ProPublica

by Cheryl Clark for ProPublica

ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive our biggest stories as soon as they’re published. This story was co-published with The Capitol Forum.

Have you ever had a health care claim denied by your insurer? Ever tried to appeal it? Did you wind up confused, frustrated, exhausted, defeated?

I’ve been a health care reporter for more than 40 years. And when I tried to figure out how to appeal insurance denials, I wound up the same way. And I didn’t even try to file an actual appeal.

ProPublica came to me earlier this year with what might have seemed like a simple proposition. They wanted me to create an interactive appeals guide that would help readers navigate their insurers’ maze. (A team of reporters at ProPublica and The Capitol Forum has been investigating all the ways that insurers deny payments for health care. If you’ve got a story to share, let them know here.)

Over the next several weeks, I spoke with more than 50 insurance experts, patients, lawyers, physicians and consumer advocates. Nearly everyone said the same thing: Great idea. But almost impossible to do. The insurance industry and its regulators have made it so complicated to file an appeal that only a tiny percentage of patients ever do. For example, less than two-tenths of 1% of patients in Obamacare plans bothered to appeal claims denied in 2021.

The central problem: There are many kinds of insurance in the U.S., and they have different processes for appealing a denial. And no lawmakers or regulators in state and federal governments have forced all insurers to follow one simple standard.

I tried to create a spreadsheet that would guide readers through the appeals process for all the different types of insurance and circumstances. When a patient needs care urgently, for instance, an appeal follows a different track. But with each day of reporting, with each expert interviewed, it got more and more confusing. There was a point when I thought I was drowning in exceptions and caveats. Some nights were filled with a sense that I was trapped in an impossible labyrinth, with signs pointing to pathways that just kept getting me further lost.

Here are some of the issues that make it so confusing:

First, people have to know exactly what kind of insurance they have. You may think that UnitedHealthcare is your insurer because that’s the name on your insurance card, but that card doesn’t tell you what kind of plan you have. Your real insurer may be your employer. Some 65% of workers who get their coverage through their employers are in what’s known as “self-funded plans,” according to KFF (formerly Kaiser Family Foundation). That means the employer pays for medical costs, though it may hire an insurance company like UnitedHealthcare to administer claims.

The other main type of insurance that companies provide for their workers is known as a “fully insured plan.” The employer hires an insurer to take all the risk and pay the claims. With that kind of plan, the name on your card really is your insurer. Why does this difference matter? Because the route you follow to challenge an insurance denial can differ based on whether it’s a fully insured plan or a self-funded one.

But all too often people don’t know what kind of plan they have and aren’t really sure how to find out. I’m told that some employers’ human resources departments don’t know either — although they should.

“It is a little scary, because people honestly don’t really know what they have,” said Karen Pollitz, a senior fellow at KFF who specializes in health insurance research. “I’m just going to warn you that if you set up the decision tree with an A: yes, B: no, or C: not sure, you’ll find a lot of people clicking not sure.”

Government insurance is its own tangle. I am a Medicare beneficiary with a supplemental plan and a Part D plan for drug coverage. The appeals process for drug denials is different from the one for the rest of my health care. And that’s different from the process that people with Medicare Advantage plans have to follow.

A spokesperson for the Centers for Medicare & Medicaid Services, the federal agency that oversees Medicare, wrote in an email that the agency “has been actively engaged in identifying ways to simplify and streamline the appeals process and has worked with stakeholders and focus groups to identify ways to better communicate information related to the appeals process with the beneficiaries we serve.”

And we can’t forget about Medicaid and the Children’s Health Insurance Programs, which together covered 94 million enrollees as of April, more than a quarter of the U.S. population. The federal government sets minimum standards that each state Medicaid program has to follow, but states can make things more complicated by requiring different appeal pathways for different types of health care. So the process can be different depending on the type of care that was denied, and that can vary state to state.

And don’t even get me started on how baffling it can be if you’re one of the 12.5 million people covered by both Medicare and Medicaid. As far as which appeals path you have to take, Abbi Coursolle, a senior attorney with the National Health Law Program, explains: “It’s Medicare for some things and Medicaid for others.”

I sought help from Jack Dailey, a San Diego attorney and coordinator for the California Health Consumer Alliance, which works with legal-aid programs across the state. On a Zoom call, he looked at an Excel spreadsheet I’d put together for Medi-Cal, California’s Medicaid program, based on what I had already learned. Then he shook his head. A few days later, he came back with a new guide, having pulled an all-nighter correcting what I had put together and adding tons of caveats.

It was seven single-spaced pages long. It detailed five layers of the Medi-Cal appeals process, with some cases winding up in state Superior Court. There were so many abbreviations and acronyms that I needed to create a glossary. (Who knew that DMC-ODS stands for Drug Medi-Cal Organized Delivery System?) And this was for just one state!

Dr. Christianne Heck, a neurologist specializing in epilepsy with Keck Medicine of the University of Southern California, said her health system has a team of professionals dedicated to appealing denials and making prior-authorization requests — where you have to call the insurer and get approval for a procedure beforehand.

“It’s a huge problem,” Heck said. “It usually takes multiple attempts. We have to play this horrible, horrible game, and the patients are in the middle.”

It’s especially complicated in oncology, said Dr. Barbara McAneny, a former president of the American Medical Association who runs a 6,000-patient oncology practice in Albuquerque, New Mexico.

“My practice is built on the theory that all the patients should have to do is show up and we should manage everything else … because people who are sick just cannot deal with insurance companies. This is not possible,” she said.

McAneny told me she spends $350,000 a year on a designated team of denial fighters whose sole job is to request prior authorization for cancer care — an average 67 requests per day — and then appeal the denials.

For starters, she said bluntly, “we know everything is going to get denied.” It’s almost a given, she said, that the insurer will lose the first batch of records. “We often have to send records two or three times before they finally admit they actually received them. … They play all of these kinds of delaying games.”

McAneny thinks that for insurance companies, it’s really all about the money.

Her theory is that insurance companies save money by delaying spending as long as possible, especially if the patient or the doctor gives up on the appeal, or the patient’s condition rapidly declines in the absence of treatment.

For an insurance company, she said, “you know, death is cheaper than chemotherapy.”

I asked James Swann, a spokesperson for AHIP, the trade group formerly known as America’s Health Insurance Plans, what his organization thought of comments like that. He declined to address that directly, nor did he answer my question about why the industry has made appealing denials so complex. In a written statement Swann said that doctors and insurers “need to work together to deliver evidence-based care and avoid treatments that are inappropriate, unnecessary, and more costly. Most often, a claim that is not immediately approved just requires the provider to submit additional information to appropriately document the request, such as the diagnosis or other details. If a claim is not approved after correct and complete information is submitted, there are several levels of appeal available to the patient and their provider.”

Swann outlined some of the appeals steps available, including a review by a doctor who wasn’t involved in denying the claim initially, the chance to submit additional clinical rationale and a review by an entity that’s independent of the insurer. He also noted that Medicare Advantage and Part D programs have multiple levels of appeals before winding up in court, including a step that requires a review by an outside, independent organization.

Domna Antoniadis is a health care attorney in New York who co-runs the Access to Care nonprofit, which educates patients and providers on their health insurance rights. She spent hours helping me navigate various appeal systems.

She offered up one important tip for people who use commercial insurance: Get the full plan document for your policy and read it. It’ll be around 100 pages and will tell you what medical services are covered and detail all the steps needed to appeal a denial. Don’t rely on the four-page summary, she said. It probably won’t help.

Likewise, Medicare, Medicare Advantage and Medicaid denial letters should explain the steps to appeal the decision.

When you can, enlist the help of your medical provider. Sometimes an insurer says no to a claim because a doctor’s office submitted it under the wrong code, and that can be fixed quickly.

Antoniadis acknowledged the challenges but believes that consumers have a lot more power than they realize. They can push back to advocate for themselves.

“The appeals process is not always handled properly by the plans, which is why consumers need to report and complain to their relevant government regulators when they believe they’ve been unfairly denied,” she said. “That’s integral to changing the system.”

by Anjeanette Damon

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.

When Noelle Geraci lost her job at a private investment firm this year, she did everything she could to protect her most important asset: the house she owns with her mother in a Las Vegas suburb.

That same day she started applying for work and signed up for unemployment benefits. Then she called her mortgage company, Flagstar Bank, to see if it would reduce or pause her payments until she found another job. The bank recommended she apply to the Nevada Homeowner Assistance Fund, a pandemic-era program to help the unemployed with their mortgage payments.

Geraci and her mother, Shirley, who had co-signed the loan for the 2,300-square-foot stucco house in 2011, were reluctant to ask for help. Under Nevada’s program rules, the assistance is paid as a loan that’s forgiven after three years if the homeowner stays in their house.

They were also unsettled that the program required a three-year lien in exchange for the assistance. The lien was meant to ensure that the program would be reimbursed if they tried to sell the house or take out equity within three years, but it also could deprive them of flexibility in tough financial times.

But with Shirley Geraci retired, her daughter job hunting in a city with one of the highest unemployment rates in the nation and interest rates too high to make a loan modification work, they decided to apply. They qualified for up to a year’s worth of mortgage payments. The small nonprofit that runs the program in Nevada would make the monthly payments for them. It felt as if an unbearable weight was lifted.

Then a foreclosure notice arrived in the mail. The money that was supposed to flow from the U.S. Treasury, through Nevada’s assistance program and to their bank hadn’t reached Flagstar. And Noelle Geraci couldn’t get anyone to explain what was going on.

“It’s a complete nightmare,” she said. “My mom is a senior. Me losing my job has impacted us in a severe way. The one and only thing we have is our home. Everything we have is about to be gone.”

To distribute its share of the federal money, the state had chosen the Nevada Affordable Housing Assistance Corporation, a small nonprofit with a troubled history of administering federal assistance.

To keep their home, the Geracis were relying on NAHAC to deliver money to their mortgage servicer on time each month. But the bureaucratic chain connecting the Treasury, state agencies and banks can create delays. They soon learned that when payments are late, homeowners bear the risks.

Nevada’s isn’t the only program plagued by issues. This year, The Wall Street Journal detailed problems in multiple states similar to those the Geracis would face. In Pennsylvania, those seeking help used the same word as Noelle Geraci to describe the program: nightmare.

After the Geracis were approved for up to a year’s worth of assistance in May, NAHAC told them to stop paying their mortgage because the program would do it for them.

The foreclosure notice came in July: “Flagstar Bank is hereby notifying you that your above described loan is in default because the required payments have not been made,” the letter read.

Shirley Geraci panicked.

“I don’t want to lose my house,” she told ProPublica soon after the notice arrived. “I don’t want to end up in an apartment and lose everything we built.”

“It’s our investment,” she added. Eventually it will be her daughter’s if “life plays out the way it is supposed to.”

The foreclosure warning spurred a round of phone calls that elicited conflicting information from her bank and NAHAC. A NAHAC representative told Noelle Geraci not to worry about the notice, but the bank said if the family didn’t pay the arrears the foreclosure would proceed.

When Geraci told NAHAC that “the foreclosure is real; the clock is ticking,” the nonprofit was unable to tell her when or how much it had paid Flagstar and why the payment hadn’t yet been applied to her account, she said. And it wouldn’t provide anything in writing.

Shortly after a ProPublica reporter called the bank, a Flagstar representative contacted Geraci to assure her she wouldn’t be foreclosed on but, like NAHAC, told her it couldn’t provide that assurance in writing. A few days later, the bank called Geraci to say it had received payments for May and June, but the amounts were less than required. She also was told that if the bank didn’t soon receive payments for July and August, she would likely receive another foreclosure notice. In August, a letter informed her that she was again behind on payments.

“I don’t have any certainty,” Geraci said.

A Flagstar spokesperson said in a statement to ProPublica that despite the late and incorrect payments, the Geracis won’t face foreclosure. She said Flagstar will work directly with NAHAC to bring the mortgage current and will stay in contact with the Geracis.

Flagstar later confirmed it had received funds to bring the Geracis’ mortgage current.

“We would also like to clarify that no foreclosure was ever started on the loan, and that no negative credit reporting was made,” the spokesperson said.

The spokesperson said Flagstar is a “strong supporter” of the assistance program.

Verise Campbell is NAHAC’s chief executive officer. She was appointed in 2016 to improve the nonprofit after a federal audit found previous leadership had squandered federal aid to homeowners caught up in the 2008 foreclosure crisis.

Campbell said it isn’t unusual for the program to make late payments and for participants in the assistance fund to receive foreclosure notices. The program makes payments in bulk to banks on behalf of multiple clients, and there’s a lag between the bank receiving the money and applying it to individual accounts.

“It’s not just, ‘Oh, I got approved and then I get the money,’” Campbell said of the program. “There’s a whole machine behind all of this.”

NAHAC was supposed to make its first payment — covering May and June — to Flagstar on July 1. But Campbell said a staffing change caused the nonprofit’s late payments to banks in July. Flagstar didn’t receive the July 1 payment until July 28, two days after ProPublica contacted NAHAC about the Geracis’ situation.

The nonprofit also paid the wrong amount because the money needed to bring the loan current and the regular monthly payment amount had both changed between the time the Geracis were approved for the program and when the first payment was made, according to Campbell.

She said late payments and shortages are reconciled at the end of each month to keep individual mortgages current.

After ProPublica began asking questions about the Geraci case, Campbell had her staff reach out to Flagstar to speed up that reconciliation process. She said the bank assured NAHAC that it would not initiate foreclosure proceedings because of the late and inaccurate payments but that it was obligated to continue sending the notices to the Geracis. Federal consumer protection regulations require lenders to notify borrowers of delinquencies.

According to the most recent Treasury data, Nevada has been slow to enroll people and disburse the $120 million it was awarded for the program. At the end of the first quarter, it had distributed $17 million — less than 14% of its total award — ranking it 43rd among the states for getting money to homeowners.

As of Aug. 15, according to NAHAC’s data, Nevada had distributed an additional $12 million. And Campbell said the state is now on target to disburse all of its funds by Sept. 30, 2025, when the program comes to an end.

U.S. Sen. Catherine Cortez Masto, D-Nev., who the Geracis also reached out to for help, has been a proponent of NAHAC and worked to improve it when its earlier troubles came to light in 2016. Her spokesperson, Josh Marcus-Blank, declined to comment on the Geracis’ situation but said Cortez Masto continues to support the program.

“Senator Cortez Masto is focused on making sure Nevadans can stay in their homes, and she will continue working to make sure programs like NHAF are serving communities across the state by improving and streamlining their processes,” Marcus-Blank said.

Federal regulators have discouraged banks like Flagstar from foreclosing on homeowners who apply to or have been approved for the assistance program. In March, the Consumer Financial Protection Bureau promised “increased scrutiny” of mortgage servicers who foreclose on program participants. While the Geracis ultimately were not foreclosed on, neither states nor the federal government track whether foreclosures are occurring, said Stacey Tutt, a National Housing Law Project senior staff attorney who works with states to improve their program.

In some cases, federal regulators have erected guardrails to protect program participants from foreclosure prompted by delays in the program. Fannie Mae and Freddie Mac loan servicers are required to pause foreclosure proceedings against participants for 60 days, but when it comes to servicers of FHA-insured loans, that guidance is only a suggestion. And often the program delays are much longer than 60 days, Tutt said.

“It’s just not enough time,” she said.

States can fix the problem by requiring banks to halt foreclosures on participants. NAHAC’s Campbell said servicers participating in Nevada’s program have voluntarily agreed to postpone foreclosures.

Tutt said participants who do receive a foreclosure notice while in the program can get help from trained housing counselors or, in some cases, legal aid centers, which also get money from the program.

“It’s a lot to navigate,” she said. “Most of our homeowners are in a crisis and are working in jobs they can’t take time off from to keep monitoring and putting pressure on these different entities.”

Tutt also criticized Nevada’s decision to require a three-year lien in exchange for helping homeowners because it delays the process, adds to administrative costs — county recorders charge fees to record liens — and scares homeowners.

“They would say it ensures homeowners don’t just take this money, turn around and sell the home and get a windfall,” Tutt said. “That’s just devoid of the reality of what these homeowners are going through.”

Campbell said the requirement was included to “assist with housing stabilization.” Homeowners who sell their houses within three years, or refinance their mortgage to take cash out from the equity, would be required to repay the assistance in order to remove the lien. She denied the requirement causes delays and described the recording fees as “minimal.”

Despite the challenges, Tutt said the federalHomeowner Assistance Fund remains the best option for those who face losing their homes. Homeowners should take advantage of housing counselors to help them through the process instead of “giving up on the program,” she said.

Shirley Geraci feels differently. States are “flying by the seat of their pants” to run the program and “people are suffering,” she said.

In the month it has taken to resolve the payment issues, Noelle Geraci found a new job. The Geracis are eligible for three more months of assistance, but the stress of participating in the program has made them unsure of whether to accept it.

“People shouldn’t have to go through this,” Shirley Geraci said.

by Mike Hayes for ProPublica

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In March 2021, I received a tip to look into the police killing of a Bronx man who was shot dead in 2017 while in the throes of a mental health crisis. The source suggested I request the investigative files from the NYPD’s Force Investigation Division, the internal unit that spent two years probing the case.

At the time, I was in the midst of reporting for a book on the NYPD’s secretive disciplinary system, in which FID plays an integral role. So I filed a records request under New York’s Freedom of Information Law, but it seemed to go nowhere. Every few months, the NYPD requested an extension while deciding how to respond. Roughly nine months passed with no records. I was not shocked by these delays. When former New York City Mayor Bill de Blasio conducted an audit that gave grades to the city’s agencies for their public record responsiveness, the NYPD received an F.

But then, on the last day of 2021, an email from the NYPD hit my inbox. The department had provided not just the investigative report on the Bronx man’s death, but the complete record of audio interviews with the officers involved in the case and their body-camera footage as well. This reporting got me interested in learning more about FID, which investigates every incident where an NYPD officer fires their weapon. I decided to file additional FOIL requests for the internal investigative files for a number of fatal shootings by the NYPD.

One case involved the police killing of a man named Kawaski Trawick, who was shot dead in his apartment while in the grips of a mental health crisis. Another involved the deaths of Officer Brian Mulkeen and a man named Antonio Williams in a public housing complex. After about a year, the NYPD sent me hundreds of pages from the final FID reports for both cases. But unlike the first batch I had received, this one contained none of the body-camera videos or audio of the FID’s officer interviews. So I appealed and, to my surprise, won.

The NYPD soon sent me all the video and audio related to the Trawick investigation. Along with the files, a sergeant in the NYPD’s Records Bureau included a note explaining that the omission appeared to have been an administrative “oversight.” The records system, he wrote, was “glitchy,” and the investigator had simply “just missed the upload of the case file.”

The records enabled ProPublica’s Eric Umansky and me to publish a revelatory story that exposed how the FID failed to probe key moments in the Trawick incident, including when one officer tried to stop his partner from shooting the man in crisis.

From a media perspective, the episode illustrated a triumph of New York’s public records laws. Or so I thought.

Two weeks after publication, I got another letter from the NYPD, this time denying much of the outstanding part of my records request in the Mulkeen-Williams case, in which police killed a suspect as well as a fellow officer. After releasing the full audio and video footage for two prior cases, the NYPD now claimed that providing the same types of files in this instance would “constitute an unwarranted invasion of personal privacy” for its officers. The letter referred me to the edited video compilation the department had publicly posted to YouTube after the shootings. If I wanted to contest their records denial, I would have to file a lawsuit, the department said — a time-consuming and potentially costly proposition.

In spite of the setback, I kept reporting and soon spoke to David Rankin, an attorney for the Williams family who offered to share the records that he had obtained from the NYPD through his own FOIL request. I was stunned: The department had provided him with some of the exact records that I had been denied — most notably, the complete body-camera footage. Separately, Rankin gave me access to audio of FID’s interviews, which he had obtained from the city Law Department as part of ongoing litigation.

