail administrator, didn’t know that, according to depositions.

Quitman County’s current medical questionnaire does ask staff to determine whether the inmate is “so disoriented or mentally confused as to suggest the risk of suicide,” but leaders in correctional health care told Mississippi Today and ProPublica that’s not sufficient.

Brandon Raymond’s sister, Stacy Raymond, has few pictures of her brother; she got this one from a Facebook memorial post. She said if she had known he would die so young, she would’ve taken more photos. She described him as big-hearted, always happy and a devoted father to his son. (Photo courtesy Stacy Raymond)

I can still see Brandon in my yard. I can still see Brandon coming in my front door. I’ve lost my daddy, and I’ve lost my mama, but it’s nothing like my baby.

—Sandra Pruitt, mother of Brandon Raymond, in a deposition

Compton’s father and Raymond’s mother filed lawsuits against Quitman County, the sheriff and sheriff’s department staff. In response to the Compton lawsuit, the defendants argued they were shielded by qualified immunity, a doctrine that protects government officials from liability for violations of constitutional rights that are not clearly established. They also argued that Compton’s death was the result of his own conduct and that even if his rights had been violated, it wouldn’t have been due to a county policy.

In response to the Raymond lawsuit, defendants argued that qualified immunity applied, jail staff had no reason to believe Raymond was at risk of suicide, and no county policy led to a violation of his rights.

Quitman County settled both lawsuits for undisclosed sums. The sheriff and county officials other than Scipper did not respond to requests for comment for this story.

Once people are booked into jail, there are nationally accepted guidelines on what staff should do to prevent people from killing themselves.

People who are seriously mentally ill are “naturally at higher risk for suicide,” said Dr. Brent Gibson, former chief health officer at the National Commission on Correctional Health Care and founder of the health care consulting company Avocet Enterprises. “All of these people should be directly observed in some kind of way.”

Staff should check on people at risk of suicide at irregular intervals of no more than 15 minutes, according to standards developed by the National Commission on Correctional Health Care. People who are trying to hurt themselves or say they plan to do so should be watched constantly. At-risk inmates should be housed in cells that are “suicide-resistant.” If necessary, their clothes and bedding should be replaced with smocks and blankets made of thick, sturdy material.

Before all nine suicides in Mississippi jails, those things didn’t happen — in part because at least two inmates were never screened in the first place — according to depositions, Mississippi Bureau of Investigation reports and jail records. Just one person was put on suicide watch and housed in a suicide-resistant cell. At least eight weren’t monitored as frequently as guidelines say. At least seven of the eight who hanged themselves weren’t provided with special clothing or blankets. At one jail, the policy was to put someone on suicide watch only if they had attempted suicide there.

Quitman County Sheriff Oliver Parker said in a deposition that his staff did not keep an especially close eye on Raymond because his commitment did not stem from a suicide attempt.

In 2019, 12 years after Raymond died, Brian Sneed was booked into the Quitman County jail without criminal charges as he awaited a drug rehab bed. When the 52-year-old welder was discovered dead from suicide, it had been more than an hour since jail staff had checked on him, according to a Mississippi Bureau of Investigation report.

Quitman County Chancery Clerk Butch Scipper at the courthouse in Marks, Mississippi (Eric J. Shelton/Mississippi Today)

They may die out on the street — I can’t say they don’t. But in a jail cell is just not a good spot for them.

—Quitman County Chancery Clerk Butch Scipper

After Sneed’s death, Scipper concluded he couldn’t guarantee people waiting for treatment would be safe in jail. “I said right then, they may die out on the street — I can’t say they don’t,” he said in an interview. “But in a jail cell is just not a good spot for them.”

Now, he tells people to wait at home until a publicly funded treatment bed is available. Nothing in state law prohibits that, though the state Department of Mental Health says people who are well enough to wait at home may not actually need to be committed.

When the Doctor’s Waiting Room Is a Jail Cell

(Vanessa Saba, special to ProPublica. Source images obtained by Mississippi Today and ProPublica.)

The bare-bones medical care in many Mississippi jails can be dangerous for people who are mentally ill even if they aren’t suicidal.

Over the three days that Princess Anderson was held in the Marshall County jail awaiting a commitment hearing in February 2011, her physical condition declined precipitously. Jail staff did little to inquire about her medical history, according to depositions in a lawsuit later filed over her death. And staff failed to call for help as she exhibited signs of medical distress.

By the time Anderson arrived at a hospital, “she may very well have been one of the sickest patients I’ve ever seen,” her attending physician in the intensive care unit testified in that lawsuit.

Anderson’s journey through the commitment process had started four days before, when she went to a hospital near Memphis and learned she might be suffering from an ectopic pregnancy, a painful and possibly fatal condition. She was released but later that day went to Baptist Memorial Hospital-DeSoto, where she reported that she had ingested cough syrup and marijuana and complained of nausea and anxiety. After she shoved nurses and screamed that she was going to die, a mental health assessor working on behalf of the hospital filed paperwork to have her involuntarily committed.

Anderson was taken in shackles from the hospital to the jail in neighboring Marshall County, where she lived, to await a psychiatric evaluation. On one jail document, her “most serious charge” was recorded as “LUNACY.”

Booking officer Adella Anderson, who is not related to Princess Anderson, handled the medical screening. Princess Anderson didn’t respond to her questions, so the booking officer later testified that she filled out the screening form with the limited information in the commitment paperwork.

Experts said the booking officer should not have simply stopped her inquiries because Anderson didn’t respond; she should have asked a mental health professional to gather more information.

The booking officer testified that she knew Anderson had been brought from a hospital but didn’t find out why. She said she didn’t open an envelope containing Anderson’s medical records because she thought that was illegal. (The law allows correctional staff to review medical records if necessary, but experts said such staff should be trained in doing so, and she was not.) If she had opened the envelope, she might have seen hospital paperwork about the ectopic pregnancy.

Gibson said he has seen “numerous deaths” occur after a jail staffer gave up on a medical screening because an inmate didn’t provide information. “If someone is literally not responsive, they probably shouldn’t be in the jail at all — they should be in the hospital,” he said.

Efforts to reach Adella Anderson by email, phone and mail were unsuccessful.

The next day, an employee of Communicare, the local community mental health center, tried to evaluate Princess Anderson. Again, she was “unresponsive,” according to the form that therapist Debra Shelton filled out. Shelton used paperwork from the hospital to complete the form, concluding that Anderson had tried to harm herself after learning she was pregnant. “Recommend immediate transfer to hospital” for psychosis, Shelton wrote. (Efforts to reach her for this story were unsuccessful.)

Instead of being hospitalized, Anderson was left alone in her cell with inconsistent monitoring until she could be evaluated further as part of the commitment process.

Angela Anderson wrote in a text message that her daughter Princess Anderson, at left with unidentified people, had a “Beautiful Spirit that she carried everywhere.” Angela Anderson testified that hospital staff wouldn’t let her take her daughter home because commitment proceedings were underway. She was surprised to learn that meant Princess would wait in jail for psychiatric treatment. (Photo courtesy Angela Anderson)

I would never ever thought in my life that anything like this would ever go on, you know, what happened to my child. … They’re supposed to be protecting you. They supposed to be caring for you.

—Angela Anderson, mother of Princess Anderson

If she had been in a state psychiatric hospital, medical professionals would have routinely checked her vital signs. That’s important because people with mental illness may not recognize signs of physical illness and ask for help, correctional health care experts said. In jail, however, none of the staff were required to have any medical training aside from CPR.

Over the next two days, Anderson’s condition became increasingly concerning to those around her — but not to jail staff, according to depositions.

She removed her clothes and, according to an inmate’s testimony, lay on the floor in a pool of water for hours at a time. “There wasn’t nothing abnormal for her to get on the floor,” the booking officer later testified. “Most lunacies do that.”

Anderson got sicker. She barely spoke. Her fingers bled from scratching the walls. When she foamed at the mouth, inmates beat on a cell block door for help and told jailers they thought she was having a seizure. Two inmates called 911. Even “the church people” who regularly came to the jail tried to get staff to call an ambulance, one inmate testified.

The booking officer later testified that she didn’t take those calls for help seriously. Inmates “do that with everybody,” she said.

Greifinger, the former chief medical officer for the New York state prison system, said that kind of thinking is common among correctional staff around the country. Even when they see an inmate vomiting or know someone hasn’t eaten for days, he said, “there’s a tremendous culture of disbelief that’s rampant.”

Meanwhile, Anderson’s mother, Angela Anderson, found hospital paperwork saying her daughter might have an ectopic pregnancy. Angela Anderson went to the courthouse to ask if she could take her daughter to a hospital for an ultrasound.

Sarah Liddy, the special master presiding over Princess Anderson’s commitment proceedings, allowed the young woman to leave the jail only after her mother signed a document promising to pay for her medical care. Liddy didn’t respond to a request for comment for this article.

When Angela Anderson arrived at the jail, she found a horrifying scene, according to her testimony. Her daughter was lying on the floor, in two inches of water, feces and vomit. Her fingernails were broken off and there was blood on the walls. Princess was unconscious, only able to groan. Angela begged jail staff to call 911, testifying later that she felt “like a fool” for calling for help from inside a jail.

Princess Anderson was admitted to an ICU with a diagnosis of psychosis, acute renal failure, a metabolic disorder and sepsis. She died a month later at the same hospital where staff had started the legal process that landed her in jail.

According to her autopsy report, Anderson may have experienced a miscarriage in jail. Based on the autopsy and the available information, a medical examiner concluded that she died from multisystem organ failure of an unknown cause.

Dr. Marc F. Stern, a professor at the University of Washington and former medical director for the Washington State Department of Corrections, reviewed key facts of Anderson’s case. He said the behavior that caused hospital staff to initiate commitment proceedings may have been caused by an underlying medical issue.

What happened to Anderson, he said, shows that Mississippi’s practice of jailing people who need medical care is “dangerous, unconscionable, and inhumane.”

“Ignoble, Sordid, Upsetting, and Tragic.” But Not Unconstitutional.

(Vanessa Saba, special to ProPublica. Source image obtained by Mississippi Today and ProPublica.)

When Anderson died, her mother sued Marshall County and Sheriff Kenny Dickerson, as well as Baptist Memorial Hospital-DeSoto. Hers was one of at least nine lawsuits filed by families seeking to hold accountable the people who had detained their loved ones.

Outside of criminal charges, such lawsuits are typically the only option relatives have. Eight of those suits have run their course; none have resulted in court rulings holding anyone liable.

Unlike the vast majority of Americans, incarcerated people have a constitutional right to health care, thanks to a 1976 Supreme Court decision. But in order to prove that insufficient medical care violated an inmate’s constitutional rights, a plaintiff must demonstrate “deliberate indifference” — that staff knew an inmate needed medical attention or was at risk of suicide, but did little or nothing in response.

“That’s a super hard standard to meet,” said Michele Deitch, an expert on jail oversight and director of the Prison and Jail Innovation Lab at the Lyndon B. Johnson School of Public Affairs at the University of Texas at Austin. “You have to get into the head of the person who caused harm,” she said. “They had to know there was a risk of serious harm, and then they did this thing anyway, not caring.”

Princess Anderson’s mother couldn’t meet that standard.

Her suit alleged the sheriff’s office was deliberately indifferent to Princess Anderson’s medical needs. Attorneys representing the sheriff and the county argued the sheriff was entitled to qualified immunity and that jail staff had taken measures to care for Anderson, pointing out that hospital staff had medically cleared her to be taken to jail. The sheriff and other county officials didn’t respond to inquiries for this article.

The suit also alleged that the hospital failed to diagnose the cause of Princess Anderson’s altered mental state and stabilize her and that it handed her over to deputies without proper instructions. In response, the hospital argued that it was protected by a provision of Mississippi law that says anyone “acting in good faith” during the civil commitment process can’t be held liable.

A federal judge dismissed the case against the sheriff based on qualified immunity. The county was later dismissed as a defendant because jail policies were not the “moving force” behind Anderson’s death and jail staff had “periodically” monitored her.

“Officers observed Anderson’s pattern of taking off her clothes and lying on the floor, but they found this conduct to be consistent with other mentally ill inmates at the jail,” U.S. District Judge Debra M. Brown wrote in her December 2014 opinion.

Angela Anderson appealed that decision to the 5th Circuit Court of Appeals. In their ruling, circuit judges called Princess Anderson’s death “ignoble, sordid, upsetting, and tragic.” But they agreed that Anderson’s mother had not proven that officials had acted with deliberate indifference.

All of the lawsuits filed over these deaths alleged the care provided in jail demonstrated deliberate indifference. In the three cases in which judges issued rulings, none found those arguments persuasive.

Anderson’s suit against the hospital eventually went to trial in state court. A jury sided with the hospital.

In an email, Baptist Memorial Health Care’s director of public relations, Kim Alexander, wrote of Princess Anderson, “I am confident our medical team did everything they could to help her and provide compassionate treatment while she was in our care.”

“We are saddened by outcomes like Ms. Anderson’s,” Alexander wrote, “and fully support efforts by our state and mental health professionals to refine our mental health system.”

Eight of the nine counties where people died as they went through the commitment process, including Marshall County, still jail those people. Quitman, where Scipper works, no longer does.

Do you have a story to share about someone who went through the civil commitment process in Mississippi? Contact Isabelle Taft at itaft@mississippitoday.org or call her at (601) 691-4756.

by Debbie Cenziper, ProPublica, and Michael D. Sallah and Michael Korsh, Pittsburgh Post-Gazette

ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive our biggest stories as soon as they’re published.

In 2021, after Philips Respironics sold millions of defective medical devices to those who struggle to breathe, the federal agency charged with protecting the health of the American public swept in.

The Food and Drug Administration accused the global powerhouse of a succession of mistakes — casting aside test results and health risks — long after the company discovered an industrial foam embedded in its breathing machines could break down and send tiny particles and fumes into the lungs of patients.

The FDA maintains that it acted as soon as it learned of the safety concerns in April 2021, just weeks before Philips launched one of the largest recalls of its kind.

But a ProPublica and Pittsburgh Post-Gazette investigation found that in the years leading to the recall, the FDA repeatedly failed one of its most critical missions: alerting the public about devices that can inflict serious harm. Over the course of a decade, the agency missed a pattern of warnings from health care workers, patients and others that something was very wrong with the company’s popular sleep apnea devices and ventilators.

From 2011 to 2021, Philips sent hundreds of complaints about the machines to the FDA, none of which resulted in alerts to doctors or patients. One report described a “black powder substance” inside a ventilator. Another noted foam that was “loose and tangled.”

Scores specifically cited “contamination,” a red flag that experts say should have prompted an immediate inquiry because the machines send air directly into the noses and mouths of users, including infants and the elderly. It is unclear who, if anyone, read the reports at the agency.

After the recall, the FDA said that Philips had held back thousands of additional complaints, compromising a public warning system meant to inform consumers about life-threatening device failures. The FDA allowed the company to submit reports years later, so far without penalty.

The FDA also permitted Philips to submit follow-up reports about those late complaints and update the dates that the company first received them. Then the agency concealed the original dates from the public, obscuring how long Philips had the warnings in hand before turning them over to the government.

“That’s regulatory failure,” said Paul Pelletier, a former federal prosecutor who once led health care probes for the Justice Department. “There is no other way to say it. They dropped the ball.”

ProPublica and the Post-Gazette spent more than a year investigating the Philips CPAP recall and the FDA’s response, analyzing 17 million reports in a complaint-tracking system open to the public that has long served as the backbone of the government’s oversight of medical devices.

Created about three decades ago to detect repeated breakdowns, the system relies on companies whose profits are tied to the success of their products to quickly disclose problems and on the FDA to review the warnings, respond to them and hold device makers accountable when they delay reporting on time or fail to do so at all.

Federal law has long required manufacturers to disclose malfunctions, patient injuries and deaths within 30 days. But since 2010, Philips and other subsidiaries of Dutch parent Royal Philips have been late in submitting at least 60,000 complaints to the FDA — often by years, government records show.

That includes more than 3,700 complaints about the recalled continuous positive airway pressure, or CPAP, machines and ventilators, which a ProPublica and Post-Gazette story reported in September. The delays came as patients using the machines suffered from inexplicable respiratory infections, cancers, liver and kidney problems, and other illnesses — ailments that some medical experts fear are tied to the crumbling foam.

Philips said early on the devices could send potentially “toxic and carcinogenic” material into the masks of patients, and the FDA classified the recall as the most serious, for defects capable of causing severe injury or death.

Philips has a history of withholding complaints about medical devices it manufactures. The FDA’s own inspectors have previously cited the company for failing to turn over reports about safety breakdowns involving widely used CT scanners and defibrillators, public records show. Though the agency can pursue criminal charges for the delays, Philips has never faced such penalties.

The lapses in enforcement have not been limited to Philips.

In analyzing complaints in the government’s tracking system, the news organizations found that other leading device makers have submitted hundreds of thousands of late reports to the FDA, in some cases waiting years before disclosing the information. Last year alone, 1 in 8 reports — more than 232,000 complaints — were submitted past the 30-day deadline, leaving regulators and the public without badly needed safety information.

The FDA has sent warning letters to errant companies, but criminal charges are rare.

The analysis also exposed the troubling use of the FDA directive instructing manufacturers to update the dates they became aware of potential defects when providing follow-up reports to the agency.

A review of more than 100,000 complaints submitted since 2013 by two dozen large medical device makers showed that dates were changed on 1 in 5 reports, including those about flawed pacemakers, prosthetics, dialysis machines, and even screws and plates for bones.

The news organizations found the discrepancies in the dates after obtaining the original reports from a private company that stores FDA data and comparing them to the reports as they appear in the agency’s public database.

Medical experts and lawyers who rely on an accurate timeline of breakdowns say that permitting companies to submit late reports or change dates undercuts the nation’s primary system for tracking the safety of medical devices.

“I never imagined that this would be allowed,” said Madris Kinard, a former FDA analyst who was brought in to fix the system in 2010 and quit four years later. “It boggles the mind.”

In a statement, the agency acknowledged that device makers are directed to replace original dates when updating reports in the system but said copies of earlier versions — not available in the public tracking system — are kept separately at the agency.

The FDA did not respond to questions about why such a policy is in place but said that the tracking system is “just one source of information” about faulty medical devices.

The Food and Drug Administration in Silver Spring, Maryland (Aaron M. Sprecher via AP)

The agency defended its handling of the Philips recall, saying officials continue to “take steps to protect the health and safety of individuals using these devices.”

The FDA said it received complaints about “general contamination issues” before the recall but that the debris could have been caused by external sources unrelated to degrading foam. Complaints that specifically described problems with the foam did not indicate that any patients had been harmed, the agency said. The FDA said all complaints are read but did not specify when it reviewed them.

More than two years after the recall, Philips maintains that patient safety is a top priority and its machines are unlikely to cause “appreciable harm.”

In a statement, the company said that it turned over the late complaints about its breathing machines to the FDA “out of an abundance of caution” and that it did not initially believe the complaints needed to be reported to the government. The company did not say why so many other complaints were reported late. It said the date changes were “consistent with regulatory guidelines.”

Philips and Philips Respironics, the company said, “share the same objectives as the FDA.”

Philips has disclosed that it is in discussions with the agency about a consent decree that could compel the company to make significant improvements. The FDA said it could not comment on potential enforcement action.

Criticism of the agency’s oversight of the industry is not new.

Over the years, the FDA has promised to overhaul the way it detects dangerous medical devices by relying more on real-time data in medical registries, electronic health records, insurance claims and other sources. Under Jeff Shuren, a neurologist and attorney who has long led the FDA unit that regulates devices, the agency has directed millions of dollars to that effort.

But to carry out the plan, the FDA in 2016 turned to an organization whose members include major device makers, such as Philips. The group paid for conferences, consultants, travel and pay for its executives, public records show.

Jeff Shuren, at center-left in 2010, is the country’s top regulator of medical devices. (Daniel Rosenbaum/The New York Times)

Years later, the promised system is still not in place.

“It’s very disappointing that we continue to see delays in public notifications of serious device safety issues from the FDA,” said Dr. Rita Redberg, a cardiologist and expert on medical device safety. “We learn about [problems] after years and years and lots of preventable injuries and deaths. It’s such an avoidable disaster.”

“I Was Just Horrified”

In late 2012, hospitals in three U.S. cities scrambled to contain a disturbing pattern of infections among patients who had undergone exams for digestive illnesses.

Eventually, investigators found the connection: a hollow, lighted tube made primarily by medical device maker Olympus that doctors snake down the throat and stomach to peer at the small intestine.

By the time the maker of the duodenoscope launched a recall about three years later, the FDA had received dozens of reports about deaths, infections and injuries to the bowels and other organs, the ProPublica and the Post-Gazette analysis found.

A Senate investigation in 2016 faulted the FDA and its “outmoded” complaint-tracking system for allowing the crisis to continue well after the devices started sickening patients with virulent infections.

“Preventable tragedies,” a Senate report called the crisis after doctors around the world raced to treat patients. “A vivid example of the failure of FDA’s current system for tracking and monitoring the safety of medical devices on the market.”

The congressional probe came six years after an inspector general’s report found the FDA had allowed warnings about medical devices to sit untouched for weeks or longer.

At the time, about 20 people were assigned to read the complaints, which were kept in an electronic tracking system from the 1990s that couldn’t easily retrieve large numbers of related records or run comprehensive searches for key information. Reviewers often jotted down details about the most alarming cases on Post-it notes and tacked them to their computers.

“A huge number of reports weren’t read,” said Kinard, the former FDA analyst. “I was just horrified.”

Madris Kinard, a former FDA analyst, said the agency’s system to track medical device malfunctions, patient injuries and deaths is inadequate. (Benjamin B. Braun/Pittsburgh Post-Gazette)

As the complaints languished, thousands more came in. The increase was driven partly by the sheer number of products on the market, the vast majority approved through an expedited review process created in the 1970s and championed for years by the industry.

Last year, the FDA received 3 million reports about potentially defective devices — nearly 30 times more than in 2005, government records show. Nearly one-third described injuries and deaths.

The FDA, which regulates more than 200,000 types of medical devices, did not say how many people are currently assigned to screening the reports.

Reports About Medical Device Defects Skyrocketed in Recent Years

Manufacturers are required under federal law to turn over to the FDA reports of patient deaths, injuries and malfunctions that have the potential to cause harm.

Source: Pittsburgh Post-Gazette and ProPublica analysis of data from Device Events, which extracted data from the FDA’s Manufacturer and User Facility Device Experience system.

Amid concerns about the agency’s response time, the inspector general in 2009 faulted the FDA for not cracking down on companies that submitted late reports. In response, the agency pledged to offer “educational assistance” to manufacturers and conduct inspections for chronic offenders.

But years later, device makers have continued to turn over complaints months or years after they came in, ProPublica and the Post-Gazette found.

The FDA has significant power to address defective products or companies that ignore its rules by seeking criminal charges, fines and injunctions.

Olympus pleaded guilty and agreed to pay tens of millions of dollars in 2018 for holding back reports that would have exposed the scale of the problem with its duodenoscopes. Late last year, the company was warned again by the FDA about failing to disclose complaints on time.

Olympus acknowledged that it filed some complaints about duodenoscopes late but said the “disclosure failures” were not tied to patient injuries. The company said it is launching a new global complaints system to address the FDA’s more recent concerns.

“Olympus takes the FDA findings and feedback very seriously,” Olympus said in a statement.

Other companies have escaped penalty.

Device maker Becton, Dickinson and Company did not submit 25,000 reports dating back to 2010 about its defective infusion pumps until the devices were recalled nine years later, government records show. The pumps, linked to scores of injuries and at least one death, were malfunctioning while delivering medication and blood to critically ill patients.

In a statement, the company said that it turned over the late reports after the FDA carried out an inspection in 2020 and that none of the cases involved patient injuries or deaths. The FDA said it took steps to provide information to the public and work with the company.

Public health advocates and patients who have been harmed by defective devices, however, say the FDA too often fails to hold companies accountable.

Tess Schulman, a paralegal in North Carolina, struggled with rashes that her doctor said were caused by Essure, a contraceptive device manufactured by Bayer that was blamed for lost pregnancies and deaths and later pulled from the market.

“Why are we still allowing this to happen?” she asked. “Everybody thinks they are there to protect the public and they would not allow companies to sell something that wasn’t safe. We have a false sense of security.”

In a statement, Bayer said it continues to “stand behind Essure’s safety.”

Beyond the late filings, Olympus updated the dates on follow-up reports submitted to the FDA — more than 2,000 times in the case of its troubled duodenoscope, government records show. In each case, the change made it appear in the FDA’s tracking system as if the company had more recently received warnings when they had actually come in months or years earlier.

Like Philips, the company said it was following instructions from the FDA.

The directive has created vast inconsistencies in a system meant to inform and protect the public. ProPublica and the Post-Gazette found that other companies have often left the original dates intact, despite the FDA’s guidance.

The agency said it has the capability to root out “systemic” reporting problems, but experts say they fear the date changes serve companies seeking to conceal potential violations of the law.

“The risk is obvious,” said Michael Gonzalez, an Ohio lawyer who advises companies on health care compliance. “You don’t take what might be evidence in a case — and even your own culpability — and then alter or change it.”

Kinard, the former FDA analyst, said she discovered about a year ago that the agency had created a pathway for manufacturers to make the changes.

“It is an error on the FDA’s side that is being exploited by manufacturers,” said Kinard, who added that she had no idea the changes were so extensive. “I want to know … who has been taking advantage?”

An Unfolding Crisis

The steady series of reports about contaminated CPAPs and ventilators streaming into the FDA in the years before the Philips recall should have come as no surprise to the government.

The FDA had co-hosted a meeting with the nonprofit Association for the Advancement of Medical Instrumentation about ventilator safety in 2014, raising alarms about how material packed in the devices could contaminate the air quality and send “substances into the patient airway and lungs.”

When Philips finally announced a recall in June 2021, acknowledging the foam fitted in its machines could break down in heat and humidity, the FDA released a series of updates on its website but did not address the warning it had issued years earlier.

The recalled Philips CPAP machines were sold around the world. (Liz Moughon/ProPublica)

The agency also said little about the reports it had been receiving from Philips all along.

One of the first arrived in 2011, describing “black substance in the air path” of a ventilator, records show. Another the next year noted a “significant build up of dust and particulate.” Other reports were more detailed, describing problems with the foam itself. “Foam was found to be deteriorated,” read one report submitted to the FDA in 2020, about seven months before the recall.

It remains unclear whether anyone at the FDA at the time looked at the mounting evidence that something was amiss. The agency has since said that Philips submitted 30 reports between 2011 and April 2021 that specifically described foam degradation.

“We review and take seriously all reports of adverse events associated with medical devices and conduct additional evaluation and analysis when necessary,” the agency said. “We take prompt action and communicate publicly when appropriate.”

There is no evidence, however, that the FDA took any action as a result of the foam complaints or the hundreds of reports that described contamination.

While Philips forwarded some complaints to the government, ProPublica and the Post-Gazette reported that the company withheld thousands of others over a span of 11 years, including reports that described deaths among patients.

It wasn’t the first time Philips held back reports about malfunctioning medical devices.

In 2011, the FDA cited a Philips subsidiary for failing to turn over complaints about faulty imaging scanners, including at least two that reported the machines had caught fire, government records show. That same year, the agency found the company was withholding reports about emergency defibrillators that failed to work when patients with heart problems needed them.

A federal court eventually forced Philips to stop distributing defibrillators in the United States, but the order was lifted in 2020.

All the while, Philips was quietly scrambling to deal with the flurry of complaints about its popular breathing machines. And people were getting sick.

Eleven hundred miles away from Washington, in a trim white house in Baton Rouge, Louisiana, Richard Ieyoub rarely thought about the company behind the CPAP machine he had used for years.

The former attorney general of Louisiana, who helped lead a groundbreaking lawsuit against U.S. tobacco companies that ended in a massive settlement in 1998, was serving out a term as the state’s top oil and gas regulator.

First image: Ieyoub and his wife, Caprice, in 2003. Second image: Caprice Ieyoub wears a necklace with her husband’s fingerprint. (AP Photo/Bill Haber, Liz Moughon/ProPublica)

He was also recovering from a rare form of mouth cancer; doctors had to remove a part of his jaw and then rebuild it during a 17-hour surgery to remove a tumor in 2017. The father of seven spent time in recovery at Jesuit retreats and at a family lake house, sitting by a fire pit and regaling his grandchildren with stories about parents, aunts and uncles who had emigrated from Lebanon and settled in rural Louisiana parishes.

After Philips launched the recall, Ieyoub, like the other CPAP machine users who had grown sick, said he began to question whether the device he had used for hours every night was to blame.

And as the prosecutor who took on the dangerous practices of tobacco companies, he wondered why the federal government did not warn the public years earlier.

“To think that so many people are going to suffer,” he said in an interview last year. “There has to be some kind of accountability.”

Early Warning System

Members of Congress have repeatedly questioned the FDA’s oversight of medical devices, especially in the aftermath of wrenching reports of injuries and deaths. Shuren, the top regulator, has long promised to keep the public safe.

“We will remain vigilant,” he said this year.

But the agency’s use of enforcement tools, including inspections and seizures, has dropped significantly in recent years even as the number of new devices hitting the market reached record levels.

The FDA said gaining entry to manufacturing plants during the COVID-19 pandemic was difficult. But the number of inspections started dropping in 2018, two years before the coronavirus crisis, and continued through last year, FDA data shows.

The number of warning letters, which the FDA considers the “principal means of achieving prompt voluntary compliance,” dwindled to 27 last year, down from 217 in 2012, records show. The use of injunctions and seizures against troubled device makers has also dropped.

The FDA Has Issued Far Fewer Warning Letters to Medical Device Manufacturers

Warning letters are used by the FDA to compel manufacturers to voluntarily comply with federal regulations. The agency has attributed the drop to difficulties gaining access to manufacturing plants during the COVID-19 pandemic.

Source: FDA’s Compliance Dashboard

Shortly after the congressional probe into the Olympus recall in 2016, Shuren and the FDA launched a bold plan.

That year, the agency awarded $3 million in seed money to the nonprofit Medical Device Innovation Consortium to establish a center that would bring together information from electronic medical records, insurance claims and medical registries.

Dubbed NEST, the National Evaluation System for health Technology, the initiative aimed to spur medical device innovation and advance an early warning system that would alert doctors, patients and regulators to device malfunctions actively occurring in medical settings.

Over the course of eight years, the FDA devoted millions of dollars to the effort. The nonprofit paid for travel, consultants, technology and bonuses, and about $400,000 a year in pay for its last executive director, records show. But the group has yet to develop a comprehensive new system.

Patient advocates and others have questioned whether Shuren — one of the most influential voices in the $185-billion-a-year U.S. medical device industry — pushed hard enough to see the plan succeed.

Shuren was the vice chairman of the membership committee at MDIC and has been a board member for years, records show.

One top FDA official said Shuren’s connection to the group, given the deep involvement of industry, has signaled to device makers that they have an ally in the agency responsible for regulating them.

“It smells to high heaven as far as I’m concerned,” said the official, who spoke on the condition of anonymity because he was not authorized to comment publicly.

The FDA said Shuren adheres to all ethics and conflict of interest guidelines. Shuren declined an interview request and to answer written questions.

The FDA noted that representatives from other government agencies are also on the board of MDIC and that a network of hospitals, medical centers, clinics and practitioners is bringing together data about devices. The agency said it requires funding to go directly to building and maintaining the network of partners.

In a statement, MDIC said that NEST, a “sub-group” within the nonprofit, did not receive enough money to build an active surveillance system and that as much as $50 million a year would be needed to do so.

The FDA official, who has long been familiar with the effort, said very little has come out of the project.

“It has been a huge waste of time and money,” the official said. “It was all in the service of industry.”

Public health experts and others said they worry that it’s only a matter of time before another emergency unfolds.

“Everybody at the FDA that I ever worked with — everybody — gets up in the morning and the one thing that they most worry about every day is, ‘Is there something on the market that’s going to hurt anybody?’ Nobody wants that on their heads,” said Larry Kessler, a former FDA official who spent 13 years at the agency before leaving in 2009. “When people’s lives are concerned, you want to take quicker action.”

“Government Is Supposed to Be There”

Ieyoub at his home in Baton Rouge in March, where he spoke to ProPublica and Post-Gazette reporters. He died two weeks later. (Liz Moughon/ProPublica)

Long before his cancer diagnosis, former Louisiana Attorney General Ieyoub often talked to his family about good government. “Government is supposed to be there for people who don’t have a voice,” his son-in-law, Art Murray, recalled Ieyoub saying.

In recent years, the veteran prosecutor compared the Philips case to the battle he fought against tobacco companies in the 1990s. Even then, as the industry used cartoon characters to market cigarettes to children, Ieyoub fretted about the government’s failure to intercede.

“That’s the job of these agencies,” he said.

It’s one of the reasons he grew profoundly distressed after the Philips recall, his family members said.

The Ieyoub family pictured together (Liz Moughon/ProPublica)

Murray said Ieyoub believed the company was determined to keep the problem with its machines secret “and unfortunately a regulatory agency ... fell right into that trap.”

“This is one of those perfect storm situations,” Murray said.

Ieyoub, who had recovered from mouth cancer, died of an aortic aneurysm in April. Known as “Giddie” to his five grandchildren, he was 78.

The FDA’s Flawed Medical Device Tracking System

Since the 1990s, the Food and Drug Administration has been using an electronic system known as MAUDE to track complaints about medical devices. The Manufacturer and User Facility Device Experience is a repository of reports about device malfunctions, patient injuries and deaths. To date, more than 17 million reports have been submitted. Yet the system isn’t working the way it should to warn the public about emerging dangers. Here’s how it’s supposed to work and why the system is failing to live up to its mission.

What the Reporting Requirements Are

Under federal law, device makers are required to submit information about reported malfunctions, injuries and deaths within 30 days. Patients, their family members and others can also voluntarily submit reports. The tracking system is publicly available and includes information such as the type of device involved, the date the manufacturer became aware of the problem, the date the report was submitted to the FDA and a description of any patient symptoms and injuries.

How the System Is Supposed to Work

The FDA is supposed to read the reports and look for patterns — or “emerging signals” — about device breakdowns that can harm the public. Though the FDA uses other sources to pick up on patterns, experts say the MAUDE system remains the cornerstone of the agency’s ability to track dangerous devices, an early warning system meant to save lives. Two-thirds of all recalls and FDA regulatory actions begin with a MAUDE report, according to former FDA analyst Madris Kinard, who spent four years working with MAUDE before leaving the agency. She has since developed a database to better sort and examine the reports.

How the System Actually Works

An investigation by ProPublica and the Pittsburgh Post-Gazette found device makers have repeatedly submitted reports after the 30-day deadline, in some cases waiting months or years before forwarding them to the FDA. Reporters also discovered that the FDA directs device makers to update the dates they first became aware of a defect when submitting follow-up information to the government. The new dates are put into the agency’s public tracking system, overriding original dates and obscuring how long companies had the warnings in hand before turning them over to the government.

How We Uncovered a Hidden Flaw in the FDA’s Medical Device Warning System

To report this story, ProPublica and the Pittsburgh Post-Gazette analyzed a database of more than 17 million complaints about medical device malfunctions, patient injuries and deaths submitted to the U.S. Food and Drug Administration’s Manufacturer and User Facility Device Experience, or MAUDE, tracking system. Because the FDA system is cumbersome and difficult to navigate, the news organizations paid for a subscription to a proprietary database of MAUDE reports called Device Events, developed by former FDA analyst Madris Kinard.

Reporters used these government records to better understand the reporting practices of Philips Respironics and more than two dozen other large medical device manufacturers. The records showed how often companies, including Philips, submitted timely reports about potentially dangerous devices to the government and how often the reports were late.

During this analysis, reporters discovered that the FDA directs device makers to update the dates they first became aware of a defect when submitting follow-up information to the government. The new dates are put into the agency’s public tracking system, overriding original dates and obscuring how long companies had the warnings in hand before turning them over to the government.

In a first-of-its-kind analysis, reporters compared the dates on file in the government’s public tracking system to the dates on the original reports, which were maintained by Device Events. In all, the news organizations compared the dates on more than 100,000 reports from more than two dozen companies dating back to 2013.

Students at Northwestern University’s Medill Investigative Lab helped read and sort hundreds of the reports.

To better understand the FDA’s ability to monitor its tracking system and respond to problem devices, the reporting team interviewed current and former FDA administrators, quality assurance experts for medical device companies as well as public health practitioners who have studied and written about the agency. Over the course of the investigation, the team also examined years of FDA warning letters, inspections, recall notices and safety alerts along with Department of Justice consent decrees and criminal filings.

Reporting was contributed by Mike Wereschagin and Evan Robinson-Johnson of the Pittsburgh Post-Gazette and Monica Sager, Susanti Sarkar, Madaleine Rubin, Molly Burke, Aidan Johnstone, Kelly Adkins, Haajrah Gilani and Juliann Ventura of the Medill Investigative Lab.

by Seth Freed Wessler

ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive our biggest stories as soon as they’re published.

This article was produced in a partnership between ProPublica and The New York Times Magazine.

This story is exempt from our Creative Commons license until Jan. 6, 2024.

Tcherry’s mother could see that her 10-year-old son was not being taken care of. When he appeared on their video calls, his clothes were dirty. She asked who in the house was washing his shirts, the white Nike T-shirt and the yellow one with a handprint that he wore in rotation. He said nobody was, but he had tried his best to wash them by hand in the tub. His hair, which was buzzed short when he lived with his grandmother in Haiti, had now grown long and matted. He had already been thin, but by January, after three months in the smuggler’s house, he was beginning to look gaunt. Tcherry told his mother that there was not enough food. He said he felt “empty inside.”

More strangers, most of them Haitian like Tcherry, continued to arrive at the house in the Bahamas on their way to the United States. One day police officers came with guns, and Tcherry hid in a corner; they left when a man gave them money. The next time he and his mother talked, Tcherry lowered his bright, wide-set eyes and spoke to her in a quieter voice. “It was like he was hiding,” his mother, Stephania LaFortune, says. “He was scared.” Tcherry told her he didn’t want to spend another night on the thin mattress in the front room with scuffed pink walls. She assured him it would be over soon. A boat would take him to Florida, and then he would join her in Canada, where she was applying for asylum. LaFortune texted Tcherry photos of the city where she lived. The leaves had turned brown and fallen from the trees. Still, she was there, and that’s where Tcherry wanted to be. He waited another week, then two, then three.

Tcherry didn’t laugh or play for months on end, until one day in February, when two sisters, both Haitian citizens, were delivered to the house. One was a 4-year-old named Beana. She wore a pink shirt and cried a lot. The other, Claire, was 8. She had a round face and a burn on her hand; she said that at the last house they’d stayed in, a girl threw hot oil on her. Claire did everything for her sister, helping her eat, bathe and use the bathroom. Like Tcherry, the girls were traveling to join their mother, who was working at a Michigan auto plant on a temporary legal status that did not allow her to bring her children from abroad. Their clothes were as dirty as his. Sometimes Tcherry and Claire watched videos on his phone. They talked about their mothers. “I am thinking about you,” Tcherry said in a message to his mother in early February. “It has been a long time.”

Finally, nearly four months after Tcherry arrived at the house, one of the men in charge of the smuggling operation woke him and the two girls early in the morning. “He told us to get ready,” Tcherry recalls. With nothing but the clothes they wore, no breakfast or ID, they were loaded into a van and were dropped off at a trash-lined canal just outside Freeport, Bahamas. In the muck and garbage, more than 50 people stood waiting as a boat motored toward them. “Not a good boat,” Tcherry told me, “a raggedy boat.” But nobody complained. The 40-foot vessel tilted from the weight as people climbed aboard and pushed into the two dank cabins, sitting shoulder to shoulder or standing because there was no more space. Tcherry felt the boat speeding up, taking them out to sea.

For almost 12 hours they traveled west, packed together in cabins that now smelled of vomit and urine. In the lower cabin, a baby was crying incessantly. A heavily pregnant woman offered up the last of her package of cookies to the child’s mother to help soothe the infant. Tcherry was thirsty and exhausted. Not far from him, he heard a woman say that the children’s parents must be wicked for sending them alone into the sea.

The passengers had been promised they would reach U.S. shores hours earlier. People were starting to panic, sure that they were lost, when passengers sitting near the windows saw lights, at first flickering and then bright — the lights of cars and buildings. “That is Florida,” a young man said as the boat sped toward shore. Tcherry pulled on his sneakers. “If I make it,” he thought, “I will spend Christmas with my family.”

But as quickly as the lights of Florida came into view, police lights burst upon them. A siren wailed. People screamed, a helicopter circled overhead and an officer on a sheriff’s boat pointed a long gun toward them. Uniformed men climbed on board, yelled orders and handed out life jackets. The group of 54 people was transferred to a small Coast Guard cutter. As the sun rose over Florida just beyond them, a man with a tattoo on his arm of a hand making the sign of the benediction began recording a video on his phone. “As you can see, we are in Miami,” he said. “As you can see, we are on a boat with a bunch of small children.” He intended to send the video to relatives waiting for him on land, and he urged them to contact lawyers. But his phone was confiscated, and the video was never sent.

The Coast Guard frames its operations in the sea as lifesaving work: Crews rescue people from boats at risk of capsizing and pull them from the water. But the agency, which is an arm of the Department of Homeland Security, also operates as a maritime border patrol, its ships as floating holding facilities. Since the summer of 2021, the Coast Guard has detained more than 27,000 people, a number larger than in any similar period in nearly three decades. On a single day in January, the agency’s fleet of ships off the Florida coast collectively held more than 1,000 people. The public has no way of knowing what happens on board. Unlike at the U.S.-Mexico border, which is closely monitored by advocates, the courts and the press, immigration enforcement at sea takes place out of public view.

The Coast Guard routinely denies journalists’ requests to witness immigration patrols, but in early March, I learned that several days earlier, a boat carrying dozens of Haitians had been stopped so close to land that they were first chased down by the Palm Beach County sheriff’s marine unit. Among them were three unaccompanied children: two young sisters and a 10-year-old boy. In the months afterward, I obtained a trove of internal Coast Guard documents, including emails and a database of the agency’s immigration interdictions, and I tracked down Tcherry, Claire and Beana and 18 people traveling with them. Many of them told me about the five days they spent detained on Coast Guard ships — an experience, one man said, “that will remain a scar in each person’s mind.”

People intercepted at sea, even in U.S. waters, have fewer rights than those who come by land. “Asylum does not apply at sea,” a Coast Guard spokesperson told me. Even people who are fleeing violence, rape and death, who on land would be likely to pass an initial asylum screening, are routinely sent back to the countries they’ve fled. To try to get through, people held on Coast Guard ships have occasionally taken to harming themselves — swallowing sharp objects, stabbing themselves with smuggled knives — in the hope that they’ll be rushed to emergency rooms on land where they can try to claim asylum.

The restrictions, combined with the nearly 30-year spike in maritime migration, created a crisis for the Coast Guard too, leading to what one senior Coast Guard official described in an internal email in February as “war-fighting levels of stress and fatigue.” Coast Guard crew members described to me their distress at having to reject desperate person after desperate person, but the worst part of the job, several said, was turning away the children who were traveling alone. From July 2021 to September 2023, the number of children without parents or guardians held by the Coast Guard spiked, a nearly tenfold increase over the prior two years. Most of them were Haitian. “The hardest ones for me are the unaccompanied minors,” one crew member told me. “They’re put on this boat to try to come to America, and they have no one.”

Coast Guard Petty Officer Timothy James holds a baby who was detained on the U.S. Coast Guard cutter Manowar. The girl and dozens of others were held at sea for five days. (Officer Brodie MacDonald/U.S. Coast Guard)

The treatment of children is perhaps the starkest difference between immigration policy on land and at sea. At land borders, unaccompanied minors from countries other than Mexico and Canada cannot simply be turned back. They are assigned government caseworkers and are often placed in shelters, then with family members, on track to gain legal status. That system has its own serious failings, but the principle is that children must be protected. Not so at sea. U.S. courts have not determined what protections should extend to minors held on U.S. ships, even those detained well within U.S. waters. The Coast Guard says that its crew members screen children to identify “human-trafficking indicators and protection concerns including fear of return.” A spokesperson told me that “migrants who indicate a fear of return receive further screening” by Homeland Security officials.

But of the almost 500 unaccompanied children held on the agency’s cutters in the Caribbean and the Straits of Florida between July 2021 and early September 2023, five were allowed into the U.S. because federal agencies believed they would face persecution at home, even amid escalating violence in Haiti, including the documented murder and rape of children. One other child was medically evacuated to a hospital in Florida, and six were brought to land for reasons that the internal Coast Guard records do not explain. The rest were delivered back to the countries they left, and it’s often unclear where they go once they return. Some have nowhere to stay and no one to take care of them. On occasion, they are so young that they don’t know the names of their parents or the country where they were born. One official from an agency involved in processing people delivered by the U.S. Coast Guard to Haiti told me “it is an open secret” that the process can be dangerously inconsistent. “Children leave the port,” the official said, “and what happens to them after they leave, no one knows.”

Stephania LaFortune in her Toronto apartment (Octavio Jones for ProPublica)

Stephania LaFortune had not wanted to send her 10-year-old son on a boat by himself. She knew firsthand how perilous the journey could be. In May 2021, before the boat she had boarded made it to a Florida beach, some of the passengers jumped into the water to wade through the heavy waves. “They almost drowned,” she told me when I met her in Toronto. LaFortune waited on the beached vessel until U.S. Border Patrol officials came to detain her. In detention, she claimed asylum and was soon released. For months, she searched for other ways to bring Tcherry to her, but LaFortune ultimately determined she had no alternative.

The first time LaFortune left Tcherry, he was 3 years old. Her husband, a police cadet, had been shot in his uniform and left to die in a ditch outside Port-au-Prince, and LaFortune, fearing for her life, departed for the Bahamas. Tcherry stayed behind with his grandmother. Four years later, as violence began to flare again, Tcherry’s mother finally made good on her promise to send for him. She arranged for him to fly to the Bahamas, where she had remarried and had a baby girl. But Tcherry was in the Bahamas not even a year when LaFortune told him that she would be leaving again — not because she wanted to, she assured her sobbing son, but because she had seen how Haitians were harassed and deported, and she simply didn’t believe there was real opportunity there. Tcherry’s stepfather and his younger half sister, who were Bahamian citizens, joined LaFortune months later. She arranged for Tcherry to live with relatives, promising to send for him as soon as she could.

LaFortune’s asylum case in Florida dragged on, so she and her husband and daughter traveled over land to Canada, where they hoped they could get legal status more quickly. While they waited for a decision in their asylum case, the relative Tcherry was staying with said he could no longer take care of a growing boy by himself. After begging others to take her son, LaFortune found a woman she knew back in Haiti who said she was planning to make the trip to Florida herself with her own children. For $3,000, the woman said, she could take Tcherry with them. LaFortune sent the money. The woman took Tcherry to the smuggler’s house and did not return for him.

That house, and the one where Tcherry was moved next, were filled with Haitians fleeing the crisis that began in July 2021, when President Jovenel Moïse was assassinated by a team of mostly Colombian mercenaries hired through a Miami-area security company. The U.S. Justice Department has accused nearly a dozen people, some based in the United States, of setting the assassination in motion. As the Haitian state crumbled, proliferating gangs, many with ties to the country’s political elite, burst from the neighborhoods they’d long controlled and began terrorizing Port-au-Prince and swaths of the rest of the country. Kidnapping, extortion, the rape of women and children, and the torching of homes and neighborhoods became routine weapons of fear. Thousands have been murdered, and in June the United Nations estimated that nearly 200,000 have been internally displaced. Haitians able to gather the resources have left however they can. Many have traveled over land to the Dominican Republic or by air to South and Central America. And thousands have boarded boats bound for the beaches of Florida.

The people on the vessel with Tcherry had reasons, each as urgent as the next, for being there. There was a 31-year-old street vendor whose Port-au-Prince neighborhood had been taken over by gangs; she said that when she tried to flee north by bus, men with guns forced her and other women off the bus and raped them. A man from a district in the north said he’d been beaten more than once by thugs sent by a political boss he’d opposed; both times they threatened to kill him. A man who worked as a Vodou priest in Port-au-Prince said he left because he needed money for his sick daughter, and gangs were confiscating his wages. The pregnant woman who helped comfort the crying baby said she had been kidnapped and raped; she was released only after her family sold land and collected donations to pay for her ransom. Two women were traveling with their daughters, but Tcherry, Claire and Beana were the only young children traveling alone.

Tcherry sat on the deck of a Coast Guard cutter called the Manowar along with the rest of the group, exhausted, scared and confused. Nobody had explained to him what would happen next. Crew members in blue uniforms finally gave them food, small plates of rice and beans, and began to search their belongings and run their photos and fingerprints through federal immigration and criminal databases. Tcherry and the sisters followed the orders of a crew member with blond hair, cut like the soldiers in movies Tcherry had seen, to sit in the shaded spot under the stairs to the bridge.

On the stern of the cutter, a man in his early 30s named Peterson sat watching the children. He had crossed paths with them weeks earlier in one of the houses; seeing they were hungry, he had brought them extra slices of bread and even cut Tcherry’s hair. Claire reminded him of his own young daughter in Haiti. Peterson had not wanted to leave his child, but gangs had recently taken control of roadways not far from his home in the coastal city of Saint-Marc. He had not earned a decent wage for many months, not since he lost his job as a driver at a missionary organization. He had decided to leave for the United States so he could send money back to Haiti for his daughter, who remained behind with her mother.

Now it occurred to Peterson that his connection to Tcherry and the girls could work to his advantage. Surely the Coast Guard wouldn’t return children to Haiti, he thought. Surely they wouldn’t separate a family. “I thought that there might be an opportunity for me to get to the U.S.,” he told me. He approached Tcherry, Claire and Beana and told them they should tell the crew he was their uncle.

Peterson’s small kindness in the smuggler’s house had given Tcherry reason to trust him. When it came time for the blond-haired crew member, Petty Officer Timothy James, to interview the children, Peterson stood close behind. With the help of another Haitian man who spoke some English, Peterson told James that he was their uncle. James asked the children if it was true. Tcherry and Claire, both timid, their eyes lowered, said it was. Beana was too young to understand. James handed her a brown teddy bear, which the crew of the Manowar keeps on board because of the growing number of children they detain, and sent the children back to the stern.

But no more than a couple of hours later, Peterson changed his mind. He’d noticed that the pregnant woman had been evaluated by Florida EMTs, and he moved over to offer her a deal: If she would tell the crew he was her husband and let him join her if they brought her to land, his brother in Florida, who already paid $6,000 for his place on this boat, would make sure she was compensated. “I helped her understand that that is something she could profit from,” he says. The woman agreed, and Peterson, who now needed to tell the truth about the children, divulged to a crew member that he was not their uncle. “I was just trying to help if I could,” he said.

James crouched down beside the children again and told them not to lie. “Why did you leave your home to go to the United States,” he read off a questionnaire. “To go to my parents,” Tcherry replied. To Tcherry, the questions seemed like a good sign. He was unsure whether he could trust these crew members after the officer on the sheriff boat pointed a long gun at them the night before. “I thought they were going to shoot me,” Tcherry says. But James calmly directed the children to sit in the one shaded place on the boat, and gave them cookies and slices of apple. “He was nice,” Tcherry says — the nicest anyone had been since Peterson brought them bread in the house.

James kept reading the form. “What will happen when you get there?” he asked. Tcherry looked up. He latched onto the words “when you get there” and took them as a promise. He asked James when they would be on land. James said the same thing he told everyone on the boat: that the decision was not up to him, that he was just doing his job. Tcherry was convinced James would send him and Claire and Beana to their mothers. He thought of the story his mother had told him about his father’s murder, his body in a ditch by the road, and of his last memory of Haiti, when he passed through a gang checkpoint on the way to the airport. “I saw bandits approaching toward us, and he had a gun pulled,” Tcherry told me. “My heart started beating fast, and I thought he was going to shoot.” He was overwhelmed with relief that he would never have to go back there.

A boat came to bring someone to land. But it was not there to pick up Tcherry or the other children. A Coast Guard medical officer had reviewed the pregnant woman’s vitals and made a decision that because she “may go into labor at any moment,” she would be brought to a hospital in Palm Beach County accompanied by U.S. Customs and Border Protection. Before she was taken away, Peterson said the woman told him she would not claim to be married to him after all. She didn’t want a stranger on her baby’s birth certificate. She offered to say she was his cousin. “I knew that being the cousin would not be enough,” Peterson recalls, “and I have to say that I lost hope.”

The pregnant woman disappeared on a small boat toward land. Those left on the stern began to talk among themselves, asking why the baby, who had barely stopped crying, and the other children had been left aboard the cutter. They said they could not keep going like this, eating only small portions of scarcely cooked and saltless rice and beans, unable to bathe and forced to urinate and defecate in a toilet seat attached to a metal box with a tube off the side of the open deck. They decided they would rise in unison and protest, and they passed the word from one to the next. At around 9 p.m., dozens of people began to yell toward the bridge demanding interpreters, lawyers or just to know what would become of them. From the bow where he stood, James heard faint yelling, and then the voice of the officer in charge over the loudspeaker. “They’re starting an uprising on the fantail,” he said. “I need you back there.”

Timothy James came from a conservative family in a conservative little town in the mountains of North Carolina. He and his wife held handguns aloft in their wedding photos, and his first job after dropping out of college was as a sheriff’s deputy at the jail. James joined the Coast Guard in 2015. “My main goal,” he told me, “was to chase down drug runners and catch migrants” — two groups that were more or less the same, as far as he understood.

James has been in the Coast Guard since 2015. (Seth Wessler/ProPublica)

He’d been on the job no more than a few weeks before his expectations were upended. “I had no idea what I was talking about,” he told me. There was much less “running and gunning, catching bad guys” than he’d anticipated. Instead, the people he detained would tell him their stories, sometimes with the help of Google Translate on his phone, about violence and deprivation like he had never contemplated. People described what it was like to live on $12 a month. There were children and grandmothers who could have been his own, and young men not so unlike him. They were not trying to infiltrate the country as he’d thought. They were running because “they didn’t have another option,” he says.

James and his colleagues learned the lengths people would go to try to get to land. Since last fall, people detained on cutters have pulled jagged metal cotter pins, bolts and screws from the rigging and swallowed them, apparently trying to cause such severe injury that they’d be taken to a hospital. Last August, near the Florida Keys, three Cuban men were reported to the Coast Guard by a passing towboat operator; most likely fearing they would be brought back to Cuba, they stabbed and slashed their legs with blades and were found in puddles of blood. In January, a man plunged a five-inch buck-style knife that he’d carried onto a cutter into the side of his torso and slashed it down his rib cage. The crew taped the knife to the wound to stop him from bleeding out as he fell unconscious. Most of these people were delivered to Customs and Border Protection and rushed to hospitals on land, where they probably intended to claim asylum. By the time James began working as operations officer on the Manowar last summer, he and other crew members started every leg at sea by scouring the decks for anything that people might use to harm themselves. (According to a DHS spokesperson, “medical evacuations do not mean that migrants have a greater chance of remaining in the United States.”)

People detained on cutters have in rare cases threatened to harm Coast Guard members or others they’re traveling with. In January, a group the Coast Guard detained pushed crew members and locked arms to stop their removal to another cutter, according to an internal record. That same month, a group of Haitians held children over the side of a boat, “threatening to throw them overboard and set them on fire” if the Coast Guard came closer. Weeks later, a group of Cubans brandished poles with nails hammered into them and tried to attack an approaching Coast Guard boat. Conflicts between crew and those they detain have escalated to the point that Coast Guard members have shot people with pepper balls and subdued others with stun maneuvers.

James tensed as he heard the order over the loudspeaker. He thought of the crowd-control techniques he’d learned to immobilize someone, and stepped down the side walkway toward the stern. In front of him were dozens of angry men and a few women, yelling in Haitian Creole. James hesitated and then walked forcefully up to the group, his hands pulled into his sides as if he were ready to throw a punch. Instead, he took a knee. He gestured to the men around him to come join him. He spoke into a cellphone in English, and on the screen he showed them the Google Translate app: “You’ve got to tell everybody to calm down,” it read in Creole. “I can’t help you if I don’t know what’s going on.”

Before they could respond, five other crew members came down the stairs, plastic zip ties and batons hanging from their belts. Tcherry was sitting under the stairs, beside Claire and Beana, who had not let go of the teddy bear. “Shut up, shut up,” one of the crew told the protesters as he stepped in front of Tcherry. “One of them said he was going to pepper-spray their eyes and handcuff them,” Tcherry says. James told his colleagues to wait. The yelling in English and Creole grew louder. A man to Tcherry’s left began to scream and roll on the ground, and then he rolled partway under the handrail. A crew member grabbed the man by the back of the pants and hauled him up. James secured his wrist to a post on the deck. “Nobody’s dying on my boat today,” James said.