As with the Trawick case, the complete record allowed me to piece together a fuller — and ultimately, more damning — picture than the one the NYPD had presented publicly. Time and again, the records showed, FID investigators stopped short in their questioning of officers, even when the conduct at issue led to the death of a colleague. This type of accounting would not have been possible without the video footage of the shooting and the audio of FID’s interviews with the officers.

Of course, I can’t say whether that — or my prior coverage — played into the NYPD’s decision to withhold the records from me. Prior to publication, I asked the department why it denied my request while granting the attorney’s. The NYPD did not respond.

Mike Hayes is a freelance journalist and author of “The Secret Files: Bill De Blasio, The NYPD, and The Broken Promises of Police Reform.”

by Jennifer Smith Richards and Jodi S. Cohen

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 in Illinois have dropped at least 15 court cases that hinged on the word of a former Chicago police officer who’s now charged with perjury and forgery after he got dozens of traffic tickets dismissed by testifying each time that his girlfriend had stolen his car.

Jeffrey Kriv is accused of lying under oath 44 times to get out of speeding, parking and red light camera tickets involving his personal vehicles.

In his 26 years as a Chicago officer, Kriv was known for being one of the city’s most prolific drunken-driving enforcers, which means many more pending cases in which he was an arresting officer could be in peril. The most recent DUI arrests he made involve allegations of dangerous driving.

On just one morning this month, an assistant state’s attorney made motions declining to prosecute seven cases where Kriv was the arresting officer, some of which dated to 2021. The assistant state’s attorney offered no reason, but in court, defense attorneys mentioned Kriv’s alleged credibility issues.

“This is the officer who has been charged with a felony,” one defense lawyer told Judge Chloe Pedersen after his client’s DUI case was called.

“This is a Kriv matter,” another defense attorney said as his client’s case was dismissed.

Kriv is charged with perjury and forgery. (Via Chicago Police Chaplains Ministry)

While Kriv retired in January just before he was charged criminally, he had faced nearly 100 misconduct complaints from citizens and fellow officers in his tenure on the force. ProPublica and the Chicago Tribune previously detailed Kriv’s long history of alleged misconduct as an officer and his current legal trouble. Prosecutors charged him in January with four counts of perjury and five counts of forgery, all felonies, in connection with four of the traffic tickets he accrued. He has pleaded not guilty.

The Chicago Police Department knew in early 2022 that the Office of Inspector General was investigating Kriv for lying to get out of tickets. Then, on Oct. 28, the state’s attorney’s office added Kriv to its list of officers whose credibility issues meant the office would not call them to testify in criminal cases, sometimes called the do-not-call list.

But the Police Department would not answer ProPublica when asked why it kept Kriv on the streets until January, when it stripped him of police powers.

In those few months, Kriv made two dozen arrests and issued seven traffic citations, according to Police Department records obtained by ProPublica. He was the primary arresting officer in 18 of those cases; charges already have been dropped in seven of them. A spokesperson for the Police Department declined to comment.

The state’s attorney’s office said there are 10 pending felony cases in which Kriv was the arresting officer. Two cases filed after he was put on the do-not-call list are moving forward; the other eight cases remain under review, a spokesperson said.

There may be other cases — most of them likely misdemeanor DUIs — involving Kriv that are still pending. The state’s attorney’s office said it does not track misdemeanors, and the Cook County clerk’s office and chief judge’s office also said they did not have that information. Most DUI cases are misdemeanors, however, and Kriv regularly made about 100 arrests a year on DUI charges, according to annual counts published by an anti-drunken-driving group. Kriv estimated last year that hundreds of his cases might be awaiting an outcome.

Kriv’s attorney, Tim Grace, told reporters that he and his client would not comment for this story, though Kriv has twice emailed reporters to defend himself against misconduct complaints and call ProPublica’s reporting biased, including in an email last week.

In a 2,000-word email sent in June, he said that he had nearly 150 honorable mentions and two life-saving awards and was consistently one of the city’s top arresting officers for DUI charges. He also criticized other officers, a judge and the Police Department as a whole.

“I’ve been on the job for 27 years and I was a worker. Any officer that works will get complaints. Some false, some true,” Kriv wrote. “I could do what many, many officers do and that would be nothing.”

Kriv also sent a strongly worded email to a prosecutor last November, while he was still working as a police officer, after he learned he would not be allowed to testify about arrests he made. In the email, he defended his honesty and threatened to “not go out of my way to arrest people for DUI” going forward.

“My reputation as a Chicago Police Officer is immaculate and all my testimony on any case that I have been involved in is spot on,” he wrote to Assistant State’s Attorney Emily Leuin, after calling her a coward. ProPublica obtained the email through a public records request.

“Go ahead and dismiss my cases where someone was seriously hurt because the offender was drunk. This is something you have to live with but by all accounts, you obviously have no qualms about doing so. I’m sure [anti-drunk-driving groups] will like to know what is going on with the dozens, if not hundreds of cases of mine that are currently pending an outcome,” he wrote.

The beginning of an email that Kriv sent to Assistant State’s Attorney Emily Leuin. (Obtained by ProPublica. Redacted by ProPublica)

Leuin did not respond to a request for comment.

Despite his threats, Kriv did make DUI arrests for the rest of his tenure as an officer. He arrested a Chicago man in December 2022 after he said he watched the driver go the wrong way on a one-way street and then go through a stop sign. “Very strong odor of alcoholic beverage on breath, slurred/thick-tongued speech, glassy eyes, confused,” Kriv wrote in the charging documents.

That case was dismissed in April.

Other cases, meanwhile, are moving forward despite Kriv’s indictment. In traffic court this month, defense attorney Steve Roach asked the prosecutor whether Kriv, who made the arrest, would be subpoenaed in his client’s DUI case. The prosecutor said no, leaving Roach to wonder how the state could continue with its case.

“Because you’ve got a primary arresting officer who has an indictment against him which involves questions of one’s honesty, I wouldn’t be playing games with these cases,” Roach said in an interview.

The Cook County public defender’s office is representing several people in Kriv’s arrest cases. A spokesperson said that in cases the state continues to pursue, the office will demand trials and the state will have to decide whether to make its cases without Kriv.

The collapse of Kriv’s cases shares some similarities with the problematic DUI arrests made by Chicago police officer John Haleas nearly 20 years ago. Even after the police administration confirmed that Haleas had falsified reports in DUI arrests, he remained on duty. (In fact, he is still a Chicago police officer, though he was later convicted of attempted obstruction of justice and the department tried to fire him.)

There’s also a key difference between Haleas and Kriv: how the state’s attorney has reacted to pending court cases. The state’s attorney dismissed more than 150 of Haleas’ pending cases when he was found to have lied.

The state’s attorney’s office in July made public its list of officers in Cook County who it has barred from testifying in criminal cases — more than 300 officers in all, the vast majority of them from the Chicago Police Department. About 60 officers were added this year, and the office adopted a new policy last month that spells out prosecutors’ duty to disclose its problematic witnesses to defendants.

“The culture that allowed disreputable law enforcement officers to testify in court propelled Cook County’s reputation as the wrongful conviction capital of the country,” State’s Attorney Kim Foxx said in a press release about the disclosure list.

Chicago has a long history of scandalous cops whose cases fell apart when their own corruption or misdeeds were revealed. Over the years, officials have grappled with how to handle the fallout in court, as well as what to disclose to defendants and the public about these cases.

A spokesperson for the state’s attorney’s office said the list of officers with credibility issues is public and that disclosures to defendants would be made when evidence is typically shared.

ProPublica contacted more than a dozen defense attorneys currently representing clients arrested by Kriv, and only one said he had been notified by a prosecutor that Kriv was barred from testifying. Other lawyers were unaware that Kriv would not be called as a witness. One said the state’s attorney’s office had left his case “in limbo” and he is skeptical that the prosecutor can mount a case without Kriv.

“Every time I show up, the state’s attorney doesn’t know what’s going on,” said defense attorney Marco Rodriguez, who is representing a client in a DUI case.

Among the Kriv cases that have been dismissed is one from October 2022 involving a woman who was idling in a crosswalk but asleep, according to Kriv’s police report. He noted in the report that there was vomit on the car seat and on the woman’s pants. Her blood alcohol content was 0.19%, more than twice the legal limit to drive, according to the report, obtained through a public records request.

Prosecutors dropped the case against her in March.

Even in his last weeks as a police officer, Kriv arrested at least five people over four days on DUI charges, including a 41-year-old driver he said he’d found on Dec. 10 passed out behind the wheel of his running Honda Accord in the middle of a dead-end street. The man “seemed confused” and the “whole front end” of his car was damaged and the tires shredded.

Kriv noted that the driver had an explanation for the car’s damage.

He wrote that the man “stated his car was like that from his girlfriend as it was her fault previously.”

That case also has been dismissed.

by Topher Sanders

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Since the school year began this month, there have been no reports of what was once a common sight in Hammond, Indiana: children, climbing over or under idling trains, risking their lives to get to class. Local officials say this is thanks to reforms enacted in response to an investigation by ProPublica and InvestigateTV.

Norfolk Southern, whose trains routinely stretched across multiple intersections, halting traffic and preventing pedestrians from crossing, committed to stopping its trains east of the Chicago suburb and splitting any that blocked crossings for more than 40 minutes. It also pledged to issue email alerts to help school, fire and police officials work around disruptions.

The company made an even larger commitment it has yet to follow through on, according to Mayor Thomas McDermott Jr.: helping fund a pedestrian overpass.

Norfolk Southern CEO Alan Shaw called McDermott the day after the investigation was published to begin discussing a fix, the mayor said, adding that he and Shaw discussed the pedestrian bridge and its potential cost during the conversation. McDermott hoped it would only take a month or two before he could announce the overpass.

Notes from the Federal Railroad Administration taken during meetings between city officials and Norfolk Southern show that there was at some point a plan for the rail company and the city to release a joint announcement for the beginning of the school year.

But the company has not confirmed it will pay any portion of the estimated $5 million overpass.

“We have been in communication with Norfolk Southern and are looking forward to Norfolk Southern confirming their funding that we discussed so this can be built,” McDermott said. “It’s the only way that 10 or 20 years down the road, I will know that a permanent long-term solution fixed this 100-year-old problem in my city. This needs to get done.”

He said he was pleased about the improvements from the “short-term” fixes implemented thus far but added, “That doesn’t go far enough.”

In hopes of an agreement, city engineers and a Norfolk Southern design team are working together on specifications for a potential bridge, city officials said.

A spokesperson for Norfolk Southern did not answer any of ProPublica’s questions, saying only that the company hadn’t received recent reports of stopped trains and that officials continue to talk with McDermott.

“I will say the train [officials] seem earnest to work with us,” said Scott E. Miller, the superintendent of Hammond schools. “But my biggest concern is, this isn’t the first time we’ve had conversations like this, and two years from now, where are we going to be?”

The superintendent lauded the company for making the short-term changes and for continuing to participate in monthly meetings with community leaders, but he said he was eager for the company to put longer-term solutions in writing.

“It’s about the safety of the kids,” he said.

In reaction to comments made by McDermott, Miller and others about the need for a longer-term fix like a bridge, a Norfolk Southern spokesperson said: “We’re proud of the collaboration between the Norfolk Southern team and local leaders to improve safety in Hammond. Since crafting a solution together, there have been no blocked crossings in the area, and we’re committed to continuing that.”

Since classes started on Aug. 14, Akicia Henderson and her two children have not had to climb over the train like in the past to get to the elementary school, she said. “It came yesterday while I was picking my daughters up, but it didn’t stop. It kept going, and I was happy about that.”

Blocked crossings, an age-old problem perpetuated by all rail companies, have gotten more attention in recent years as communities complain about trains getting longer and blocking more crossings for increasing periods of time.

Sen. Raphael Warnock, D-Ga., cited ProPublica and InvestigateTV’s reporting in May when he announced the Senate Commerce Committee’s passing of the bipartisan Railway Safety Act. Warnock inserted provisions into the legislation that would make it easier for communities to access grant money to build bridges over or tunnels under railroad tracks that are routinely blocked; the legislation would also create a process for communities to report blocked crossings directly to railroad companies and not just the government.

The day after the Senate committee passed the Railway Safety Act, Rep. Marcy Kaptur, D-Ohio, read the blocked crossings investigation into the congressional record. The bill’s momentum has stalled since May.

Kenny Edwards, the Indiana legislative director for the International Association of Sheet Metal, Air, Rail and Transportation Workers, or SMART Union, said he was happy the temporary fixes were having a positive impact thus far in Hammond, but he described the moves as “putting a Band-Aid on a cancer.” Elected officials and community members have to continue to hold Norfolk Southern accountable or the company will gradually slip back into its old behavior and continue blocking Hammond’s crossings, he said.

“They’ll wait till those images of those children and the trains fade out of people’s memories,” he said. “They’re the masters of that.”

Indiana state Rep. Carolyn Jackson, a Democrat who represents the Hammond area, has filed a bill attempting to address blocked crossings every session for the past five years. None has ever gotten a hearing. Jackson said Norfolk Southern has known about the critical situation in Hammond for decades and the company has dodged efforts to fix the issue for just as long.

She had hoped that by the start of the school year, an agreement and long-term plan would have been in place.

“I understand that they have given their word that they would move [the train] east, and they would do this and they will do that,” Jackson said. “However, I can’t say that I really trust that.”

She said the company has a history of making idle promises and skirting the blame for its behavior. The lawmaker said it shouldn’t take four months for the company to agree on an amount to kick in for the overpass, which has been needed for more than 20 years. It feels like the company is trying to wait the community out, she said.

Jackson and Edwards both said that while there’s a chance the urgency of the issue could get forgotten, they believe the images of children having to crawl under and over trains to get to school will stick with officials and members of the public, who will continue to hold the company accountable.

Jackson said she was encouraged to hear that there haven’t been any issues in the first two weeks of the school year, but the sample size is too small to wave a victory flag.

“It just doesn’t take long for a person or a company to resort back to their same ugly ways,” she said. “You can only keep up a front for so long.”

Henderson said it’s sad that her children and their classmates have to begin the school year without a commitment from the railroad or the city that a permanent fix is coming — but it’s not surprising.

“This has been going on forever, so what makes me think that we’re special and that they are finally going to do something?” she said. “Honestly, I’m not really expecting anything to be done. All I can do is pray that [the train] doesn’t sit there.”

Her thoughts on the overpass: “I’ll believe it when I see it.”

Do Blocked Railroad Crossings Endanger Your Community? Tell Us More.

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.

Washington education officials have barred a private special education school from accepting new students this fall after a state investigation found “unacceptably high” levels of physical restraints and of staff isolating students in locked rooms.

The state Office of Superintendent of Public Instruction launched the investigation after a Seattle Times and ProPublica series last year revealed that the Northwest School of Innovative Learning had long been the subject of allegations that it abused students, misused isolation rooms, let unqualified aides lead classes, and lacked basic educational materials, including textbooks.

As of the 2021-2022 school year, Northwest SOIL was the largest institution in Washington’s network of privately owned “nonpublic agencies,” specialized facilities that serve public school students who have complex disabilities. Its three campuses served more than 100 public school students through contracts with school districts across western Washington.

In June, regulators placed Northwest SOIL on “provisional status,” suspending new student placements. It also has to follow a corrective action plan this school year. But the state left open the possibility of reinstating the school’s status and lifting the admissions ban.

Tania May, left, an official in Washington’s Office of Superintendent of Public Instruction, wrote that Northwest SOIL had an “unacceptably high” number of instances in which it restrained or isolated students. (Ken Lambert/The Seattle Times)

“Our priority is to make sure that the students who are placed there are receiving their services and are safe,” Tania May, assistant superintendent for special education, said in an interview. “We recognize the improvements that the facilities made and will continue to support them however we can.”

The school already was losing students in the wake of the news investigations, and Northwest SOIL had closed two of its three campuses by the time the state’s ban on new students was issued. In an email to staffers, Northwest SOIL attributed the closures to “declines in enrollment and budget shortfalls.”

Some districts removed their students at the urging of parents, according to May. Tacoma Public Schools stopped sending students to Northwest SOIL altogether, according to a district spokesperson. Tacoma was once the school’s largest client, sending more than 20 students a year.

Northwest SOIL, which is owned by Fairfax Behavioral Health, explains in court filings that it is now fighting for survival because it can’t fill slots left by students who transfer or graduate. Fairfax sued the state in late July to reverse the suspension of student placements.

“As outlined in the lawsuit, the prohibition on new students is unlawful,” Christopher West, CEO of Fairfax Behavioral Health, said in an email. The superintendent’s office “is inserting the state agency into decisions that should be made by parents or guardians and local school districts about where a child with mental health issues should receive an education.”

The state has asked the court to dismiss the lawsuit, and a hearing is set for Sept. 29. In a court filing, the state argues that Northwest SOIL has potentially violated the rights of special education students, that letting the lawsuit go forward would improperly bypass an administrative process the school can use to fight its state suspension, and that Northwest SOIL is overstating the potential harm of the suspension.

Northwest SOIL only accepts students whose tuition is paid for by taxpayers. Across Washington, nonpublic agencies received more than $50 million in public funding in the 2021-2022 school year to serve roughly 500 students.

The Times and ProPublica reported last year that police repeatedly visited Northwest SOIL to investigate allegations of abuse, including a claim that a teacher placed a 13-year-old boy in a chokehold. Former staffers said they felt pressured by Fairfax and its parent company, Universal Health Services, to cut back on staffing and basic resources and to enroll more students than the staff could handle.

In a statement at the time, Northwest SOIL declined to comment on specific allegations of abuse but said “use of restraints and seclusion are always used as a last response when a student is at imminent risk of hurting themselves or others.” Fairfax denied allegations that it understaffed schools or pressured staff to take on more students. Its parent company declined to comment beyond pointing to Fairfax’s statement.

The state’s failure to take action against Northwest SOIL amid the complaints highlighted major gaps in oversight, the Times and ProPublica reported.

In January, the state superintendent’s office launched a rare probe into the school’s policies and practices. State regulators demanded records of allegations of “mistreatment, maltreatment, abuse or neglect” by school staff against students, as well as documents related to calls to law enforcement and restraint and isolation, among other records.

Regulators visited Northwest SOIL’s three campuses in May to observe conditions and interview administrators, teachers and other instructional providers.

Northwest SOIL closed its Tumwater and Redmond campuses at the end of the school year, on June 20, and consolidated operations in Tacoma. Roughly 50 students remain.

Northwest SOIL’s Redmond campus closed in June. Enrollment dropped after The Seattle Times and ProPublica highlighted abuse allegations at the school. (Ken Lambert/The Seattle Times)

Later that month, the state outlined some of the findings of its investigation in a letter to Northwest SOIL informing it of the enrollment ban. The state made no announcement to the public about its June decision, which surfaced last week at a meeting of Washington disabilities advocates.

Based on initial restraint and isolation data provided by the school, the state found that “the current numbers are unacceptably high and that patterns of practice need to change,” the letter from the assistant superintendent reads. Physical restraints, or holding students to restrict their movement, are allowed under state law only when a student’s behavior “poses an imminent likelihood of serious harm.”

In 2022, the most recent year for which data is available, Northwest SOIL reported isolating students 446 times and restraining students 475 times on its three campuses, which, as of June of that year, served 119 students.

By comparison, in the 2021-2022 school year, Seattle Public Schools — the state’s largest district, with more than 6,000 students in special education programs — reported 16 incidents of isolation and 249 incidents of restraint. Seattle Public Schools banned isolation at the beginning of that school year.

The state also found that Northwest SOIL had no handbooks for teachers and other staff outlining their roles and responsibilities. The school didn’t track its contacts with law enforcement agencies, nor did it track complaints about its services, among other deficiencies, according to the state.