Above Tcherry, another crew member stepped onto the landing at the top of the stairs. He held a shotgun and cocked it. James claims that the gun was not loaded, but the threat of violence had its intended effect. The protesters stepped back and went quiet.

James kept speaking into the phone. “What do you want?” he asked the men.

“If we go back, we’re dead,” one man replied. They said they could not endure being on the boat much longer.

“If it were up to me, we’d be taking you to land,” James said. “But it is not up to us.” There was a process to seek protection, he told them. “But what you’re doing now is not that process.”

Coast Guard crews do not decide who will be offered protection and who will be sent back. Their responsibility is only to document what the agency calls “manifestation of fear” (MOF) claims. The Coast Guard instructs them to make note of such claims only when people proactively assert them or when they observe people exhibiting signs of fear, such as shaking or crying. They are not supposed to ask. That may help explain why the agency has logged only 1,900 claims from more than 27,000 people detained in this region between July 2021 and September 2023. Fewer than 300 of those came from Haitians, even though they make up about a third of people held on cutters. Officials in the Coast Guard and in U.S. Citizenship and Immigration Services told me that Haitians face a systemic disadvantage in making a successful claim for protection: Almost no one working on Coast Guard boats can speak or understand Creole. (The Coast Guard told me it has access to contracted Creole interpreters aboard cutters.)

Regardless of the person’s nationality, the process is nearly always a dead end. Each person who makes a claim for protection is supposed to be referred to a U.S. Citizenship and Immigration Services officer, who conducts a “credible fear” screening by phone or in person on a cutter. Between July 2021 and early September 2023, USCIS approved about 60 of the approximately 1,900 claims — around 3%. By contrast, about 60% of asylum applicants on land passed a credible-fear screening over roughly the same period. Unlike on land, people who are denied on ships have no access to courts or lawyers to appeal the decision. And the few who are approved are not sent to the United States at all. Should they choose to proceed with their claims, they are delivered to an immigration holding facility at the U.S. naval base at Guantánamo Bay, where they are evaluated again. They’re told they should be prepared to wait for two years or more, until another country agrees to take them as refugees. Only 36 of the people with approved claims agreed to be sent to Guantánamo. The State Department says there are currently no unaccompanied minors held at the Migrant Operations Center at Guantánamo, but a recent federal contract document says that the facility is prepared to accept them.

A Haitian coast guard station in Cap-Haïtien where repatriated Haitians are returned from sea (Octavio Jones for ProPublica)

The Manowar crew had been tasked by the local Coast Guard office with logging any requests for protection. But the night after the protest had been too chaotic and exhausting for them to do so. In the morning, a larger cutter with more supplies arrived. The people detained on the Manowar would be transferred to that boat. Before they departed, James told them that anyone who intended to seek protection should seek help from the crew on the next boat. “Tell them, ‘I’m in fear for my life,’ just like you told me,” he said. “You tell whoever is processing you that specific thing.”

But subsequent crews logged no such claims, according to records I obtained. One man told me that, in response to his plea for protection, an officer on the next boat wrote a note on a piece of paper, but nobody ever followed up. Another said that an officer told him their claims would be heard later. But there were no more interviews. “We had no opportunity,” a woman in the group says. When I asked the Coast Guard about this, a spokesperson told me the agency meticulously documents all claims. “Since we do not have a record of any of those migrants communicating that they feared for their lives if returned to Haiti, I cannot say that they made MOF claims while aboard,” he said.

Tcherry fell asleep on the larger cutter and woke at around dawn to commotion. He saw an EMT pressing on the chest of a middle-aged woman who lay several yards away from him. She had been moaning in pain the night before. The crew member keeping watch had found her dead, her nose and mouth covered in blood. Another Haitian woman began to sing a hymn as the EMT performing CPR cried. A small boat took the woman’s body away and then returned for another man who had been complaining of pain and could not urinate. “I thought they would take us to land after the woman had died,” Tcherry says. “I thought they would let us go.” But that afternoon, he was transferred to yet another cutter that pulled away from Florida and into the high seas. Tcherry finally understood he was being sent back.

The Coast Guard was first deployed as a maritime border-patrol agency to stop an earlier surge of migration from Haiti. In 1981, President Ronald Reagan made a deal with Jean-Claude Duvalier, the Haitian dictator, that allowed the Coast Guard to stop and board Haitian boats and deliver those detained directly back to Haiti. They would be processed on Coast Guard cutters, far from lawyers who could review their cases. The order, advocates argued at the time, undermined U.N. refugee protections and a U.S. refugee-and-asylum law that Congress passed just the year before. “This effort to push borders into the world’s oceans was new, and it marked a perverse paradigm shift,” Jeffrey Kahn, a legal scholar at the University of California, Davis, wrote recently.

A decade after the Reagan agreement, as Haitians again departed en masse following a military coup, the George H.W. Bush administration further buttressed the sea wall. Bush signed an order that said federal agencies had no obligation to consider asylum claims from Haitians caught in international waters, no matter the evidence of danger or persecution. Lawyers and activists protested, calling the maritime regime a wholesale abdication of human rights doctrine. But the Bush order still stands. By the mid-1990s, its reach expanded to nearly anyone of any nationality caught in the sea, whether out in international waters or a couple of hundred feet from the beach.

Pushing migrants and refugees away from the land borders to avoid obligations under law has now become common practice. In the United States, consecutive policies under Presidents Barack Obama, Donald Trump and Joe Biden have attempted to cast whole swaths of the land south of the border as a legal no-man’s land like the ocean. They have outsourced deterrence, detention and deportation to Mexico and Central America. Trump and Biden have sought to bar people from seeking asylum if they don’t first try to apply for protection in countries they pass through on their way to the United States. Europe, for its part, has pushed people coming by boat through the Mediterranean back to North African shores, where countries have imposed brutal regimes of deterrence.

None of those measures have prevented the latest wave of migration from the Caribbean. In January, amid a generational spike in Haitians and Cubans held on their cutters, the Coast Guard acknowledged that crew members were reaching a breaking point. “We are in extremis,” a senior official wrote to colleagues in a widely circulated internal email in January. “I know you and your teams are pushed beyond limits.” The head of the Coast Guard for the eastern half of the United States, Vice Adm. Kevin Lunday, wrote in February to colleagues that two outside experts had told him their crews were under extreme stress similar to the levels experienced in “sustained combat operations.”

Coast Guard members told me they had become accustomed to retrieving corpses from capsized boats, worn down by water or gnawed on by sharks. It was not uncommon to walk down a stairway or into a bunk room and come upon a crew member sobbing. Crew members waited months for mental health appointments, and the agency was talking openly about suicide prevention. “I don’t see how the current level of operations is sustainable,” Capt. Chris Cederholm, the commander of U.S. Coast Guard Sector Miami, wrote to colleagues, “without the breaking of several of our people.” Some were struggling with what one former crew member called a “moral dilemma,” because they had begun to understand that the job required them to inflict suffering on others. “We hear their stories, people who say they’d rather we shoot them right here than send them back to what they’re running from,” one Coast Guard member says. “And then we send them all back.”

Tim James told me he tried to take his mind off the job by lifting weights and frequenting a cigar bar where service members and cops go to talk about “the suck,” but he soon realized he needed more than weights or whiskey to reckon with the mounting stress, even despair. “I go home, and I feel guilty,” he told me, “because I don’t have to worry about somebody kicking in my front door, you know, I don’t have to worry about the military roaming the streets.” He sought mental health support from a new “resiliency support team” the agency created. But James had not been able to shake the memories of the children he detained, particularly one 7-year-old Haitian girl with small braids. She’d been wearing shorts and a tank top, her feet were bare and she smiled at James whenever their eyes caught. “My mom is dead,” she told James with the help of an older child who spoke a little English. “I want to go to my auntie in Miami.”

In the girl’s belongings the crew found a piece of paper with a phone number she said was her aunt’s. After James interviewed her, they sent her unaccompanied-minor questionnaire to the district office in Florida, and they waited for instructions on what to do with her. Out on the deck, James couldn’t help hoping she’d be taken to shore, to her aunt. But late in the morning the next day, the crew received a list from an office in Washington, D.C., of the people to be sent back. The girl was on the list. James cried on the return trip to port. One of his own daughters was about the girl’s age. “I can’t imagine sending my 7-year-old little kid across an ocean that is unforgiving,” James told me, nearly in tears. “I can’t imagine what my life would be like to have to do that.”

That was just weeks before he encountered Tcherry, Claire and Beana. So when Peterson admitted the children were alone, the news came as a blow. “It’s a pretty hard hit when you think the kids have somebody and then it turns out that they really don’t,” James told me. He could see that Tcherry thought he would be making it to shore. “To see the hope on his face and then have to kind of turn around and destroy that is tough,” James told me. He never learns what becomes of the people he transfers off his cutter: that the pregnant woman gave birth in a hospital to a healthy boy and has an asylum case pending; that the body of Guerline Tulus, the woman who died on the cutter of what the medical examiner concluded was an embolism, remains in a Miami morgue, and that authorities have not identified any next of kin. He does not know what happened to the three children after they were sent back, but many months later, he says, he still wonders about them.

Tcherry followed Claire and Beana up a rickety ramp in the port of Cap-Haïtien, Haiti, past a seized blue and yellow cargo ship into the Haitian Coast Guard station. The ground was littered with plastic U.S. Coast Guard bracelets that previous groups of people had pulled off and thrown to the ground. Officials from the Haitian child-protection authority and the U.N.’s International Organization for Migration watched as Tcherry and the rest of the group disembarked. “They looked scared and they said they were hungry,” a veteran official at IBESR, the Haitian child-protection agency, who was working at the port that day told me. “As a Haitian, I feel humiliated,” he says, “but we can’t really do anything about it. We’ve resigned ourselves.” To him, the people the Americans offloaded in Haiti always looked half dead. “It seems to me that when those children fall in their hands, they should know how to treat them. But that’s not the case.”

A discarded bracelet lies on the ground just outside of a Haitian coast guard station in Cap-Haitien on March 16. (Octavio Jones for ProPublica)

Tcherry’s throat hurt and his legs were weak. He had never felt such tiredness. He ate as much as he could from the warm plate of food the UN provided. Slumped over on a bench, he waited for his turn to use the shower in a white and blue wash shed on the edge of a fenced lot behind the Haitian Coast Guard station. The officials brought several people to a hospital and got to work figuring out what to do with the unaccompanied children.

The U.S. Coast Guard and State Department say that the children they send back are transferred into the hands of local authorities responsible for the care of children. “When we have custodial protection of those children, we want to make sure that the necessary steps are taken,” Lt. Cmdr. John Beal, a Coast Guard spokesperson, told me, “to ensure that when we repatriate those migrants, they don’t end up in some nefarious actor’s custody or something.” But no U.S. agency would explain the actual precautions the U.S. government takes to keep children from ending up in the wrong hands, beyond initial screenings aboard cutters. Last year, the Coast Guard stopped tracking the “reception agency” in each country, because according to the Department of Homeland Security, the U.S. government has set up rules establishing which agencies take these children and no longer needs to track them on a case-by-case basis.

Haitian child-protection officials in Cap-Haïtien say their agency always finds relatives to take children, though sometimes after weeks or months. But the official with one of the other agencies involved in the processing of returned and deported Haitians at the Cap-Haïtien port said this claim is simply not true. The official said that children have departed the port with adults and with older children without any agency confirming they have an actual relationship or connection. “This is a serious concern in terms of trafficking,” the official told me. IBESR said those claims were unfounded. “According to the procedure, every child who leaves the port is accompanied by someone,” the IBESR official said, adding that when possible, the agency follows up with families to make sure children arrive safely. But the agency acknowledged there are limits to the support it can provide because of a lack of resources.

Peterson, who was held on the Manowar, in Cap-Haïtien in March (Octavio Jones for ProPublica)

Before they left the cutter, Peterson told Tcherry and the sisters that he would take care of them until they could contact their parents, who would figure out where they needed to go. Tcherry agreed. Peterson later told me he’d thought carefully about whether he wanted to get involved in the kids’ affairs once they were off the boat. He’d talked to other adults onboard, and they all agreed that someone needed to step up, that the Haitian government was surely not to be trusted. “If I didn’t do it,” Peterson says, “they would remain with the Haitian state, with all the risks that they could’ve faced, including kidnapping.”

Peterson told the child-protection agency that he was the children’s guardian. The officials said they would need to contact the parents to confirm, so Peterson did the only thing he could think to do: He called the man who had been his conduit to the boat out of the Bahamas. The man sent him photos of the children’s IDs and put Peterson in touch with Claire and Beana’s mother, Inose Jean, in Michigan. She screamed and cried with relief upon learning her daughters were alive. Peterson explained that he’d taken care of the girls at sea and he asked her what to do with them. She said she would call back. Two hours later, she instructed Peterson to take the girls to her friend’s house in Cap-Haïtien.

But Peterson still had no number for Tcherry’s mother. So he told the officials that Tcherry was Claire and Beana’s cousin, and that he’d gotten the image of Tcherry’s ID from Inose Jean. At dusk, Peterson walked with the three children through the metal gate of the Haitian Coast Guard station, at once incensed and relieved that he’d been allowed to take them. “The Haitian authorities didn’t talk to the children’s mothers,” Peterson says. “There was not enough evidence to actually prove I was who I was, or to prove a relationship.” They took a taxi to Jean’s friend’s house, and Claire, who recognized the woman from years earlier, rushed into her arms.

The woman agreed to let Tcherry spend a night there. Peterson went to a cheap hotel with spotty electricity and a dirty pool. The man in the Bahamas finally sent Peterson Tcherry’s mother’s number. “I am the person who stood up to care for Tcherry on the boat,” Peterson told LaFortune. She collapsed onto the bed in her room, the only piece of furniture in the Toronto apartment she shared with her husband and her daughter. She had spent the last six days in a terrified daze, calling the people in the Bahamas she’d paid, begging for any news and fighting images in her mind of her son sinking into the sea. The next morning, after Tcherry woke, Peterson called LaFortune again. Tcherry looked weak and his voice was frail and hoarse. “When will I be with you, Mommy?” he asked.

Stephania Lafortune’s husband holds a cellphone as she talks with her son Tcherry in April. (Octavio Jones for ProPublica)

LaFortune did not for a moment consider trying to put Tcherry on another boat. She told him she would wait until she got asylum in Canada and send for him legally. But Haiti was even more dangerous for Tcherry than when he’d left. One man who was detained with Tcherry, whom I interviewed in Haiti two weeks after he returned there, said he feared he would be killed if he left Cap-Haïtien for his home in Port-au-Prince. After he ran through the roughly $50 the U.N. agency gave each of the returnees, which he used for a hotel, he did go back and was attacked on the street as he traveled to a hospital, he said, to get medicine for his daughter. He sent me photographs of gashes on his body. A second man sent me photos of a deep head wound that he suffered during an attack by the very armed men he had said he was running from. Another woman from the boat who told me she fled because she was raped says she is now “in hiding” in Port-au-Prince, living with relatives and her daughter, whom she does not allow to leave the house.

Others on the boat have been luckier. In late 2022, the Department of Homeland Security started an unusually broad new legal-immigration program that now allows Haitians and Cubans, along with Venezuelans and Nicaraguans, to apply for two-year entry permits on humanitarian grounds from their countries, rather than traveling by land or sea first. The Department of Homeland Security says that since the program began, it has processed 30,000 people a month. More than 107,000 Haitians and 57,000 Cubans have been approved for entry, including a man who was detained with Tcherry. On Oct. 18, he stepped off a plane in Fort Lauderdale with a legal entry permit. He made it just under the wire, given the timing of his interdiction in February. In late April, DHS added a caveat to the new program: Anyone stopped at sea from then on would be ineligible to apply to the parole program. The Coast Guard says the new program and the accompanying restriction have caused the numbers of Cubans and Haitians departing on boats to fall back down to their pre-2021 level. “People have a safe and lawful alternative,” Beal, the Coast Guard’s spokesperson in Florida, told me, “so they don’t feel their only option is to take to the sea.”

Tcherry rode a bus with Peterson over the mountains to Saint-Marc. In the stucco house on a quiet street where Peterson lived with his fiancée and her parents, Tcherry struggled to stop thinking about his experience at sea. “When I sleep, when I sit down, I want to cry,” Tcherry told me days after his arrival there. “They had us for five days. We couldn’t eat well, couldn’t sleep well. Couldn’t brush our teeth.” He thought of his body soaked from the sea spray, of the woman who died. Although Peterson assured him it was not true, Tcherry kept wondering if the officers had just thrown her body into the sea. “He is having nightmares about the boats,” Peterson told me a week after their arrival, “reliving the same moment again and again, and he starts crying.”

LaFortune told Tcherry that she was arranging for him to travel to his grandmother in another part of the country. But it soon became clear to her that the roads were too dangerous, spotted with gang and vigilante checkpoints guarded often by men carrying AK-47s. Peterson told LaFortune that Tcherry could stay with him as long as she needed him to. But as the weeks turned to months, Tcherry felt that Peterson began to change. He said Peterson needed money, and he was asking Tcherry’s mother to send more and more. Peterson was frequently out of the house, working odd jobs, and often could not answer LaFortune’s calls. She grew worried. When she did talk to Tcherry, he was as quiet as he was in the smuggler’s house in the Bahamas.

Stephania Lafortune, her daughter and her husband talk on the phone with Tcherry. (Octavio Jones for ProPublica)

Two months passed. LaFortune’s asylum case was denied, and she and her husband appealed. Four more months passed. LaFortune’s husband heard news that gangs were closing in on Saint-Marc. LaFortune decided that they must move Tcherry, that it was time to risk the journey on the roads. In September, she sent an old family friend to collect him. They rode on a bus through a checkpoint where the driver paid a fee to a masked man. “I saw a man holding his gun,” Tcherry says. The man made a sign that they could pass.

Tcherry arrived at a busy bus station in Port-au-Prince and looked for his grandmother. He saw her in a crowd and remembered her face, her high forehead and wide smile. “That is my grandma,” he said, again and again. His mutters turned to song. “That is my grandmother, tololo, tololo, that is my grandmother.” He sank into her arms. He held her hand as they boarded another bus and passed through another checkpoint, back to where he began.

Jason Kao contributed data reporting. Oldjy François contributed research. Alendy Almonor, Myriam Narcisse and Steven Werlin provided translation and interpretation.

by Aliyya Swaby, with research by Mollie Simon

This story mentions attempted suicide.

ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up for Dispatches, a newsletter that spotlights wrongdoing around the country, to receive our stories in your inbox every week.

One Saturday morning in September 2022, Terrence Steyer, the dean of the College of Medicine at the Medical University of South Carolina, placed an urgent call to a student. Just a year prior, the medical student, Thomas Agostini, had won first place at a university-sponsored event for his graduate research on transgender pediatric patients. He also had been featured in a video on MUSC’s website highlighting resources that support the LGBTQ+ community.

Sign up for Dispatches, a weekly ProPublica newsletter about wrongdoing in America.

Now, Agostini and his once-lauded study had set off a political firestorm. Conservative activists seized on one line in particular in the study’s summary — a parenthetical noting the youngest transgender patient to visit MUSC’s pediatric endocrinology clinic was 4 years old — and inaccurately claimed that children that young were prescribed hormones as part of a gender transition. Elon Musk amplified the false claim, tweeting, “Is it really true that four-year-olds are receiving hormone treatment?” That led federal and state lawmakers to frantically ask top MUSC leaders whether the public hospital was in fact helping young children medically transition. The hospital was not; its pediatric transgender patients did not receive hormone therapy before puberty, nor does it offer surgical options to minors.

The dean’s call went to voicemail. A person familiar with the call shared the voice message with ProPublica.

After reassuring Agostini that he had done nothing wrong and wasn’t in trouble, Steyer pressed him for more detail about his research. “I’m really getting some pressure from the state Legislature and the leadership at MUSC,” he said in the message. He asked Agostini to give him “in particular the number of people at each age that was seen and the youngest child who received gender-affirming therapy for transgender issues.” Agostini declined to comment for this story. Steyer did not respond to a request for comment, but an MUSC spokesperson told ProPublica that Steyer wanted to “ensure we had all the facts as the situation was unfolding.”

Excerpt of the Dean’s Voicemail

The day after a student’s research on pediatric transgender patients came under attack on social media, Terrence Steyer, dean of the Medical University of South Carolina’s College of Medicine, left the student a message acknowledging the pressure he was facing from lawmakers and university leaders.

(Obtained by ProPublica)

It had been three months since South Carolina’s Legislature had banned the state’s flagship medical university from using public money to provide any treatment “furthering the gender transition” of children under 16. Before and after the directive went into effect, hospital leaders told lawmakers and reporters that they didn’t use state money to care for transgender patients. And the chief of children’s and women’s care said that the ban would not affect the services the hospital offered, according to an email he sent to colleagues, which was among hundreds of MUSC emails that ProPublica obtained through a public records request.

Then came the blowback from Musk’s tweet. (Musk did not respond to an email seeking comment.)

In the months after the tweet, as conservative lawmakers and activists sought more information on the hospital’s transgender patients, MUSC employees expressed concern that hospital leaders went too far to appease lawmakers, according to emails. The emails show hospital leaders eventually buckling under the pressure and excluding doctors and other key employees from the decision-making process.

By the beginning of December, the hospital’s leaders came to an agreement that MUSC would cut off access to hormones for gender transition for minors of all ages — including 16- and 17-year-olds, which went beyond what the Legislature sought. At the time, MUSC leaders told reporters that they were no longer legally allowed to offer the care, an about-face from their initial pronouncement that the Legislature’s action would not impact regular functions. They also gave no public explanation of how providing the care to older teens could be considered illegal.

In response to ProPublica’s questions, MUSC spokesperson Carter Coyle called cutting off care for older teens an “operational decision made by hospital leadership,” but failed to elaborate. She said MUSC and its providers “took immediate steps” to comply with the state’s ban once it went into effect.

The hundreds of emails released to ProPublica do not indicate exactly why or when MUSC leaders made these decisions. But from last September through this spring, the emails show leaders painstakingly attempting to avoid the appearance of support for transgender people or LGBTQ+ causes on social media, concerned about garnering further political backlash.

In banning state funding, South Carolina lawmakers wielded one of many tools conservative-run states are using to restrict access to gender-affirming care. Over the last several years, Republican elected officials in many states have elevated anti-transgender issues in their political platforms, used misinformation about transgender people when introducing bills to restrict gender-affirming care and spent public money waging extended court battles to limit access to care for trans children and adults.

More than 20 states have passed bills that restrict care for transgender young people. Several of those laws are facing court challenges, including one in Tennessee, where opponents have petitioned the U.S. Supreme Court to take up the case. South Carolina conservatives tried and failed to get a ban passed this year and are expected to try again when the Legislature reconvenes in January. These attempts contradict the recommendations of major medical associations, which support access to gender-affirming care for transgender young people.

Even before states pass outright bans, hospitals and clinics, especially those reliant on state contributions, often bow to political pressure. In Mississippi, for example, the University of Mississippi Medical Center decided to stop providing puberty blockers and hormone therapy to trans youth months before state lawmakers banned care. Mississippi Today obtained emails showing UMMC cut off care after receiving pressure from lawmakers who were angry that the facility was providing any gender-affirming care to youth. UMMC declined to comment either to Mississippi Today or for this story.

In South Carolina, after it became clear last December that MUSC was halting transition-related care for all minors, conservative lawmakers celebrated their victory. “I went after the Medical Center of South Carolina with 19 other of my door-kicking, rock-ribbed, and South Carolina’s most Conservative legislator friends,” Republican state Rep. Thomas Beach wrote in a Facebook post. “It feels good to be a gangster.”

Some transgender youth and their families found out the care was no longer available well after the decision was made. Max, a 17-year-old transgender patient at MUSC, didn’t know until this spring that he’d be cut off from testosterone therapy after more than a year on it, time in which he’d become more confident in his body and gender. “I can’t watch myself go back in time like that,” he recalled thinking. “I was like, ‘I don’t think I’m gonna survive this.’”

In the days after Musk’s tweet, hospital staff and executives were scrambling to minimize the damage and to telegraph to the Legislature that they were not violating the ban.

“It’s been a whirlwind few days, with LOTS of cooks in the kitchen,” MUSC communications director Heather Woolwine wrote on the morning of Sept. 20 to the hospital’s director of LGBTQ+ health services. Woolwine asked him to review “the messaging that has been approved at the leadership level, after much back and forth.”

In her email, Woolwine reported that staff was checking all of the hospital’s online pages for “about 35 key terms to see if there is any other content out there that might place us in anyone’s crosshairs.” (Those terms included “affirming providers,” “questioning” and “queer.”) She acknowledged that the hospital didn’t want to “swing too far in the other direction” in responding to the threat of political retaliation. “We MUST keep respect of our patient, family and employee audiences at the forefront of any decision-making,” she wrote.

But that commitment was already faltering. By the time she sent the email, MUSC had determined that it would no longer provide hormones or puberty blockers to transgender children under 16.

The recipient of Woolwine’s email, MUSC’s first top-level employee focused exclusively on LGBTQ+ health, quickly wrote back. Chase Glenn explained that the hospital’s principal provider of gender-affirming care for transgender youth had told him about the lack of “any direct communication to her patients under 16 and their parents about the current legal reality.” One of her patients had come in the day before, he noted, only to learn that the care was no longer available.

“The patient’s mother was extremely angry and of course that’s out of concern for their child,” Glenn wrote, adding that the doctor herself “is hoping for some proactive, thoughtful, patient-centered communication that would at least make impacted patients/parents aware of the situation.”

Woolwine asked Glenn to help tackle that problem and suggested getting hospital leaders together for a discussion. But the emails over the following several months suggest that plan fell by the wayside. Woolwine didn’t respond to ProPublica’s questions. Glenn declined requests for comment.

Within days, U.S. Rep. Nancy Mace, a South Carolina Republican, posted a video on social media attacking political opponent Annie Andrews, a pediatrician at MUSC who was not connected to the endocrinology clinic. The video scrolled white block letters over a photo of Andrews: “Sex change surgery, puberty blockers, gender changing hormones for children?! That’s not protection. That’s child abuse.” Andrews took unpaid leave from her job and worked with MUSC to coordinate extra security for herself and her kids.

About a week later, MUSC leaders discouraged pediatric residents who wanted to send a letter to all hospital leaders defending Andrews against Mace’s political attacks. “They left me out on a limb,” said Andrews, who has since resigned from the hospital. “What disappointed me so deeply was their refusal to support these vulnerable youth in our community by making a statement that gender-affirming care is not child abuse.”

MUSC told ProPublica it reminded residents that state guidelines prevent public institutions from using state resources to advocate for political candidates. “If MUSC had issued a public statement it could have been interpreted as an endorsement of a candidate running for office,” Coyle said in an email.

In October, conservative politicians and activists started filing public records requests with MUSC to get the data behind Agostini’s abstract. Activists called the pediatric endocrinology clinic pretending to be parents of trans children, attempting to catch providers violating the clinic’s own stated policies regarding gender-affirming care. At least one lawmaker took to social media to threaten MUSC’s $188.9 million in state funds — 3.5% of its budget. “If MUSC is mutilating or castrating children, I won’t stop until they are stripped of public funding,” Beach, a member of the far-right Freedom Caucus, tweeted. Beach did not respond to a request for comment.

In an Oct. 5 email, MUSC leaders shared a news article about Oklahoma’s governor threatening massive budget cuts to the children’s hospital affiliated with the public hospital if it continued to offer gender-affirming care. “Could be the road we end up on,” wrote Mark Scheurer, chief of children’s and women’s care.

MUSC leaders also repeatedly pulled back on messaging related to LGBTQ+ issues, overriding the decisions of their LGBTQ+ health director. Glenn, a transgender man and longtime LGBTQ+ activist, had joined MUSC in 2021 to help the institution become a vanguard of LGBTQ+ health care in the state. By spring of 2022, Glenn had successfully organized the hospital’s first LGBTQ+ Health Equity Summit, bringing providers and students together virtually to learn about challenges in serving queer patients.

But as tension built that fall, Glenn found he had less and less power to do his job.

In November, Woolwine sent Glenn an email discouraging him from promoting a meeting that MUSC students had with the Department of Health and Human Services’ assistant secretary for health, Rachel Levine, the first openly trans person confirmed by the U.S. Senate. Several months prior, the hospital had proudly touted Levine’s appearance at the health equity summit Glenn had organized. Now, officials worried that promoting her involvement would make the hospital a target.

Glenn agreed to stand down. “I’ll note though that the fact that Admiral Levine is transgender is not the emphasis of the post,” he wrote back.

That same month, Woolwine advised a drastic edit to a social media post Glenn had helped draft to commemorate the annual Transgender Day of Remembrance, honoring “the memory of the lives lost due to acts of anti-transgender violence.” Woolwine stressed that lawmakers in the Freedom Caucus would soon be receiving information they had requested from the hospital about the state of gender-affirming care. “I have no doubt that in the week or two that follows, there’s going to be some sort of external messaging from them on transgender issues and their ‘findings,’ probably in social and in news media,” she wrote. “That post for the remembrance day, as written, may then have us looking like we are ‘firing back,’ since lives lost messaging may be interpreted as a shot across the bow.”

The resulting post barely mentioned transgender people at all.

On Dec. 1, an email from Patrick Cawley, the CEO of MUSC Health, landed in the inboxes of three of the hospital’s top leaders: “We need to update the website,” he wrote, referring to the page that described services for pediatric transgender patients. Cawley followed up with another email the next day, giving his preferred edits in red text. To the preexisting sentence that read, “We do not offer surgical treatments,” he added “or gender affirming hormonal interventions.” David Zaas, then the CEO of the Charleston division of MUSC Health, and Scheurer quickly agreed to the change.

Though MUSC Health’s CEO had been ready to make the change public on the website, the decision to cut off the care had not been communicated to Glenn. He asked MUSC leaders about the edit in an email the next day: “Can you confirm for me if this is accurate?” Cawley, Zaas and Scheurer did not respond to ProPublica’s requests for comment.

For some families, the news that their child’s care would be cut off came not from their MUSC provider but from media coverage, including a December Post and Courier article. As the information reached the public in mid-December, Glenn emailed MUSC leaders yet again to push them to communicate with patients. “After the news pieces began airing, I started receiving texts and emails and panicked Facebook messages from concerned parents who wanted to know exactly what this was going to mean for them and their children,” Glenn wrote. “Frankly, I’m frustrated that this communication is indirectly falling on me and embarrassed that we have left many of these patients scared about how they’re going to be able to continue this treatment.”

In response to ProPublica’s questions, MUSC spokesperson Montez Seabrook wrote that the hospital chose to have its providers reach out directly to affected patients during regularly scheduled visits instead of sending out a broader message to trans youth and their families: “This was to ensure that patients and families had an opportunity to discuss any concerns directly with their providers.” He also said, “This personalized approach took a little time to complete.”

In early January, Glenn resigned. “I strongly object to a number of actions recently taken by MUSC leadership that have directly impacted LBGTQ+ individuals’ access to health care services, health care providers’ access to educational resources specific to LGBTQ+ care and my ability to fulfill my responsibilities,” he wrote in a letter explaining his decision.

“[MUSC’s leaders] have created a hostile environment where it will no longer be possible for me, in good conscience, to represent MUSC as a leader in LGBTQ+ care.”

—Chase Glenn, in his letter resigning from his role as LGBTQ+ health services director

He criticized leaders for removing pages of LGBTQ+ resources from MUSC’s website and “unilaterally” postponing the next LGBTQ+ Health Equity Summit just three months before it was going to be held. He also cited leadership’s decision to voluntarily stop providing hormone therapy for 16- and 17-year-olds as one of the reasons for his resignation.

“These decisions and others have created a hostile environment where it will no longer be possible for me, in good conscience, to represent MUSC as a leader in LGBTQ+ care in our state and within the LGBTQ+ community– my own community,” he wrote. “I wish the MUSC all the best in the future and hope that there will come a time when they will meaningfully renew their commitment to being a leader in LGBTQ+ health care.”

When asked about its response to the letter, MUSC told ProPublica it could not comment on a personnel matter.

As the news of Glenn’s resignation spread through the hospital, at least one top employee shared his frustration.

“This is, in my opinion, both terribly sad and entirely predictable,” MUSC pediatrician and Chief Quality Officer Dr. David Bundy emailed other members of the Charleston division’s leadership team. Bundy’s son Eli, who is transgender and attends college out of state, has frequently addressed the Legislature to oppose anti-transgender bills. “MUSC needs to take a long look in the mirror and ask ourselves what our values are.” Bundy declined to comment.

This March, months after MUSC cut off hormone therapy for young transgender people, pediatric endocrinologist Dr. Deborah Bowlby asked Scheurer and the pediatrics chair for guidance on how to communicate the decision to patients. Bowlby was the main doctor who had been treating transgender youth who experienced gender dysphoria, and she repeated concerns she had shared with Glenn the previous fall.

“I have been told that the current policy is that the pediatric endocrinology clinic is not to be providing endocrine care regarding gender transition for pediatric patients. I want to abide by MUSC policies and am not comfortable seeing these patients,” she wrote. “Are you going to arrange to have these patients taken off my schedule and advise them that we are not providing endocrine care regarding gender transition for pediatric patients?”

Scheurer advised Bowlby to refer patients who wanted gender-affirming care to the adolescent medicine providers, who would help coordinate further care. Bowlby was not the only one who was confused. That week, an employee in the psychiatry department emailed colleagues to ask how they were notifying parents and families that they could no longer provide gender-affirming hormone therapy for minors.

At the time MUSC doctors were pleading with leaders for guidance, 17-year-old Max was unaware that MUSC had cut off his care. (Because Max is a minor, ProPublica is protecting his identity by using just his first name and not identifying his parents.) Max, who’d been treated by Bowlby since 2021, had little reason to think anything was amiss when he’d gone in for a follow-up visit in February 2023. His medical notes from that visit reference his preexisting testosterone prescription, as well as his history of gender dysphoria and suicidal ideation. Bowlby did not inform Max or his parents that MUSC had decided to end his hormone therapy.

In late March, Max’s father reached out to Bowlby for a testosterone prescription refill. She didn’t respond. Confused and a little concerned, Max’s dad called the endocrinology clinic’s office and was told by an administrative staff member that his son could no longer get hormone therapy at MUSC.

If you or someone you know needs help, call or text the National Suicide Prevention Lifeline: 988

For Max and his parents, the journey to find the right doctor and medical care was hard-fought. Even when Max was in elementary school, the idea of going through a cisgender girl’s puberty — getting a period and wearing a bra — felt terrifying. At the beginning of high school, Max’s parents took him to a therapist to help with his mental health struggles. The therapist recommended Prozac to address his anxiety and depression. It didn’t work. Max’s anxiety spiked and his gender dysphoria worsened. He began experiencing thoughts of suicide.

In May 2021, he tried to kill himself and was committed to inpatient psychiatric care at MUSC. Once he was released, Max and his parents decided he should see an MUSC pediatric endocrinologist so he could finally start hormone replacement therapy. He immediately trusted Bowlby, who seemed much more knowledgeable about transgender health than some of his previous doctors. Over the course of several months, she guided the family through the process of assessing whether Max was a good candidate for testosterone, patiently explaining the steps she would take to understand his dysphoria.

For Max, getting on testosterone in early 2022 sparked a second puberty at age 16. His voice cracked, he felt hungrier, his skin broke out in acne. “But I felt happier,” Max told ProPublica. “I just mentally felt more relieved, like I’m excited to continue transitioning and things are feeling right.”

Max said he believed that Bowlby would advocate for him. He remembers her referencing the bans on gender-affirming care that were starting to pass in conservative states and reassuring him that she would never stop providing treatment.

When Bowlby abruptly stopped responding to their messages after Max had been on testosterone for more than a year, Max’s dad wrote a second message to Bowlby in the patient portal: “You know how amazingly supportive and grateful we are for your advocacy over the years in these matters, while trans kids (and parents) are under attack. I just wish the office had told us that your office was no longer prescribing testosterone. Now we are a bit behind the 8 ball trying to remedy this.” Bowlby never responded, according to Max’s dad. She declined to be interviewed for this story.

“I’ve been trying to reach everyone and make sure they have a plan for care but it’s been very slow going.”

—Dr. Elizabeth Wallis, of efforts to communicate changes to MUSC’s policies regarding pediatric transgender patients

MUSC staff recommended Max’s parents connect with Dr. Elizabeth Wallis, the adolescent medicine provider who had volunteered to help coordinate care. “I’ve been trying to reach everyone and make sure they have a plan for care but it’s been very slow going,” Wallis wrote to Max’s dad in response to his email. She apologized for the “colossal mess” and promised to help them find a solution. But Max’s dad said that didn’t work out either. (Wallis did not respond to ProPublica’s requests for comment.)

After about a month, Max’s dad found a Facebook group for parents of trans young people in South Carolina, who suggested the family try Planned Parenthood. Max got a renewed prescription soon after.

Now back on testosterone, Max looks forward to turning 18 early next year, which will help ensure he can access gender-affirming care. South Carolina considered a bill earlier this year that would ban medical transitions for anyone younger than 21, but it didn’t go anywhere.

Max and his father still have questions: Why did MUSC cut off Max’s hormone therapy when the state Legislature didn’t even mention 16- and 17-year-olds in its ban? Couldn’t MUSC have prevented the chaos by communicating better with its patients? Why did Bowlby disappear instead of warning them?

“Knowing what happened would be nice,” Max’s dad said. “We figured it out — but we had to figure it out.”

Coyle, the university spokesperson, told ProPublica that MUSC did communicate the change to its doctors. “Physicians are notified of regulatory changes regarding medicine in various ways, including department leadership discussions, discussions with colleagues, information from specialty societies, and mainstream media,” Coyle wrote.

But as recently as May, some MUSC providers were unsure about the policy.

On the afternoon of May 23, after a conversation with her department chairperson, an OB-GYN sent an email to a physician’s assistant in family medicine, an adult endocrinologist and Bowlby. The subject line was “Question about transcare for teens.” She had only just learned that MUSC doctors were “restricted from prescribing transgender affirming care for people under 18yo,” she wrote. “Is this the case? How are y’all navigating that?”

“I have referred to Deb in the past,” the physician’s assistant responded, referring to Bowlby, “but MUSC has made some changes.”

by ProPublica, The Texas Tribune and FRONTLINE

ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive our biggest stories as soon as they’re published.

This article is produced in collaboration with The Texas Tribune and the PBS series FRONTLINE. Sign up for newsletters from The Texas Tribune and FRONTLINE.

When mass shootings devastate communities, investigators often set out to learn what happened by interviewing a wide array of people. What’s made public, if anything, rarely details the intimate, candid and emotional responses of the survivors and the first responders.

Today, ProPublica, The Texas Tribune and the PBS series FRONTLINE are jointly publishing an in-depth examination of the response to the mass shooting at Robb Elementary School in Uvalde, Texas, using a trove of raw materials from a state investigation whose findings have yet to be released.

The records include investigative interviews with officers, emergency responders, teachers and children, as well as video footage, audio recordings and photographs. Using these records, we reconstructed the day’s events, showing in painstaking detail how law enforcement’s lack of preparation contributed to delays in confronting the shooter on May 24, 2022. Nineteen children and two teachers died that day. Dozens of others will forever contend with scars, both physical and emotional.

Uvalde is one of at least 120 mass shootings since the 1999 Columbine High School massacre.

Experiences with other mass shootings have taught us that it can take years for communities to learn what occurred. In October, nearly two years after a shooting at Oxford High School in Michigan that killed four people, an independent consulting firm issued a report that found multiple failures. In other cases, such as the 2018 shooting at Santa Fe High School in Texas, where a gunman killed 10 people, families are still waiting.

Many in Uvalde have expressed frustration that they have not had access to more information about the shooting more than a year and a half later.

ProPublica and the Tribune are part of a coalition of news organizations that sued the Department of Public Safety, the agency investigating the law enforcement response, for records that it has declined to release. Last week, a state district judge ordered DPS to release records related to the shooting. The agency has said it plans to appeal the decision.

The journalism that ProPublica, the Tribune and FRONTLINE are publishing today will fill some of the void for those who want to better understand what happened and hopefully provide needed insights — and very likely raise important questions.

The process of putting together the documentary and investigative article involved significant work to understand the contents of the trove.

Reporters from the three news organizations reviewed hundreds of hours of body camera footage and investigative interviews, including more than 150 given by local, state and federal officers who responded to the shooting. They evaluated radio and dispatch communications and listened to the accounts of teachers, students and medics at the school that day. They also conducted separate interviews with teachers, students and parents, some of whom are featured in the article and the film.

A key part of the analysis required putting body camera footage on a timeline to try to establish an accurate chronology of the response. In many instances, the burned-in timecode on the footage was inaccurate. So, the reporters and editors used the sources in the trove — real-time surveillance footage, 911 and radio call logs, and a DPS spreadsheet — as well as audio and visual cues within the footage — such as sounds of gunfire, simultaneous actions and words spoken, images of cellphones with the actual time on screen — to help align with the actual time. As a result, in some instances, the time stamps in the original body camera footage are blurred in the documentary and in video clips in the article to avoid confusion.

Reporters also examined training across the country, finding that state laws require more instruction to prepare students and teachers for mass shootings than they do for the officers expected to protect them.

They conducted two separate 50-state analyses to determine how much preparation each state’s laws require for children and teachers compared with law enforcement officers. They also filed public information requests with the Texas Commission on Law Enforcement for the individual training records of more than 160 state and local officers who responded to Robb Elementary that day. Reporters used information provided by the officers in their interviews and body camera footage to determine how many arrived before officers killed the shooter. The newsrooms shared findings of officers’ training with law enforcement agencies, allowing them to respond with any additional information not reflected in the records. Most did not.

The news organizations sent letters to officers named in the article, outlining findings and offering them the opportunity to respond. Officers featured in the film also received letters. None agreed to speak with the reporters on the record. Some have previously defended their actions, including former Uvalde school district police chief Pete Arredondo, who did so in a June 2022 interview with the Tribune and in testimony before a state legislative committee.

Any time a child is named or a photograph of a child is included, we have obtained consent from at least one parent as a courtesy. That’s the case with a photograph showing children’s faces before the shooting, audio of investigative interviews with students and a 911 call with one of the children. All of the children who are named or shown survived.

We are also publishing a short video that shows Khloie Torres on a bus after the shooting. Her hair and clothing have blood on them that is not her own, and she is crying as she talks with a state trooper. The video, which includes a content warning, is being published with parental consent. Though it is difficult to watch, we believe it shows the human consequences of this mass shooting, as well as Khloie’s efforts to get help for her classmates.

Separately, journalists contacted the families of victims not mentioned in the article or the film to notify them that we would publish video and audio as part of our reporting.

We understand that detailed accounts of the day, including audio and video recordings, can be emotionally challenging.

The aim was to present enough information to help the public more fully grasp what happened while protecting the privacy of the children and teachers as much as possible. We believe the story and documentary offer a deeper understanding of these tragic events.

by Lomi Kriel and Lexi Churchill, ProPublica and The Texas Tribune, and Jinitzail Hernández, The Texas Tribune

The children hid. They dropped to the floor, crouching under desks and countertops, far from the windows. They lined up against the walls, avoiding the elementary school doors that separated them from a mass shooter about a decade older than them. Some held up the blunted scissors that they often used to cut shapes as they prepared to fight. A few grabbed bloodied phones and dialed 911. And as students across the country have been instructed for years, they remained quiet, impossibly quiet. At times, they hushed classmates who screamed in agony from the bullets that tore through their small bodies.

Then, they waited. Waited for the adults, whom they could hear in the hallway. If they were just patient, those adults would save them.

Hundreds of law enforcement officers descended on Robb Elementary School in Uvalde, Texas, that day in May 2022. They, too, waited. They waited for someone, anyone, to tell them what to do. They waited for the right keys and specialized equipment to open doors. They waited out of fear that the lack of ballistic shields and flash-bangs would leave them vulnerable against the power of an AR-15-style rifle. Most astonishingly, they waited for the children’s cries to confirm that people were still alive inside the classrooms.

“I’m watching that door. No screams. No nothing. No nothing. You know. Things you would think you would hear if there had been kids in there,” Cpl. Gregory Villa, who had been with the Uvalde Police Department for 11 years, told an investigator days after the attack that left 19 children and two teachers dead.

If there were children inside, Villa said, officers would have probably heard the shooter saying, “‘Hey, everybody shut up,’ and then kids are like, ‘Oh no, I gotta, I want my mommy.’”

ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive our biggest stories as soon as they’re published.

This article is produced in collaboration with The Texas Tribune and the PBS series FRONTLINE. Sign up for newsletters from The Texas Tribune and from FRONTLINE.

Villa, who received active shooter training four years earlier, was among several officers who told investigators that they didn’t believe children were in the classrooms because they were so quiet. The children’s strict adherence to remaining silent was, in fact, part of their training. Officers’ own training instructs them to confront a shooter if there is reason to believe someone is hurt.

“I just honestly thought that they were in the cafeteria because it seemed like all the lights were off and it seemed like it was really quiet. I didn’t hear any screaming, any yelling. I literally didn’t hear anything at all,” Uvalde police Staff Sgt. Eduardo Canales recalled to an investigator. “You would think kids would be yelling and screaming.”

The accounts of law enforcement’s actions during one of the worst school shootings in history are among a trove of recorded investigative interviews and body camera footage obtained by ProPublica, The Texas Tribune and FRONTLINE. Together, the hundreds of hours of audio and video offer a startling finding: The children in Uvalde were prepared, dutifully following what they had learned during active shooter drills, even as their friends and teachers were bleeding to death. Many of the officers, who had trained at least once during their careers for such a situation, were not.

Mass shootings have become a fact of American life, with at least 120 since the 1999 Columbine High School shooting. Debates often erupt along partisan lines as anguished communities demand change. When children are gunned down, calls for tighter gun laws are matched with plans for arming teachers and hardening schools.

One thing that seemingly unites all sides is the notion of better training for law enforcement. But, in actuality, few laws exist requiring such instruction.

In the wake of the Columbine shooting, law enforcement agencies across the country began retooling protocols to prevent long delays like the one that kept officers there from stopping the two shooters. Key among the changes was an effort to ensure that all officers had enough training to engage a shooter without having to wait for more specialized teams.

More than two decades later, law enforcement’s chaotic response in Uvalde and officers’ subsequent explanations of their inaction show that the promise of adequate training to respond to a mass shooting has yet to be fully realized.

Officers failed to set up a clear command structure. They spread incorrect information that caused them to treat the shooter as a barricaded suspect and not an active threat even as children and teachers called 911 pleading for help. And no single officer engaged the shooter despite training that says they should do so as quickly as possible if anyone is hurt. It took 77 minutes to breach the classroom and take down the shooter.

“It’s pretty stunning that we’re 24 years after the Columbine massacre and we’re still dealing with a lack of training on how to deal with these active assailants,” said Mo Canady, executive director of the National Association of School Resource Officers. “I’m not sure who is to be held responsible for that, but it really is unacceptable that officers are not getting that training.”

A nationwide analysis by the news organizations shows states require far more training to prepare students and teachers for a mass shooting than they do for the police who are expected to protect them.

At least 37 states have laws mandating that schools conduct active shooter-related drills. All but four of those states require them at least annually.

In contrast, only Texas and Michigan have laws requiring training for all officers after they graduate from police academies. Texas’ law is the strongest in the country, mandating that officers train for 16 hours every two years. That requirement came about only after the Uvalde massacre.

The absence of legislation has created an uneven and inconsistent approach, which fails to ensure that officers not only receive the training they need to confront a mass shooter, but drill often enough to follow it in the adrenaline-soaked atmosphere of a real shooting, law enforcement experts said. Some also emphasize the importance of multiagency training so that officers are not responding to a crisis alongside people they’ve never worked with before. Yet few states, if any, require agencies to train together.

About 72% of the at least 116 state and local officers who arrived at Robb Elementary before the gunman was killed had received some form of active shooter training during their careers, according to an analysis of records obtained by ProPublica, the Tribune and FRONTLINE. Officers who received training before the Uvalde shooting had most commonly taken it only once, which law enforcement experts say is not enough. Only three officers would have met Texas’ new standard for training.

The news organizations reached out to each of the officers in this piece. An attorney representing officers with the Uvalde Police Department said the city has ordered them not to comment because of an ongoing internal investigation. Officers with other agencies did not return phone calls, texts and emails or declined to comment.

Across the country, officers are increasingly responding to situations with active shooters, some of whom have access to weapons originally designed for war. In the absence of gun control legislation, sales of these types of weapons have increased.

Unlike military service members who spend the majority of their time training for the possibility that they may someday see combat, police spend the bulk of their days responding to a variety of incidents, most of which do not involve violent encounters. Experts say that leaves many unprepared as the nation’s tally of mass shootings grows.

No clear consensus exists on just how much training is sufficient, though experts agree on the need for repetition. Even then, consistent training cannot guarantee that officers will do everything right, said John Curnutt, assistant director at Texas State University’s Advanced Law Enforcement Rapid Response Training Center, which is rated as the national standard by the FBI. Still, Curnutt said, routine training is the best way to improve officers’ response.

“It has to be really driven into somebody to the point where it becomes instinctive, habitual,” Curnutt said. “Before you really get a chance to think about it, you’re already doing it. And it takes more than 10 or 11 times to get that good at something like this that is going to be incredibly difficult to do when you know that, ‘I’m about to die, but I’m going to do this anyway.’ Who thinks like that? Not everybody. We know that. Not everybody that’s in uniform does.”

Praying for Help

It was 11:30 a.m. on May 24, 2022. The timer that Elsa Avila set had just gone off, notifying her fourth grade class that the extra minutes she’d given them to make shoes out of newspapers for a STEM challenge had drawn to a close. Now they were going outside to test how long the shoes held up on the school track.

Avila gathered the children for a photo before they formed a single-file line. At the front, one of the students peered into the hallway. “Miss, there’s a class coming in and they’re screaming and they’re running to their room,” Avila recalled the student saying as the teacher of 27 years described the details of that day to investigators.

Elsa Avila’s students pose for a picture in their newspaper shoes moments before the shooter entered their school. Children’s faces are shown with parental consent. (Courtesy of Elsa Avila, pixelated by ProPublica, The Texas Tribune, and FRONTLINE)

“You let their teacher worry about them,” Avila replied, believing that the student was simply reporting unruly behavior.

This was different, the girl insisted. The children were scared. So, Avila peeked into the hallway.

“Get in your rooms!” Avila heard a woman scream.

“So I just slammed my door back in, turned off the lights and, at that time, the kids know, because we practice these drills, they know: ‘OK, shut the door, you know. Slam the lights. We’ve got to go into our positions,’” Avila recalled.

Watch video ➜

The educator and her students formed an “L,” crouching down against the two walls that were farthest from the doors and windows. It was a drill they’d practiced so much that, at times, it had become tiresome. The training that Avila had hoped they’d never have to use: Run. Hide. Fight.

For now, they hid.

Avila stood up momentarily to make sure that her students were safe.

It was then that a bullet pierced the wall, ripping into the teacher’s stomach.

Avila fell to the ground and dropped her phone. After dragging herself to the phone, she scrolled through previous texts to find one that included a group of teachers from the school.

“Im shot,” she wrote at 11:35 a.m., mistakenly texting her siblings before eventually also messaging her colleagues.

Only five minutes had passed since Avila’s timer rang for what was intended to be a celebratory moment.

In that time, the gunman had entered the building after crashing a truck into a nearby ditch and police had received their first 911 call from a teacher informing them that the shooter was in the school. In those five minutes, the teenage shooter unleashed nearly 100 rounds of gunfire.

A child’s drawing for investigators shows how students in Room 109, two doors away from the shooter, followed their training.

Children and teachers formed an “L,” crouching against the walls farthest from doors and windows.

In the drawing, the child wrote “hide,” reflecting a key part of the training.

One of Avila’s students was among those injured. Bullet fragments struck 10-year-old Leann Garcia on the nose and mouth. Blood dripped onto her clothes as her friend, Ailyn Ramos, held her and tried to keep her from screaming out in pain.

“If I die, I love you,” Leann whispered to Ailyn.

“As long as you’re in here with me, you’re not going to die,” Ailyn later recalled responding in an interview with the news organizations. (Ailyn’s account, like those of all the children named in this piece, is included with the permission of a parent.)

With their teacher flitting in and out of consciousness, the children huddled together. For a moment they did something that their lockdown training had not taught them, but that their teacher had always told them to do in difficult times, Ailyn told the news organizations.

They prayed.

“Please let the cops come in.”

Diverting From the Training

Outside of the school, Uvalde police Sgt. Daniel Coronado heard the unmistakable gunfire from the shooter’s semiautomatic rifle. “Oh, shit, shots fired! Get inside,” Coronado yelled at about 11:35 a.m. while breathlessly running toward the building.

Entering a smoke-filled hallway, Coronado, a 17-year veteran of the department, walked past printouts of summer sandals that had been brightly colored by children, who were now nearing their last day of school. Seconds later, there was another round of gunfire from rooms 111 and 112, the adjoining classrooms from which the shooter was terrorizing teachers and children.

The shots injured Canales and Lt. Javier Martinez, two Uvalde police officers who had initially approached the classrooms. Blood trickled from Canales’ ear and bullet fragments grazed Martinez’s head. Both officers retreated. Though hurt, Martinez again ran toward the door. No one followed. He eventually pulled back. The officers had taken active shooter training only once: Martinez in 2014 and Canales the year before the shooting.

The failure to engage the shooter was the first in a handful of critical missteps by officers in the initial 10 minutes. Each ran counter to what the training teaches.

Among the missteps was the fact that no one took charge or set up a command post to guide the response, which experts say should happen quickly after arrival. Another was Coronado’s decision to relay an unconfirmed report from a school resource officer that the suspect was holed up in an office. The information proved to be inaccurate, and the misunderstanding helped shape officers’ approach to the incident.

“Male subject is in the school on the west side of the building,” Coronado radioed at 11:41 a.m. “He’s contained. We got multiple officers inside the building at this time. Believe he’s, uh, barricaded in one of the offices. Male subject’s still shooting.”

Though some officers struggled with malfunctioning radios, Coronado’s words reached enough of them to contribute to a widespread belief that the shooter was possibly alone inside a room with no victims, even as evidence mounted that children and teachers were in danger.

Initially believing he was responding to an active shooter, Texas Department of Public Safety Special Agent Colten Valenzuela told an investigator that his mindset changed after arriving at the school.

“When we did get there, we were told that it was a barricaded subject, so that kind of flipped the direction,” Valenzuela said.

Asked by an investigator about the determination that the shooter was barricaded, Coronado, who completed active shooter training a decade earlier, said: “I don’t know where that came out of, you know what I mean? You’re just reacting to what you’re dealing with at that moment in time.”

“You don’t see any bodies,” Coronado added. “You don’t see any blood. You don’t see anybody yelling, screaming for help. Those are motivators for you to say, ‘Hey, get going, move,’ but if you don’t have that, then slow down.”

Listen to Coronado

You don’t see any bodies? You don’t see any blood. You don’t see anybody yelling, screaming for help. Those are motivators for you to say, ‘Hey, get going, move,’ but if you don’t have that, then slow down.”

Daniel Coronado Uvalde Police Sergeant

"You don't see any bodies. You don't see any blood. You don't see anybody yelling, screaming for help. Those are motivators for you to say, ‘Hey, get going, move,’ but if you don't have that, then slow down."

Watch video ➜

Uvalde is among the most striking examples of a botched police response to a mass shooting, but officers’ failures to immediately stop a shooter despite being trained extend beyond the Texas city, according to a ProPublica, Tribune and FRONTLINE review of dozens of after-action reports and publicly released video. In some cases, the delays are well-known. In Orlando, Florida, officers waited about three hours to take down a shooter at the Pulse night club in 2016 despite 911 calls indicating some hostages were shot. The initial officer who responded to the 2018 shooting at Marjory Stoneman Douglas High School in Parkland, Florida, never entered the building where a shooter killed 17 students and staff.

Other missteps have not been as widely scrutinized. In Las Vegas in 2017, two officers stayed on the hotel floor below a shooter instead of rushing upstairs to confront him as he spewed bullets into a crowd of concertgoers. The next year in Thousand Oaks, California, officers attempted to confront a shooter within minutes of arriving at the scene. Some retreated after he shot at them. Police did not reenter to engage the shooter again for more than 40 minutes, even as victims remained inside.