The superintendent’s office acknowledged that Northwest SOIL has made some improvements, including “taking steps to improve the quality of instruction provided to students and to support the teachers and staff responsible for implementing such changes.”

Despite those improvements, the state found that the school needed to demonstrate it was making more progress. May, the assistant superintendent, said that the state has developed a corrective action plan in conjunction with Northwest SOIL but declined to provide a copy of that plan this week.

West, the Fairfax Behavioral Health executive, said in an email that Northwest SOIL has improved its training for staff and teachers and has acquired new smartboards and new computers for students and teachers. But he said the improvements, which began in early 2022, “have been as a result of our internal assessments in the best interests of our students and not due to any external matters.”

Fairfax contested the decision to restrict student placements in a filing with the state superintendent’s Office of Administrative Hearings and in its lawsuit, which was filed in Thurston County Superior Court. It was the first time a nonpublic agency legally contested the suspension or revocation of its status, May said.

The school “strongly disagrees” with the state’s decision to place it in a provisional status and limit new admissions, West wrote in an email.

Separate from the state’s legal actions, the Times sued Fairfax in 2022 to turn over documents under the state Public Records Act, arguing that Northwest SOIL should be subject to state transparency laws because it was acting as a public agency. These records would have shed light on some of the restraint and isolation trends later reported by the state superintendent’s office.

A judge sided with the Times in January, but Fairfax appealed and the case remains in court.

The Times and ProPublica’s reporting prompted lawmakers this year to strengthen regulations governing nonpublic agency schools, expanding the superintendent’s office’s responsibility to investigate complaints. As required under the new law, the superintendent’s office has scheduled on-site visits to new nonpublic agencies.

The agency also plans to hire consultants to advise on how it can improve the application process for becoming a nonpublic agency and provide better guidance for families on navigating the special education system, May added.

As the state steps up its oversight of nonpublic agencies, advocates and special education attorneys have called for closer scrutiny of Northwest SOIL. Some even want it to be closed completely.

“While we would like to hope that increased oversight by OSPI” — the superintendent’s office — “will ensure that what happened at NW SOIL does not happen again, we will continue to advocate against placement there on behalf of students who require truly therapeutic programming,” said Lara Hruska, an attorney with Cedar Law. Her office represents families in litigation against four small rural school districts that either have students at Northwest SOIL or are trying to place students there.

“I think it is good that OSPI is not allowing new students to enroll,” said Karen Pillar, director of policy and advocacy at TeamChild, an advocacy group for at-risk youth.

But, Pillar and other education advocates say, the state education system’s shortcomings run deeper. Some point to a chronic underfunding of systems designed to help students with disabilities and say there’s a lack of appropriate programs in public schools. There needs to be “meaningful investment in both resources and policy that support students at home, at their local schools, and within their communities,” Pillar said.

Taylor Blatchford of The Seattle Times contributed reporting.

by Megan Rose

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

As President Joe Biden announces major reforms to how the military prosecutes sexual assault, the U.S. Navy is still shrouding those court proceedings in secrecy and fighting a ProPublica lawsuit to make such cases public.

Last month, Biden issued an executive order that finalized a mandate from Congress to drastically change who had authority over sexual assault and murder cases in the military. The order strips military commanders of the power to press charges or drop a case. Instead, a special military prosecutor will make the decision.

The administration, calling it the most significant change to the military’s justice system in more than 70 years, said that in part the changes would “better protect victims and promote fairness before, during and after court-martial proceedings.”

Yet, the Navy’s policy is to withhold court records from the public throughout most, if not all, of those proceedings, preventing independent scrutiny into how sexual assault cases are prosecuted. New Navy rules released this month, a little over a week after Biden’s order, maintained these policies.

What happens in the crucial period before a court-martial is never made public by the Navy. The public doesn’t even know if a sailor or Marine has been charged with a crime unless the case goes to trial. The Navy provides no notice of when the service is holding an Article 32 hearing, which determines if there’s enough evidence for trial. And the related pretrial records are concealed permanently.

That critical preliminary stage of a case is precisely what prompted the change to the Uniform Code of Military Justice. In the prior system, a service member’s commander had the discretion to decide whether claims of assault deserved legal action. As reports of sexual assault in the military grew, a bipartisan group of lawmakers criticized the military’s low prosecution rate, placing the blame squarely on commanders. Advocates said commanders were too willing to dismiss allegations.

Under the Navy’s records policy, the public won’t be able to discern if the new special prosecutors are handling cases any differently.

ProPublica sued the Navy last year for refusing to release court records in a high-profile arson case. In 2020, the USS Bonhomme Richard, a $1 billion amphibious assault ship, burned for more than four days and was destroyed. A ProPublica investigation showed the Navy prosecuted a sailor with scant evidence and ignored a judge’s recommendation to drop the case.

Seaman Recruit Ryan Mays was found not guilty at his court-martial. ProPublica’s lawsuit was successful in getting the Navy to release hundreds of pages of court-martial documents in the Mays case.

The ongoing lawsuit in the Mays case is currently challenging the Navy’s overall policy to keep most records and pretrial hearings secret. Congress has repeatedly made clear that the armed services must comply with the principle of public access to courts “and provide greater transparency, but the Navy has refused to do so,” ProPublica’s lawsuit states.

The Navy asked the court to partially dismiss ProPublica’s lawsuit. ProPublica opposed that motion in July.

Pentagon guidance released this year was supposed to update public access based on a 2016 law that required transparency, but instead endorsed most of the Navy’s policies. From what is publicly available, little changed from the Navy’s old rules and its new ones. In January, Caroline Krass, general counsel for the Defense Department, told the services they do not have to make any records public until after a trial ends. It gives the military the discretion to suppress key trial information, such as transcripts and exhibits. And in cases where the defendant is found not guilty, the military services will be allowed to keep the entire record secret permanently, preventing any review of how those cases are handled.

ProPublica’s lawsuit challenges the legality of the guidance.

“Congress mandated transparency from our military to make certain that crimes like sexual assault don’t fester in secrecy as they have for years. But the Navy rejected this law,” Sarah Matthews, ProPublica’s deputy general counsel, said. “It keeps even heinous criminal accusations under wraps except in the rarest of circumstances, something that the law, and the First Amendment, cannot tolerate.”

Since the Pentagon guidance has been released, ProPublica has requested court documents from the Navy in 70 active sexual assault cases, including ones involving rape and sexual assault of a child, as well as three homicides. ProPublica also requested records for active sexual assault cases not listed on the public docket but received none.

Of the sexual assault cases, ProPublica has received limited records from just 14 — and only after they were closed. The Navy released limited records in two of the homicide cases. The Navy will not release court transcripts, exhibits or any pretrial records. In federal and state courts, those records are almost always public except in narrow circumstances.

Throughout the lawsuit, and as recently as April, the Navy has cited the federal Privacy Act as a reason the service can’t release court records to ProPublica. Yet, in 2021, the Pentagon issued a public notice saying that due to Congress’ mandate for transparency, the Privacy Act did not prevent the disclosure of military court records.

This led the staff of the Military Justice Review Panel, an independent body created by Congress, to conclude in a research paper that the rules are “inconsistent with the disclosure requirements of the law.”

The court has not yet ruled on the Navy’s motion to dismiss ProPublica’s suit. The service said its new rules will go into effect by Sept. 14.

Correction

Aug. 25, 2023: This story originally implied that the Navy’s new rules for handling court records had not been released. The story has been updated throughout to reflect that the new rules were released Aug. 9 and go into effect Sept. 14.

by Mike Hayes for ProPublica

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

In December 2019, the New York Police Department released video of a fatal police shooting in the Edenwald Houses, a sprawling public housing complex in the Bronx. Similar videos — recorded by officers’ body-worn cameras — had been made public after other shootings. But this one differed in one key way: In addition to killing a suspect, police had killed one of their own, Officer Brian Mulkeen.

Mulkeen and his fellow officers had been patrolling the area as part of an initiative to get illegal guns off the street. Shortly after midnight, they came upon a man named Antonio Williams, who ran when they identified themselves as police. The video, shaky footage compiled from five body cameras, showed Mulkeen and other officers chasing Williams through the darkness and then tackling him. Williams, it turned out, had a revolver in his waistband.

“He’s reaching,” one officer yelled, as Mulkeen wrestled with the suspect. “Mulk! Mulk!”

Mulkeen fired five bullets into Williams, killing him. But just seconds later, as three other officers ran to the scene to provide backup, they fired their guns toward the two men and struck Mulkeen in the head.

Deputy Chief Kevin Maloney, the head of the NYPD’s Force Investigation Division, explained in the video that the release of the “relevant” footage would help the public “gain a better understanding of the events that led up to the incident.” The footage, he added, would also be a critical component of his team’s “thorough” investigation, which ultimately cleared the officers involved in the shooting that night.

The finding of no wrongdoing aligned with the view of then-Commissioner James O’Neill, who had rendered his own verdict months earlier in Mulkeen’s eulogy. “As every cop knows, one person is responsible for Brian’s death. And that’s the person carrying a loaded, illegal gun and decided to run from the police,” he said. “Every cop knows that, and every New Yorker should know that.”

New Yorkers, however, only saw a small portion of the video footage from that night — and only got a piece of the full story. The complete footage makes clearer just how far the shooters were when they fired and just how poor the visibility was that night as Mulkeen and Williams wrestled in the dark, according to a ProPublica review of the video, which was obtained by the news organization.

In fact, the NYPD’s crime scene measurements show the three officers who shot from the sidewalk were positioned 60 to 70 feet away, a fact that was not publicly disclosed by the department. At that distance, according to their training, the officers had just a coin-flip’s expectation of accuracy. The full video shows two of the officers with Mulkeen dodging the incoming bullets and yelling at their colleagues to “stop shooting.” The unpublished footage also reveals the immediate aftermath. Notably, one of the shooters runs from the sidewalk to the scene — which takes him a full five seconds, underscoring his distance from his target — and starts shouting expletives as he realizes Mulkeen has been hit.

Seven months later, when the FID interviewed the officers who shot their weapons, investigators did not ask about these key exchanges or challenge the officers when their accounts differed from what was captured on video, according to audio of the interviews, which was also obtained by ProPublica. In fact, two of the shooters misstated their distance, giving the impression they were much closer to the action when they fired their guns. Investigators allowed those misstatements — and others — to stand, despite having nearly a half-hour’s worth of body camera footage that disproved them. Detectives conducted relatively short interviews with the officers, ranging between 16 and 28 minutes each, and spent less than half their sessions discussing the actual shooting.

ProPublica requested an interview with Maloney for this story, but he did not respond. The news organization also sent a list of detailed questions to the NYPD and the union representing the officers involved in the case who are still on the force. None of the parties responded, despite multiple attempts to reach them. ProPublica also made several attempts to reach Daniel Beddows, a detective who is now retired but was also involved in the case, and sent questions via email to his former union, the Detectives’ Endowment Association, which said it “will bring it to the attention of the appropriate parties.” There was no further response. Mulkeen’s family, through its lawyer, declined to comment. The office of Mayor Eric Adams, who has championed the kind of anti-crime unit in which the officers served, also declined to comment, referring our questions to the NYPD.

The incident is the latest in a string of cases where the FID seemed to ignore evidence that was potentially damaging to officers who killed people in the line of duty. This year, ProPublica reported that in the FID’s investigation of the killing of Kawaski Trawick, the division never questioned officers about body-worn camera footage showing one of them trying to stop his partner from shooting Trawick, who was in the grips of a mental health crisis. Investigators also failed to challenge officers when their statements contradicted the available video.

Together, the shortcomings raise serious questions about how the NYPD is using body-worn camera video — especially when it implicates one of its own — both in its investigations of fatal shootings and in its messaging to the public, to which it releases edited and redacted cuts, if footage is released at all. In the Mulkeen case, time and again, investigators stopped short in their questioning of officers, even when the conduct at issue, which led to the death of a colleague, was on tape.

Former NYPD Detective John Baeza, who now serves as an expert witness on police misconduct and use of force in civil and criminal cases, said the FID failed in its mission to carefully examine every detail of what happened in this case.

“They don’t do a reconstruction,” said Baeza, who reviewed the FID report obtained by ProPublica. “You don’t see any police reports about anyone going out there, and having a couple guys on the ground, and then having somebody 60 feet away — photos of what it actually looks like when you’re 60 feet away from three guys on the ground.”

Such exercises could inform future training and potentially save lives, he said.

“Those are the things that first of all prevent police officers from being shot,” Baeza said, adding, “And the same thing goes for perpetrators.”

Indeed, Mulkeen’s father, who initially thanked the department for its response, is now suing the NYPD and the city. In his lawsuit, he accused the city of failing to properly train and supervise the officers in Mulkeen’s former unit. The shooters’ actions, Mulkeen’s father says in court filings, “were of such a wanton, willful, and reckless nature as to evince a callous disregard for human life.”

For the parents of the other man killed in the chaotic shootout, the FID’s clearing of the officers is part of what they call an NYPD “cover-up” of their son’s “murder.”

“This level of brutality and misconduct deserves far more than a twenty minute interview after waiting over half a year for the officers to get their stories straight so they can protect themselves,” Shawn and Gladys Williams said in a statement to ProPublica. The couple is also suing the NYPD and the city, alleging that officers illegally stopped their son that night in the Edenwald Houses.

The city denies the allegations in both cases, which are ongoing. The city’s Law Department, which is also representing the officers, declined to comment for this story.

When former NYPD Commissioner Bill Bratton created the FID in 2015, he told the public this new unit of “top investigators” would take advantage of the latest technology to produce detailed probes of police shootings. “I will get a better investigation, a speedy investigation, a more comprehensive investigation,” he said.

Three years later, Maloney, the head of the FID, told NBC New York that advancements like body-worn cameras were helping the division “to be transparent.” By using video, he said, the public will “know that when an incident happens, they’re going to get the truth of why it happened.”

In the Mulkeen case, the division had access to more than 28 minutes of body-worn camera footage from the five officers working with Mulkeen, each of whom belonged to the NYPD’s controversial “anti-crime” unit. Tasked with getting illegal guns off the streets and dressed in plainclothes, its members were responsible for a disproportionate number of police shootings at the time. (An investigation by The Intercept found that between 2000 and 2018, anti-crime officers committed about a third of NYPD killings, despite accounting for just 6% of the force.)

Several members of Mulkeen’s team also had disciplinary and legal histories. By the time they entered the Edenwald Houses in September 2019, four of the six members — Detective Daniel Beddows, Sgt. Jason Valentino, and Officers Brian Mahon and Keith Figueroa — had racked up a total of 17 departmental violations, including conducting illegal stop and frisks, restricting a person’s breathing and abusing their authority by drawing a gun. Each of the same officers, plus Mulkeen, were also named in at least one lawsuit alleging civil rights violations. (The officers denied the charges, and the cases were settled for a combined $280,000.)

That night at the Edenwald Houses, Mulkeen rode with two colleagues, Mahon and Officer Robert Wichers. As their unmarked police car approached, Williams grew “wide eyed” and “nervous,” Mahon later told investigators.

Williams took off running, and Mulkeen and Wichers went after him on foot. Mahon, who thought Williams was a potential decoy, stayed with another man on the scene. He radioed to officers in the area that his partners were in pursuit of a suspect, who he said he had seen reaching into his pants.

Mulkeen and Wichers soon caught up to Williams in a dark path and wrestled him to the pavement. Stuck at the bottom of the pile, Mulkeen managed to pull his gun and shot Williams five times just as Wichers jumped off the two men. Wichers and another officer, Beddows, then each fired one round at Williams.

As the shots rang out, Valentino and Figueroa, who had responded to the radio call, got out of their cruiser. The two officers, along with Mahon, ran toward the gunfire. When the three officers got to the sidewalk, about 60 to 70 feet away, they fired into the scene. Mulkeen’s body instantly tensed as one of the bullets entered his skull. Beddows jumped back. “Stop shooting!” he yelled to his colleagues. Wichers echoed Beddows: “Stop shooting! Stop shooting!” Video shows Mahon then ran toward the men, taking five seconds to close the distance between the sidewalk and the scene. As he gets closer, he shouts expletives.

Multiple former NYPD officers who reviewed the footage told ProPublica they took issue with the officers’ decision to fire toward the struggle from that far away.

Daniel Modell, a former NYPD lieutenant who ran the department’s Tactical Training Unit, said if the officers believed they needed to shoot to protect Mulkeen, “I would think that calculus might be made by someone close to the struggle — not at a distance of 20 yards.”

Baeza, the former NYPD detective, agreed. “At 60 feet, these guys didn’t have time to set up and aim,” he said. “Plus, what are you aiming at? The first thing is: Know your target. Well, you’ve got three men involved in a scuffle, and how do you know what your target is? They’re moving around.”

Former NYPD Sgt. Joe Giacalone, who worked in the Edenwald Houses, said the emotional rush of such situations introduces more potential for error. “If you are in a situation where people are thinking your life’s in danger, your accuracy gets even worse,” he said. “Was it a good decision? Maybe not. But, that still doesn’t make it justified or unjustified.”

Seven months passed before the FID interviewed the five officers who fired their guns that night. But investigators raised few questions about the “friendly fire” part of the incident, according to the division’s full report, which included audio interviews with the officers — even when two of the shooters misrepresented how far away they were from the scuffle.

Mahon, for example, estimated that he observed Williams and the muzzle flash from 25 to 30 feet away, though he added that he was “not exactly sure” of his position. Body-camera evidence and crime scene measurements showed he was much farther than that. In fact, Mahon was more than twice that distance — about 70 feet away — when he fired, according to the Bronx District Attorney’s Office, which also looked into the incident. The office cited measurements taken by the NYPD Crime Scene Unit, in coordination with the FID. Figueroa, who was standing next to Mahon, also told investigators he was about 20 feet away, though he was “not sure.” Despite having the correct information, the FID detectives did not follow up.

That kind of deference is notable, given that making false, misleading or inaccurate statements is punishable under the NYPD’s disciplinary system, depending on the circumstances.

Investigators did ask the three officers who fired from the sidewalk whether they could tell who was shooting in the scuffle, Mulkeen or Williams. But when each said they could not make that distinction, detectives did not press any further.

Investigators also failed to question officers about other key details captured on their body-worn cameras. Most notably, the FID did not ask Wichers and Beddows — the two officers closest to Mulkeen and the struggle — about the “stop shooting” commands they shouted just after their colleagues fired from the sidewalk. For their part, neither officer mentioned the exchange, which would have underscored just how much the shooters had endangered everyone on the scene, including police.

Beddows told investigators that after he fired at Williams he “gave all his attention to Police Officer Mulkeen.” Maloney asked Beddows if he made any statements after he heard the gunshots from the officers on the sidewalk. He said no. Investigators did not press him any further.

Wichers also left out the exchange in his telling of the shooting. “After all the gunshots have stopped,” he told investigators, “I immediately go and try to render aid to Mulkeen.” Investigators did not challenge him. Instead, they asked Wichers if Mulkeen or Wiliams were still in possession of their firearms, who recovered the guns from the scene and if Wichers had any prior dealings with Williams.

Omissions of material facts are also punishable under the NYPD’s disciplinary system, but they must be found to be intentional.

A review of the audio interviews shows that the FID spent between seven and nine minutes questioning each of the officers about why they decided to fire their guns. In each interview, investigators spent almost as much time asking about logistical details, such as whether they were carrying a taser, if they were wearing a windbreaker or not and where their badge was positioned on their clothes.

By contrast, the FID spent considerably more time investigating Williams, the other victim in the shooting. Records show the division searched the Bronx apartment of Williams’ godmother, whom he was visiting the night he was killed. Investigators also spoke to his parole officer, the manager of a restaurant he worked at in Binghamton, New York, and his girlfriend, who also lived upstate. Additionally, the investigators probed the alleged gang ties of Williams and the other man standing with him on the sidewalk when they were stopped by the NYPD. The FID’s report included both men’s complete criminal records and a review of Williams’ and his girlfriend’s social media profiles.

Two years after the shooting, the FID presented its report to the NYPD’s Use of Force review board, which makes recommendations on discipline to the police commissioner. The FID said it found no violations of department policy by the officers, and the board agreed. According to the FID file, in January 2022, the commissioner signed off on this recommendation and the officers were cleared of all wrongdoing. Like prior FID reports, it was not released publicly.

The FID, however, was not the only law enforcement entity to review the shooting. The Bronx District Attorney’s Office did its own investigation, drawing heavily from the body-worn camera footage. In all, its report makes 17 references to the videos, compared with just nine mentions in the FID probe. And although the DA’s office said it did not have enough evidence to support criminal charges against the officers who shot Mulkeen, it did find that they had misstated key details in their recollections of the shooting and made some critical mistakes that night.

Notably, the DA’s office said that Mahon “mistook” Mulkeen for the suspect, Williams, when he claimed he saw a person on the ground holding a gun. The DA said “it is doubtful that Officer Mahon actually observed the weapon at that point” because it was underneath Williams, who was lying face down after being shot by Mulkeen.

The DA also challenged the account of Figueroa, who said he believed Williams was attempting to stand up and shoot at Beddows.

“Officer Figueroa was mistaken,” the DA wrote. “At the time of Officer Figueroa’s discharge, Mr. Williams had already been separated from Officer Mulkeen and was on the ground facing away from Officer Figueroa.”

Likewise, the DA concluded Valentino’s recollection that he could “clearly” see Williams at the time he fired was “controverted by the body worn camera evidence.”

“In fact, by the time that Sergeant Valentino began firing, Mr. Williams had already rolled off of Officer Mulkeen, was motionless on the ground, and Officer Mulkeen was no longer in danger,” the report said.

While no charges were filed by the DA and no discipline administered by the NYPD, the matter is not completely closed. Today, the city’s NYPD watchdog, the Civilian Complaint Review Board, is investigating a misconduct claim over the officers’ actions that night inside the Edenwald Houses. The CCRB confirmed the probe is ongoing but declined to make further comment for this story.

Meanwhile, Mulkeen’s father’s lawsuit against the NYPD and the city is on hold, pending the outcome of the CCRB investigation. So is the separate lawsuit by Williams’ family.

In the years since the Mulkeen shooting, the city disbanded the anti-crime unit, which department officials at the time said was a “seismic shift” away from the “brute force” tactics of the past. The officers involved in the case have gone in various directions. In October 2020, Beddows retired after he reached the 20-year mark with the NYPD, according to New York City employment records. Valentino and Wichers were each promoted and reassigned to nonpatrol units.

Mahon and Figueroa are still in the field, reassigned to another specialized NYPD unit. Its task: recovering illegal guns.

Last year, Adams announced that he would reinstate the anti-crime unit his predecessor had disbanded. “In doing this, we will avoid mistakes of the past,” he said. To assure New Yorkers, he noted officers would be identifiable as NYPD, receive enhanced training and be equipped with body cameras.

Video editing by Chris Morran and Kassie Navarro.

by Max Siegelbaum, Documented, with data analysis by Agnel Philip, ProPublica, and Lam Thuy Vo, special to ProPublica

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

For Marcelino Zapoteco, the final straw came on a quiet night in 2018 at the restaurant Brioso on Staten Island. He was working alongside one of the managers who had been pulled in by the restaurant’s co-owner Pietro “Peter” DiMaggio to help as a waiter. At one point during the shift, Zapoteco watched the manager slip tip money into his pocket, when he was supposed to pool it to be shared with others.

Zapoteco, an undocumented immigrant from Mexico, said he knew that the restaurant was grossly underpaying him during the more than seven years he worked there. When he served as a runner, bringing food to customers’ tables, he received as little as $10 for lunch and dinner shifts — far below the required minimum wage even when tips were included, he said.

But that night, when he saw the manager pocketing the tip, Zapoteco had enough. A few days later, he and his co-workers went to DiMaggio and complained — but to no avail. “If you guys don’t like me or don’t like Brioso, the door is over there,” DiMaggio told them, according to a state investigator’s report, which included a transcript of a recording of that conversation.

Zapoteco quit and made his way to the offices of the New York State Department of Labor in Manhattan the next day, telling an investigator about what happened.

“I explained to her everything that was going on. She said: ‘Don’t worry. We’re going to investigate,’” Zapoteco said. “‘We’re going to help you.’”

Every year in New York state, thousands of workers face predicaments similar to that of Zapoteco and his former Brioso co-workers. From 2017 through 2021, federal and state investigators found more than 13,000 cases of wage theft, according to an analysis of two databases obtained from the U.S. and New York Labor departments. The databases provide previously unreported details on how much money has been stolen from workers and also shed light on which businesses have committed wage theft.

In all, federal and state investigators determined during the five-year period that more than $203 million in wages had been stolen from about 127,000 workers in New York, the analysis shows.

The amount of wage theft is almost certainly a significant undercount, according to the U.S. Department of Labor. In 2014, for instance, the agency analyzed census and employment data to compare the reported wages of New York workers against what they should make under local minimum wage, and it estimated that state employers steal up to $1 billion from their workers every year.

Federal and state investigators determined that more than $52 million had been stolen from people working in restaurants, more than in any other industry in New York, accounting for more than 25% of all reported wage theft, the analysis shows.

Wage theft was also a problem in the health care industry ($28.4 million); construction ($27.6 million); janitorial services and retail stores ($5.9 million each); and supermarkets and convenience stores ($5.8 million).

State-to-state comparisons of wage theft are difficult because of how data is collected locally. But an analysis of cases reported to the U.S. Department of Labor and substantiated by federal investigators shows that New York ranked eighth highest in the amount of back wages owed per worker.

Advocates say that the federal and state agencies are failing to stamp out wage theft, and that they have little faith in the agencies’ ability to protect workers’ livelihoods.

“Wage theft is not taken seriously as a crime by this system, by the New York state law enforcement groups or the elected leaders of our state,” said JoAnn Lum, executive director of the National Mobilization Against Sweatshops, a New York-based workers’ rights organization. “How are working people who are working so hard expected to survive if it’s OK to have their wages stolen?”

Hildalyn Colón Hernández, deputy director of New Immigrant Community Empowerment, a New York-based worker advocacy organization, said, “Employers are operating with no consequences.” One of the reasons, she said, is that the federal and state agencies haven’t fully adapted to the changing business landscape — with technology and the so-called gig economy complicating the employer-employee relationship — that makes wage theft even harder to address.

Colón Hernández added that her organization now trains its employees on how to investigate wage theft because it would take too long if they had to rely on federal or state investigators to recover back wages.

The U.S. Department of Labor did not respond to requests for comment.

Aaron Cagwin, spokesperson for the state Department of Labor, highlighted his agency’s work with the Wage Theft Task Force, a collaboration with the state attorney general’s office and other law enforcement agencies that began in 2015. Last year, Gov. Kathy Hochul announced that the task force had secured felony convictions of nine employers for a variety of charges, from defrauding the New York State Insurance Fund to falsifying business records and failing to pay wages.

Cagwin said his agency uses “every resource available to protect New Yorkers, ensure workers are paid what they’re owed and hold bad actors accountable.”

Frank A. Oswald, a lawyer for the owners of Brioso, said his clients disputed the wage theft allegations made by Zapoteco and other former workers. He noted that the owners eventually agreed to settle the civil lawsuit that the former workers filed against them, and that was because of the Chapter 11 bankruptcy that the restaurant filed “due to the exorbitant costs of the wage litigation in the District Court that threatened to put the restaurant out of business.”

In 2018, a lawyer representing the Brioso owners at the time also wrote to a state investigator claiming that Zapoteco quit his job not because of wage theft but because of a disagreement over payment method. Zapoteco, the lawyer wrote, insisted on being paid in cash, instead of through an automatic payroll system. Zapoteco denied the allegation.

Zapoteco moved to New York City from the Mexican state of Guerrero in 2009 in search of work and education opportunities. A year later, he began working at Brioso after a cousin who had been living in the city told him about the job. Zapoteco became a busser, taking dirty plates to the kitchen. He was soon promoted to runner after a worker in that role quit.

Throughout his time at the restaurant, Zapoteco said, he experienced wage theft. Carlos Ortiz, a state investigator assigned to the case, detailed in reports obtained by Documented and ProPublica a number of ways DiMaggio stole money from his workers: DiMaggio deducted 5% of their tips “supposedly to pay for the computer system” and sometimes took more in certain circumstances, such as when customers complained about their food — a form of wage theft under New York law. Ortiz also found that DiMaggio made some workers buy uniforms and pay for broken plates — another form of wage theft.

Labor experts say wage theft is prevalent in the restaurant industry because its workforce is heavily made up of undocumented immigrants, who are less willing to speak up because of their status.

More than 60% of restaurant workers living in New York City are immigrants, according to a 2020 study by the New York state comptroller’s office. Of the 317,800 workers in the industry, 44% were Hispanic and 20% were Asian, the study found.

At Brioso, Ortiz found that the workers’ immigration status left them exposed. When one employee complained about stolen tips, for instance, DiMaggio responded by threatening to report the employee to the immigration authorities, slamming tables and then firing him.

“Mr. DiMaggio would make statements to the Hispanic employees, such as, ‘I’ll personally make sure that you all get sent back to Mexico,’ or, ‘Thank god that Trump is doing everything possible to get you guys the fuck out of here,’” Ortiz wrote.

In New York, the state’s minimum wage rules can also work against restaurant employees. The normal rate is $14.20 to $15 an hour, but it’s $9.45 to $10 for food service workers — with a requirement for their employers to make up the rest if tips don’t cover the difference. This creates a complex system that makes it easy to exploit workers, said Teofilo Reyes, chief program officer for Restaurant Opportunity Center United, a national organization advocating for better pay and working conditions for restaurant workers.

Elizabeth Joynes Jordan, co-legal director at Make the Road New York, an immigrant-rights organization, said wage theft is essentially “the business model” for restaurants.

Some places are exploring banning the two-tiered minimum wage system entirely. Washington, D.C., for instance, voted in November to phase out the system by 2027. But no similar measures have been adopted in New York.

Like restaurant employees, experts say, construction workers in New York often experience wage theft, given that the industry also employs a high number of undocumented immigrants.

About 1,600 construction companies — including ones that specialize in carpentry, electrical work and iron work, as well as general contractors — were found to have stolen wages from more than 7,700 New York workers from 2017 through 2021, the analysis shows.

Health care workers, including nurses and employees at hospitals and nursing homes, faced about as much wage theft as construction workers, the analysis shows.

Lum of National Mobilization Against Sweatshops said the unique working conditions of many health care workers make them vulnerable to wage theft. For instance, home health care aides, who had the highest amount of wage theft found by federal and state investigators among all professions in the industry, often have to work 24-hour shifts but are not paid for breaks built into the schedule for eating and sleeping. Lum said this payment structure rarely reflects the reality that patients need care at odd hours of the night, meaning workers are on call continuously.

“When they try to report that they don’t sleep, then they’re ignored and retaliated against, or even punished,” Lum said.

Some members of the National Mobilization Against Sweatshops were involved in arbitration claims filed in 2019 against 42 home health care companies alleging that they underpaid more than 100,000 workers in New York. In February, an arbitrator awarded a $30 million fund, paid for by the companies, to compensate the workers.

Some workers are unhappy with this outcome and say they are owed as much as $6 billion. Lum said the arbitrator’s ruling amounts to a slap on the wrist for the companies. “It sends a message to the employers that you can continue doing what you’re doing,” she said.

In September 2018, seven months after Zapoteco quit his job and went to the New York State Department of Labor, the agency’s investigators visited the restaurant and interviewed several workers. Several months later, as the investigation continued, a Brioso employee called Ortiz, complaining that he and his co-workers had been subjected to retaliatory actions by DiMaggio.

The employee “alleges that Mr. DiMaggio has always yelled at and intimidated the employees, but has become more aggressive since the Department’s visit,” Ortiz later wrote in his report.

The agency eventually reached out to Make the Road New York to see if it could help protect the workers.

Joynes Jordan said Make the Road took on the case after learning that it was “one of the worst cases in terms of conditions that we’ve seen.”

Cagwin, the Labor Department spokesperson, said his agency was able to build “a thorough case” in October 2019 and turned it over to the Richmond County District Attorney’s Office, which handles cases on Staten Island.

Criminal convictions for wage theft are rare, but the district attorney’s office initially expressed interest in pursuing the case, Joynes Jordan said.

The district attorney’s office interviewed several Brioso workers, and in March 2020 a waiter was scheduled to appear before a judge in order to get a search warrant for the restaurant’s computers. But then COVID-19 hit, and his testimony was canceled.

When Make the Road lawyers followed up three months later, the district attorney’s office told them that it needed more information. “We were informed the information they had gotten from our clients was stale at that point,” Joynes Jordan said.

James Clinton, a community liaison for the district attorney’s office, declined to comment.

Meanwhile, concurrently with the criminal investigation by the district attorney’s office, the Department of Labor investigators were still working to recover back wages from Brioso. But Zapoteco and his former co-workers had heard nothing from them. With the case dragging on, Make the Road lawyers and a pro bono partner asked the agency to close the case so that the findings from its investigation could be shared with them and used in a federal civil lawsuit they were planning to file on behalf of the workers. They filed the lawsuit in December 2020, demanding more than $12 million.

During the lawsuit’s discovery process, lawyers found that Brioso had two previous wage theft claims against it: one from a decade earlier in which the agency ordered Brioso to pay a worker more than $12,000, and another from 2017 that it settled for $75,000.

In November, the owners of Brioso agreed to settle the lawsuit with Zapoteco and 11 others for $700,000, with roughly a third of it covering the lawyers’ fees.

In May, roughly five years after he went to the New York State Department of Labor, Zapoteco received his payment from Brioso. But he said he was frustrated with the experience of working with the agency, saying it “doesn’t work well because it took so long — we were waiting forever.”

Zapoteco said neither the agency nor the district attorney’s office was able to hold DiMaggio accountable for what he did. “I wanted him to fix the way he was doing things,” he said.

About the Data

To examine the prevalence of wage theft in New York state, Documented and ProPublica analyzed federal and state databases of labor violations obtained from the U.S. and New York Labor departments.

Documented filed a public records request for the state database in 2019. When the New York State Department of Labor refused to release it, Documented took the agency to court. The agency has since released to Documented and ProPublica its internal database containing information on nearly 97,000 cases that began and concluded from 2005 to Feb. 21, 2023. But the database only provides the dates of when cases began, so we focused our analysis on cases from 2017 to 2021.

For the federal database, we couldn’t use exactly the same time frame because it does not contain information about when cases were opened and closed. Instead, it provides a date when the findings in the case occurred. To try and match up the periods analyzed for both federal and state databases, we focused on the 4,900 cases with dates of findings from 2017 to 2021.

Both federal and state databases provide a number of details on each case, including the names and addresses of businesses that committed the violation, the number of workers who were affected and cited labor law violations.

For the state comparisons, we used the federal database to tally the amount of back wages owed in each state and then adjusted them using labor force size data from the U.S. Bureau of Labor Statistics.

For the industry comparisons, we manually reviewed the industry codes included in both databases and grouped them into larger categories, such as restaurants, construction and health care.

by Marcus Baram, Documented, with data analysis by Agnel Philip, ProPublica, and Lam Thuy Vo, special to ProPublica

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

Saprina James was hopeful when she received a letter in 2019 about her wage theft claim against her former employer. The letter said the New York State Department of Labor had substantiated her claim and ordered Mugisha F. Sahini and his company, Riverside Line, to pay her more than $70,000 in back wages. “I was feeling good that the government was on my side, and that I would soon get paid,” she said.

James first started driving a van for Sahini in January 2016, taking people to medical appointments in Buffalo, New York. She often worked six days a week, usually helping dialysis patients who relied on walkers, and drove clients from 4:30 a.m. until 10 p.m. She didn’t mind the long hours — she assumed that her pay would ultimately reflect her hard work.

But James had to lease a Toyota minivan for $700 a week as part of the job. On most weeks, after paying her leasing fee, she was left with less than minimum wage.

“It was very hard for me,” said James, who had a difficult time paying her rent and groceries, as well as taxes owed on her income as an independent contractor.

In late 2017, James quit and filed a wage theft claim with the Department of Labor, accusing Sahini and Riverside Line of violating the minimum wage law. She was later joined by her former co-workers, who also claimed minimum wage violations.

The agency substantiated the workers’ claims two years later, ordering Sahini to pay nearly $425,000 in back wages and $850,000 in penalties.

But the Department of Labor, which is responsible for both investigating wage theft claims and recovering back wages, has not been able to collect even a penny on behalf of James. Sahini flatly refused to pay for more than a year, James said, and then appealed the case, claiming that he wasn’t aware that the workers were earning less than minimum wage. The appeal has since been rejected, but James has yet to receive any payment.

About to turn 60, James said she’s now unemployed and running through her savings to pay her bills. “I’m so upset,” she said. “This is ridiculous. I don’t understand why it takes so long.”

Sahini did not respond to repeated requests for comment.

What happened to James is strikingly common among victims of wage theft in New York state, an investigation by Documented and ProPublica found. She and her former co-workers are among thousands of wage theft victims whose employers were ordered by the Department of Labor to pay, but for whom the agency failed to fully recover back wages, according to an analysis of the agency’s database of wage theft violations from 2017 through 2021.

In all, during the five-year period, the agency determined that at least $126 million in wages had been stolen from workers, the analysis shows. As of Feb. 21, however, the agency still needed to recover about $79 million of that total — or about 63% of the back wages.

Of the outstanding back wages, the agency hadn’t recovered at least $7.8 million because of “uncollectible” circumstances, such as businesses going bankrupt or investigators being unable to track down employers, the analysis shows.

The rest, about $71 million, was labeled by the agency as “pending payment,” which means either that no payments or only partial payments had been made, or that the cases were being appealed.

Of the thousands of businesses in the database, at least 95 with outstanding back wages were repeat offenders, each failing to fully pay in at least two cases during the five-year period, the analysis shows.

A case in point: The agency began investigating Brooklyn-based Reymond Construction in 2018 and opened three additional cases in 2019 based on claims filed by 12 workers. It eventually ordered the company to pay more than $31,950 in back wages, but as of Feb. 21 the payments were still pending. The owner of Reymond Construction did not respond to repeated requests for comment.

Labor experts said it’s hard to compare New York’s wage recovery effort against those of other states because of the paucity of wage theft data. State labor enforcement agencies across the country either do not make such information publicly available or do not maintain it in a standardized format that allows for state-by-state comparisons.

National Mobilization Against Sweatshops, a worker-rights organization, is so frustrated with the Department of Labor’s wage recovery rate that it has mostly stopped sending workers to the agency. “It’s a waste of time,” said JoAnn Lum, the group’s director. “I’ve seen so many workers file claims, and they’re told that they’re owed so much in back wages — and then nothing happens.”

Advocates and labor lawyers, as well as eight former Department of Labor officials interviewed by Documented and ProPublica, said it’s critical for the agency to improve its wage recovery rate. But they said the agency has a number of problems that prevent that from happening: Its enforcement unit is chronically understaffed; it lacks a collections unit tasked with wage recovery; and its investigators, unlike their counterparts in other states, do not have legal authority to take actions against recalcitrant employers.

The former agency officials, some of whom had spent decades working at the Department of Labor, said these challenges often leave investigators incapable of enforcing the law against unscrupulous employers. One official — who still works in state government and did not want his name used out of fear of retaliation — put it this way: “If an employer said, ‘Fuck you,’” in response to a payment demand, “there’s not much the agency can do.”