In contrast, several officers credited their repeated training after they were celebrated for acting expeditiously to take down a shooter in March at a private Christian school in Nashville, Tennessee. Such instruction, they said, allowed them to momentarily ignore the emotion of stepping over a victim to get to the shooter so as to prevent further harm. About two months later, an officer in Allen, a Dallas suburb, shot a gunman minutes after his killing spree began at an outlet mall. Police and fire officials later praised years of joint training as key to the swift response.

The ability to work together was absent in Uvalde, Ruby Gonzalez, a school resource officer, told an investigator. Despite most of the officers being trained, various agencies that arrived at the scene were not accustomed to working together and had their own operating procedures, Gonzalez said.

“We couldn’t find a way to work together because each agency wanted to do things how they, how they see fit,” she said when asked if she believed the response that day followed the training she had taken.

At the time of the Uvalde shooting, Texas required only that school resource officers take an eight-hour active shooter course. The requirement did not apply to thousands of officers in police departments and sheriff’s offices across the state, contributing to vast disparities in training.

About 84% of the DPS officers who responded to the Uvalde shooting before the gunman was killed had been trained. Yet only about 67% of the Uvalde Police Department officers and roughly 36% of the Uvalde County Sheriff’s Office deputies had taken active shooter courses, according to an analysis of records that detail training after officers graduate from academies.

Collectively, local and state agencies sent at least 116 officers to the Uvalde shooting before the breach. While a majority of those officers had received some instruction to confront an active shooter, about half had not been trained since 2018 or before. That was the year a gunman entered Santa Fe High School near Houston and killed 10 people.

Federal law enforcement agencies, who sent about 180 officers to the scene before and after the breach, declined to provide training records for their officers, leaving the amount of instruction they received unclear. A spokesperson for Customs and Border Protection, the agency with the majority of the federal officers on scene, said in a statement that it continues to review the response and is “committed to identifying any improvements to training or tactics.”

Source: Texas Commission on Law Enforcement

DPS and the Uvalde sheriff’s office did not respond to questions about their departments’ training. A spokesperson for the city of Uvalde said that since the shooting, officials have purchased equipment like shields and breaching tools and have expanded training to include surrounding agencies.

Uvalde officers will also be among those required to meet Texas’ new standard — 16 hours of instruction every two years.

The post-Uvalde mandate is rare.

In the vast majority of states, officers are only required to prepare to confront a shooter in academies that train new recruits, but even that can vary widely between four and dozens of hours of instruction. Once those officers get the training, most are not required under the law to ever take it again.

“If we’re not training the right way and we’re not preparing ourselves and our kids and our responders, then we’re going to keep doing this for the next 25 years,” said John McDonald, who developed the school safety program in Jefferson County, Colorado, which includes Columbine, after the 1999 shooting. “We’re going to say, ‘Geez, for 50 years we haven’t figured it out.’ Well, shame on us.”

“Kids in This Room”

Nicole Ogburn, a teacher in Room 102, used her Apple Watch to dial 911 three times but couldn’t get through. On her fourth try, at 11:40 a.m., one of the city’s two dispatchers finally picked up.

Ogburn reported that there was an active shooter at the school, saying she could hear the gunshots outside of her classroom.

911 dispatcher: You can hear the gunshots being fired?

Ogburn: Yeah, they’re in the building. I don’t know. There’s been a lot. A whole lot. And I got a message that somebody, somebody is shot in another classroom.

911 dispatcher: Somebody is shot in a classroom, ma’am? OK, can you tell me …

Ogburn: Not mine. In another one. Another classroom. I don’t know. I don’t know. Please hurry. Hurry.

911 dispatcher: What room number? What room number? Can you tell me what room?

Ogburn: I’m in Room 102.

911 dispatcher: Is he going to be across from you?

Ogburn: I don’t know where he’s at right now. I got to go. I can’t let him hear me. I can’t let him hear me.

While Ogburn was on the phone with 911, dispatchers received another call. This time from Pete Arredondo. The school district police chief, who had taken active shooter training four times during his nearly 30-year career, was supposed to take charge, according to the district’s active shooter plan.

Arredondo, who had dropped his radio on the way into the school and didn’t have a body camera, asked the dispatcher for backup and more equipment.

“I’m inside the building with this man. He has an AR-15. He shot a whole bunch of times. We’re, yes, we’re inside the building,” Arredondo told the dispatcher. “He’s in one room. I need a lot of firepower, so I need this building surrounded, surrounded with as many AR-15s as possible.”

In that brief moment, Arredondo would learn from the dispatcher what police could not see on the other side of the classroom doors: Someone was injured.

Arredondo does not appear to have shared the information with other officers, according to body camera footage and radio calls reviewed by the news organizations.

Active shooter training instructs that officers should act immediately if there is reliable evidence that an attacker is killing people or preventing critically injured victims from getting medical attention.

But 17 more minutes passed before officers opened the door to Ogburn’s classroom. Even then, their discovery of children was an accident.

Uvalde County Sheriff’s Deputy Reymundo Lara recalled to investigators how he came to realize there were children in the room. Lara, who had not taken active shooter training, said he took a tactical position, aiming at the classroom where the shooter remained.

“I was like, you know what, my feet need to be a little bit more comfortable,” Lara added. “So, I get up, open the door. I propped it open so I could stick my leg in and lay back down and aim at the classroom where this suspect’s at. Something is telling me, ‘Hey, just check the classroom.’”

At first, Lara did not see anything. The lights were off and a movie played on the TV.

Then, the deputy spotted children.

“Hey,” Lara yelled. “We got kids in this room.”

Officers rushed to help Ogburn and her students escape through the window. “Kids coming out. Kids coming out. Kids coming out,” Coronado said, his body camera picking up the moment they were pulled out through the window.

Coronado’s heart sank. “Oh shit, there’s kids,” he recalled thinking while speaking with investigators. “That was the first time that we realized, no, there are kids inside the building.”

11:56 a.m.: Uvalde police Sgts. Daniel Coronado and Donald Page tell another officer outside of the school that there are no children inside.

Watch video ➜

11:57 a.m.: Uvalde County Sheriff’s Deputy Reymundo Lara opens a classroom door and discovers children inside.

Watch video ➜

11:58 a.m.: The children are evacuated from their classroom through the window.

Watch video ➜

“I Thought It Was a Trick”

Though officers were now aware that children and teachers remained in classrooms, Avila and her students continued to wait to be rescued.

Still losing blood from the gunshot wound to her stomach, the teacher knew she had to stay awake for her students.

“I didn’t want to pass out because I didn’t want to leave them alone,” she recalled in an interview with an investigator.

Moments of darkness were punctuated by the children trying to keep her calm. She could hear some of them saying, “Don’t let her go to sleep.”

“Miss, we love you. We love you,” she recalled one telling her. “Miss, you’re going to be OK.”

Avila could hear the school district chief, who began trying to negotiate with the shooter 24 minutes after officers entered the school.

“Can you please put your firearm down? We don’t want anyone else hurt,” Arredondo said.

At one point, the children in Avila’s class heard people fiddling with their door. “Police open up!”

“I thought it was a trick,” Leann, the injured 10-year-old, recalled thinking during an interview with investigators.

None of the children said anything. How could they know it was not the shooter?

Indeed, the students did as they were taught to do in their drills.

“We tell kids if someone’s knocking on a door and says, ‘Police officer, open up,’ don’t open the door. We tell teachers that all the time. And we test it,” said McDonald, who now serves as chief operating officer of The Council for School Safety Leadership, an organization that helps school leaders respond to threats and tragedies. “That could be someone trying to trick you to come out. Cops have keys. They have the ability to breach. They have tools to get in. They will come in.”

But the police didn’t come into Avila’s classroom at that moment. They also did not try to enter rooms 111 and 112, where the shooter remained, after learning from Ruben Ruiz, a school resource officer, that his wife, Eva Mireles, was injured in one of them.

At 11:56 a.m., Ruiz pushed urgently through a scrum of officers, attempting to get closer to his wife’s classroom after she’d called to tell him what happened.

“She says she’s shot, Johnny,” Ruiz said as an officer stopped him from pressing forward.

Instead of acting on the information, officers guided him outside and took away his gun.

One of the officers who heard Ruiz was Justin Mendoza. The rookie officer, who had only been with the Uvalde Police Department for about two years, had not received active shooter training, according to state records.

Mendoza said officers knew they needed to get into the classrooms, including Mireles’, but they didn’t have the right equipment. His sentiment was shared by more than a dozen officers who, in interviews with investigators, expressed fear of the shooter’s semiautomatic rifle.

“Like I said, we didn’t have any shields, no, no flash-bangs, no nothing that we could’ve used to create a distraction,” Mendoza recalled, “to, not only, like, not to sound selfish, but make sure we go home at the end of the day, but at least more of these kids can go home at the end of the day.”

Though officers signed up for the job knowing that they were putting their lives at risk, they’d never been confronted with a mass shooter, Mendoza said.

“None of us ever thought any of this situation would ever happen here, in Uvalde,” he said.

Watch video ➜

“Full of Victims”

About 40 minutes after the shooting began, officers received an urgent broadcast over their police radios that experts said marked another crucial moment that should have prompted them to immediately confront the shooter.

A child who was in one of the adjoining rooms with the shooter had reported a “room full of victims. Full of victims at this moment,” a dispatcher said over the radio.

“Fuck, full of victims,” one officer said aloud after hearing the radio communication. “Child called 911 and said room’s full of victims.”

Minutes later, the dispatcher radioed again: “Be advised, we do have one teacher that is still alive with wounds and eight to nine children.”

Officers did not hear the grueling 17-minute call in which 10-year-old Khloie Torres and her friend Miah Cerrillo pleaded for help, repeatedly asking for police assistance. They didn’t hear Khloie, who had been struck by shrapnel from the shooter’s bullets, as she quietly begged for them to hurry, telling the 911 operator: “There’s a lot of dead bodies. Please help. I don’t want to die.” The same officers who said that the children’s silence kept them from rushing the classroom didn’t get to listen in as the dispatcher repeatedly told Khloie to keep the children quiet. They didn’t hear her promises that officers were on their way to save Khloie and her classmates.

Despite some radios not working inside the school, officers who heard the dispatcher’s broadcast now knew that children and at least one adult remained alive, trapped with the shooter on the other side of the door. Those details, along with earlier signs that included sporadic gunfire and information that an officer’s wife was shot but still alive in the classroom, should have jogged in their minds a key lesson from training. They should have moved swiftly to stop the killing and stop the dying, experts said.

“You know kids are in there. You know you have a teacher that’s hurt. You’ve been shot at already. You’ve got an officer that’s been wounded. I mean, I think the intel is there,” said McDonald, the school safety expert who reviewed the footage at the request of the news organizations. “The environment is there. So how do you get in that room? What are your options to get in that room? And I think that has to be a priority. You already had one officer who said his wife was in there several minutes ago. Stop the dying.”

Instead, law enforcement officers, including members of a highly trained Border Patrol tactical team that had just arrived, continued to wait, even as they received some specialized equipment that they said they needed to breach the metal door and enter the classroom. No one ever checked the door to see if it was unlocked, although a state House committee that later reviewed the shooting determined it probably was.

Days after the attack, Uvalde police Officer Michael Wally recalled to an investigator the moment he heard there were victims in the classroom with the shooter. It didn’t make sense, Wally told him. Since he arrived at the school, he’d been asking who was leading the response. Who was the officer in charge? No one provided an answer, but he was repeatedly told the school district police chief was negotiating with the shooter.

Arredondo later told the Tribune and investigators that he did not view himself as in charge. He defended his actions and those of others.

“I kept going back to who is OIC. Who is, who’s, who’s fucking in charge? Excuse my language, but who’s, who’s in charge?” recalled Wally, who last took an active shooter course in 2015. “I’m a patrol officer. I can’t, you know, I’m not in there. I’m not in the hallway. I’m not talking to our gunman. I’m not talking to the guy who’s talking to our gunman. No communication is coming back out to me. So there’s got to be someone else. There’s got to be someone else that’s in charge. Someone tell me what to do.

Watch video ➜

“And you know this, you’ve probably been wearing a badge a lot longer than I have,” Wally told the investigator, “but chain of command is everything. And, it was not there.”

In the absence of clear leadership and communication, misinformation continued to spread.

Shortly after the radio communication from the dispatcher, a Border Patrol medic arrived. He asked about the victims. A state game warden quickly replied that they had not heard of any injuries. “Uh, yes there are,” an Uvalde police detective responded.

The medic pushed his way into the building and began setting up a triage station to treat the wounded. There, law enforcement officers, including members of the Border Patrol strike team, huddled, body camera footage shows.

The minutes continued to tick away as the team prepared to enter the room.

12:12 p.m.: Uvalde police Officer Justin Mendoza and Uvalde police Detective Jose Rodriguez hear a dispatcher tell officers that a child said Room 112 was full of victims. Uvalde police Officer Michael Wally also hears the broadcast.

Watch video ➜

12:18 p.m.: Six minutes later, state game warden Dennis Gazaway mistakenly tells Border Patrol medic Diego Merino-Ruiz that there are no injured children inside but is quickly corrected by Rodriguez.

Watch video ➜

Searching for a Key

Though officers had already broken through windows to evacuate students, they fixated on finding keys to unlock the three classrooms that still had children in them.

Arredondo had earlier decided that they would not enter the two adjoining classrooms that would force them to confront the shooter until they cleared others first, according to his interview with investigators and body camera footage.

That left Avila’s classroom. Over the years, the teacher had learned that the only way the door to Room 109 would lock was if she slammed it closed. That is just what she did that day to ensure that the shooter could not enter.

Arredondo later told investigators that he knew his decision would likely be scrutinized, but he did what he thought was best at the time. He said that he believed the shooter had probably killed at least one person inside rooms 111 and 112, but that he knew that children in other classrooms remained alive.

“The preservation of life around everything around him, I felt was priority,” Arredondo said.

Officers tried prying Avila’s door open with a knife. They also tested various keys that did not work in search of a master key. Eventually, they decided that the only way in would be through the outside and began breaking the window.

Avila’s students started crying as officers yelled, “Police, we’re here to help you!” Some ran toward the window. Others waited, Avila recalled. They still did not know whether to trust the voices from outside.

“They didn’t want to move until I told them to move,” the injured teacher recalled. “So, then I stood up, and I told them, ‘Come on guys.’”

As soon as the classroom was cleared at 12:26 p.m., Arredondo signaled that officers could begin breaching the classrooms with the shooter. “Got a team ready to go? Have at it,” he can be heard saying on body camera footage as officers stood around him.

It’s unclear if that message ever made it to the Border Patrol tactical team, which was on the other end of the hallway, or if anyone, at that point, was heeding the school district chief’s direction.

One Last Call

Over the next 24 minutes, Khloie and other children in Room 112 continued to rely on one another for survival.

Despite the excruciating wait, now more than 50 minutes from the time the shooter had fired the initial volley of shots, the children continued to follow their training. They hid and remained quiet, even as several of them had injuries that made such silence inconceivable.

“I looked around, and I was like, people were cuddling up to each other, they were like, ‘I’m going to die,’” Khloie later told an investigator. “And I was like: ‘You’re not going to die. Just be really quiet.’”

“I remember telling everybody that ‘we’re going to get through this, and just don’t make a sound,’” she added. “‘Just be as quiet as a mouse.’”

Watch video ➜

Instead of being protected, Khloie told the investigator, she became the protector.

Khloie worked to calm her classmate Kendall Olivarez, who wailed in pain. Kendall was wedged under a teacher who had been killed by the shooter, and bullets had pierced the girl’s arm, back and leg. Khloie helped pull Kendall from under her teacher. They crawled beneath a table as they hid from the shooter who was in the adjoining classroom. Meanwhile, Mireles, their other teacher, was losing blood and cried out for her daughter.

Khloie grabbed her foot and tried to comfort her. “Don’t be scared,” she told her.

Desperate for help, Khloie’s friend Miah dialed 911 one last time, pleading with the operator to send police. They were coming, the dispatcher assured her, adding that if anyone entered the classroom, the children should pretend to be asleep.

As she waited, Miah, who had been struck by shrapnel, sobbed quietly into the phone.

Finally, 77 minutes after the shooter entered the school, 54 minutes after one of the officers reported that his wife had been shot and 38 minutes after a dispatcher shared that there were victims in the classroom, the adults had arrived to help.

At 12:50 p.m., a team led by the Border Patrol strike team entered Room 111. The gunman jumped out of a closet, firing at a federal officer and grazing him in the head. Officers returned fire, killing the shooter.

Still on the phone with the 911 operator, Miah, who was hiding in Room 112, mistakenly thought the gunman was coming for her.

She later recalled the moment to an investigator, saying, “I was, like, thinking it was him, he came back in the classroom. And then I look up and it was the police and all my friends started running towards them. And me and my friend were crying because we were scared. We ran to the hallway and I saw people, pass — dead and then blood on all of the floor.”

Listen to Cerrillo

I was, like, thinking it was him, he came back in the classroom. And I look up and it was the police and all my friends started running towards them. And me and my friend were crying because we were scared. We ran to the hallway and I saw people, pass — dead and then blood on all over the floor.”

Miah Cerrillo 11-Year-Old Student in Room 112

“I was, like, thinking it was him, he came back in the classroom. And then I look up and it was the police and all my friends started running towards them. And me and my friend were crying because we were scared. We ran to the hallway and I saw people, pass — dead and then blood on all of the floor.”

Watch video ➜

First responders tried to rush out the living, taking Mireles, who still had a pulse, outside to be treated by medics. EMS declared her dead about an hour later in an ambulance that never left the school. Two children also had a pulse when they were taken out but later died. With insufficient ambulances to treat victims, police placed six children in a school bus, including Miah, Khloie and Kendall.

With them were two state troopers who were suddenly forced to act as medics, although they lacked qualifications. With blood from those who were injured around her soaked into her hair and clothes, and smeared on her face and hands, Khloie cried. She wanted her dad and she wanted to know if one of her friends survived, though she knew the answer even before asking.

She also wanted the officer to know that she had tried.

“Ma’am, I was on the phone with the police officer,” Khloie told a state trooper through tears.

“Oh, that was you?” the trooper asked.

“Yes, ma’am.”

“OK, OK, you were so brave. Y’all were so brave, OK?” the officer said, stroking her head.

“I was trying not to cry,” Khloie replied.

1:01 p.m.: Khloie Torres, on a school bus with other classmates, tells Department of Public Safety Special Trooper Crimson Elizondo that she called 911.

Content Warning: The following video has a loud ringing sound and shows a distressed child covered in blood that is not her own. We are publishing it with the family’s consent.

Watch video ➜

More than two hours after the shooting began, the school was quiet once again.

David Joy, a Border Patrol supervisor in Uvalde, picked up a body camera that an officer dropped. It was still recording.

Once in his car, he called his daughters’ school.

“I need, I need to talk to the principal as soon as I possibly can,” Joy said to the woman who answered the phone, explaining that he was a Border Patrol agent working out of the Uvalde station. After asking if she had heard about what happened, he said, “There’s some stuff that was extremely like, I, like there are some issues that I have with the way things, I want to be able to talk with somebody to just give you some advice and stuff that kind of slowed us down a little bit that maybe would be able to, God forbid something, God forbid something happen and y’all aren’t set up for it.”

Epilogue: Learning From the Past

In the weeks that followed the shooting, hundreds of officers recounted their role in the failed response during interviews with state and federal investigators.

Some said they did all that they could under the circumstances. Others sobbed. They recalled seeing the children’s lifeless bodies, the fear in the faces of the survivors. They had already felt the anger from residents in the city of 15,000 people who were forced to bury two teachers and 19 children, some of whom were related to officers. Several wrestled with whether they could have done more. A few wondered if any amount of training could have prepared them for that day.

“It, it, it was a horrific thing and we lost no matter what. Um, I, I, I want to learn from it, you know,” Coronado, the Uvalde police sergeant, told an investigator. “I, I want, I, I, I want, I want an opportunity to have someone better than me tell me, ‘Hey, we could’ve done this or we could’ve done that.’ You know what I mean? I, I, I, I, I, I want that.”

Listen to Coronado

It, it, it was a horrific thing and we lost no matter what. Um, I, I, I want to learn from it, you know. I, I want, I, I, I want, I want an opportunity to have someone better than me tell me, ‘Hey, we could've done this or we could've done that.’ You know what I mean? I, I, I, I, I, I want that.”

Daniel Coronado Uvalde Police Sergeant

“It, it, it was a horrific thing and we lost no matter what. Um, I, I, I want to learn from it, you know. I, I want, I, I, I want, I want an opportunity to have someone better than me tell me, ‘Hey, we could’ve done this or we could’ve done that.’ You know what I mean? I, I, I, I, I, I want that.”

Watch video ➜

Two children in his family died that day. He did not attend their funerals, telling an investigator that some of his relatives “think that we fucking let ’em die.”

The initial probe by the Texas Rangers, the DPS’ investigative arm, is complete but has not been made public. Of the hundreds of officers who responded that day, less than a handful have been fired, including Arredondo. An attorney representing Arredondo released a statement before he was terminated, saying that his client was being used as a “fall guy.” Several officers from various agencies either resigned, were reassigned or retired.

This story is part of our series Under the Gun. See the full series.

News organizations, including ProPublica and the Tribune, have sued the state for records that would help families and the public better understand what happened that day. The state has repeatedly fought their release, citing an ongoing criminal investigation by the Uvalde district attorney, who has said that she plans to present a case before a grand jury this year. A state district judge ruled in the newsrooms’ favor, though DPS has said it plans to appeal.

The wait for the findings has now grown to 18 months. It’s unclear whether and when they will be released.

“I just wish someone would have taken charge. I wish someone would’ve …,” Wally, the Uvalde police officer, said while talking with an investigator in the days after the shooting, his voice trailing off. “And I know this is going to be open record one day. Let it be on open record. Fuck politics. Someone take charge. Let’s fix this. That’s what I wanted. That’s what everybody wanted.”

Juanita Ceballos, Michelle Mizner and Lauren Prestileo of FRONTLINE and Zach Despart of the Texas Tribune contributed reporting.

Illustrations by Pei-Hsin Cho for ProPublica, The Texas Tribune and FRONTLINE

Design and Development by Zisiga Mukulu.

Graphics and Development by Lucas Waldron.

by Mike Reicher and Lulu Ramadan, The Seattle Times

This article was produced for ProPublica’s Local Reporting Network in partnership with The Seattle Times. Sign up for Dispatches to get stories like this one as soon as they are published.

Northwest School of Innovative Learning, until recently Washington's largest publicly funded private school for children with disabilities, announced plans to close amid a state investigation and a ban on accepting new students.

The school drew state scrutiny after a 2022 Seattle Times and ProPublica series revealed accusations that staff injured vulnerable students and failed to provide a basic education. The school’s enrollment has since plummeted as public school districts across western Washington withdrew students.

Special education advocates and experts applauded the closure of the Northwest SOIL but said it also highlights the need for better special education options.

“I think this is a victory for children with complex behavioral disorders in Washington state,” said Vanessa Tucker, professor of special education at Pacific Lutheran University. “On the other hand, our school districts are going to need a lot of support because these kids aren’t easy.”

The school’s owners have defended its record but said it has ceased to be viable in the wake of the state’s hold on new admissions.

Reporting by The Times and ProPublica late last year brought to light allegations of abuse, misuse of isolation rooms and unqualified staffing. The reporting triggered the state probe into Northwest SOIL, which collected millions of tax dollars a year to take in students from public school districts across western Washington on the promise of individualized instruction and specialized staff. In years past, the school took in more than 100 students a year.

The Office of Superintendent of Public Instruction, Washington’s education department, temporarily banned Northwest SOIL from enrolling new students in June, citing an “unacceptably high” number of incidents in which it restrained and isolated students.

Last week, the school’s owner, Fairfax Behavioral Health, which runs the largest for-profit psychiatric facility in the state, said it could no longer operate the school under the state admissions ban. Fairfax plans to close the school in January and lay off staff, according to a company statement. School districts will decide where to transfer Northwest SOIL’s remaining 37 students.

“The low student number is not sustainable for the school or rewarding for our teachers,” according to a statement provided by Fairfax CEO Christopher West. Students need more diverse interactions with peers for social development, the statement said.

Northwest SOIL said it had requested that the state allow it to gradually admit new students while it complied with a corrective action plan but that regulators with the superintendent’s office decided not to lift the ban.

“While NW SOIL continues to make adequate initial progress, not enough time has passed for OSPI to see sustained implementation of the plan in order to release the enrollment hold,” state superintendent spokesperson Katy Payne told The Times and ProPublica.

Years of Complaints

The news organizations’ investigation into Northwest SOIL revealed how the state superintendent’s office failed to take meaningful actions on years of serious complaints about the school’s discipline and academics. In response, lawmakers passed a bill in April strengthening oversight and regulatory power.

And the superintendent’s office began to more aggressively use its existing power, launching the inquiry that looked at a range of issues, including allegations against staff of “mistreatment and abuse” of students, calls to law enforcement on students, and complaints that the school failed to deliver special education services.

As part of that investigation, Northwest SOIL provided records to the state showing it restrained students 476 times in 2022 and isolated students 447 times across its three campuses. It had roughly 119 students at the time, according to state reports.

By comparison, Seattle Public Schools, the largest district in the state with more than 6,000 students in special education, reported 16 incidents of isolation and 249 incidents of restraint in the 2021-22 school year. Seattle Public Schools banned isolation at the beginning of that school year.

Northwest SOIL “has been restraining its students at an astronomical rate,” a lawyer for the state superintendent told a judge in September.

During the investigation, the superintendent’s office zeroed in on concerning reports to police and Child Protective Services that hadn’t been reported to state education officials, as required by state law. Among them was a July 2022 incident when a teacher at the Tacoma campus was fired after placing a student in a “chokehold” and “running his head into the door,” as described by the school.

Northwest SOIL wrote that its risk management team reviewed several incidents and found them to be either accidental or justified and that they happened while students were behaving aggressively.

“We believe our staff members act appropriately during incidents or restraint and isolation,” the school wrote to state regulators in June, when the ban on admissions was imposed.

Northwest SOIL and its parent company, Fairfax Behavioral Health, tried to get the admissions ban overturned, suing the state in Thurston County Superior Court and separately appealing the ban through an administrative hearing. The lawsuit was dismissed in October, and the administrative appeal remains active.

West, the CEO of Kirkland-based Fairfax Behavioral Health, blasted the state’s admissions hold in a letter to regulators in early November.

“It is unwarranted and egregious to continue withholding the services we offer from students,” West wrote. He said the school was cooperating with the state’s investigation.

Northwest SOIL was previously financially sound, he continued, but because of the admissions ban, “NWSOIL simply cannot operate indefinitely with ongoing financial losses.”

West gave the state an ultimatum: Lift the hold by Nov. 10 or Northwest SOIL would close. The state declined.

Fallout

The news of the closure has sent parents scrambling. For some families that remained at the school, Northwest SOIL has been a positive influence in their students’ lives.

Heidi Sapp’s 16-year-old son, Brendan, has attended Northwest SOIL for three years. She contacted reporters at the suggestion of Northwest SOIL and previously provided an affidavit in support of the school’s lawsuit against the state.

Sapp’s son, who has autism, has behavioral challenges and suffered setbacks in public schools but flourished at Northwest SOIL, she said. She now worries the closure will disrupt his education.

“I don’t feel like I have any options left,” Sapp said.

The closure of Northwest SOIL renews an ongoing debate within the special education community about the role of private programs serving public school students. Washington has one of the nation’s highest dropout rates for students in special education, according to the latest federal data.

Some advocates say private programs are needed because public schools routinely fail students with severe and complex disabilities. Others say public school districts need to invest more in integrated programs that keep students in local public schools.

Karen Pillar, director of policy and advocacy at TeamChild, a nonprofit law firm for Washington at-risk youth, sees Northwest SOIL’s closure as an opportunity for school districts to explore in-house alternatives. In December, Pillar and two special education attorneys wrote an opinion column for The Times calling on the state to immediately shut down Northwest SOIL.

As public school districts decide where to transfer Northwest SOIL’s students, districts should hire trained staff and create programs that would keep students in neighborhood schools, Pillar said.

Her fear is that districts will fall back on “harmful practices” such as shortened school days or the use of restraint and isolation of students with disabilities.