The Department of Labor, which released wage theft data after Documented sued the agency over its refusal to do so, “works diligently to protect the paychecks of hard-working New Yorkers,” Aaron Cagwin, an agency spokesperson, said in a statement.

Cagwin said the agency is also “consistently making improvements to its wage theft investigations and wage recovery processes,” including improving how wage theft claims can be filed and expanding law enforcement partnerships.

Advocates said workers are the ones who suffer the consequences of the agency’s poor wage recovery rate: They are often forced to move on to other jobs, rely on their family for support, go on public assistance, or relocate to another state or, in the case of immigrants, back to their country of origin.

“Wage theft impacts the lowest-wage workers who need that money to pay the rent, buy groceries, take care of their families,” said Magdalena Barbosa, senior vice president at Catholic Migration Services. She noted that New York has strong labor laws that don’t “trickle down into enforcement — and you have workers waiting sometimes for many years to get a small piece of what they’re owed in back wages.”

Vincent Cao, an organizer with the Chinese Staff & Workers Association, said “it’s the cruelest slap in the face to award them back wages that take so long to arrive.”

On a bitterly cold morning in December, a former senior investigator with the Department of Labor was sitting in a coffee shop in Brooklyn, reflecting on his years at the agency. Bald and bespectacled, he raised his eyebrows and described a Sisyphean environment in which overworked investigators faced scarce resources, bureaucratic obstacles and unscrupulous employers and their lawyers while trying in vain to reduce a backlog of thousands of wage theft cases. “It feels hopeless sometimes,” he said, “but more than hopeless — it makes me angry.”

The former investigator’s assessment was echoed by the seven other agency officials interviewed by Documented and ProPublica. They all expressed their frustration with the agency’s chronic failure to fulfill one of its core mandates: to protect the state’s 10 million workers from wage theft.

The former investigator, who still works in state government and did not want his name used out of fear of retaliation, blamed New York’s political leaders for not prioritizing the agency’s mission and perpetually underfunding it.

Budget figures for the agency’s enforcement arm, the Division of Labor Standards — which the former investigator joined more than a decade ago — are available from 2008 to 2022, and they show that its budget went up by 17.8% from $28 million to $33 million during that period. Just to keep up with the inflation rate, the budget would have had to increase by an additional $5 million.

Some state lawmakers said the agency’s woes were particularly pronounced during the tenure of former Gov. Andrew Cuomo, who ran New York from 2011 to 2021. On the one hand, Cuomo launched two joint task forces made up of multiple agencies to crack down on industries, such as car washes and construction, where wage theft is prevalent. But he also instituted a spending cap that kept most state agencies from increasing their budget by more than 2% each year.

With the tight budget, the Division of Labor Standards reduced the number of employees from 282 in 2008 to 140 in 2017, while the number of open investigations climbed from 6,923 in January 2008 to 15,824 in January 2017, according to agency documents obtained by Make the Road New York, an immigrant-rights organization, and shared with Documented and ProPublica. The vast majority of the division’s employees are investigators, while administrative and support staff make up the rest.

Carmine Ruberto, who ran the Division of Labor Standards from 2007 to 2015, recalled the impact of the tight budget on staff morale and workload. “Do I think we could have done better under Cuomo if we had gotten more people? Sure,” he said.

Richard Azzopardi, a spokesperson for the former governor, said wage theft was “a huge priority” for Cuomo, but his administration’s hands were tied with limited resources.

“In 10 of the 11 years during his administration, we had structural deficits and we came in at the heels of the Great Recession where giant cuts had already been made. And we had to restructure government in order to make things right,” Azzopardi said. “I do understand that some people have different opinions on what the money should have been spent on. But it’s a balance.”

Under Gov. Kathy Hochul, the Division of Labor Standards saw its budget increase by $7 million, or 19.5%, in 2023, but the number of full-time employees now stands at 129 and has increased only by three since the governor took office in 2021.

Justin Henry, deputy communications director for Hochul, declined to comment.

The former investigator said the tight budget also meant that the agency couldn’t form a collections unit fully staffed with those versed in financial fraud investigation, asset tracking and locating employers, which could then be deployed for wage recovery — a task that Terri Gerstein, the agency’s former deputy commissioner, called “a crucial part of the process.”

Instead, the agency has been relying on senior investigators to handle the task, which adds to their workload and sometimes requires them to do tasks they’re not trained for, such as overseeing the payment plans of some employers, several former agency officials said.

The agency needs “a proper collections unit,” Gerstein said.

In addition to the lack of the collections unit, the former agency officials said the process is slowed down because each case has to be reviewed by several layers of officials.

For instance, once a claim is substantiated, the case goes to a senior investigator, who can sometimes take up to a year and a half to review it. Similarly, when an employer is unresponsive, the Division of Labor Standards issues an order to comply, but only after getting approvals from three more layers of officials.

The former investigator said the bureaucratic bottleneck helped create long delays in recovering back wages. “It’s not like we push a button and increase the speed of the machine and then the cases come out at the other end,” he said.

The analysis of the agency’s database appears to back up the former investigator’s claim. As of Feb. 21, the agency had recovered no wages in 8,300 cases — affecting about 29,000 workers — that were at least five years old, or more than a fifth of the total cases from that time period.

Two of the long-pending cases were filed by Fernando, a 49-year-old Mexican immigrant who worked as a delivery driver for two Brooklyn restaurants. He filed his claim against the first restaurant in 2009 and another claim with his co-worker against the second restaurant in 2015.

The agency substantiated the claims, finding that two restaurants owed Fernando and his co-worker a total of more than $380,000 in back wages. Fernando, who requested to be identified by only his middle name because he’s undocumented, said he has not received his back wages. “The most important thing is the DOL could resolve these cases quicker,” he said.

The former agency officials said that when investigators try to go after employers for back wages, they find themselves without effective enforcement tools to force quick payments.

The orders to comply, for instance, can be appealed at the state’s Industrial Board of Appeals, a five-person panel that can take months, or even years, to adjudicate a case. In the vast majority of the cases, the board eventually sides with the agency. But even then, former agency officials said, employers often continue to ignore the orders, knowing that they are unlikely to face any consequences from doing so.

The former agency officials also said filing judgments in court against particularly recalcitrant employers often fails to force quick payments: While it puts a mark on their credit report, employers can and do get around the judgment by conducting their businesses in someone else’s name or getting a private loan from their family and friends.

Advocates and labor lawyers agreed that this was common practice. “Just because you get a judgment doesn’t mean you can collect on it,” said Margaret McIntyre, a lawyer who represents wage theft victims.

Advocates and labor lawyers said New York could adopt a number of tactics that have been successfully deployed in other states.

In Maryland and Wisconsin, for instance, workers are allowed to place a lien on their employers’ personal property to secure the payment of back wages. This has proven to be effective, according to a 2015 report by the Legal Aid Society, Urban Justice Center and the National Center for Law and Economic Justice. “A wage lien not only encourages an employer to dispute the matter and play fair in court, but ensures that if the workers win their case, they may actually be able to enforce a judgment against the employers’ property and collect the wages they are owed,” the report said.

New York, in fact, has had a lien law for decades, but it only applies to certain workers in the construction industry. Industry pressure, especially from the powerful New York City Hospitality Alliance, which represents restaurant owners, has helped defeat legislation introduced in recent years to expand the law’s scope.

In June, after the latest lien bill stumbled in Albany, the Hospitality Alliance issued a statement, saying it would have been a violation of due process to allow an employee to place a lien on “the private property of the owners, investors and even managers of the business based solely on the accusation of wage violations.”

In California, businesses appealing the finding of wage theft violations are required to post a surety bond up to $150,000, which they forfeit if they fail to pay back wages after losing on appeal. Those who fail to post the bond can be and are prohibited from doing business in the state.

In New York, the state has a similar bonding rule, which was implemented in the wake of a 2015 New York Times exposé on working conditions in nail salons, but it only applies to owners of nail salons with at least two workers. New York City also has a limited bonding rule that applies to owners of car wash businesses. Advocates for nail salon and car wash workers said they didn’t have enough data to know whether the bonding rules have significantly helped reduce wage theft.

Some states and local communities have also used the licensing and contracting processes to their advantage.

In 2015, for instance, Cook County in Illinois took aim at violators of state and federal wage laws, disqualifying them from lucrative county contracts. In 2019, Santa Clara County in California also launched a pilot project that would suspend the licenses of any business for five days if it fails to pay back wages. Before the year’s end, the county suspended eight licenses, mostly from restaurants, and each led to the payment, according to the county’s Office of Labor Standards Enforcement. “Being closed for five days is really bad for a restaurant’s business, so they seek to avoid that,” Gerstein said.

Adopting these approaches “wouldn’t make wage theft disappear in New York, but it would make a difference,” said Rick Blum, staff lawyer at the Legal Aid Society.

Some workers have already lost faith in the Department of Labor — and this includes a young woman named Kirsten, who filed a wage theft claim with the agency in August 2020 against a downtown Manhattan bar that had repeatedly failed to pay her. Kirsten, who requested to be identified by only her middle name to protect her future employment prospects, said she submitted documents and pay stubs. She didn’t hear back for more than a year and a half, until a phone call and letter from an investigator in the spring of 2022 asking her for more information about the case.

To this day, Kirsten said she has not received her back wages and has given up altogether. The agency “has been useless to me,” she said. “It just feels hopeless, like workers are all alone.”

About the Data

Determining the prevalence of wage theft in New York is more complicated than in some other states, including California, Massachusetts and Texas, because its Department of Labor does not make the results of investigations readily available to the public.

Documented filed a public records request for that information in 2019. When the department refused to release it, Documented took the agency to court. The agency has since released to Documented and ProPublica its database containing information on nearly 97,000 cases that began and concluded from 2005 to Feb. 21, 2023. Department of Labor officials told us that they began using this database fully in 2008, so we only analyzed cases from that year onward.

The database provides a number of details on each case, including the names and addresses of businesses that committed the violation, the number of workers who were affected and cited labor law violations.

But the database only provides the dates of when cases began, so we focused most of our analysis on cases from 2017 to 2021.

To determine how many businesses had multiple wage theft cases and still owed back wages, we manually standardized business names and addresses and counted instances in which a company still owed back wages in at least two cases.

To determine the percentage of back wages recovered, we tallied the amount of collected back wages and divided it by the amount of outstanding back wages in all cases contained in the database. Our metric may overestimate the percentage of back wages recovered. In some cases, the recovered amount recorded in the database might also include “liquidated damages,” which are payments for the harm caused by the wage theft and interest. The database does not differentiate between these different types of collected funds. In cases where the recovered amount was greater than the outstanding back wages, we adjusted the recovered amount to equal the outstanding back wages.

The analysis does not take into account the cases reported to the U.S. Department of Labor, which also investigates wage theft in New York but does not make public any database showing how much back wages have been recovered by the agency.

by Max Blau

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.

By the time 25-year-old Tyler Waite arrived at Methodist University Hospital in Memphis, Tennessee, in May 2020, his skin had turned a sickly shade of yellow. At 6-foot-3, pushing 330 pounds, his appearance was misshapen by a stomach distended with fluid. His liver had failed so much that, unless he got a new one, he likely wouldn’t live to see summer’s end.

A diehard Pittsburgh Steelers fan who loved fishing, Waite worked at a software company and lived at his parents’ home in the north Atlanta suburbs, saving for a place with his fiancee and working on getting his life back on track. Over the past few years, ever since his young daughter had moved away from Georgia with her mom, Waite had struggled. Many nights, he coped by drinking large amounts of vodka in the quiet of his family’s house.

Two weeks before he arrived in Memphis, a doctor at Piedmont Atlanta Hospital had discovered that Waite’s chronic drinking had gravely damaged his liver. Piedmont’s transplant center considered Waite’s case risky due to his obesity and the briefness of his sobriety. But there was a silver lining: The scarring from alcoholic cirrhosis was so advanced and the liver’s failure so swift that the transplant center’s staff determined he would land near the top of the waiting list for a donated organ.

But just before getting placed on the list, Waite abruptly left Piedmont against the advice of the staff. At home, his mother saw the fear in his eyes. Waite, who’d been cut off from his family because hospital visits were restricted at that point in the pandemic, had made what she thought was a shortsighted but forgivable decision. Marci Waite knew that her son couldn’t remain confined in the comfort of home if he wanted to survive. Once she talked him through that, and after he got to see his daughter once more before she flew back to Texas, he became less anxious. He returned to the hospital the next day.

Unfortunately, his departure added another red flag because it disrupted the dialysis treatment that his kidneys, which were also failing, had badly needed. Some of Piedmont’s staffers saw Waite’s departure as a sign that he wouldn’t take appropriate care of a donated liver, one of the transplant center’s leaders later told his mother. Ultimately, Piedmont refused to add him to the list. (A Piedmont spokesperson did not answer questions about Waite’s case.)

One of Piedmont’s doctors, unwilling to give up on Waite, sent his records to hospitals around the South. Emory University Hospital in Atlanta declined his case. UAB Hospital in Birmingham, Alabama, passed, too. So did UT Southwestern Medical Center in Dallas. Then someone from Methodist reached out. Its staff was willing to consider Waite.

Wow, his mother thought. We’re in luck.

Waite’s parents, Marci and John, at their home in Georgia (Lucy Garrett for ProPublica)

The James D. Eason Transplant Institute took pride in replacing the livers of higher-risk patients turned away by other hospitals, according to its former leader. But at the center of this philosophy is a series of difficult decisions: A transplant center willing to consider extremely ill patients like Waite must determine whether that candidate is healthy enough to survive after surgery — and, given America’s shortage of donated livers, whether someone with a better shot of living longer should get that organ instead.

As Methodist embraced that philosophy, it was also under scrutiny for its high rate of failed liver transplants. Between 2014 and 2018, the liver transplant program had twice been investigated by an oversight committee for the United Network for Organ Sharing, the federal contractor that runs the country’s transplant system, as revealed by ProPublica and MLK50: Justice Through Journalism in a recent story. (UNOS would not comment on the outcome of the investigations; a Methodist spokesperson previously told ProPublica and MLK50 that the liver program is no longer under investigation as of last year.)

Waite’s case illustrates both the promise and peril of Methodist’s approach. On the one hand, no one disagrees that without a transplant, Waite would have died imminently. On the other, six transplant experts told ProPublica and MLK50 that failure to heed the warnings of a patient’s psychosocial risks, such as addiction, can lead to greater suffering. “It’s dangerous, clearly, to overlook psychosocial issues,” said Jody Jones, a transplant psychologist for more than two decades.

A 2018 audit of Methodist’s liver transplant program by an external firm found that “a blatant lack of merit” was given to psychosocial issues by the hospital’s transplant selection committee. As a result, the audit found, the program “routinely transplanted patients with significant psychosocial risk,” including people who had a documented history of psychosis or alcohol recidivism. After the audit, a senior leader of the transplant center determined in an internal analysis that psychosocial risks contributed to the deaths of five liver recipients between 2014 and 2018. ProPublica and MLK50 obtained a copy of the analysis, which states that Methodist “should not have listed” those five patients for transplant. Those five deaths are among 25 that the analysis described as “preventable” in that time period.

Dr. James Eason, for whom the transplant center was named and who oversaw it starting in 2006, parted ways with Methodist last year. Both Eason and a spokesperson for the hospital did not respond to interview requests for this story. The spokesperson said in a statement that “our focus remains on providing the highest quality care to all our patients and this community and we will not deviate from this purpose.” Eason and Methodist also declined to answer written questions about Waite’s care, even though his mother waived her right to privacy so that Eason and the hospital could talk about Waite’s treatment.

Dr. James Eason at the transplant center renaming ceremony at Methodist University Hospital in 2019 (Via Methodist Le Bonheur Healthcare’s Facebook)

In a previous statement to ProPublica and MLK50, Eason said that his program had excelled at lowering the extent to which patients died on the waitlist. He also noted that, while Methodist experienced a small number of “unexpected deaths per year,” his program had “saved more than 100 lives each year” of patients with failing livers.

“I would never choose to let a single high-risk patient die instead of giving that individual a good chance of living,” Eason said in another previous statement.

Because the investigations, audit and internal analysis were not public, Marci Waite did not know about Methodist’s history of failed liver transplants when her son arrived there. Instead, when she read about Eason’s liver transplant program, she felt that her son had finally caught a break. After all, Eason was the surgeon who had replaced the liver of Apple co-founder Steve Jobs back in 2009. If the California billionaire had chosen this program, out of any program in America, she figured it was good enough for her son.

But not long after Waite’s transplant in June 2020, his mother’s hopes of a smooth recovery began to fade. A few weeks after the surgery, she learned from a Methodist staffer that a severe infection had spread throughout Waite’s body, overwhelming his organs. The following month, she was told that several of Waite’s ribs had been cracked when a staffer had to perform CPR after his heart stopped beating. The month after that, doctors had to sedate Waite after he experienced brain seizures — and they couldn’t tell her for days whether her son would fully regain his brain function. Ultimately, Waite would undergo 10 unforeseen surgeries in eight months to deal with his post-transplant complications.

Nevertheless, Methodist staffers voiced optimism about Waite’s future. And that, in turn, made his mother feel optimistic. That September, she wrote on Tyler’s GoFundMe page that things “seem to be going in the right direction again, so let’s pray it keeps going that way.”

Tyler Waite and his daughter (Courtesy of Marci Waite)

On any given day in America, more than 10,000 people are waiting for a new liver, and a shortage of them means that some of those people die before an organ becomes available. Hospitals like Methodist are facing an ethical dilemma regarding the sickest of them.

For patients at extreme risk of death because their drinking has compromised their liver, the likelihood of getting a transplant has, over the past two decades, gone from exceedingly rare to entirely possible. Transplant centers that had once required patients to be sober for six months have loosened their policies to allow more of these patients to be eligible for a new liver. But the increased demand for a limited supply of organs means that patients with other kinds of liver failure potentially wait longer for lifesaving care.

“Let’s make no bones about it: This is an extremely controversial topic within each medical center,” said Dr. Shimul Shah, chief of solid organ transplantation with UC Health in Cincinnati.

The experts who conducted the 2018 audit of Eason’s liver transplant program urged Methodist to create a stricter policy that would deem patients with serious psychosocial issues ineligible for transplant. They also recommended that Eason’s team hire an addiction medicine specialist, who could help perform nuanced evaluations of patients and direct them to treatment for their chronic drinking.

Following the audit, Eason and his colleagues provided documents to the UNOS investigative committee that said Methodist would hire a chemical dependency expert and partner with a “specialized” alcohol addiction unit. Eason did not respond to questions about the experts’ findings. Methodist spokesperson Tabrina Davis said in a previous statement that the transplant center had quickly accepted some of the audit’s recommendations and, nearly five years later, is still considering others.

Transplant centers have increasingly devoted more resources to patients facing addiction. According to a recent survey of 100 U.S. liver transplant programs, over 75% of them have a psychologist and addiction medicine specialist, and more than half have their own treatment programs. Transplant experts said these services are intended to help people who recently stopped drinking get healthier before undergoing a transplant. Dr. Michael Lucey, professor of gastroenterology and hepatology at the University of Wisconsin’s medical school, said those resources are an “integral part” of performing more comprehensive psychosocial evaluations.

But when Waite’s ambulance pulled up to Methodist, the week after Memorial Day, the transplant center had yet to fully implement the changes it had pledged to the UNOS oversight committee more than a year earlier, according to employees who worked at the hospital at the time.

The week after Waite was admitted, members of Methodist’s transplant selection committee met to determine whether he was healthy enough to undergo surgery. They were supposed to decline any patient if they could find one issue that could severely threaten the patient’s survival, such as having high pulmonary arterial pressure or having uncontrolled sepsis, according to the committee’s policy. They also were supposed to reject a patient if that person had three health issues that together posed a serious threat.

Davis, the Methodist spokesperson, said in a previous statement that the transplant center has a “rigorous selection criteria” to decide which referred patients should be made eligible for a transplant. She added that the hospital “declines a significant number of individuals who are sick enough to be transplanted but do not meet the criteria to indicate they would have successful outcomes post-transplant.”

Waite’s medical records show that the committee marked the briefness of his sobriety as one red flag. During his evaluation days earlier, Waite told a Methodist staffer that he had never sought treatment for his alcohol use or attended an Alcoholics Anonymous meeting. His doctors wrote that Waite’s brief period of sobriety “seems entirely due to time spent hospitalized.” While doctors labeled Waite a “high-risk candidate for transplant,” one noted that “given his young age I would like to give him a chance.”

His body mass index was also high enough on his patient evaluation to be counted as a second red flag. Despite that, however, the committee members determined that it wasn’t a concern, records show.

Beyond that, there was a potential third red flag: Waite’s risk of not following instructions from his medical providers. Following such instructions is important because, as Michigan Medicine transplant psychiatrist Dr. G. Scott Winder explains, “so much of a transplant consultation is predicated on trusting the patient.”

“If you really want to spook a transplant team, check yourself out of the hospital against medical advice,” Winder said.

During Waite’s evaluation at Methodist, his social worker had written that his departure from Piedmont was an “isolated event” that should not influence his candidacy for transplant. But shortly after Waite was admitted to Methodist, he had discontinued a round of dialysis against the advice of medical staff. (Marci Waite said that her son was scared of dialysis because he had a painful experience with the treatment at Piedmont.) Even with the additional example of Waite not following the staff’s instructions, the selection committee found that he wasn’t likely to disobey instructions again.

After the meeting ended, Methodist shared the news that Waite and his family had been waiting for. The committee had cleared him for a transplant.

John Waite at home (Lucy Garrett for ProPublica)

The reason that Methodist had considered Waite at all was due to a seismic shift disrupting the field of liver transplantation. For several decades, starting in the 1980s, the industry standard was that patients should be six months sober to be approved for a transplant. When Mickey Mantle’s liver failed in 1995, he was approved for a transplant in Texas only after he had achieved more than six months of sobriety and signed a contract vowing to not to drink once a new liver was placed inside of him.

Over time, as addiction became viewed as more of a chronic disease than a moral failing, transplant experts began to see the six-month rule as a practice that unfairly denied lifesaving treatment to people who struggled with drinking alcohol. Since patients with extreme liver failure often don’t have six months to live, experts wrote in the journal Alcohol and Alcoholism that the rule could be ​​“tantamount to a death sentence.”

In the late 2000s, as evidence emerged that six months of sobriety was a bad indicator of whether a liver recipient would relapse, European researchers sought to disprove the rule. Medical providers in France and Belgium “carefully selected” patients with acute alcoholic hepatitis and a brief period of sobriety for an “early” liver transplant. The researchers found those patients not only were more likely to survive longer than people who didn’t receive a new liver, but they also were unlikely to relapse after transplant. In 2011, they wrote in The New England Journal of Medicine that the findings challenged “the notion of a prescribed abstinence period as the only alcoholism-related criterion for transplant eligibility.”

Dr. Brian P. Lee, a transplant hepatologist with Keck Medicine of USC, said the study “really paved the way for huge change in U.S. practice.” In the years after the study, the overwhelming majority of transplant centers dropped the six-month rule, leading to a surge in the number of people with alcohol-associated liver failure who were approved for the surgery. Methodist was among the transplant programs that allowed for a shorter period of abstinence, approving patients with brief sobriety for transplant if they had a “low risk for recidivism,” according to a paper in the journal Experimental and Clinical Transplantation written by Eason and his colleagues.

Following this change, the proportion of liver transplant surgeries performed on people at extreme risk of death due to alcohol-associated liver disease nearly tripled in a decade, from 3.3% in 2011 to 9.3% in 2020. Over that same period, Methodist’s proportion of transplants for these kinds of patients increased even more, from 2.2% to 11.8%.

While some transplant experts were encouraged by this trend, others worried that the fault lines were shifting too fast. Programs that embraced liver transplants for gravely ill patients with a brief period of sobriety often ended up with those patients at the top of their waitlists. Because they were sicker than patients at the top of other programs’ waitlists, they were positioned to receive a liver faster than patients at those other programs.

Last year Dr. James Trotter, a hepatologist at Baylor University Medical Center, wrote in the journal Transplantation that the trend had spurred “local competition for patients” with alcohol-associated liver disease. That, in turn, pushed more liver transplant programs to loosen their policies on accepting such patients to avoid losing patient referrals, case volumes and revenues. A spokesperson for Eason previously said in a statement that he did not receive additional compensation for performing more transplants, “nor was any aspect of his compensation based on such a metric.” Methodist did not respond to questions about the program’s finances.

Some transplant experts have pointed out that UNOS has yet to pass national standards to ensure that every liver transplant program adheres to the same practices for considering patients with an alcohol-associated liver disease. In a recent American Journal of Transplantation article, Lee and a colleague called for UNOS to create national standards to reduce “disparities in transplant access and patient outcomes” among different transplant programs. UNOS spokesperson Anne Paschke said in a statement that no standards exist because each “transplant team is responsible” for approving these kinds of patients for transplant.

“It’s a bit of the Wild West, from program to program, because of the different standards,” said Shah of UC Health in Cincinnati. “It’s happened many times that we will turn someone down for a transplant, but we’ll refer them to a program that has more lenient standards — and they will transplant.”

From the moments after Eason replaced Waite’s liver in June of 2020, his mother tracked the ups and downs of his recovery. By the end of the month, Waite was discharged to a rehab facility and had been told to look ahead to a potential kidney transplant if his progress continued. Marci Waite couldn’t visit for weeks due to Methodist’s COVID-19 restrictions, so she offered a pep talk from afar. “You are NO LONGER in a damn hospital 🙏,” she texted him. “That is very exciting…we are all cheering.”

But around the Fourth of July, Waite landed back in the intensive care unit. He had complained to his mother about having severe stomach pains; not only was he vomiting bile, but fluids were building up in his abdomen. Eason’s team performed four surgeries that July to better understand the cause of those problems but struggled to find a clear answer.

“I’m miserable 😖,” Waite texted his mother after the surgeries.

“I wish we could just hit a fast forward button,” she wrote.

“I’m ready to tap out 😢,” he replied.

“Ty…no, you can’t,” she wrote back.

It’s difficult to know the extent to which any of Waite’s risk factors, including his history of drinking alcohol, contributed to his complications. But as the weeks passed, his condition deteriorated so much that one day that fall, Marci Waite and her husband, John, were quietly pulled aside by one of their son’s doctors. Given the optimism that had been conveyed by Methodist staffers so far, the Waites were caught off guard by what this doctor had to say: The transplanted liver that was supposed to be saving their son’s life had already started to fail.

At around that time, Waite’s fiancée, Sarah Benson, was finally allowed to visit Methodist. She was shocked by his condition. His hair was falling out. He had lost some of his teeth. He winced in pain whenever she touched him. “I started to cope with the inevitability that, no matter what happened, my Tyler was gone,” she said. Waite’s parents were also beginning to lose hope. By the end of 2020, Waite had undergone eight surgeries to address varying complications. After a brief upswing around Christmas — during which he was healthy enough to have his feeding tube removed and chomp down on pizza and McGriddles — he developed a severe infection. Eason’s team performed two more surgeries in February 2021, including one to remove a portion of his stomach that had started to decay.

After all those surgeries, neither his liver nor his kidneys were getting better. Unlike before, Waite was too sick to immediately get placed on the waiting list. He needed to get better before he had a shot at another liver.

One day in early March, when Eason stopped by to check on Waite, his mother asked him to be upfront about her son’s prognosis. “If he’s not going to make it, I need to know,” she remembers telling Eason. She said he later confirmed her suspicions. Her son wasn’t going to live much longer. She looked at him, knowing the tough call ahead.

That afternoon, the staff ceased further rounds of dialysis and doses of his blood pressure medication. They unhooked his ventilator. His mother recalled him taking a few last peaceful breaths. He died before dusk.

During the dark months ahead, the Waites sought to preserve their son’s memory the best they could. In their living room, they placed photos of him around an urn full of his ashes. In the front yard, John Waite dug a large hole for a memorial pond. On her right arm, Marci Waite got a tattoo of a hummingbird alongside three words that her son used to sign his holiday cards with: “love you lots.”

Marci Waite memorialized her son with a tattoo on her arm. (Lucy Garrett for ProPublica)

As she mourned, she thought about how her son had suffered in the nine months following his transplant. And for what, exactly? She had desperately wanted more time with him. But not like this.

In the end, she was left wondering whether the other four hospitals had, in fact, made the right call.

“That’s what it boils down to,” she recently said. “Methodist shouldn’t have given Tyler a transplant.”

Tell Us About Your Experience With the Organ Transplant System

Wendi C. Thomas, MLK50: Justice Through Journalism, contributed reporting.

by Hannah Dreyfus

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.

ProPublica has been reporting on family courts’ handling of custody disputes that involve allegations of child or domestic abuse. The reporting shows that a disputed psychological theory that’s been rejected by mainstream scientists has widespread influence on outcomes in family court.

What is parental alienation?

Parental alienation is a theory in which one parent is accused of brainwashing a child to turn them against the other parent. It is most frequently diagnosed and cited as evidence in divorce and custody cases, even though most mental health professionals reject it as junk science.

The theory was the brainchild of Dr. Richard Gardner, a New York psychiatrist and psychoanalyst who made a career as a paid expert witness in more than 400 child custody cases, testifying most often on behalf of fathers accused of sexually abusing their children.

Gardner developed the theory of parental alienation syndrome, a condition in which children wrongly believe they are being abused, and recommended courts treat the children by placing them in the custody of the parent accused of abuse. “Severe” cases, he argued, required “threat therapy” to disabuse children of their distorted beliefs.

Few mainstream professional groups have accepted it as a diagnosable condition. But today, programs across the country claim to treat parental alienation using similar techniques, according to a ProPublica investigation. These programs, which can cost $15,000 or more for a four-day intervention, are court-ordered.

Contemporary advocates of the theory vary in their allegiance to Gardner and his version of parental alienation as a syndrome. Some classify it as a “relational disorder” rather than a syndrome. Others continue to defend Gardner’s conceptualization of parental alienation syndrome, despite Gardner coming under fire in the 1990s for arguing that pedophilia has benefits for human survival.

Demosthenes Lorandos, a lawyer and parental alienation scholar who knew Gardner personally, said he has been misrepresented. “The woke types would go completely crazy and say, ‘Oh my God, he’s advocating for pedophiles,’ which is the opposite of what he was doing,” Lorandos told ProPublica. The controversy surrounded “Richard’s desire to stop false sexual abuse cases,” he said.

What do mental health professionals say about parental alienation?

Parental alienation is not accepted as a mental health disorder by psychiatry’s diagnostic bodies. The American Psychiatric Association has repeatedly declined to include parental alienation in the DSM-V, the group’s diagnostic manual. Scholars of parental alienation claim it is a rapidly developing field of scientific inquiry and advocate for its inclusion in the diagnostic manual.

It has also been denounced by the World Health Organization and is shunned by the National Council of Juvenile and Family Court Judges for failing to meet court evidentiary standards. And in May, a special report released by the United Nations’ Human Rights Council blasted parental alienation as a “pseudo-concept” and recommended member states prohibit its use in family courts.

Madelyn Milchman, a licensed psychologist in New Jersey who researches child custody and traumatic memory, said the theory relies heavily on “perceptions of women in Judeo-Christian societies as hysterical, vitriolic and irrational.” (Gardner’s original rendering of the theory portrayed mothers in this way, she said.)

“Once you start on that train ride, and you believe that the mother has programmed the child, it no longer matters what the child says because the child is not credible, and the mother’s not credible,” said Milchman, who holds a doctorate in psychology. This doubt can lead to a “snowball effect” in family courts, fueled by “experts who testify on behalf of the alienation belief system.”

Some defenders of parental alienation have tried to separate the theory from its gender-focused origins. Jennifer Harman, an associate professor of psychology at Colorado State University who serves as an expert witness on parental alienation, argues that doing so overlooks men as victims of domestic violence and abuse.

How is parental alienation used in court?

Parental alienation is diagnosed almost exclusively in family courts — either by privately hired expert witnesses or court-appointed custody evaluators. There, it is used to explain why a minor is claiming that he or she is being abused.

For example, in an ongoing case in Utah, siblings Ty and Brynlee Larson accused their father of sexually abusing them. The father’s attorney argued that the children’s mother was brainwashing them to believe their father had abused them. The abuse had been substantiated by state authorities in 2018. As a result, a court official restricted the father’s visits. Earlier this year, a judge agreed that the mother was alienating the minors and authorized police to place them into the custody of their father. In his order, the judge did not mention the previous findings of abuse against the father. The siblings resisted, barricading themselves in a bedroom in their mother’s home where they used TikTok to call attention to the judge’s orders.

Critics of parental alienation say that its nearly exclusive manifestation in custody litigation — and the fact that it almost exclusively affects children from higher socioeconomic backgrounds — further undermines the argument that it is a legitimate disorder. “True mental health disorders are more equally distributed throughout the population, regardless of socioeconomic status, class or social context,” said Dr. David Corwin, a professor and director of pediatric forensic services at the University of Utah and a past president of the American Professional Society on the Abuse of Children.

Corwin also said that the words “parental alienation” do not need to be used in court to implicate the theory in a custody dispute. In fact, many lawyers and custody evaluators specifically avoid using the term because it has become so polarized. Other commonly used terms that implicate the theory include coaching, used to describe a child being trained by an adult to claim abuse when it did not happen; triangulation, used to describe a parent purposely manipulating a child in order to gain power in a conflict; and pathogenic parenting, used to describe parents projecting delusional beliefs onto their children.

Law enforcement and state child welfare agencies also sometimes cite parental alienation to dismiss allegations of child abuse. In a Colorado custody case ProPublica just reported on, state child welfare agencies decided not to investigate dozens of reports by mandatory reporters who expressed concern that a child was being physically and sexually abused by his father. Authorities appeared to believe that the child had been manipulated by his mother to report abuse so she could gain ground in the custody dispute. The court also agreed that the mother’s conduct met the definition of alienation.

The courtroom is where advocates of the theory have pressed for its acceptance. In Colorado, they have seized on a 2020 state Supreme Court ruling that parental alienation is a form of child endangerment.

The first courtroom battle is to establish that parental alienation is “real,” said Amy J.L. Baker, an advocate for the theory who holds a doctorate in developmental psychology but is not a licensed psychologist. “If you have a Supreme Court that’s already said it is, that door is, like, unlocked.”

Baker co-authored a recent proposal to the APA to include parental alienation in the DSM-V. The group previously rejected a similar request made in 2012.

Can a parent lose custody for parental alienation?

In cases when mothers allege abuse and fathers respond with claims of parental alienation, it roughly doubled a woman’s chances of losing custody in court, according to a 2020 national study on parental alienation funded by the U.S. Justice Department.

Another study funded by the Justice Department found the primary reason judges award custody to an abusive parent is that the mother is not viewed as credible. Two-thirds of the mothers in the study were dismissed as psychologically unwell and, in some cases, were denied custody even after their concerns about abuse were found to be valid.

Though family court judges operate with maximum discretion and little oversight — family court records are routinely sealed from the public — an increasing number of custody rulings based on parental alienation are being appealed, according to Paul Griffin, a former litigator of child abuse cases and the legal director of Child Justice, a legal assistance group.

“There are not enough lawyers attacking it sufficiently,” Griffin said. “But that could change as parents realize they have grounds to stand on and lawyers realize the higher courts are starting to pay attention to how a junk theory is proliferating unchecked in lower courts.”

A primary concern among those who oppose the use of parental alienation in the court is that it misinterprets evidence that would otherwise indicate child abuse.

“Parental alienation concocts this notion that if a kid exhibits certain symptoms that, incidentally, are the same symptoms of being abused, it was alienation,” said Richard Ducote, an attorney who specializes in defending parents accused of alienation. “It was a very clever idea to take the evidence of a child being abused and recast it.”

But advocates of parental alienation disagree that the theory provides cover for abusers. Harman argues that children’s reports of abuse cannot be relied upon because they are easily influenced, leading to false claims. “I’m accused all the time of protecting pedophiles. I’m like, why would I do that? No, I don’t protect people who are abusive. If anything, I want children to not be abused in any form.”

by Hannah Dreyfus

This story contains detailed allegations of physical and sexual abuse of a child and descriptions of injuries that may have been caused by child abuse.

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As a special consultant to Colorado’s child welfare agency, Susan Coykendall accepted that there was no reliable profile for a child abuser, but she was fairly certain Bruce was not one.

She came away from their first meeting in 2015 with the impression that he was a bit absent-minded and hapless but not a danger to his then-infant son. She described him as having a “Peter Pan”-like quality.

Coykendall was assisting Colorado’s Department of Human Services evaluate Bruce after the child returned from visiting him with a “black and blue mark on his forehead,” according to child welfare records. The injuries and domestic violence had been reported by Christine, Bruce’s then-wife and the boy’s mother. (ProPublica is not using the parents’ full names to protect the identity of the child.)

Christine told a caseworker she did not want an investigation for fear it would escalate the situation. Nonetheless, authorities investigated and found no evidence that Bruce “would hurt his son.” But because of the seriousness of the claims, DHS requested Coykendall provide her professional opinion.

While Coykendall was conducting her assessment, DHS received a second report from the infant’s pediatrician. The 19-month-old had returned from a visit with his father with “irritated” genitals reported by his mother and lumps on his head, the physician said, according to child welfare records. The agency did not investigate, stating it did not meet the legal standard for abuse or neglect.

Bruce, who goes by a nickname, denies ever physically or sexually abusing his son. He did admit to roughhousing with him, which may have sometimes led to injuries. “If [he] got a bump or a bruise, he’s just being a boy. … My son is a boy through and through. … He’s beggin’ for the roughhouse.”

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Coykendall said she does not recall hearing about the second report to child welfare officials. Nor did she know Bruce had been charged with third-degree assault years prior for injuring a co-worker at an auto repair shop, according to police reports. (Bruce said he was trying to break up a fight. The charge was reduced to harassment through a deal to which Bruce pleaded no contest.)

But she did learn that during the initial investigation Bruce spontaneously confessed to police officers, court officials and child welfare investigators that decades earlier, at age 16, he had sexually assaulted a 4-year-old girl. According to police reports, Bruce said he performed a sex act on the child while babysitting her on a joint family vacation in the Poconos. (Colorado police did not open a case because the incident had taken place outside their jurisdiction.)

“There was no victim in that situation except myself,” Bruce told me. “That alleged victim did not suffer and had no recollection of it. But I beat myself up for decades thinking that I was fucked up, right? The silver lining being I finally told everybody. And everybody said: ‘Dude, you were young and stupid and pubescent. … Don’t beat yourself up about that.’”

The admission gave Coykendall pause, she later recalled. “I take things like that very, very seriously.” But his candor and explanation — he was intoxicated — allayed her concerns. She concluded “it was not a part of his adult repertoire of behavior. … It was an anomaly.”

“This is gonna sound ridiculous, but I’m — what I call the creep-o-meter,” Coykendall told me when we first spoke months ago. “Like he was so far down at the bottom of it that it wasn’t even, it wasn’t a concern, once I understood how it had happened and what all the circumstances were.”

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In her psychological evaluation, Coykendall said her interactions with Bruce “raised no red flags.”

Coykendall had so few concerns about Bruce that she initially offered to skip writing a report to save the child welfare office the money. Jennie Thomas, the lead child welfare investigator on the case whom Bruce said he knew personally, recommended he pay for a report and use it as evidence that he was a fit parent. “I suspect Christine plans to try to use a custody case to keep” their son away from Bruce, Thomas wrote in a Sept. 21, 2015, email to Coykendall, which was later included in court documents. “It might be smart for him to have something substantiating that she is wrong about him.” Coykendall agreed, and Bruce paid her for the report. (Thomas said she had no personal connection to Bruce prior to meeting him in her capacity as a child welfare caseworker.)