“There are systems and strategies to keep students, including high-needs students, in public school classrooms safely,” Pillar said. “The districts have to invest in that.”

Tucker, the Pacific Lutheran University professor, said school districts will go through a period of adjustment as they either develop plans to serve students themselves or work with other private programs.

“They’re all having to create models for these kids that are truly complex. It’s not like we’re saying, ‘Let’s put them back in the school and everything will be fine,’” Tucker said. “These are kids with complex neurological impairments, some with trauma, some with mental health needs. It is a very complicated puzzle to put together.”

by ProPublica, The Texas Tribune and FRONTLINE

ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive our biggest stories as soon as they’re published.

This article is produced in collaboration with The Texas Tribune and the PBS series FRONTLINE. Sign up for newsletters from The Texas Tribune and from FRONTLINE.

“Inside the Uvalde Response,” a documentary that is part of the collaboration, premieres Tuesday at 10 p.m. EST on PBS stations (check local listings) and will be available to stream on the PBS App, YouTube and FRONTLINE’s website.

The May 2022 gun massacre at Robb Elementary School in Uvalde, Texas, left 19 children and two teachers dead. It was one of the deadliest school shootings in U.S. history.

More than a year and a half later, findings from a state-led investigation into the chaotic response — in which officers took more than an hour to take down the shooter — have yet to be released. Most of the officers involved in the response have declined to talk publicly about what happened that day.

But FRONTLINE, The Texas Tribune and ProPublica gained access to a trove of the materials from the investigation and were able to review the accounts of almost 150 responding officers, as well as hours of body camera footage and 911 calls.

In a new documentary, “Inside the Uvalde Response,” and article that publish Tuesday, the news organizations draw on these materials to reconstruct the day’s events, giving a detailed analysis of one of the most criticized mass shooting responses in recent history, and providing extraordinary real-time insight into law enforcement’s thoughts and actions. The film features never-before-published interviews conducted by state and federal investigators in the days immediately after the shooting.

Accounts in the documentary suggest that officers didn’t initially realize there were children in the school’s classrooms, as the kids were doing what they’d been taught to do in active shooter trainings: remain out of sight and stay quiet. An effective chain of command was absent. And failures in communication throughout all levels of law enforcement compounded the confusion.

“Inside the Uvalde Response” premieres Tuesday at 7 p.m. EST at pbs.org/frontline and on the PBS app, and at 10 p.m. Eastern/9 p.m. Central that night on PBS and FRONTLINE’s YouTube channel.

by Mary Hudetz and Ash Ngu

ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up for Dispatches, a newsletter that spotlights wrongdoing around the country, to receive our stories in your inbox every week.

Donna Augustine was in tears as she read the letter from Harvard University that winter morning in 2013. Looking around the room inside an elementary school on Indian Island, Maine, she saw other elders and leaders from the four Wabanaki tribes were also devastated as they read that the university was denying their request to repatriate ancestral remains to their tribes.

The Wabanaki tribal nations — an alliance of the Penobscot, Passamaquoddy, Maliseet and Mi’kmaq — wanted to rebury the ancestral remains. But Harvard’s Peabody Museum of Archaeology and Ethnology said, as it had in past years, that the tribes didn’t have enough evidence to show that they could be tied, through culture or lineage, to the ancestors whose remains the museum held.

The Repatriation Project is a series investigating the return of Native American ancestral remains.

The denial felt like a rejection of Wabanaki identity for Augustine, a Mi’kmaq grandmother, who had spent years urging Harvard to release Native American remains.

“Every one of us in that room was crying,” she recalled. “We jumped through every hoop.”

The group representing the only four tribal nations in present-day Maine had furnished a deeply researched report documenting their histories in the region, even sharing closely held stories passed down within their tribes from one generation to the next that told of their ancient ties to Maine’s lakes, islands and forests.

Now they could see it hadn’t been enough for Harvard, which especially prized the remains of 43 ancestors buried for thousands of years near Maine’s Blue Hill Bay.

Complicating matters for the tribes, another museum, the similarly named but smaller Robert S. Peabody Institute of Archaeology, housed on the campus of the Phillips Academy, a Massachusetts preparatory school, held items from the same ancient burial site.

Instead of sending a letter as Harvard did, the Phillips Academy museum director, Ryan Wheeler, had asked to meet with the tribes. Seated at the table that morning, he was initially uncertain what he would do. He would later say that it became evident during the meeting that the tribes exhibited a strong connection to the ancestors they sought to claim, both from the report they had provided and their reaction to Harvard’s decision.

He recalled leaving the meeting certain he would repatriate. “There was really no question about it,” he later said.

What the Wabanaki committee and Wheeler didn’t know, however, was just how hard Harvard would push back. In the two years that followed, the director of the Harvard museum went to surprising lengths to pressure Wheeler to reverse his decision.

A ProPublica investigation this year into repatriation has shown how some of the nation’s elite museums have used their power and vast resources to delay returning ancestral remains and sacred objects under the Native American Graves Protection and Repatriation Act. By exploiting loopholes in the 1990 law, anthropologists overruled tribes’ evidence showing their ties to the oldest ancestral remains in museums’ collections. We’ve also shown that museums and universities have delayed repatriations while allowing destructive analyses — like DNA extractions — on ancestral remains over the objections of tribes.

Harvard, where the remains of an estimated 5,500 Native Americans are stored at the Peabody Museum, used these loopholes over the span of three decades to prolong the Wabanaki tribes’ repatriation process while remaining in technical compliance with the 1990 law, our review found.

For Augustine and her colleagues, few things were more frustrating than knowing that NAGPRA had empowered museums to decide whether Indigenous people had a valid connection to their ancestors. These were the same institutions that had collected the human remains and objects from ancestral burial sites. Despite NAGPRA’s intent to give Indigenous people say over ancestral remains, institutions still made the final decisions on whether to repatriate.

“The wolves are in charge of how to deal with the sheep,” said Darrell Newell, a former vice chief of the Passamaquoddy Tribe who helped create the Wabanaki Intertribal Repatriation Committee to accelerate negotiations with the institutions. “It’s just not a good way.”

Harvard in recent years has apologized and promised to speed repatriation, saying it aims to repatriate all Native American remains and the items once buried with them within the next three years and recently doubled staffing in the Peabody Museum’s repatriation office. However, the school has yet to return more than half of the human remains it reported holding under NAGPRA, according to federal data from November. Only two institutions, of the hundreds that must comply with NAGPRA, hold more human remains than Harvard.

The university did not provide a detailed explanation to ProPublica regarding its staff’s decisions in the Wabanaki tribes’ case, but it noted in a statement that “each institution, as directed by the NAGPRA legislation, makes its own decisions on repatriation. This can result in institutions making different decisions.”

“To state it plainly, at Harvard, the issue of whether Native American ancestors should be in our collections is clear — they should not,” Harvard President Claudine Gay said last year.

As the Wabanaki people’s struggle with Harvard dragged on, some elders who had been ceremonial leaders died without seeing repatriations come to pass, the committee told ProPublica. In recent years, younger generations helped continue their work, finding that tribes have few options once a museum declines a repatriation request. Among them is Ryan Lolar, a 27-year-old Penobscot Nation descendant and attorney who began helping the Wabanaki committee in 2021.

“Once the museum says no, that’s the end of the road for you,” Lolar said. “As a tribe, all you can do is keep applying, keep reaching out.”

The Peabody Museum in Cambridge, Massachusetts, left, and the Peabody Institute in Andover, Massachusetts (Sophie Park for ProPublica) Excavations in Maine

The two Peabody museums have parallel histories. Both are housed in red-brick buildings that hearken to a time when anthropology was a fledgling academic discipline. Each was founded with money from the same Peabody family who, like other wealthy Americans during that era, financed anthropological expeditions and study.

In 1866, George Peabody, who built a fortune in the dry-goods trade and merchant banking, gave $150,000 to Harvard to establish its museum, according to the first annual report. More than 30 years later, his nephew, Robert S. Peabody, a lawyer and alum of the Phillips Academy, founded the prep school’s Robert S. Peabody Institute of Archaeology. A private collector, the younger Peabody seeded his namesake museum’s collection with 38,000 Native American artifacts he had acquired, according to the school.

Both museums sponsored excavations across the United States, which led their archaeologists to Maine. These early archaeologists found no human remains at the burial sites but were in awe of the sophistication of the weapons and tools, fashioned more than 4,000 years ago from stone and the bones of fauna.

Warren K. Moorehead, a director of the prep school’s Peabody Institute, concluded that the people who made the objects, many of them finely etched with geometric patterns, represented a mysterious, vanished culture with no connection to present-day tribes. This theory, while questioned, has persisted into the present, including with an influential archaeologist whose research Harvard has embraced.

Moorehead had garnered a reputation for rogue and disorganized excavations of tribal ancestral sites in Ohio and New Mexico. He descended on Maine in 1912, emptying 440 burial sites in less than a decade, according to research from Wheeler and Bonnie Newsom, an anthropology professor at the University of Maine and Penobscot Nation citizen.

But Moorehead encountered resistance when he sought to excavate on Indian Island. Penobscot leaders twice blocked him, showing that the Wabanaki people viewed themselves as connected to the ancient people and as protectors of the burials, Newsom said. The Wabanaki nations believed they have been in the region as long as humans have inhabited it.

Warren K. Moorehead at a site in Maine that he and his crew excavated in 1913 (Robert S. Peabody Institute of Archaeology, Phillips Academy, Andover, Massachusetts. All rights reserved.)

In the late 1930s, Moorehead’s successor embarked on a dig near Blue Hill Bay. There he unearthed at least 43 ancestral remains and hundreds of items beneath a shell midden, a large, layered stack of clam and oyster shells. Calcium from the shells had counteracted Maine’s acidic soils to preserve the ancestors’ bones. The prep school sent the skeletal remains to Harvard, where curators were interested in studying them. The prep school kept the objects, further intertwining the two institutions — though their decisions about the collection would eventually divide them.

“I’m Going to Come Back and Get You”

The passage of NAGPRA in 1990 offered Wabanaki people an opportunity to assert their connection to the region’s ancient people.

Augustine, a mother of seven, was nearly 40 at the time and had already spent more than a decade working on repatriation. The work did not offer pay, but she had willingly committed to it as a spiritual calling, she said. She believed that repatriation restored dignity to generations past and present. She often relied on relatives to watch her children, she recalled, and some summers she didn’t pay her light bill so she could afford the travel.

“How can we tell our children, our youth that they are worth something when at the same time, right over here, there’s a museum and they’re studying our ancestors?” she told ProPublica. “It’s like telling us we’re less-than.”

After the law passed, the tribes formed the intertribal repatriation committee with representatives from each of the Wabanaki tribes. If the four tribes worked through any disagreements before making claims, they could show they were unified when approaching museums.

In the early 1990s, the tribes’ repatriation committee began meeting with the two Peabody museums, as well as with Maine museums that held human remains.

Augustine suspected the institutions wanted to keep the oldest human remains in order to do scientific research. She raised that concern with the institutions repeatedly, including during a visit to Harvard’s Peabody Museum in May 1995, according to a museum document that recounts the visit. At the time, scientific methods like radiocarbon dating helped museums estimate the age of the objects and remains they had found during their expeditions. Yet these methods, like the ancient DNA extractions that would become prevalent years later, required scientists to crush small samples of bone, causing destruction to the ancestral remains.

“We told them, ‘No more science, no more scientific research on those ancestors,’” said Augustine, who, like other tribal members, viewed the research as a violation of tribal beliefs.

Augustine, whose name is also Thunderbird Turtle Woman, says she felt called to work on repatriation. (Tristan Spinski for ProPublica)

Harvard’s museum staff assured her that any researchers who wanted to access the human remains from Maine would likely be told to contact the Wabanaki tribes and that museum policy did not allow destructive analysis without tribes’ permission. Patricia Capone, who has been the museum’s NAGPRA director since the 1990s, was one of several staffers present during the meeting, museum records show.

“It was so hard to leave,” Augustine recalled of the 1995 visit. “I remember telling those ancestors, ‘I’m going to come back and get you.’”

A university spokesperson told ProPublica that the museum’s policies at the time allowed researchers to conduct destructive analysis on the remains. The spokesperson did not address why the Wabanaki tribes had been told otherwise. Capone did not respond to interview requests or questions from ProPublica.

Oral Histories

In 2007, Newsom, the Penobscot archaeologist and University of Maine professor, went back to school to pursue a doctorate in anthropology, intent on identifying evidence the Wabanaki tribes could use to support their repatriation claims, she later wrote.

Newsom interviewed people from the four Wabanaki nations and gathered audio recordings of traditional narratives that told of how their cultures first came to be. In the stories, which had been passed from one generation to the next, she identified evidence that the Wabanaki tribes’ time in Maine and Canada’s Maritime Provinces went back thousands of years, and she researched how the narratives could be seen as describing major environmental events.

In one, a Passamaquoddy elder talked about their relationship with a lake near the Canadian border, where the archaeological record shows humans have been present for 8,600 years. Another story linked the Penobscot origins to Cold Stream Pond, north of Indian Island. The stories featured the loon, whale, moose and other animals of the region.

The Penobscot River, with the Penobscot Nation Indian Island Reservation on the right and Old Town, Maine, on the left (Tristan Spinski for ProPublica)

The Wabanaki committee compiled the stories Newsom gathered in a document and gave it to both Peabody museums in 2011.

More than a year later, Harvard rejected the claim. “They just kept coming back, saying that our evidence wasn’t good enough,” Newsom said of Harvard. “It was exhausting.”

But Harvard’s rejection coincided with the tribes’ breakthrough meeting with Wheeler, director of the Phillips Academy’s Robert S. Peabody Institute of Archaeology. His commitment to repatriating the objects at the prep school’s museum came with an understanding, Wheeler said: He would also appeal to the Harvard museum to repatriate the human remains from the same coastal burial site.

After the Indian Island meeting, Wheeler continued to review records and gather input from archaeologists who had studied prehistoric Maine — a topic he was unfamiliar with, having spent his career in Florida. He encountered a range of opinions: Some expressed certainty that the tribes could not have ties to the ancient ancestors and items buried near the bay; or they said they believed the collection was too scientifically valuable to be reburied, which Wheeler noted in his records was not a basis under the law for denying a repatriation. Others said the tribes’ oral histories and other evidence demonstrated a consistent presence in the region well before the time the ancestors were buried near Blue Hill Bay.

“There is more,” Wheeler wrote about his decision to a donor of the preparatory school. “But at a certain point it was clear that the Wabanaki had met the federal standard for their case.”

“Entirely Possible”

In September 2014, Wheeler drove to Harvard to inform the director of the university’s Peabody Museum, Jeffrey Quilter, that he planned to repatriate the items to the Wabanaki tribes. Quilter wrote in an email that he was shocked following their brief meeting. “Given the close association and intertwined histories of our two museums — particularly in the case of this site — the courtesy of advanced discussion was in order,” Quilter said.

Emails obtained by ProPublica show that Quilter pressured Wheeler to change his mind, saying he believed the decision would result in unwelcome repercussions for the Harvard museum. As part of this campaign, he told archaeologists in Maine that he believed Wheeler’s decision would close the door to future research into the ancient burial site. “The stakes are very high,” Quilter, now a curator in the Harvard museum’s anthropology department and no longer its director, wrote to a colleague.

Ryan Wheeler, the Phillips Academy museum director (Sophie Park for ProPublica)

One of the archaeologists Quilter contacted was Bruce Bourque, the Maine State Museum’s now-retired chief archaeologist. Quilter considered Bourque to be an expert on Maine archaeology. But Bourque, brash and outspoken, also had a reputation for opposing the Wabanaki tribes’ repatriation and water rights claims, saying in an email to Quilter and Capone that the Penobscot people “live in a BIA-funded lala land.” The comment was a derogatory reference to the Bureau of Indian Affairs’ federal trust responsibility to fund basic services in tribal communities.

Bourque told the state attorney general’s office he had received a “panic call” from Harvard about Wheeler’s decision, he said in an email. He emailed another colleague about the news, saying, “NAGPRA has just reared its ugly head.”

“Patricia says Harvard will stand firm,” Bourque wrote of Capone, the university museum’s NAGPRA director. “We should be prepared for a onslaught from the tribes and their fellow travelers, a group of anti-science thugs.”

In an interview and statement to ProPublica, Bourque stood by his comments in the 2014 emails, saying he had been subject to “onslaughts” for his scientific opinions. He added that he had embraced NAGPRA when it was first passed but held the government’s administration of the law in low regard. Quilter, who did not grant an interview, said in an email that he was guided by science in deciding that the human remains from the ancient burial site were not culturally affiliated to Wabanaki people. He also said he believed he was adhering to the law in making his decision.

When Quilter’s efforts to convince the Phillips Academy to reverse its plans went nowhere, he offered another argument why Wheeler should delay repatriating. He said he just learned that the lab of David Reich, a prominent Harvard geneticist, had extracted genetic material from the ancient remains that could shed new light on them.

The disclosure stunned Wheeler.

Reich and his student had provided a document to the Harvard museum describing their research as the first analysis of ancient people from the Northeast that used the whole genome. That brief report — dated October 2013 and marked confidential — offered a broad determination: The ancestors were genetically linked to Indigenous people in North and South America.

Reich viewed his study as inconclusive on the question of the human remains’ connection to present-day Wabanaki tribes, adding that there were no available genetic samples representing modern Wabanaki people that he could use to cross-compare with the ancient DNA, he told ProPublica in an email.

Yet when Wheeler met with Quilter again that fall, Harvard’s staff cited Reich’s paper to argue against returning the items to the tribes, Wheeler said.

Quilter had invited his staff and Bourque to the meeting but dismissed Wheeler’s request to have the director of Harvard’s Native American Program facilitate it, saying he wanted to limit the conversation to archaeological and museum professionals. “If we think we need to include Native Americans then I should discuss how that will happen,” Quilter said. “I just think that adding Native Americans adds another layer of complexity in an already complex situation and do not oppose their participation in principle.”

Ultimately, Wheeler didn’t waver and the prep school’s Peabody Institute proceeded with its repatriation.

(A Harvard spokesperson told ProPublica that the meeting was meant to foster information-sharing among institutions and that the document describing the DNA analysis did not represent official or authoritative results. Quilter said he wasn’t aware at the time that the Wabanaki tribes had asked the museum not to allow research on the remains.)

Reich told ProPublica that he did not know Harvard’s museum used his report to argue against a repatriation to the Wabanaki nations. He also said that he could not rule out that the tribes might be able to trace some of their ancestry to the people buried at the 4,500-year-old site. “It remains entirely possible,” he said.

A sign for the Penobscot Nation sits on the banks of the Penobscot River in Old Town. (Tristan Spinski for ProPublica) A Rumor Leads to Confirmation

Newsom was among the first to hear that the ancestral remains had been analyzed, though she didn’t receive the information from the university.

At a March 2015 federal hearing on NAGPRA, more than a year after the Reich Lab reported its DNA results to the Peabody Museum, a woman from a tribe in Massachusetts asked Capone to address a rumor: “I was told that DNA testing was being done on remains at the Peabody Harvard Museum,” said Ramona Peters, of the Mashpee Wampanoag Tribe. “I believe it involved the Wabanaki.”

Newsom, who was in the audience, admits she is surprised, according to a transcript of the hearing. “If there is an institution that is taking it upon themselves to continue to do study, I think that’s ethically wrong until we have an opportunity to present more information or clear up the reasons why we were denied those remains,” she said.

An Interior Department lawyer said the federal committee couldn’t demand that Harvard answer the allegation. And Capone declined to publicly respond to the question, though she offered to have a conversation about NAGPRA and “the museum’s activities.”

Several years later, Newsom said a colleague in Maine confirmed that the DNA analysis had, in fact, happened. She also learned that even though the findings were never published, the Reich Lab had presented a paper on the research at a genetics conference. She searched for a copy, asking colleagues; the librarian at the University of Maine, where she teaches; and the student whose name was on the paper. She hit dead ends.

Augustine, who had asked Harvard not to conduct DNA analysis on the ancestors, felt betrayed by the Harvard museum.

“When they tell us they will not and they do it anyway, well, they’ve lost their credibility,” she told ProPublica.

Blue Hill Bay, Maine (Tristan Spinski for ProPublica)

After fighting for their ancestors for more than 25 years, the Wabanaki made their final formal NAGPRA claim in February 2019 for the human remains held by Harvard. This time, they asked that it happen under a 2010 NAGPRA regulation that allows museums and universities to return remains without saying the tribes have cultural ties to them.

Years earlier, the tribes had passed on a suggestion from Harvard’s Peabody Museum to go this route. It requires only that institutions acknowledge in federal records that the geography of tribes’ homelands encompasses the areas where remains were excavated.

The tribes had always wanted institutions to recognize their cultural connection to the ancestors, but they also wanted to rebury the remains, and four years had passed since the Phillips Academy’s museum had repatriated the burial items to them. “The bottom line was getting our ancestors back no matter what,” said Roger Paul, who is Passamaquoddy and a member of the repatriation committee.

Capone, at Harvard, responded to the tribes’ claim several months later with additional questions but did not say whether she would grant the request. In a recent academic paper, Newsom and Wheeler said the action represented “another tactical strategy” to ensure Harvard would keep the remains.

No Apology

In the end, it would take an institutional reckoning at Harvard before the Wabanaki tribes could finally collect and rebury the remains of their ancestors.

The same year Harvard stalled in granting the tribes’ final repatriation request, Harvard started to face renewed questions about its ties to slavery and the dark history of many of the Peabody Museum’s holdings. The following year, amid protests over the murder of George Floyd and historical racial injustices, the museum embarked on a review of its collections, which led to an apology from Lawrence Bacow, then the president of Harvard.

“I apologize for Harvard’s role in collection practices that placed the academic enterprise above respect for the dead and human decency,” Bacow wrote in a January 2021 statement. “Our museum collections undoubtedly help to expand the frontiers of knowledge, but we cannot — and should not — continue to pursue truth in ignorance of our history.”

In a separate apology, Jane Pickering, the new director of the Peabody Museum, pledged to prioritize repatriation. The museum now has a policy that requires tribes’ authorization for research on Native American remains and burial items.

The Wabanaki committee used the moment to press the school one last time to relinquish the tribes’ ancestors, drafting a new letter with its lawyers. It was sent to Harvard in April 2021.

“We said, ‘If those are really your values, then return the ancestors that you were holding all this time,’” said Lolar, the Penobscot Nation descendant and attorney.

Pickering responded several weeks later, saying in a letter that the school would release the ancestral remains to the tribes. The school also offered to discuss the DNA analysis, though this has not yet happened

Ryan Lolar, a Penobscot Nation descendant and staff attorney with the Indigenous Peoples Unit of Pine Tree Legal Assistance Inc. (Tristan Spinski for ProPublica)

The Wabanaki repatriation committee hoped the Peabody Museum would finally acknowledge its connection with the ancestors, beyond geography. But Pickering’s letter included no such acknowledgment.

And despite the university president’s public apologies for the racial injustices it had perpetuated, no one from Harvard apologized to the Wabanaki.

“Nothing changed about those ancestors in that 30 years,” said Lolar. “It’s just that they never cared about what the tribes were saying all along.”

In September 2021, Augustine and Lolar were among a half-dozen tribal representatives who traveled to the museum for the repatriation. As they carried boxes containing the ancestors’ remains to their vehicles, they passed an exhibit about Penobscot history and culture that a Harvard spokesperson said was created in partnership with tribal representatives. Nearby was a photo display and text stating how the Peabody champions repatriation.

Lolar found it ironic that the museum had so prominently honored his culture with an exhibit while withholding the ancestors for so long. Still, those feelings didn’t obscure the overwhelming relief of the day, Augustine said.

Days later, the group buried the ancestors and items in an undisclosed location.

They couldn’t place them at the original burial site. A road now runs alongside it. After praying about how to proceed, they decided to ceremoniously create a connection between the two burials, old and new. They took soil from the original site and buried it with the ancestors in their new resting place, Augustine said. Then, they took soil from the new site and sprinkled it over the old one.

@media (prefers-color-scheme:dark) { html:not(.force-light-mode) .repat-toc { background-color: var(--cool-80); } html:not(.force-light-mode) .repat-toc-top p, html:not(.force-light-mode) .repat-toc .repat-col h6, html:not(.force-light-mode) .repat-toc .repat-col a { color: #BA9687; } html:not(.force-light-mode) .repat-toc h5 a { color: var(--gray-10); } html:not(.force-light-mode) .repat-toc h5 a:hover, .repat-toc h2 a:visited { color: #BA9687; } html:not(.force-light-mode) .repat-toc-top p a { color: #BA9687; } } html.force-dark-mode .repat-toc { background-color: var(--cool-80); } html.force-dark-mode .repat-toc-top p, html.force-dark-mode .repat-toc .repat-col h6, html.force-dark-mode .repat-toc .repat-col p a { color: #BA9687; } html.force-dark-mode .repat-toc h5 a { color: var(--gray-10); } html.force-dark-mode .repat-toc h5 a:hover, .repat-toc h2 a:visited { color: #BA9687; } html.force-dark-mode .repat-toc-top p a { color: #BA9687; } .repat-toc { display: block; background-color: #E1DCD0; padding: 2em 3em 2em 2em; margin-top: 2em; position: relative; margin-right: 2em; } .repat-toc-top { display: block; } .repat-toc .ital, .repat-tag .ital { font-variant: none; font-style: italic; } .repat-toc-titles { border-top: 1px solid #000; clear: both; display: flex; padding-top: 2em; } .repat-toc-titles .repat-2 { width: 50%; padding-left: 1em; } .repat-toc-titles .repat-1 { width: 25%; padding-left: 1.5em; } .repat-1-mobile { display: none; } .repat-toc .repat-flex { display: flex; align-items: stretch; justify-content: center; align-content: stretch; flex-wrap: wrap; padding-bottom: var(--spacing2); } .repat-toc .repat-flex .repat-block-1{ flex: 4; } .repat-toc .repat-flex .repat-block-2{ flex: 1; align-content: stretch; align-items: stretch; border-left: 1px #000 solid; padding-left: 1em; } .repat-toc .repat-flex .repat-col-stories{ display: flex; flex-wrap: wrap; padding-bottom: var(--spacing1); } .repat-toc .repat-flex .repat-col-stories .repat-col { flex: 1; min-width: 33%; padding-right: 1em; } .repat-block-2 #repat-connect{ display: flex; align-items: stretch; flex-direction: column; align-content: space-around; gap: 1em; } #repat-connect .connect-item{ flex: 1; } .repat-toc h2 { font-size: var(--scale0); font-weight: 700; font-family: var(--fonts-sans); text-align: left; float: left; } .repat-toc-top p { text-align: right; float: right; font-family: var(--fonts-sans); font-weight: 700; font-size: var(--scale-1); margin-top: 10px; } .repat-toc-top p a { color: #8A3009; text-decoration: none; } .repat-toc-top p a:hover { text-decoration: underline; cursor: pointer; } .repat-toc h3 { font-variant: small-caps; text-transform: lowercase; font-family: var(--fonts-serif); font-size: var(--scale-1); } .repat-toc h4 { font-family: var(--fonts-sans); font-size: var(--scale-2); font-weight: 700; } .repat-toc h5 { font-family: var(--fonts-hed); font-weight: 700; font-size: var(--scale0); line-height: var(--line-height-1); } .repat-toc h5 a { color: var(--black); text-decoration: none; } .repat-toc h5 a:hover, .repat-toc h2 a:visited { color: #8A3009; text-decoration: underline; curosor: pointer; } .repat-toc .repat-col img { width: 100%; padding-top: 1em; } .repat-toc .repat-col h6 { font-family: var(--fonts-sans); font-weight: 700; font-size: var(--scale0); color: #8A3009; } .repat-toc .repat-col p a { color: #8A3009; font-weight: 700; text-decoration: none; } .repat-toc .repat-col p a:hover { text-decoration: underline; cursor: pointer; } .repat-toc .repat-col p, .repatriation-newsletter-signup-component p { font-family: var(--fonts-sans); font-size: var(--scale-1); font-weight: 400; line-height: var(--line-height-1); } .repatriation-newsletter-signup-component .icon { display: none; } .repat-toc .repat-col .repat-break { height: 25px; } .repatriation-newsletter-signup-component { margin-top: 10px; border-bottom: 1px solid #000; } @media screen and (max-width: 60em){ .repat-flex{ flex-direction: column; } .repat-block-1, .repat-block-2{ flex: 1; } .repat-toc .repat-flex .repat-block-2{ border-left: 0; padding-left: 0; } } @media screen and (max-width:48em) { .repatriation-newsletter-signup-component { margin-top: 0px; } .repat-toc { margin-right: 0; } .repat-toc-top p { text-align: left; clear: both; float: none; padding-bottom: 1em; } .repat-toc-titles { padding-top: 1em; } .repat-toc-titles .repat-2 { padding-left: 0; } .repat-toc .repat-flex .repat-col-stories{ display: flex; flex-direction: column; } .repat-toc .repat-flex .repat-col { width: 100%; min-width: 100%; padding: 0px; border-bottom: 1px solid; border-color: var(--warm-30); padding-bottom: 1em; margin-top: 1em; line-height: var(--line-height-1); } .repat-toc h5, .repat-toc .repat-col h6 { display: inline; padding-right: var(--spacing-2); } .repat-toc .repat-col img { display: none; } .repat-toc .repat-col { display: block; } #repat-connect { border-left: 0px; border-bottom: 0px !important; padding-left: 0; } .repat-toc-titles .repat-1 h3 { display: none; } .repat-1-mobile { display: block; margin-bottom: 1em; } .repat-toc .repat-flex .hide-mobile { display: none; } } The Repatriation Project

View the Full Series

1 America’s Biggest Museums Fail to Return Native American Human Remains 2 Does Your Local Museum or University Still Have Native American Remains? 3 The Museum Built on Native American Burial Mounds 4 A Top UC Berkeley Professor Taught With Remains That May Include Dozens of Native Americans 5 The Metropolitan Museum of Art Adds A Renowned Native American Collection Despite Questions About Some Objects’ Origin 6 Behind ProPublica's Reporting on Repatriation

Get in Touch

Know about an institution resisting repatriation? Have a personal story to share? We’d like to hear from you.