Seven years after Coykendall penned the report about Bruce, I called to ask her recollection of him. I wanted to hear from an expert who was familiar with this case and had dispassionately weighed the contradictory accounts that I was now struggling to reconcile. I told her that for years following her evaluation, doctors, psychologists, school officials and even a dental worker had contacted DHS with concerns that Bruce might be abusing his son. Over 36 reports of potential abuse were made to Colorado child welfare officials by more than a dozen professionals who are considered mandatory reporters, according to court and child welfare documents. Of the five who agreed to speak to me, none said they knew that others had made similar reports.

A family photograph of Bruce with his son (Provided by Bruce. Photo pixelated by ProPublica.)

I kept grappling with a foundational question: How could so many adults in the child’s life believe he was being abused and report those concerns to authorities while others who saw the same reports came away believing it wasn’t possible? Some in the latter group would point to the boy’s mother as the source of the allegations that have spanned the 9-year-old child’s entire life. The couple has been embroiled in a custody fight for nearly as long.

A large number of people reporting concerns of abuse does not prove it occurred. But in the aggregate, research indicates a higher number of prior reports of child abuse correlates with an increased likelihood that an investigative finding of abuse will be supported. Tamara Fuller, director of the Children and Family Research Center at the University of Illinois at Urbana-Champaign who studies child protective services, said the number of prior reports is one of the best predictors that state investigators will find abuse took place.

Yet in this case, the more reports streamed in, the less state investigators seemed to believe that Bruce was harming his son. In fact, the cascade of reports shifted suspicions to the boy’s mother, Christine.

A spokesperson for DHS said the agency does not comment on its handling of specific cases.

The reports were detailed and consistent over the course of years. In February 2017, a physician’s assistant at a local medical center reported that the child, then almost 3, had returned from spending time with Bruce with unusual bruising around his rectum. The report prompted an investigation that was closed a month later as “inconclusive” because there was no evidence to show how the child got the bruising, according to child welfare records.

A Department of Human Services report from when the child was almost 3 years old shows the agency found allegations of sexual abuse to be inconclusive. (Obtained by ProPublica. Document highlighted and redacted by ProPublica.)

In May 2018, the child’s clinical psychologist reported the boy had told her that his father hit him with a stick and that “dad touches his junk while he touches my penis.” (The psychologist noted to me that the child’s use of sexualized terms was indicative of an adult influence.) In July 2018, a pediatric psychiatry specialist reported that the child had told his mother and medical staff that he had been sexually abused. DHS declined to investigate the reports.

Would hearing these allegations have changed Coykendall’s assessment of Bruce and whether the child was safe in his care, I asked.

“Oh, absolutely,” she said.

“I know at the time, I did the best I could. … Did I miss something? Probably. Do we all miss something? Almost always. I think anybody who tells you they don’t miss anything is full of crap,” Coykendall said. “Maybe I missed something. Maybe I misinterpreted this.”

The child’s art alongside family photographs in Christine’s home (Trent Davis Bailey, special to ProPublica) Allegations of Abuse Countered by Allegations of Alienation

The custody case playing out in a small town nestled in the mountains of southwest Colorado is a war of narratives.

Christine, backed up by more than a dozen mandatory reporters, two court-appointed custody evaluators and the child himself, alleges the boy’s documented injuries indicate he is being seriously harmed by his father.

Bruce, supported by another custody evaluator, law enforcement, child protective services and several court officials, maintains the boy’s injuries are the result of a normal, active childhood. Instead, he argues, the child is a victim not of physical or sexual abuse but parental alienation, a disputed psychological theory in which one parent is accused of brainwashing a child to turn them against the other parent.

The theory arose in the 1970s and ’80s, during a paradigm shift in U.S. family courts, as Insider/Type Investigations has reported. As women entered the workforce in larger numbers and men played a bigger role in child-rearing, the assumption that women should be favored with custody in divorce proceedings was challenged. A “father’s rights” movement demanded gender-neutral custody proceedings, and, by the 1980s, most states began implementing joint custody after divorce. Courts were overwhelmed by custody battles, and judges began looking for experts to help them resolve high-conflict cases, particularly those involving allegations of abuse. They were a ready audience for Richard Gardner, a psychiatrist and the architect of parental alienation syndrome, the antecedent to parental alienation. Gardner theorized that mothers were brainwashing children against fathers in order to gain custody. The solution, Gardner said in writings and speeches, was to remove children from their mothers and employ “authoritarian” therapeutic methods, including “threat therapy,” to disabuse children of their supposedly false beliefs.

Today, parental alienation has still not been accepted as a mental health disorder by psychiatry’s diagnostic bodies. It has been denounced by the World Health Organization and shunned by the National Council of Juvenile and Family Court Judges for failing to meet court evidentiary standards. In May, a special report released by the United Nations’ Human Rights Council blasted parental alienation as a “pseudo-concept” and recommended prohibiting its use in family courts.

According to court records, Bruce began accusing Christine of parental alienation in early 2016, after she filed for divorce and the judge was preparing to rule on their custody arrangement.

Today, parental alienation has still not been accepted as a mental health disorder by psychiatry’s diagnostic bodies.

They both describe their marriage as the result of an attraction of opposites.

Christine, a financial trust examiner for the state of Colorado, attended Penn State on a full athletic scholarship and later earned an MBA. She trained to be on the U.S. Olympic field hockey team until an injury ended her career. Last summer, mounting attorneys fees caused her to file for bankruptcy, she said.

Bruce dropped out of several colleges to pursue a range of jobs — ski instructor, boat builder, tow-truck driver and said he has operated several small businesses. Bruce speaks openly about struggling with alcoholism, starting in junior high school, but said he has been sober since shortly after becoming a father. Today, he works in theater production as a contract artist and set designer.

The two met in 2006 playing ice hockey and married three years later. Despite tensions in the relationship, they decided to have a child. After several rounds of in vitro fertilization, their son arrived in 2014.

Christine holds a photograph of her and her son last year. (Trent Davis Bailey, special to ProPublica. Photo pixelated by ProPublica.)

The couple’s interactions soon escalated into what Christine describes as a pattern of violence against her and the infant. Christine moved out, and she and Bruce began alternating parenting time.

Bruce denies ever acting violently toward Christine or their son.

One weekend, when Bruce did not return their son to Christine, the couple clashed. He was arrested and charged with harassment and domestic violence for allegedly pushing her to the ground while she held their infant, according to police reports. Judge Donald Cory Jackson, who would later preside over the couple’s custody case, signed a restraining order prohibiting Bruce from having contact with his wife and son. Shortly after the incident, Christine filed for divorce.

Bruce was arrested a few weeks later for violating the order and spent the night in jail. In January 2016, he was convicted of domestic violence and harassment. Bruce took an Alford plea, a guilty plea in which the defendant does not admit to committing the crime.

The year after the child was born, a restraining order against Bruce was filed prohibiting contact with his wife and son. (Obtained by ProPublica. Filing highlighted and redacted by ProPublica.)

Bruce says this is when Christine began fabricating the narrative she would spin for years that he is abusive and a threat to their son. “It was her initial sabotage: I never shoved her. Her and her mother concocted a lie to tell the police so that I would get arrested, so that they would have that first victory in the divorce case,” he said.

A year later, Bruce was arrested again and charged with stalking and domestic violence for capturing video of Christine and the child from his car, according to police reports. (The charges were later dismissed.) “If you saw that kid you would want to take him too,” Bruce told the police officer, according to the report.

Christine provided police with a timeline of 26 incidents from the past two years in which she alleged Bruce assaulted, harassed, recorded and stalked her. “Every time I leave my house I am afraid,” she wrote in a statement to police. “When he appears out of nowhere, and then disappears, I am shaking.”

Bruce said he recorded her in self defense and that their encounters were inevitable in a small town. “They were looking for any excuse to get me to look like I was the bad guy,” he said.

As Bruce argued this in court, the state Supreme Court ruled in another divorce case that parental alienation should be treated as a form of child endangerment. Advocates who want courts to consider parental alienation as a mental disorder view the Colorado ruling as an essential step toward establishing its legitimacy. As of now, the American Psychiatric Association does not include parental alienation in its diagnostic manual, the DSM-V. But the ruling, experts say, put Bruce’s allegations of alienation against Christine on equal legal footing with the claims of abuse against him.

First image: Christine holds a card drawn by her son. Second image: A child’s toy on the ground outside Christine’s home. (Trent Davis Bailey, special to ProPublica) “Is Mom Making This Up?”

At the beginning of the custody battle, the court was convinced that Bruce posed a physical danger to his almost 2-year-old boy. In the first permanent custody orders, Judge David Westfall found a “preponderance of evidence” indicated Bruce had committed domestic violence against Christine and was a threat to the child. He cited injuries the boy sustained while in Bruce’s care, including bruises to his head and an injury to his leg that left the toddler “unable to walk,” according to court documents. The judge also found that Bruce had failed to “properly” feed the child and had neglected his medical needs.

Westfall restricted Bruce’s parenting time in accordance with Colorado law, which requires the court to consider incidents of domestic violence when determining custody arrangements. He awarded Christine primary custody and sole decision-making authority over their son. Bruce maintained visitations with restrictions, including not being permitted to bathe the child. But the flow of reports with concerns that the child was being harmed while in his father’s care did not stop. The professionals making those reports to DHS and law enforcement worked at different institutions and lived in different parts of the state, some hundreds of miles from each other.

Bruce continued to rebut them, reiterating to child welfare investigators that his ex-wife was framing him to gain the upper hand in their custody battle. “You all need to stop believing her lies,” Bruce told investigators after the physician’s assistant reported in 2017 that the child had unusual irritation and burst blood vessels around his rectum after spending time with him.

In a DHS child welfare report, a caseworker documented Bruce’s response to reports that the child was being harmed while in his care. (Obtained by ProPublica. Document redacted and highlighted by ProPublica.)

Bruce said he began reaching out to parental alienation experts to advise him on his situation, which he feared was becoming dire. He also called DHS to accuse Christine of falsely reporting abuse.

As the child grew, his descriptions of abuse became more detailed. Susannah Smith, a clinical psychologist who began seeing the boy in the spring of 2017 at the recommendation of child welfare officials, made seven reports detailing his claims of physical and sexual abuse by his father. The boy told Smith that Bruce “hits me” and “pushes his ‘package’ against me,” according to the therapist’s reports.

But DHS caseworkers grew dubious of the allegations and increasingly convinced of Bruce’s explanation for the child’s disturbing statements.

Christine began to fear that the reports, intended to raise alarms about the safety of the child, were having the opposite effect.

Coykendall said this was likely the result of confirmation bias, the cognitive tendency to favor information that supports a predetermined conclusion and discard conflicting evidence. “Most DHS workers are loath to give credence to evidence when it goes against their intuitive feeling about a case,” Coykendall said. “Anecdotal ideas that the person is just a good ol’ boy can override concern that there’s something going down that’s not above board.”

Christine began to fear that the reports, intended to raise alarms about the safety of the child, were having the opposite effect.

It struck me that the response might have been different had it not played out in a town of about 2,500. Several of the investigators knew Bruce personally. He told me that Thomas, the child welfare official, attended his personal therapy session while she was investigating him for child abuse to understand more about his assault of a child when he was a teenager.

(Thomas denied that she attended a therapy session with Bruce. She said she interviewed him about the “incidents that occurred when he was a teen” as part of her child welfare investigation.)

Bruce also said he was revered by parents whose children performed in the school productions for which he designed stage sets. (Thomas was one of them, he said.) “The only potential grace that I might have gotten in this town is that I built, like, 100 sets for children’s theater,” Bruce said. “So a lot of parents in that town think I’m, like, a hero or whatever.”

Norman Squier, one of the first police officers to investigate Bruce for child abuse eight years ago, told me he and Bruce had acted together in local theater productions. Squier said he also knew Christine, but that his familiarity with both of them did not influence his investigation. He did tell me that he believed Bruce would provide a “great home” for the child and that he thought Christine’s “anxiety” caused the child harm.

“Is mom making this up? What might her motive be?” a DHS caseworker wrote in February 2017, following a report from a victim’s advocate that the child had told his mother “he touched my fanny and it hurt.” Child welfare officials did not investigate further.

“Is mom creating parental alienation with regards to dad?” the same caseworker wrote in September 2017, after Smith reported that the toddler had returned from visiting Bruce with “skin rashes and bruises, pants removed, pants wet” and “red irritation around his rectum and privates, which hurt when he bathes.” The case was closed with no findings of abuse against Bruce.

A DHS report from when the child was 3 years old says that he would return from visits with Bruce with injuries. (Obtained by ProPublica. Report partially redacted and highlighted by DHS, and partially redacted and highlighted by ProPublica.)

The agency began declining to investigate reports about the child from Smith and other mandatory reporters.

A report made when the child was 4 includes impressions from the child’s therapist, Susannah Smith, and shows DHS screened calls by mandatory reporters alleging abuse of the child. (Obtained by ProPublica. Report partially redacted by DHS, and partially redacted and highlighted by ProPublica.)

“The child in question has continued to report sexual and physical abuse. … He is quite graphic about the sexual molest,” Smith wrote to child welfare officials in May 2018. “I imagine this falls on deaf ears, but I will continue to report what I am seeing and hearing.”

I asked Smith what she thought of the argument, reflected in DHS’ response to her reports, that Christine was influencing her son to claim abuse in order to alienate him from Bruce.

“These complaints aren’t coming from Christine — she’s scared to open her mouth. They were coming from” the child, Smith told me. “And, like I said in some of my reports, it’s extremely rare that you get not only the physical evidence, which was reported by multiple physicians, but you also get his talking about it.”

“Anyone who is quicker to believe that myself and a dozen other professionals were hoodwinked into reporting child abuse, rather than that a child’s outcry needs to be heard and investigated, is willfully turning a blind eye,” Smith said.

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Elizabeth Gyorkos, a physician’s assistant who had treated the child for years for allergies, reported to DHS that the boy had returned home from visits with his father with unusual redness and swelling around his anal area and genitals.

Gyorkos told me she remembered the case clearly. “He was sitting quietly in the exam room. When the doctor, who is a big man, came in to see him, [the child] shrank in his chair and cupped both of his small hands right over his crotch, like he was trying to protect himself.” When I told her that her report to DHS had been dismissed, she became distressed. “Nothing happened?” she said. “What is it going to take for these people to see what’s going on? Even then, I remember thinking to myself, and I think I even told my husband, ‘This is the case you will hear about one day.’”

I asked her if she recalled anything about how Christine behaved around the boy. Did she ask him leading questions? Did she say negative things about the father?

“No,” Gyorkos said. “She was just a concerned mom trying to do the best she could to protect her child.”

Child welfare agents did not accept the report from Gyorkos and did not investigate further. “The consensus is that this referral is based in custody issues,” the June 2018 DHS report states.

“There is a larger concern focusing on” the mother “and her inappropriate victimization of the child.”

In the fall of 2018, four mandatory reporters called DHS during the child’s first week of preschool saying he had told them that his father “hurts him” and “fools around” with his private parts. After this, DHS ran out of patience, Bruce said. “I was told that they were so sick of all these dozens of calls to DHS that they turned my case into a Dependency and Neglect to bring in as much, like, firepower to put an end to this that they could.”

Child welfare agents opened an investigation into both parents, accusing Christine of emotionally abusing her son. The basis for the claim: photographs she had taken of the boy’s genitals in order to consult with doctors about his injuries, according to child welfare records. The case was dismissed several months later with no findings of abuse, though the agency did require Bruce’s parenting time to be supervised.

But the investigation confirmed her fears, Christine said: Child welfare agents believed Bruce’s narrative that she was manipulating not only her child, but also the professionals who were continuing to report abuse. “It became clear to me at that point that I was being targeted, and that I had no power to defend myself,” Christine told me. “It didn’t matter that I wasn’t the one making the reports. They would boomerang back at me.”

Christine in Her Own Words In April 2022, Christine contemplated the possibility that she could lose custody of her son. (Nadia Sussman/ProPublica) Going to Police

Frustrated by DHS’ disregard for their reports, a handful of the mandatory reporters took their concerns directly to the police.

On Nov. 19, 2020, police responded to a 911 call from Sabrina Bates, a Denver elementary school principal. According to police reports, Bates had a recording of a first grader saying that his father touches his penis and hits him. The child was Bruce and Christine’s son. Bates told police she had received the recording from the child’s mother; Christine told me she had not gone to police or child welfare officials directly because she feared that if she reported it would be used against her.

A Denver Police Department officer statement documents a call by elementary school principal Sabrina Bates, who said she had an audio recording of the child explaining ongoing abuse. (Obtained by ProPublica. Report highlighted and partially redacted by ProPublica, and partially redacted by the Denver Police Department.)

Christine had moved to Denver the previous year to care for her elderly mother and the child, now 6, was spending weekends and some holidays with Bruce. Bates’ call to Denver police came after reporting concerns to DHS for months with no apparent result. “I’ve been in education for 16 years, and I’ve never seen a child as traumatized as [this child] was and continues to be. … There’s not a damn thing being done,” Bates told me.

The report was referred to the rural sheriff’s office in the jurisdiction where the abuse was alleged to have occurred. That’s where the investigation stopped.

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A representative confirmed the sheriff’s office received a referral from Denver police, but no investigation was opened. The likely reason, according to the representative: The officer knew about the case and had previously deemed the allegations unfounded.

The sheriff’s office had been investigating the case for years. In 2018, a DHS caseworker contacted the sheriff’s office after receiving a slew of reports from mandatory reporters describing harm to the child. According to a police report, the caseworker spoke to Officer Dan Covault and initially described the situation as Christine “making allegations that [the father] is sexually assaulting” the child even though none of the reports had come from Christine. Covault interviewed the child alongside two DHS caseworkers. They said the boy had told them that he had been sexually and physically abused by his father. “[The child] was able to identify different parts of the male body and knew what a penis was,” Covault wrote in a police report describing the interview. The child said that his father “had touched him there and he didn’t like it.”

But after consulting with the DHS caseworkers, Covault discounted the child’s account because it seemed the boy had been coached. While the child claimed Bruce touched his penis, “he had trouble remembering where and when this happened,” Covault wrote in the report. “His answers appeared to be fabricated. His responses to being touched came easily to him as if he had been coached.”

Officer Dan Covault wrote that the child reported being hit by his father and that his father touched his penis and he did not like it. (Obtained by ProPublica. Redacted and highlighted by ProPublica.)

Coaching is a term that frequently appears in literature about parental alienation to connote one parent training a child to believe and report false claims about the other parent, including claims of abuse. The mental health experts I spoke to, including the boy’s therapist and several medical professionals, recalled the child being detailed and consistent in his accounts of abuse. Neither of the court-appointed psychologists who had evaluated the case at the time voiced concerns that Christine was coaching the child. Still, Covault was swayed by what the DHS caseworkers told him: All of the mandatory reports could be traced back to Christine and her efforts to keep primary custody of her son.

In explaining the child’s statements, the officer’s report echoed Bruce’s claims of alienation. “It appears [the mother] is making unsubstantiated reports. It’s possible she is doing this because there is another custody hearing in December,” Covault concluded in his Sept. 18, 2018, report. “Nothing further at this time.”

(Sheriff’s officials didn’t close the case until this past January, immediately after I filed a public records request seeking the investigative report. The report said Covault closed the case because neither Christine nor the mandatory reporters had responded to attempts to gather more information. My records request did not produce any emails from Covault to Christine or the mandatory reporters.)

Covault declined to speak with me.