Learn How to Report on Repatriation

Watch an informational webinar with our reporters.

Sign Up for the Newsletter

To sign up for The Repatriation Project newsletter, you must enable JavaScript in your web browser.

import renderNewsletterSignup from "https://projects.propublica.org/repatriation-nagpra-database/for-cms/scripts/newsletter.js"; const target = document.querySelector(".repatriation-newsletter-signup-component"); if (target) { const initialP = target.firstElementChild; renderNewsletterSignup({ target, props: { placement: "repatriation-table-of-contents" } }); if (initialP) initialP.remove(); }

by Zach Despart, The Texas Tribune

ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive our biggest stories as soon as they’re published.

This article is co-published with The Texas Tribune, a nonprofit, nonpartisan local newsroom that informs and engages with Texans. Sign up for The Brief Weekly to get up to speed on their essential coverage of Texas issues.

A state district judge in Travis County has ordered the Texas Department of Public Safety to release law enforcement records related to the May 2022 Uvalde school shooting, more than a year after a consortium of news organizations sued for access.

The ruling by 261st Civil District Court Judge Daniella DeSeta Lyttle calls on DPS to fulfill 28 records requests filed by the news organizations, which include ProPublica and The Texas Tribune, subject to redactions such as personal information of police officers and blurring the faces of minor victims in crime scene photographs.

The files would shed light on the failed police response, in which officers waited more than an hour to confront the shooter who had an AR-15-style rifle. Nineteen children and two teachers died that day.

Lyttle issued a preliminary order in June. The one issued Tuesday is the final judgment. It requires DPS to provide the records sought within 20 days, unless the state police agency appeals the ruling.

“DPS promised to disclose the results of this investigation once it was completed,” said Laura Prather, a media law attorney with Haynes Boone who represents the news organizations. “It was completed in February, and they still haven’t provided any answers to these families.”

DPS did not return a request for comment on Thursday.

Prather said an appeal would likely limit the ability of victims’ families to file federal lawsuits alleging that police had committed civil rights violations. The statute of limitations on those complaints is two years.

“It prevents (families) from having the evidence they need,” Prather said.

The state police agency previously argued that releasing records could interfere with ongoing investigations into the shooting, though DPS said it had completed its initial report on the shooting and provided it to the Uvalde County district attorney.

Between the shooting in May 2022 and the filing of the news organizations’ lawsuit three months later, DPS selectively released information about the shooting during press conferences and public hearings held by the Legislature.

The Tribune and ProPublica separately gained access to materials from the investigation, publishing a series of stories that detailed multiple failures. On Tuesday, the news organizations will publish an article and a documentary, in collaboration with FRONTLINE, that reveal new details about the response.

Uvalde District Attorney Christina Mitchell also opposed disclosure of records to the news organizations. She argued their release could harm her investigation into any potential criminal charges she could pursue based on the DPS investigation.

Mitchell also claimed that “all of the families of the deceased children” had told her they supported blocking the records from release. Attorneys representing the majority of the 21 families whose relatives were killed in the massacre refuted the claim, saying that the information should be made public. Mitchell was later stricken from the case.

by Ken Ward Jr., Mountain State Spotlight

This article was produced for ProPublica’s Local Reporting Network in partnership with Mountain State Spotlight. Sign up for Dispatches to get stories like this one as soon as they are published.

West Virginia’s fund to clean up abandoned coal mines is in such dire shape that it threatens to stick taxpayers with hundreds of millions — perhaps even billions — of dollars in cleanup costs. And yet, little is being done to turn things around.

The bankruptcy of just one significant mining company could wipe out the fund, according to the state’s top regulatory official. And auditors for the Republican-controlled Legislature said at least five major companies were “at risk” of dumping cleanup costs on the state.

At $15 million, the state’s fund for restoring land is at its lowest level in more than 20 years. The program’s latest published actuarial report in 2022 warned that a related water cleanup trust fund will lose half its balance over the next 10 years.

These are costs the coal industry was supposed to cover. Unreclaimed mine sites can not only damage the environment but also endanger coalfield residents who live nearby. Coal waste dams sometimes leak or break, flooding downstream communities. Cliffs of rock and debris left behind after mining can collapse. Runoff that isn’t contained or treated often poisons fish or water supplies.

This crisis is emerging in other coal states like Kentucky, Ohio, Pennsylvania and Virginia, which have also had problems with their mine reclamation programs. But West Virginia offers perhaps the clearest and most troubling portrait of what could happen as the coal industry’s decline continues.

The state fund’s problems have been depicted as a recent phenomenon tied to a wave of coal company bankruptcies over the past decade. But a detailed review by Mountain State Spotlight and ProPublica reveals that they are far from that.

Coal stockpiles at a transfer station in Wharton, West Virginia. Coal production has declined dramatically over the past decade in the face of cheaper natural gas and renewable energy sources. (Dane Rhys, special to ProPublica)

State and federal officials have been warned repeatedly over the past 40 years that this reckoning was coming but have failed to prepare for it. Again and again, the review found, auditors questioned whether West Virginia’s reclamation program would have adequate funding.

But neither state lawmakers nor regulators required coal companies to have enough reclamation bonds as insurance should they go belly up. Nor did legislators raise the tax on coal production enough to make up the difference. Federal officials in both Republican and Democratic administrations who were supposed to oversee the state program cautioned there were problems but didn’t step in.

Just two years ago, West Virginia’s legislative leaders ignored recommendations from their own auditors to bolster the fund. Instead, they called for an $8 billion bailout from the federal government. And last month, Gov. Jim Justice’s administration removed a key critic from an advisory panel that monitors the fund, just as the group was about to review a new study on the fund’s future health. The governor’s office did not respond to a request for comment.

Environmental groups have pleaded with the Biden administration to focus on the reclamation crisis in the coalfields. But nearly three years into his term, President Joseph Biden still hasn’t nominated a director to lead the agency charged with enforcing the mining reclamation law.

As a result, a close examination of the fund’s finances and the state of the coal industry shows, the problem is no longer something out in the future.

“The system never fully worked,” said Peter Morgan, a Sierra Club lawyer who has advocated reforming the system for years. “It limped along for a while, but it is completely broken today.”

In response to questions, Interior Department spokesperson Giovanni Rocco said the agency’s Office of Surface Mining Reclamation and Enforcement regularly reviews state reclamation programs and in 2021 told West Virginia officials to better track cleanup liabilities. Rocco referred OSMRE nomination questions to the White House, which did not respond.

West Virginia Department of Environmental Protection spokesperson Terry Fletcher said in an email that the agency will continue to work “to improve the overall financial viability” of the program. The agency has about $1 billion that could fund reclamation projects, including available coal company bonds. But environmental groups predict the cost will be much more than that.

One of the firms that could tip the fund over the edge is Lexington Coal Company, which grew rapidly in recent years by cobbling together permits held by mining firms that went bankrupt.

In 2017, Alpha Natural Resources, once the nation’s third largest coal producer, paid Lexington, then a little-known company, hundreds of millions of dollars to take permits with massive reclamation problems off its balance sheet. Lexington promised the move would “accelerate reclamation” within five years.

Today, Lexington holds nearly 200 permits in West Virginia, making it one of the state’s largest coal companies on paper. But there’s little evidence that the company is producing much coal — and lots of evidence that it’s struggling to do the reclamation work it’s currently obligated to do.

Lexington officials did not respond to questions.

One of its operations, the Twilight Mountaintop Removal Mine, was once among the largest in the state. Over its quarter-century life, the main mine at the Twilight complex about an hour south of Charleston produced more than 60 million tons of coal to provide electricity and help make steel. Last year, it produced less than 200,000 tons.

Left behind is the rock and dirt that mine operators shoved into valleys, burying streams. Remnants of coal silos and preparation plants have been overtaken by brush. Most dramatically — and only fully grasped from an aerial view — are massive moonscapes of gray and brown rubble where the mountains were once lush and green.

Junior Walk of Coal River Mountain Watch takes a water sample at an acid mine drainage seep along the Coal River in Packsville, West Virginia. (Dane Rhys, special to ProPublica)

“It’s a post-apocalyptic nightmare,” said Vernon Haltom, a leader of Coal River Mountain Watch, a grassroots group fighting the coal industry. “It looks like a vast, sparse wasteland, like after a nuclear war.”

Ignored Warnings

From the earliest days of coal mining in the United States, mining operators took what they could from the hills and hollows and moved on to the next mine, often leaving a mess for residents to live with.

President Jimmy Carter’s signing of the Surface Mining Control and Reclamation Act of 1977 was intended to stop that. The law required coal companies to clean up the damage and restore the hills and creeks, a process known as reclamation.

And there was supposed to be a backup funding plan. States were required to make mine operators post bonds as a type of insurance to cover reclamation costs if the companies went bankrupt. Bonds were to be set at amounts sufficient to reclaim the mined land and treat polluted water.

But Congress also created an industry-friendly alternative. Coal companies could post smaller bonds if they paid a production tax into a state-run fund that regulators could use to reclaim abandoned mines. Under federal law, these pooled systems were required to be as effective at cleaning up mines as full-cost bonding programs. Lawmakers charged OSMRE with ensuring the state programs worked.

In West Virginia, this system proved to be inadequate from the start, according to a review by Mountain State Spotlight and ProPublica. OSMRE was initially supportive when the state proposed a bond pool in 1980 but also asked for more proof that it would provide sufficient funding to cover long-term cleanup costs.

Two years later, a preliminary study warned that reclamation costs were expected to exceed bond coverage. Though state officials were optimistic the coal production tax money would make up the difference, the actuarial study cautioned that “there is a great deal more to be done before this study should be considered conclusive.”

The questions raised were never answered. But the following year, the Reagan administration approved West Virginia’s pooled system anyway, deciding that it “appears to be basically sound.”

Despite the administration’s confidence, West Virginia’s financial problems became apparent by the mid-1980s. One congressional audit documented delays in cleaning up abandoned mines. Another warned that the reclamation fund was millions of dollars short. Another that the program didn’t account for the escalating costs of treating contaminated streams.

Both the Bush and Clinton administrations warned the state that its program needed more money. But West Virginia officials again did little.

When coal companies started to blast apart the hills to create the Twilight complex in the mid-1990s, industry officials and their political supporters scoffed that mountaintop removal mining would destroy the environment and promised to put the land and water back the way they found it. (Dane Rhys, special to ProPublica)

“Everyone knew it was a sham,” said Pat McGinley, a longtime West Virginia University environmental law professor. “State and federal regulators and politicians winked and nodded while the law was violated for more than four decades.”

Then, in 2001, environmental groups thought they might be looking at a breakthrough. They’d filed a lawsuit to reform West Virginia’s reclamation program, and it had landed before Chief U.S. District Judge Charles Haden II. Though considered a conservative judge, Haden had shown no patience for coal industry abuses or lax regulatory attitudes.

Things had also changed in the West Virginia governor’s office. In 2000, Democratic former U.S. Rep. Bob Wise defeated a Republican onetime coal company executive. Wise promised to strictly enforce environmental protection laws in the mining industry and appointed a former federal prosecutor known for taking on coal companies to run his enforcement agency.

The agency proposed increasing required bond amounts and the coal production tax rate. But lawmakers weren’t interested, and the legislative package died.

A few months later, Haden issued a blistering opinion in the federal lawsuit, decrying the decadeslong inaction as “a climate of lawlessness, which creates a pervasive impression that continued disregard for federal law and statutory requirements goes unpunished, or possibly unnoticed.”

The judge, however, deferred to OSMRE, saying agency experts were better suited to prescribe how the state’s reclamation woes should be addressed.

Partly in response, OSMRE in 2002 started drafting a new federal rule to ensure enough money was set aside for expensive long-term treatment of water pollution. But agency officials delayed publishing the proposed rule a half-dozen times. Then they dropped the idea without explanation. The agency’s spokesperson said that action occurred too long ago, and under a previous administration, for him to explain without more research.

West Virginia officials did slightly increase the special reclamation tax and created a task force of industry, government and environmental players to monitor the fund and recommend fixes.

But, as McGinley recounted in a law review article, those changes were a modest compromise.

“The final product of the closeted consultations with industry representatives,” he wrote, “was a DEP-backed bill intended to marginally satisfy OSM, while minimizing, as much as possible, financial burdens on coal companies.”

The Breaking Point

By the 2010s, as coal faced growing competition from natural gas and renewable energy, the long-predicted crisis began to arrive.

Since 2012, more than 60 coal companies, including some of the biggest in the country, have gone bankrupt. That left thousands of acres abandoned or shuffled to other companies. Many more companies are teetering on the financial brink.

An old coal processing plant owned by Lexington sits idle alongside the West Fork Pond Fork river in Bandytown, West Virginia. (Dane Rhys, special to ProPublica)

By 2021, even the auditors working for the Legislature were taking aim at the crisis. The reclamation bonds carried by coal companies would cover less than 10% of cleanup costs, their audit reported. And the state had enough money on hand for less than 40% of the sites that would need to be cleaned up over the next 20 years.

One at-risk coal company, ERP Environmental Fund, was in such bad shape, the auditors noted, that West Virginia regulators convinced a local judge to put the company into receivership, a move that avoided bankruptcy but left the future of its unreclaimed sites unclear. The head of the state environmental agency cautioned in court filings in 2020 that ERP’s bonds were nowhere near enough to cover its reclamation costs, warning the firm’s bankruptcy “would overwhelm” the state’s cleanup fund “both financially and administratively.”

An attorney for ERP didn’t respond to a call for this story. The firm didn’t object to the state’s receivership motion, and the receiver said in an email that he’s working to sell the firm’s assets so they can be reclaimed.

The legislative auditors suggested concrete steps to shore up the state’s fund: Lawmakers could increase the bond amounts, or regulators could force companies to begin cleanups more quickly after a mine stops producing coal.

But instead of following their recommendations, Senate President Craig Blair, a Republican from the Eastern Panhandle, called for a federal bailout, and state lawmakers passed a resolution asking for $8 billion for mine reclamation projects. Blair said the government owed it to West Virginia to pay for the cleanups, blaming coal’s decline on federal regulations.

So far, there hasn’t been much movement on a federal bailout. A proposal in Congress last year would have provided $385 million a year for a decade in general tax dollars to reclaim new mines that coal companies, bonds and reclamation funds were supposed to cover. But the legislation went nowhere.

A spokesperson for Blair said the senator has “demonstrated his commitment to solving this issue.” Blair’s office cited his legislation creating a new state-funded insurance company for the mining industry. That firm doesn’t address the reclamation fund’s financial problems, but it does give coal operators another option for buying cleanup bonds.

West Virginia lawmakers will have another chance to address the problem when their session opens in January. Delegate Evan Hansen, a Democrat from Morgantown, said he will introduce a bill to increase required bond amounts — a measure he unsuccessfully proposed two years ago and that environmental groups have been urging for decades.

It could be a tough sell, given the Republican supermajority at the statehouse. Both Blair and West Virginia House Speaker Roger Hanshaw said last month that it was too early to discuss any potential plans for the session.

Recent political events also suggest that’s the case. Two days before a key meeting in November, the Justice administration removed a longtime critic from the advisory council that monitors the state’s reclamation fund.

John Morgan, a mining engineer who for 20 years represented environmental groups on the council, had consistently used his spot to push for a fuller accounting of the risks posed by the monumental changes in the coal industry. Morgan was planning to raise concerns about two issues: the large number of permits with no production and the risks that relying on a smaller number of mines poses for the production tax that provides much of the program’s revenue.

On the agenda was reviewing a draft of an actuarial study, obtained by Mountain State Spotlight and ProPublica, that shows a surprisingly large improvement in the fund’s financial position.

The most recent actuarial report, published in 2022, projected the fund’s liabilities had grown to $565 million. But according to the new draft, the liabilities dropped by $115 million as of June, and the reclamation fund will remain solvent through 2043. Study author Daniel Lupton of the firm Taylor & Mulder attributed the change to improvements in how the state estimates liabilities related to building water pollution treatment operations.

“The projection’s actually great,” Rob Rice, a WVDEP deputy director, recently told Congress.

Morgan says such estimates are unrealistic. “I get very worked up about the fund because everyone is ignoring reality,” he said. “I don’t think anyone can say that it’s solvent.”

Environmental groups say even the 2022 liability figure was an underestimate. An Appalachian Voices analysis warned that West Virginia’s price tag could ultimately be close to $3.6 billion, with only about a third funded by bonds.

Lupton acknowledged that the concerns Morgan had been raising aren’t fully addressed in his firm’s study and said state officials haven’t provided adequate data to do so.

“No matter how good my model is, there are some elements to what’s going on in the industry that are related to politics and human decision making that will always be beyond the reach of my numerical modeling,” Lupton told Mountain State Spotlight and ProPublica in an email.

Without such data, environmental groups have pushed the Interior Department to at least conduct a financial “stress test” of major mining bond providers and state programs.

“Because reclamation burdens are so high, and available bonds so inadequate,” Appalachian Voices and other groups wrote last month, “regulators have every incentive to paper over the problem and avoid forcing the issue.”

A Mine on the Edge

Tony Rumberg, who was a coal miner at the time of the 2010 Upper Big Branch mine explosion, visits a memorial for the miners killed in the blast. After the disaster, the mine’s owner, Massey Energy, was bought by Alpha Natural Resources, and many of its mines were later acquired by Lexington when Alpha went bankrupt. “They really should reclaim these mountains better than they do,” Rumberg said. (Dane Rhys, special to ProPublica)

One critical piece of data that West Virginia doesn’t collect is a mine’s expected reclamation costs. Pressed by an environmental group lawsuit, federal regulators ordered the state to track such liabilities in 2021, noting that the state’s program “contains the same or similar deficiencies” as federal reviews found two decades earlier.

But so far, the state’s database includes only the number of acres needing restoration. Fletcher from WVDEP said the state can compare that to average costs from past reclamation projects “as needed” to calculate liabilities.

Because the state doesn’t have specific mine-by-mine estimates, though, critics say it has no way of assessing whether a company’s bonds will cover a cleanup or what the burden on the state’s fund might ultimately be. For instance, while the state audit report said that Lexington’s permits have $167 million in reclamation bonds, there is no information about the company’s liabilities.

A look at Lexington’s recent struggles reveals why that lack of information matters.

With nearly 200 permits, Lexington commands a vast amount of mining land in West Virginia. But with just 135 employees statewide, the company appears to be on the financial edge. If it’s true, as auditors’ estimate, that bonds typically cover only 10% of reclamation costs, the numbers show a Lexington default could easily drain the reclamation fund.

Lexington is managed by Jeremy Hoops, and court records show the firm is owned by a Hoops family trust. In emails disclosed in court, family patriarch Jeff Hoops said Lexington was formed in 2004 out of the bankruptcy of another firm to take that company’s “bad assets.” Jeff Hoops also founded Blackjewel, whose 2019 bankruptcy left behind dozens of unreclaimed mines in eastern Kentucky, as Mountain State Spotlight and ProPublica outlined this spring.

In an email, Jeff Hoops declined comment, saying he has “no involvement” with Lexington. Earlier this year, he said that creditors forced Blackjewel into bankruptcy and that the company responded promptly to environmental violations.

Now Lexington seems to be in trouble. State environmental records and federal court filings document that Lexington doesn’t appear to have the resources to complete its reclamation work. And efforts by regulators and courts to intervene have been largely ineffective.

In 2021, a WVDEP inspector cited Lexington for failing to remove a highwall, a cliff of rock and debris leftover after mining, at its Twilight complex. The WVDEP inspector considered the violation serious enough to require correction by the following day. That never happened. In the two years since, the agency has pushed back the deadline to correct the problem 25 times, accepting Lexington’s explanation that weather conditions hampered its work.

In July, federal inspectors visited the site after citizens complained about WVDEP’s handling of the situation and said that the agency shouldn’t have allowed that as an excuse for two years. Those OSMRE inspectors noted that Lexington had stopped reclamation work at the site for three months in late 2022 and since then had moved one piece of equipment doing cleanup at Twilight back and forth to another mine.

An old coal processing plant owned by Lexington Coal sits idle beside the West Fork Pond Fork river in Bandytown, West Virginia. (Dane Rhys, special to ProPublica)

In 2022, three sections of hillside at the Twilight mine collapsed, sending mud and debris into a small stream. Regulators ordered the creek cleaned and the hillsides stabilized. The mess still hadn’t been cleaned up six months later, prompting West Virginia officials to suspend the mine’s permit. But the state and the company quickly settled. The stream was cleaned, but other violations continued.

Lexington’s problems, and a lack of tough regulation, are also visible at other mines it owns. A federal judge has grown so tired of Lexington’s delays in addressing illegal levels of toxic selenium and other pollutants in the runoff from two mines in Mingo County that last year he held the firm in contempt of court.

In court filings, Lexington has said it is working diligently and making progress toward compliance. But on Nov. 17, a federal judge ruled that Lexington “is moving at a sluggish pace, with no sense of urgency or diligence.” He fined Lexington $50,000, the latest in a series of court orders related to payments or deadlines the company missed to clean up its mines.

“They are just hanging by a thread,” said Michael Becher, an attorney for the citizen groups.

Correction

Dec. 1, 2023: This story originally misstated the source of funding for a bill that was introduced in Congress last year. The funding would have come from general tax dollars, not the existing federal program to reclaim mines abandoned before 1977.

by Andy Kroll

ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive our biggest stories as soon as they’re published.

The Senate Judiciary Committee voted on Thursday to authorize subpoenas of billionaire businessman Harlan Crow and conservative legal activist Leonard Leo as part of the committee’s ongoing effort to investigate ethics lapses by Supreme Court justices.

But the ultimate fate of the subpoenas is uncertain. If Crow and Leo defy the information requests — which ask for a detailed accounting of gifts, transportation and lodging the two men provided or helped organize for Supreme Court justices and the justices’ relatives — Democrats would need a 60-vote majority to enforce the subpoenas. Currently, Democrats hold a one-vote advantage in Congress’ upper chamber.

Republicans have mounted fierce opposition to the inquiry into Crow and Leo, who have for months refused to comply with the committee’s requests. The vote to issue the subpoenas fell along party lines, with all 11 of the Democrats voting in favor and most Republicans walking out of the hearing in protest as the vote was taken.

Sen. Dick Durbin, D-Ill., the Judiciary Committee chairman, said at Thursday’s hearing that the revelations reported by news organizations including ProPublica spurred the committee’s action to demand more information about people close to the justices.

As ProPublica reported, Crow, a major Republican donor and real estate magnate, paid for lavish travel and gifts for Justice Clarence Thomas over a span of decades — gifts that Thomas repeatedly failed to disclose. ProPublica also revealed that Leo, an architect of the high court’s conservative majority, helped organize a trip to Alaska for Justice Samuel Alito that included a private jet flight provided by Paul Singer, a hedge-fund billionaire who later had business before the nation’s highest court. Alito did not disclose the flight.

“Both Leonard Leo and Harlan Crow are central players in this crisis,” Durbin said. “Their attempts to thwart legitimate oversight efforts of Congress should concern all of us.”

In response to the subpoena vote, Leo said in a statement: “Senate Judiciary Committee Democrats have been destroying the Supreme Court; now they are destroying the Senate. I will not cooperate with this unlawful campaign of political retribution.”

A spokesperson for Crow said in a statement that the subpoena was “invalid” and demonstrated “the unlawful and partisan nature of this investigation.” But the spokesperson added that Crow had offered “extensive information” to the committee and “remains willing to engage with the Committee in good faith, just as he has consistently done throughout this process.”

Justices Thomas and Alito have said they weren't required to disclose the gifts and trips unearthed by ProPublica and other news outlets. In response to previous stories, Crow and Leo have said they did nothing wrong in their dealings with the justices.

On Nov. 13, the Supreme Court announced its own code of ethics for the first time in history, governing conflicts of interests, gifts and recusal standards. But ethics experts noted that the new code contains no enforcement mechanism, and Durbin said it “falls far short” of what the public should expect from the nation’s highest court.

Republicans on the Judiciary Committee used Thursday’s hearing to air a litany of grievances against their Democratic counterparts for seeking to subpoena Crow and Leo.

Sen. Lindsey Graham of South Carolina, the committee’s top Republican, called the subpoena effort “garbage,” “a jihad” and “political theater.” Even though the committee subpoenaed private citizens several years ago under Graham’s leadership during an investigation into the federal government’s handling of Russian interference in the 2016 election, Graham said Democrats had unfairly targeted private citizens for retribution in the case of Crow and Leo.

He also accused Democrats of acting at the behest of unnamed “outside” forces and questioned why they hadn’t moved to a full vote on an existing judicial ethics bill.

“I don’t buy one bit [that] this is about fixing a problem,” Graham said on Thursday. “This is about an ongoing effort to destroy this court, to destroy Clarence Thomas’ reputation, to pack the court, to get your way.”

In a statement after the vote, Sen. Sheldon Whitehouse, D-R.I., a committee member and vocal supporter of judicial ethics reform, questioned the strong opposition from his Republican counterparts.

“Republicans have said our investigation into billionaire influence at the Court will destroy the institution,” he said. “All of this obstruction raises the question: what are Republicans so concerned we will find has been happening at the Court that it will destroy the institution? Whatever it is, the American people should know about it, and today’s vote was a big step toward learning the truth.”

Until recently, there was bipartisan agreement on the need for oversight and ethics reforms focused on the judicial branch, including the Supreme Court.

Sen. Richard Durbin, D-Ill., the Judiciary Committee chairman, left, and Sen. Sheldon Whitehouse, D-R.I. (Bill Clark/CQ-Roll Call, Inc/Getty Images)

In February 2021, Graham teamed up with Whitehouse to ask Chief Justice John Roberts about when the high court planned to create a code of ethics or at least bring its rules about accepting and disclosing gifts in line with the other branches of government.

In June 2021, Whitehouse and Sen. John Kennedy, R-La., co-signed a letter that requested information from the U.S. Marshals Service about Supreme Court justices’ travel and the costs to taxpayers for providing security to the jurists.

And in 2022, Republican and Democratic lawmakers passed legislation that extended disclosure rules and regulations around stock trades by elected officials to include judges.

But ever since Democrats first began asking Leo, Crow and several other individuals about their interactions with the justices, Republicans have strongly pushed back. Republican senators offered 177 amendments to the Crow and Leo subpoenas that touched on everything from liberal dark money groups to border-security policy. The amendments were not taken up at Thursday’s hearing.

Democrats on the Judiciary Committee initially requested information from Crow back in May in response to ProPublica’s reporting about his relationship with Thomas. Then, in July, Whitehouse and Durbin asked Leo for similar information about his dealings with justices after ProPublica disclosed Leo’s role in arranging Alito’s 2008 Alaska trip.

Thomas and Alito have said they weren’t required to disclose the gifts and trips. In response to previous stories, Crow and Leo have said they did nothing wrong in their dealings with the justices.

Durbin said Crow had offered to provide five years’ worth of information to the committee, but Democrats said that failed to fully respond to their requests. Leo, for his part, has entirely refused to cooperate with the committee. A month ago, Democrats announced that they planned to issue subpoenas for Crow and Leo.

Still, Democrats have managed to gather new information as part of their inquiry.

Several weeks ago, Durbin announced that Robin Arkley II, a longtime donor to conservative legal groups who provided free lodging to Alito on the 2008 Alaska fishing trip, had cooperated by providing information to the committee. Democrats on the Senate Finance Committee, meanwhile, received and publicized financial information received from Anthony Welters, a businessman who provided a personal loan to Thomas to purchase an RV. According to the Welters’ information released by the committee, Thomas did not repay “a substantial portion” of the $267,230 loan he received from Welters.

If Crow and Leo defy the subpoenas issued on Thursday, what comes next isn’t immediately clear. In an earlier interview, Whitehouse told ProPublica that he believed there were several options available to enforce the subpoenas, including using “an old Senate rule” under which enforcement would be handled directly by the U.S. attorney general if the Justice Department agreed to do so.

by Paul Kiel

ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive our biggest stories as soon as they’re published.

Last month, Microsoft disclosed that the IRS had sent the company a bill for $28.9 billion in back taxes as part of an audit. The examination, which began more than a decade ago, is the largest in the agency’s history, and it’s far from over, as Microsoft has vowed to appeal the findings.

The centerpiece of the audit, as ProPublica detailed in an investigation nearly four years ago, is a 2005 transaction that moved tens of billions of Microsoft’s U.S. profits to Puerto Rico to help the software giant save billions in taxes. In a letter sent Wednesday, three senators, citing ProPublica’s reporting, focused attention on the company that helped Microsoft cook up that scheme: the mega-consultancy KPMG.

“KPMG’s role in Microsoft’s tax evasion is deeply disturbing, indicating that KPMG helped Microsoft reward shareholders and executives, while depriving the federal government of billions in tax revenue needed to pay for health care, environmental protection, infrastructure, and more,” says the letter, which was signed by Democratic Sens. Elizabeth Warren, Bernie Sanders and Sheldon Whitehouse and sent to KPMG’s CEO. “You owe Congress an explanation for your firm’s actions.”

In 2004, Microsoft was considering closing a small factory in Puerto Rico where some 85 workers burned Windows and Office software onto CDs. The tax break that had led Microsoft to open the factory was expiring. But KPMG pitched Microsoft on an idea for a break that would be far more valuable.

Boasting about the firm’s experience in setting up similar deals for other huge companies, KPMG said it could help Microsoft save billions in taxes by transferring profits to the island. The little factory would buy the exclusive rights to Microsoft’s technology. Meanwhile, KPMG assured Microsoft that its San Juan partner had a long track record of negotiating “significant tax holidays for U.S. companies with the Puerto Rican government.”

At the time, as ProPublica’s reporting showed, KPMG took great pains to make Microsoft’s moves — which effectively increased the valuation of the Puerto Rican subsidiary from $0 to $30.4 billion over the space of 24 hours, according to the IRS — seem bona fide. “What can we do to make this thing real?” read the notes from one KPMG meeting.

After Microsoft agreed to the arrangement, KPMG helped the company complete the deal. Its economists generated complex models that justified the price the factory paid for Microsoft’s intellectual property rights.

Over a decade later, when the IRS fought to obtain KPMG documents as part of its audit, Microsoft objected that the material was protected by a privilege for tax advice. The IRS eventually won access to the documents when a federal judge agreed that KPMG had been promoting a tax shelter. “The Court finds itself unable to escape the conclusion that a significant purpose, if not the sole purpose, of Microsoft’s transactions was to avoid or evade federal income tax,” U.S. District Judge Ricardo Martinez wrote in his opinion. Martinez added that documents in the case showed KPMG had “promoted” the transactions.

Just as Microsoft was far from the only tech company to shift profits to tax havens, other Big Four consultancies also worked to enable those deals. But the Microsoft case provides a unique window into one of the largest deals, and the senators, in their questions, seek more detail about KPMG’s role in it, as well as the firm’s history assisting other profit-shifting transactions. Based on the evidence in the Microsoft case, they wrote, “KPMG clearly played a central role in the systematic offshoring of corporate profits, which has eroded the U.S. tax base.”

KPMG did not immediately respond to ProPublica’s inquiry about the letter. The firm declined to comment for our earlier story on the audit. (In a brief in the IRS case, KPMG wrote that it had “provided routine tax advice to its longstanding client, Microsoft, in response to Microsoft’s request for advice relating to a plan that Microsoft itself conceptualized — actions that do not, under any standard, qualify as the ‘promotion’ of a tax shelter.”)

In response to questions for ProPublica’s original article, Microsoft said it “follows the law and has always fully paid the taxes it owes.”

by Jeremy Kohler, ProPublica, and Ryan Krull, Riverfront Times

ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up for Dispatches, a newsletter that spotlights wrongdoing around the country, to receive our stories in your inbox every week.

Prosecutors routinely find ways to get key detectives to testify in criminal trials, even when they are retired, sick or otherwise reluctant. Some fly retirees in from Florida or other retirement locales when necessary. Others have said they use subpoenas to force detectives to take the witness stand.

But prosecutors in the St. Louis circuit attorney’s office have been unable to get retired homicide detective Thomas W. Mayer Sr. into a courtroom, even though some of the cases Mayer investigated involved the murders of children — the sort of high-profile cases cops say they especially want to win.

Over the past two years, Mayer has told prosecutors he is unable to testify against two men he arrested after the fatal shooting of an unarmed teenager; those cases crumbled. Prosecutors said he told them he’s not available to testify in the case against a teen accused of driving a car from which at least one passenger allegedly shot another teen who was in his own vehicle. And court records say Mayer has been unavailable to testify against a teen charged with the murder of a 9-year-old boy shot while riding in his family’s SUV while they were delivering food to his grandmother.

Mayer, who served as the Missouri president of the Fraternal Order of Police from 1998 to 2006, contends retired police officers should not be expected to testify, because “retirement is meant to be retirement.” And he said his doctor told him he’s too sick to testify, though it’s not the first time Mayer has claimed illness has prevented him from carrying out his duties — and not the first time those claims have been questioned.

“If I were to be dragged back to court, with the stress level and heartbeat level — blump,” Mayer, 66, told a reporter during an interview at his home in rural southeastern Missouri, mimicking a collapse. “I don’t want that.”

Mayer’s position is in some ways similar to that of another retired St. Louis homicide detective, Roger Murphey. ProPublica and Riverfront Times reported last month how Murphey has refused to testify in at least nine murder cases because he was angry over policies of former Circuit Attorney Kim Gardner. Unlike Murphey, Mayer said he was not holding out for political reasons. Still, prosecutors are facing the same challenges to keep his cases viable as they did with Murphey’s.

In a city struggling to solve murders in the first place, the refusal of police to take part in routine court proceedings compounds St. Louis’ criminal justice challenges, and leaves victims shortchanged.

Mayer and Murphey also expose a vulnerability in how St. Louis police approach homicide investigations: They frequently rely on a single detective. But former prosecutors and homicide investigators in other jurisdictions said most police departments use multiple officers at every critical juncture of a case to reduce such vulnerabilities.

“When a homicide case is properly investigated, ideally there should be redundancies built into the investigation so you shouldn’t be reliant on a single police officer for any fact,” said Matt Murphy, who was a prosecutor in Orange County, California, for more than two decades and now works as a defense lawyer and legal commentator.

Mayer said departments should be prepared for retired detectives to be unavailable. “I regret that cases fell by the wayside, but there should be some kind of safety net,” he said in one of a pair of lengthy interviews. He said he believed prosecutors understood his health issues and said they have assured him that “they’re going to go on with other witnesses.”

How Mayer and Murphey have responded to their old murder cases raises questions about why city prosecutors have not dealt with the problem head on, using their subpoena power to force them to court.

Doing so might result in messy trials, with Mayer or Murphey potentially becoming hostile witnesses. But forcing their hands would send a message to the police department that “there are police policy issues that have to get fixed,” said Brendan Roediger, a professor at Saint Louis University School of Law and director of its civil advocacy clinic.

The St. Louis police department did not respond to questions about Mayer and his cases. Marvin Teer, Circuit Attorney Gabriel Gore’s chief trial assistant and the prosecutor who has handled three of those cases, said he had to take Mayer at his word and didn’t have the authority to force him to reveal his medical records. He said Mayer’s health information was protected by privacy laws.

“Our biggest fear,” Teer said, “is he’s already indicated he doesn’t remember the cases because his medicine interferes with his ability to recall accurately. Why do I want to put a guy like that on?”

Teer acknowledged that “in hindsight, I might have done things differently.”

St. Louis Metropolitan Police Department headquarters (Paul Sableman/Wikipedia Commons)

St. Louis has one of the highest homicide rates in the country, with about 1,000 murders since the beginning of 2019. And some families of those who were killed say the refusal of two detectives to testify has compounded their pain.

After Jonathan Cruz, 19, was shot to death in 2021 by passengers in two separate cars, police arrested the alleged driver of one of those cars, Neptali Mejia. Court records show that Mejia provided a videotaped confession to Mayer and that prosecutors charged him with first-degree murder. Mejia has pleaded not guilty and is currently under house arrest.

Cruz’s brother Ivan said he hoped Mejia’s arrest would lead the police to others involved in the crime. Mayer, he said in an interview, “gave me hope there was going to be justice and everyone responsible was going to be behind bars.”

Now the case is in trouble. Because prosecutors have said Mayer won’t testify, Mejia’s lawyer said he plans to ask the judge in the case to block the video recording of Mejia’s statements to Mayer from being admitted at trial.

Ivan Cruz, who said he has moved to another state out of fear of the people who shot his brother, said he was aware that prosecutors were having trouble reaching Mayer. Mayer, he said, “can bring a lot of peace and closure to the families that are suffering from all of this violence.”

The notion that officers would not follow their cases to trial is anathema to many homicide detectives and prosecutors. They said retired police officers, despite generally not being paid for testifying in their old cases, hold a legal and ethical duty to participate at trial, the same as anyone with knowledge pertinent to a court case.

Retired Seattle homicide detective Cloyd Steiger said he belongs to a Facebook group of retired police officers. “I get messages from them sometimes saying, ‘Hey, I got a subpoena for this murder trial. Do I have to go?’” he said. “And my answer is, ‘Yes, it’s unambiguous. Sorry, yeah, you gotta put your big boy pants on and go down there and do it.’”

John Skaggs, a retired Los Angeles homicide detective who trains homicide squads around the country, said the thought that a homicide detective would refuse to testify for any reason “is foreign to me.”

He said he has brought witnesses into court in wheelchairs and even hospital beds because their testimony was so important. He said he would do the same if he was ill and his testimony was needed. “I’d come in with a medical doctor and a paramedic team, and they can revive me if I go out,” he said. “If I’m needed, I’m coming.”

Brian Seaman, the district attorney in Niagara County, New York, said he had to track down seven retired police officers — including two who had moved out of state — to testify in a 2021 trial over the strangling murder of a 17-year-old girl nearly three decades earlier. He won a conviction.

Seaman said that bringing back the retirees was a “logistics puzzle” but that they “took great pride in their work and wanted to see the case through” to a trial. He said if a retired officer is the only witness who can provide testimony about evidence, “it’s just expected that they be available.”

Officers do sometimes have legitimate medical reasons for missing court, experts noted. Or, particularly in cold cases, they may even be dead by the time a case comes to trial. That’s why it’s important that departments have multiple police witnesses for each piece of evidence collected in the investigation.

But in St. Louis, perhaps because the two detectives are alive and their absences cannot easily be explained to jurors, local prosecutors have tried to salvage what they can from them.

Some legal experts took issue with the circuit attorney’s office’s decision not to compel Mayer to court. Murphy, the former Orange County prosecutor, said it would be a “cop-out” for a prosecutor to say they couldn’t proceed with a case because a witness said they were sick. He said prosecutors can subpoena a witness to determine whether they have a valid medical reason not to testify.

In the early morning hours of a Sunday in August 2019, Sentonio Cox became the 12th child that year in St. Louis to be killed by gunfire — and the third that weekend. The 15-year-old had been roaming around a south side neighborhood with a cousin, who was about the same age. The cousin told police later that someone had come out of a house and yelled at them to get off their property. He fled when he heard a gunshot.

The cousin guided the family to the last place he saw Sentonio. Just after sunrise, they found Sentonio’s body in a vacant lot across the street with a gunshot wound to his head.

Mayer led the investigation, which culminated with the arrest of Brian Potter, who lived in a house across from the vacant lot, and Joseph Renick, who had been staying with him. Police and prosecutors alleged the men had confronted the teens after using a surveillance camera to spot them trying to break into a vehicle parked in front of the house.

According to police and court records in the murder cases, Mayer alleged that Renick pointed a revolver at Sentonio as the teen was backing away with his hands up. Potter ordered Renick to “shoot this piece of shit,” and Renick fired one shot into Sentonio’s head. Renick and Potter pleaded not guilty.

Emails obtained through a public record request showed that prosecutors contacted Mayer several times to update him on the case as they prepared for the Renick and Potter trials. Mayer acknowledged in October 2021 that he had received a subpoena, according to the emails.

In January 2022, prosecutor Srikant Chigurupati emailed Mayer to say the trials were coming up and “we’ll obviously need you as a witness.”

Weeks later, prosecutors requested new trial dates, telling Judge Christopher McGraugh that Mayer was on leave from the department and they were unable to get him to testify. The judge denied the requests.

To buy more time to try to get Mayer to court, the circuit attorney’s office in March 2022 dropped the cases and refiled them. Potter’s attorney said the move violated his client’s right to a speedy trial; Renick’s said it was an abuse of the criminal justice system.

By then, Mayer was approaching retirement and using his accumulated sick time. Mayer said he called in sick for several months in 2022, a common practice among St. Louis officers to maximize their payout for unused sick days, and left the department in September of that year, when he reached the mandatory retirement age of 65.

The trial of Potter began in August 2022. Without Mayer, the case against Potter rested on a single eyewitness who had told Mayer she heard Potter give the order to shoot. Potter had told Mayer he didn’t know Renick had a gun, and that the shooting had surprised him, according to testimony at the trial.

Potter’s attorney, Travis Noble, sought to undermine the credibility of that witness, according to the transcript. Noble’s questions during cross-examination revealed that the eyewitness had lied under oath in a previous case and suggested a possible hidden agenda for her implication of Potter: that Mayer had showered her with compliments, called her a hero and promised to intercede with her parole officer. She was on parole for drug trafficking.

Noble also challenged parts of the investigation as unethical and incomplete. In his opening statement, he noted that Mayer, the detective who wrote all the reports, wasn’t there in court but that jurors would instead hear testimony from another detective, Benjamin Lacy, who hadn’t written the reports.

Marvin Teer, chief trial assistant for the St. Louis circuit attorney’s office (Robert Cohen/Pool Photo)

In an exchange with Teer in court, Noble said he would reveal the reason for Mayer’s absence to the jury, insinuating there was more to the story. Out of earshot of the jury, Noble told the judge that he’d heard rumors that Mayer simply “doesn’t want to come back” to testify and said he wanted to ask Lacy about it on the stand, according to the trial transcript.

“He said, ‘F the city of St. Louis,’” Noble told the judge. “He’s riding out, burning his sick time until he can retire.”

The judge said he was wary of derailing the trial by allowing the jury to hear questions about Mayer’s absence. He pointed out that another prosecutor had vouched for Mayer’s medical condition, and he had to accept it as fact. The judge told both sides to say Mayer was “not available.”

In cross-examination, Noble pressed Lacy for details that Mayer had not recorded in his report.

“I know this is not your investigation,” Noble said. “I’m not saying you were derelict the way you did it. This ain’t you. This is Mayer’s investigation, right?”

Lacy answered: “It is.”

The jury acquitted Potter after less than a day of deliberation.

“There was no evidence presented that seemed credible,” the jury foreman, Adam Houston, said in an interview. “Maybe the detective could have made the difference if he had been a credible witness, but it was just some really crappy pictures, a lot of hearsay and random people who are not trustworthy saying things you don’t feel were unmotivated by the things they might be getting out of testifying.”

A week before Renick’s murder trial was set to begin in June, Teer struck a deal for him to plead to involuntary manslaughter; under what’s known as an Alford plea, Renick maintained his innocence even as he conceded prosecutors had enough evidence to convict him. Renick was sentenced to 10 years in prison; under parole guidelines, he is scheduled to be released in August 2025.

While the judge said he didn’t typically discuss plea deals, he described Renick’s sentence as “extremely favorable.” If the case had gone to trial, he said, Renick could have faced life in prison.

Teer said he was “incensed” over how Mayer affected his cases.

Mayer lives far from where he once tried to solve some of the city’s most brutal crimes, in a home set in woods off a dirt road about 100 miles south of St. Louis. Reporters from ProPublica and the Riverfront Times interviewed him in front of his home in June and again in October, each time for about 90 minutes.

Mayer has told prosecutors that he suffers from a heart condition, according to Teer. During the interviews, he said his physical decline should be plainly visible, and he repeatedly apologized for seeming groggy or forgetting key details, which he blamed on the medications he takes. He declined to share his medical records.

This is not the first time Mayer has claimed to be sick for extended periods, but he said that allegations he has abused sick time are false. Before joining the St. Louis police force in 2005, Mayer worked for 24 years in the police department in St. Charles, a major St. Louis suburb. He also took on leadership roles with the FOP, and eventually became its statewide president, representing some 5,000 officers.

In 1995, the St. Charles chief, David King, wrote in an internal memo that Mayer had developed an attitude that “may be counterproductive to police efforts” after his work shift was changed, according to court records.

Mayer then called in sick for 4 1/2 months, producing doctor’s notes that said he had shortness of breath and vocal cord spasms, according to court records. In a memo in January 1996, King noted that Mayer had been seen at an FOP dinner dance and was attending union-related meetings.

In 2003, some St. Charles City Council members wanted to trim Mayer’s benefits, including the 200 hours a year of paid leave he received to do union work. He filed a workers compensation claim for stress-related illness from the “constant and pervasive harassment” of the city council members, then called in sick for five months. His doctor noted that while Mayer was too sick to work, he was able to carry out his FOP duties, which carried “minimal stress,” according to medical records in court papers.

In May 2004, Mayer sued the city, the city administrator and all 10 council members, alleging they were harassing him and causing him health problems. The city countersued with a host of charges against Mayer, including repeated sick time abuse. It pointed to his work for the FOP and claimed that he was physically active.

Mayer was fired in April 2005, according to court records, then months later hired by the St. Louis police department. Mayer and the city of St. Charles agreed to drop their lawsuits, with the city agreeing to pay Mayer $57,000 and describe his departure in personnel records as a retirement, according to news reports.

Fourteen months into his retirement, Mayer recalled how he used to relish testifying in court, a task he called the “crowning jewel” of police work. He said he particularly enjoyed the results of his testimony: helping to send a defendant to prison.

But Mayer said he doesn’t want to think about the horrors of his old job. “That city was just a toilet, and the violence put on other people is just horrendous,” he said. “I don’t really want any involvement anymore,” he added. “I’m retired, you know — aging — and I have my kids and my grandkids.”

That attitude comes with a cost. In the case against Neptali Mejia for the murder of Jonathan Cruz, Mayer’s reluctance to testify casts doubt on the prosecution’s ability to get a murder conviction.

Ivan Cruz said he fears the people involved in his brother’s death will become emboldened if Mejia is not convicted of murder. He said he believes that potential co-defendants have seen Mejia on house arrest and “laugh about it and say the system is not going to do anything.”

In February, Judge Katherine Fowler granted a motion by Mejia’s lawyer, Mark Byrne, to exclude Mayer from testifying because prosecutors had not made him available for a pretrial deposition. Byrne noted in the motion that the prosecutor had told him and the judge months before that Mayer “has not been cooperative with prosecutions of cases in the City of St. Louis.”

Mayer was the only detective present when Mejia allegedly made statements that prosecutors say implicated him, and prosecutors have not disclosed any witness who could provide evidence against his client, Byrne wrote. It’s not clear if a prosecutor would be able to use the recording of Mejia’s statements at trial without Mayer appearing in court to testify about it.

Byrne said if the case were to go to trial, he would ask the judge to bar the recording because he would not have a chance to cross-examine Mayer about it.

“Any evidence they would try to put on and not have the lead detective is problematic,” he said. “The lead detective has his hands on everything and directs people to do things as part of their investigation.”

Two weeks before publication of this story, Teer said he’d been “troubled for quite some time” about Mayer’s absence from the Mejia case. “You can expect that he’ll receive a subpoena from us,” Teer said.

“And if I have to arrest Tommy Mayer to bring him in,” he added, “then I will.”

Do You Have a Tip for ProPublica? Help Us Do Journalism.

by Duaa Eldeib

ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive our biggest stories as soon as they’re published.

Legal experts from two universities will convene a group to study a dubious forensic test that has helped send some women to prison for murder though the women insisted they had stillbirths.

Last month, ProPublica reported on what’s known as the lung float test, which some medical examiners use to help determine whether a child was stillborn or was born alive and took a breath.

In response to the investigation, Aziza Ahmed, a professor at Boston University School of Law, and Daniel Medwed, professor of law and criminal justice at Northeastern University, announced they will lead the Floating Lung Test Research Study Group. The group, which will consist of lawyers and medical professionals, will be sponsored by the Boston University Program on Reproductive Justice and the Center for Public Interest Advocacy and Collaboration at Northeastern University School of Law.

“This is entirely due to the ProPublica report,” Ahmed said last week. “We realized it was time to take action.”

The aim of the group is to study the medical underpinnings of the lung float test, also referred to as the floating lung test, and determine whether it should be used in court. ProPublica’s reporting found that although several medical examiners said the test is unreliable, it had been used in at least 11 cases since 2013 in which women were charged criminally, and it has helped to put nine of those women behind bars. Some later had their charges dropped and were released.

The test, which has been around for centuries and remains essentially unchanged in spite of medical advances, is typically used in cases when births occurred outside of a hospital. Critics have likened the test to witch trials, when women were deemed to be witches based on whether they floated or sank.

When told about the study group, Dr. Joyce deJong, president of the National Association of Medical Examiners, said the organization “supports initiatives that aim to enhance forensic tests’ scientific rigor and reliability.” It doesn’t have an official stance on the test, but deJong said a primary role is to “promote best practices and standards in forensic pathology and death investigation.”

If the study group asks for board-certified forensic pathologists to participate, the organization could share the request with its members, deJong said.

The group leaders plan to spend the next several weeks assembling a team and hope to have their first meeting early next year.

“The process will be robust and comprehensive,” Medwed said. “We will explore and interrogate any argument, pro and con.”

Many medical experts say that air can enter the lungs of a stillborn child even without breathing. Air can enter when the baby’s chest compresses as it squeezes through the birth canal, through CPR or during the ordinary handling of the body. If the body is decomposed, gases may cause the lungs to float.

Following the U.S. Supreme Court’s decision to strike down the constitutional right to abortion, experts fear the test may play a larger role in cases when police and prosecutors raise questions about the circumstances of a birth.

“There’s a concern that more women would be vulnerable to prosecution, especially if they tried to self-induce later in pregnancy,” Ahmed said. “In this environment, the floating lung test is something that prosecutors would rely on.”

Medical and legal experts have pointed to wide variations in how the test is conducted, including the fact that some medical examiners use a whole lung while others use pieces. Experts have said the lack of standardization required by other forensic disciplines, such as DNA testing, has led to the lung float test producing inaccurate results.

Medwed, who also is a founding member of the board of directors of the Innocence Network, a coalition of organizations dedicated to fighting wrongful convictions, said that nearly 25% of wrongful conviction cases since 1989 involved some type of flawed science.

Because the lung float test is conducted by medical examiners, Medwed said, he worries the “mystique of the white coat” leads judges and jurors alike to overvalue the test. Similar concerns have been raised about shaken baby syndrome, which has faced increased scrutiny in recent years. There’s a natural deference to the expert, he said, and specifically the expert best at persuading a jury.

“The downstream consequence,” he said, “could be a wrongful conviction.”

Even supporters of the test acknowledge its drawbacks, conceding there are many ways to perform it and that they shouldn’t rely solely on the test when investigating a death. Despite those shortcomings, judges have allowed prosecutors to use it as evidence in court.

ProPublica wrote about the case of Moira Akers, a Maryland mother who insisted she had a stillbirth but last year was sentenced to 30 years in prison after a jury found her guilty of child abuse and murder. The medical examiner in the case relied on the lung float test. The state’s attorney’s office declined to comment while the case was on appeal.

The Appellate Court of Maryland is set to hear Akers’ appeal in early January.

by Eli Hager

ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up for Dispatches, a newsletter that spotlights wrongdoing around the country, to receive our stories in your inbox every week.

The Biden administration this fall is quietly moving to overhaul welfare, aiming to end multiple abuses of the nation’s cash assistance program for the poor that a 2021 ProPublica investigation found states have been engaging in for years.

Through a package of proposed reforms to the Temporary Assistance for Needy Families program, or TANF, the administration plans to shore up the U.S. social safety net. The regulations are intended to ensure that more federal and state welfare dollars make it to low-income families, rather than being spent on other things or not spent at all.

The proposal, drawn up by the federal Administration for Children and Families, is open for public comment until Dec. 1. Once comments are reviewed, officials plan to issue final regulations that could take effect in the months after that, heading into the 2024 election.

The first change would prohibit states from counting charitable giving by private organizations, such as churches and food banks, as “state” spending on welfare, a practice that has allowed legislatures to budget less for programs for low-income families while still claiming to meet federal minimums. ProPublica documented how Utah avoided more than $75 million in spending on public assistance over the past decade by taking credit for aid to the hungry and homeless provided by the Church of Jesus Christ of Latter-day Saints. (Many of the vulnerable Utahns we interviewed felt that in order to access desperately needed aid, they had to participate in Mormon religious rites they didn’t believe in.)

By banning this practice, the Biden administration’s plan would force Utah to stop taking credit for what the church does and instead spend more state money assisting people in poverty.

The new rules would also restrict states from spending TANF funds on child protective services investigations, foster care or any other programs that don’t meet the fundamental purposes of welfare: strengthening poor families and keeping them together. ProPublica found that in Arizona and elsewhere, money meant to help parents struggling to raise their children is instead used to investigate them for alleged child maltreatment — which often stems from the very financial circumstances that they needed help with in the first place.

Under the Biden plan, Arizona would likely have to find other ways of funding its aggressive child protective services investigations of poor parents and use welfare dollars to help families stay together rather than removing their kids into foster care.

The reforms would also redefine the term “needy” to refer only to families with incomes at or below 200% of the federal poverty line. Currently, some states spend TANF money on programs like college scholarships — or volleyball stadiums — that benefit more affluent people.

Ashley Burnside, a senior policy analyst and expert on TANF at the Center for Law and Social Policy, an advocacy organization for low-income Americans, said that political support for such improvements to welfare has grown in recent years, especially amid the pandemic, when so many more families started to need help. Media coverage by both ProPublica and Mississippi Today helped make this happen, she said.

As ProPublica has reported, many of welfare’s failures originated with a 1996 law signed by then-President Bill Clinton. That legislation, which Biden supported at the time as a senator, gave states broad flexibility over how to spend their annual grant of federal dollars intended for the poor. In the decades since, legislatures, especially in the South and Southwest, have found ever more creative outlets for the funding, including diverting it to anti-abortion clinics or not spending it at all.

The Biden administration’s proposal would mandate that states provide concrete evidence, including social science research or real-world examples, showing that they are using their TANF spending in ways that truly help families in need.

One of the best ways to do that, according to the administration: direct cash assistance. “We remind states that there is a large body of research that shows that cash assistance is a critically important tool for reducing family and child poverty,” said the announcement of the proposed regulations. “Studies have found that when families receive TANF and are more financially secure, they are less likely to be involved in the child welfare system.”

The announcement also said that states will have time to create new TANF plans; the implementation period will be flexible. But, ultimately, if they fail to comply, they will be assessed a significant penalty for misuse of funds.

“This will not completely solve the problem of the leakage of TANF funds,” said Burnside. “But it will create guardrails so that more money actually gets to poor families.”