Another police officer investigated the same allegations but reached a different conclusion. The marshall of a nearby county asked police officer Monty English to take a second look at the case because of the seriousness of the claims. English, who has since retired, said he spoke to several of the doctors who were mandatory reporters and reviewed photographs of injuries the child had sustained while in his father’s care. “I think they had more than enough to charge him with at least child abuse,” said English, who told me he worked on sex assault investigations for over a decade. “I was disturbed by the fact that they had all these allegations and it didn’t seem like anyone was following through or documenting the facts. … You just don’t turn your back on that kind of stuff.”

English said he spoke with the detective investigating the case. When he voiced his concerns about the child’s situation, he said he was told that the child’s mother was “crazy.” “They said if she comes back we’re going to charge her with false reporting.”

First image: Christine at home. Second image: Her son’s playroom. (Trent Davis Bailey, special to ProPublica) “Significant Evidence That Remains Unanswered”

The alienation argument and the doubts it raised about the abuse allegations made their way into the courtroom. Judge Donald Cory Jackson had been appointed to the case, and in January 2020 he was preparing to issue a new custody ruling. He was not swayed by a custody evaluator’s deep concerns that Bruce posed a threat to the child.

Bruce Bishop, a Denver-based clinical psychologist, was the second custody evaluator to work on the case. Evaluators like Bishop, referred to as “parental responsibility evaluators,” function as privately funded alternatives to court-furnished evaluators. Colorado courts opened their doors to these specialists more than a decade ago to allow a broader range of psychologists to lend expertise to custody decisions.

Bishop advised Jackson that “a continuation of the current parenting time plan constitutes a significant emotional and physical risk to this child” and recommended against unsupervised visits with Bruce. He expressed concern that DHS agents’ “pre-existing relationships with father” could have “tainted” their investigations. “I hope the possibility that the child has been sexually abused is false, and it probably is,” Bishop wrote. “But nevertheless there is some significant evidence that remains unanswered — and a ‘miss’ on this would have catastrophic consequences for the child.”

But Jackson’s ruling stated that the “persuasive issue” was not the child’s injuries or reports of abuse but rather “each parent’s attitude toward the other.” He increased Bruce’s visitation time from two supervised visits a week to unsupervised weekends twice a month, summers and holidays.

Bishop would not comment on the case specifically, but he told me it is rare for a judge to disregard his recommendations, especially when they pertain to the physical safety of a child. “There’s no remedy if I see a report used in a way that I think is irresponsible or naive,” he said.

After two years, Bruce asked the court for more parenting time and sought yet another professional to review the custody arrangement and advise the court. While it is common for parties to list several options when requesting a custody evaluator, according to experts and Colorado parents, Bruce named only one: Edward C. Budd. (In an interview, Bruce denied requesting Budd, though court documents show he did.)

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Christine objected in court to Budd being appointed. She saw no need for a new evaluation — Bishop’s report was less than two years old. But unlike other states, where both parties must agree on a custody evaluator or, if they cannot agree, a judge chooses one, Colorado law permits courts to appoint an evaluator over the objections of one of the parties to a case. Bruce said he paid $17,000 for the new evaluation, including Budd’s travel fees.

Budd, 68, who holds a Ph.D. in clinical psychology from Texas Tech University, began working as a custody evaluator in Colorado in the late 1980s. He has since been involved in about 675 cases, he said. He is tall, walks quickly and doesn’t make small talk. “I have a little tolerance for boredom,” he told me when we met, leaning back in his chair at his suburban Denver office and popping a cough drop.

He chose to become a custody evaluator because the job made excellent use of his “gifts,” including an ability to sift through large amounts of “wasteful” information and “zero in on the key issues.” In his report on Bruce and Christine’s case, he referred to this as “separating the wheat from the chaff.” He told me, “I’m not very often wrong about — not fundamentally wrong about — people.”

Budd sometimes gives parents a self-authored document that outlines the evaluation process using hypothetical parents, John and Mary Doe, and their 8-year-old son, Justin. Mary claims that John is physically and emotionally abusive to their son. John claims that Mary is “mentally-ill.” John remains involved in his son’s life despite mom’s campaign of “alienation.” The handout asks parents to “Imagine that you’re the evaluator, responsible for fostering Justin’s well being… The point: it ain’t simple, folks.”

His psychological test of choice is the Rorschach — a widely criticized method of analysis in which subjects interpret inkblots. (In 1999, several psychologists called for a moratorium on its use, citing the test’s incompatibility with the APA’s standards.) Unmoved by “hostile” skeptics, he said, “It’s a non-fakeable test.”

ProPublica found that Budd has been the subject of multiple complaints to the Colorado State Board of Psychologist Examiners in recent years and is currently being investigated by the panel. Most of the complaints against Budd have been dismissed and none has resulted in disciplinary action against him. One complaint that is still under investigation originated with Christine, who alleged that Budd failed to seriously consider claims of abuse in her case. According to Budd’s notes, it does not appear he interviewed any of the mandatory reporters who voiced concerns that the child was being abused.

Budd knows parents are complaining. “Everyone’s pissed about everything, all the time,” he said, quoting a comedian and laughing. He referred to the complaints as “just an annoyance.”

“I’m going to say something that is gonna sound self-aggrandizing, but I think if you thought about it carefully it really isn’t,” he said. “If people would take the report and go, ‘OK, we’re going to use an expert. We’re going to do what he told us,’ I guarantee you their kids would be better off. They don’t do that.”

A chalk drawing on the side of Christine’s home (Trent Davis Bailey, special to ProPublica) “How Do You Tell When Someone’s Lying?”

Christine met Budd last year, on a Monday evening in mid-March. She had taken off the week from work to prepare. She had scanned her bookshelves and hidden certain titles — “Mothers on Trial,” by Phyllis Chesler; “Fifty Feminist Mantras,” by Amelia Hruba. She purchased a formal dining room table and set it with folded napkins and the knives facing inward.

A home-cooked meal was ready at 5 p.m. Budd arrived late, blaming his GPS. “What are we having?” he asked upon arrival. The next hour and half was spent in stilted conversation. The visit concluded after Budd received a tour of the home, and the child escorted him out.

Two days later, Christine met with Budd at his office.

Budd started the 45-minute interview by asking what had attracted her to Bruce and for details about her job. Then the interview shifted to rapid-fire questions captured in Budd’s notes and a recording, which Christine shared with ProPublica.

“[Bruce] says he often finds that he encounters people that are involved with [your son] that you’ve already told ’em horror stories about [Bruce]. ... You’ve kind of set up the situation by telling them about him. Is that accurate?”

“No,” Christine said.

“You ever told anybody anything that might give them reason to be negatively predisposed towards him?” Budd asked.

“When I’ve ever met with therapists I have always requested that they speak with the previous therapist to get their information,” she responded.

“Ever tell a health care provider that he’s a pedophile?” Budd pressed.

“A health care provider? Well, health care providers typically have all the court orders —”

“It’s a yes or no question,” Budd said, cutting her off.

“I don’t recall,” Christine said. “But I have provided every health care provider with court orders so they can understand the situation.”

“Well for the moment, that’s all of my questions,” said Budd, bringing the interview to an end. “No point repeating things you’ve already said to me but anything you haven’t told me I’m all ears.”

Christine sat in her parked car with her head on the steering wheel for a long time before driving home.

The following week, the custody evaluator visited Bruce at his home in the mountains. At Budd’s request, Bruce prepared spaghetti. “I guess he wanted to make sure I could cook,” Bruce said.

In the interview, which lasted an hour and a half, Budd prodded him about his behavior.

“Is it possible that you sometimes behave in a way other people find offensive and don’t really recognize?” Budd asked, according to his notes of the meeting.

Bruce appeared to cut him off. “I think disagreeing with people, yeah, maybe someone gets offended by that. … I’m sorry they get offended but …”

“So it’s their fault if they get offended?” Budd asked.

“How they choose to react and behave, that’s their choice, they chose to completely ignore my perspective on that matter. … She refused to consider that … my son has not been abused by me and everyone’s running around like he has.”

Budd asked why his son had been repeatedly injured while under his care. Bruce explained he was redoing the bathroom when the boy got an arm injury in 2018; the two had been “playing a game” when his son reported to his therapist that his father had squirted him in the face with a hose and while running to get away had fallen on a metal fence.

Bruce also recounted his sexual assault of the 4-year-old girl when he was 16. “Budd barely even batted an eye,” Bruce said.

“How do you tell when someone’s lying?” Bruce asked him. “There are two different stories being told. They can’t both be true.”

Budd avoided answering the question.

Christine’s home last September (Trent Davis Bailey, special to ProPublica) The Hearing

On Sept. 23, Bruce and his lawyers arrived at the rural courthouse. They huddled, glancing occasionally at the empty opposing counsel’s table and the double-doors leading into the courtroom.

Budd’s April report had described Christine’s behavior as “destructive,” “irrational” and “pathological” and recommended that she lose primary custody of her son. A day after Budd issued the report, Christine’s attorney informed her that she would no longer represent her because there was no realistic path to winning the case. “There is no fighting chance,” she wrote in an email to Christine.

Since then, Christine has represented herself in the district court case. She filed a motion asking for the hearing to be paused, citing medical reasons. It was accompanied by a doctor’s note recommending she not participate because of a serious medical condition. Christine told me she suffers from post-traumatic stress disorder caused by the events of the past eight years. She described her experience in family court like being “put on a stick … and just tortured,” adding: “Your hands are tied behind your back. And then you look over, and the same thing is happening to your child. And then a group of 10 people would come in with notepads and take notes on how you're handling the torture.”

Jackson denied her request to pause the hearing, saying the health issues were not “specific.”

Christine didn’t attend the hearing. She was in London with her son, fearing it might be her last opportunity to travel with him, she told me.

Watch video ➜

Other than Bruce himself, Budd was the only witness in court. He testified remotely, his face looming on a large screen angled toward the judge. Budd served as both an evaluator for the court and as an expert witness for Bruce, according to court documents. Bruce told me he paid him $1,600 to appear on his behalf.

Colorado law requires custody evaluators to advocate for the child’s best interest. But the court can allow an evaluator to act as an expert witness for one side if the judge deems them qualified. Experts said these two roles are in conflict and that the same person attempting to do both is a breach of the American Psychological Association’s guidelines, which instruct evaluators to strive for impartiality.

Though Budd would not comment on this case specifically, he said in a written statement that “my only role … is to act on behalf of the child” and any implication that he served in a “dual role” is “utterly inaccurate.”

When Bruce’s attorney asked Budd what led him to conclude there was no credible evidence that Bruce abused his son, Budd responded that the “statement’s kind of self-evident, there’s no evidence for it. Those allegations have come largely from statements by [the child]. And, apart from those statements, there is no evidence: No eyewitness accounts, no findings from medical exams, no findings from evaluations of the child.” The source of the boys’ allegations were Christine’s “delusional” beliefs about Bruce, Budd explained. Professionals who spoke to Christine were similarly compelled to believe Bruce was harming the child, he said. But professionals who interacted with Bruce or observed him with the child were more likely to see that he posed no threat to his son.

“Christine goes out of her way to portray [Bruce] as a dangerous man and an abusive and incompetent parent,” Budd had written in his report. “By the time [he] talks to an educator, physician, or therapist, that person may have been told he is a violent spouse abuser and child molestor.”

“[The child] is not some sociopathic little person who just likes to lie — he’s confused about what’s actually happening,” Budd told the judge. By joining his mother in her “delusional” beliefs, the child has lost the ability to differentiate between “what’s real and what isn’t real.”

Jackson listened to Budd’s analysis and did not ask any questions.

Bruce leaving court after the hearing last September (Photo courtesy of Shannon Mullane. Photo pixelated by ProPublica.)

Budd has cited parental alienation by name in the past, but did not use the term in his report or testimony. He told me last summer that “alienation” has become so divisive that he prefers “pathological alignment” to describe family estrangement caused by one parent. Still, Budd’s analysis of the case placed him squarely alongside state investigators, police officers and court officials who had decided that it was Christine and not Bruce who was responsible for the child’s allegations of abuse.

For almost two years, I had interviewed dozens of individuals to uncover a set of facts that would either prove or disprove Bruce and Christine’s divergent stories. But what I found instead was the same set of facts with two vastly different interpretations. Christine and Bruce pointed to the same police reports, child welfare records and statements from their son to bolster wildly different conclusions: abuse or alienation.

Years ago, Coykendall was swayed by the first interpretation: that the reports of abuse were evidence of a hapless but well-meaning father, floundering under the scrutiny of an overcritical mother. But years of unabating allegations against Bruce had caused her to second-guess that interpretation. “It’s my training as a scientist practitioner,” she told me. “I have to retest hypotheses, even when it means admitting I was wrong.”

Budd’s conclusion that this was by definition a case of alienation, not abuse, seemed to decide the issue for the court. Though Colorado law requires judges to consider incidents of domestic violence when determining custody arrangements, Jackson did not mention Bruce’s 2016 domestic violence conviction during the hearing or in subsequent orders. Jackson found Christine to be a danger to the boy’s physical and emotional health and ordered the child to be relocated to his father’s home “immediately.” Christine said she and her son cut short their trip and rushed back from London to comply with the order.

A spokesperson for the court said Jackson would not comment on the case.

The following day at 8 p.m., in the deserted parking lot of a bagel shop, the 8-year-old boy rested his forehead against his mother’s, who knelt on the pavement, for a moment. He dragged a robot duffel bag packed with some of his favorite shirts, pajamas and a fox stuffed animal.

First image: In a parking lot last September, Christine said goodbye to her son and handed him over to Bruce as ordered by the court. The judge rejected the claims of abuse against Bruce and found Christine to be a danger to the boy’s physical and emotional health. Second image: Christine at home after the handoff. (Trent Davis Bailey, special to ProPublica. Photo pixelated by ProPublica.) “If I Don’t Pretend He’ll Get Really, Really, Really … Mad”

Bruce has had primary custody and decision-making authority for his son for nearly a year.

Christine sees the child on the first and third weekend of each month and for two weeks during the summer, though not this year because she missed an April 1 deadline to notify Bruce of which two weeks she wanted, as stipulated in the court order.

Now represented pro bono through the Colorado Bar Association, Christine has appealed Jackson’s custody ruling.

“It’s the next step in the playbook of fucking with the courts to get your way,” Bruce said of the appeal. “Unfortunately, I have to think like a liar to fight a liar.”

Over the last two years, reports by professionals who suspect the child is being harmed have slowed, according to DHS records. Budd was one of the last professionals to document hearing the boy say that his father hurts him, according to notes from the custody evaluator’s interview with the child. It is unclear if Budd, who is legally mandated to report suspected harm to a child, told officials about the child’s claim. DHS records indicate he did not. Budd said in a statement that he is unable to discuss specific cases without permission or a court order.

Christine said she believes the boy has stopped talking about the abuse because they both have learned the consequences of speaking up. She sent me recordings of the child from the summer of 2021. In one, the child, after getting off a phone call with Bruce, tells his mother between sobs that “he thinks I’m telling lies.” In another, he says that he acts happy at his dad’s house because “if I don’t pretend he’ll get really, really, really … mad.”

The recordings were made the same summer Bruce filed a motion, granted by Jackson, to prohibit the boy’s new psychologist from testifying in court. The child psychologist, a trauma specialist, had made seven reports of suspected physical and sexual abuse to DHS between the summer of 2020 and spring of 2021 based on the child’s statements. (The psychologist declined to speak with me about the case, citing patient confidentiality.)

In the motion to prohibit the specialist from testifying, Bruce accused Christine of enlisting psychologists who “treat the child as if his statements are true, and reinforce the lies.”

Bruce told me he believes his son is at long last healing from years of severe parental alienation. “My son is finally starting to act like a normal kid,” he said. But Bruce also admitted his son has struggled with the adjustment. Late one night last fall, Bruce told me he was at his kitchen table doing paperwork when he heard his sleeping son call out for his mom. “I just went in and sat next to him for a second and touched his arm, but he didn’t wake up. He was just having a dream,” Bruce said. In a “perfect world,” he would like to co-parent, Bruce said, so his son doesn’t feel torn between him and Christine. “He wants us both in his life. But goddammit, I’m not going to let him be in that situation where he’s being turned into this anxious little ball because mom thinks he’s being abused.”

A drawing the child made for Christine after being placed in Bruce’s custody (Photo provided by Christine)

Though calls to DHS with concerns that Bruce is harming the child have slowed, they have not stopped. On June 4, the agency received a report from a psychiatrist that the child had sustained an abrasion on his back “the size of a nickel” while in Bruce’s care. The boy, who has always been skinny, appeared “malnourished,” according to the report. At almost 4 feet, 3 inches tall, he weighed 52 pounds.

The psychiatrist, who knows Christine personally, told me she contacted the agency after receiving a text message from Christine with a photo of the injury. Christine asked her not to make a report for fear it would be used against her, the psychiatrist said, but her legal responsibility as a mandatory reporter compelled her to do so.

Christine had texted me the same photo. The child’s hip bones protruded and individual vertebrae were visible. I also noticed the welt on the child’s back described in the DHS report.

I asked Christine if she knew how he got the injury. “I learned a long time ago to never ask him questions,” she texted back. Bringing him to a doctor would risk contempt of court charges and potential jail time for making medical decisions without Bruce’s permission. The court gave Bruce 100% medical decision-making authority over the child.

Bruce did not know about this most recent report until I called him in July. He said his son sustained the back abrasion “because he kind of ran into the butt end of a hockey stick.”

“He’s a 9-year-old boy. That stuff happens all the time,” he said. He saw no need to take him to a doctor to treat the injury. That would be “making a mountain of a molehill.”

And what did he make of the claim that his son appeared malnourished, I asked.

“He might look skinnier because he’s stretching,” Bruce said. “But he’s eating fine.”

A June 2023 DHS report showing 35 prior reports related to the child’s case had been screened out by the agency. (Obtained by ProPublica. Report highlighted and redacted by ProPublica.)

When I told Bruce the number of reports that had now been made against him, including this most recent call, he referred to a joke he had made about taking home a medal. “We’re getting up there to take first place,” he said.

The agency did not investigate the report, which joined 35 others that had been screened out without further scrutiny.

Editor’s note: This story is based on public, court and child welfare documents and the accounts of more than 30 individuals connected to the eight-year custody case. Both parents had numerous on-the-record conversations with the reporter and were given the opportunity to be photographed and filmed for this story. We are only using the parents’ first names to protect the child’s identity and minimize the future impact of this reporting on him. For the same reason, we are pixelating certain images and redacting the child’s name in audio recordings. We recognize the identities of the parents and child will be obvious to many who know them. But we believe calling attention to the case offers an opportunity to understand the way in which accusations of parental alienation play out in custody cases.

Mariam Elba contributed research. Nadia Sussman and Shannon Mullane contributed reporting.

Illustrated portraits by Kate Copeland for ProPublica.

Photo editing by Andrea Wise and Jillian Kumagai.

Art direction by Anna Donlan and Andrea Wise.

Design and development by Anna Donlan.

Update, Aug. 30, 2023: The story has been updated to acknowledge Insider/Type Investigations’ reporting on the history of parental alienation theory in family courts.

by Alec MacGillis

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The scene outside Fairfield Court Elementary School in Richmond, Virginia, at 7:40 last Thursday morning was so festive that one might have assumed it was the first day of school. Upbeat music blared from a speaker on the sidewalk. Sgt. Edward R. Gore II, the school’s “climate and culture specialist,” the district’s term for its school resource officers, opened his arms to the kindergartners and first graders who came running toward him, as well as to some who wavered. Also on hand to greet children and parents was the principal, Angela Wright.

But in fact, the first day of school was receding in the distance: Fairfield Court was one of two local schools that had started the year on July 24, as part of a hotly contested trial: adding 20 days to the customary 180, to help make up ground lost after Richmond kept schools closed to in-person learning for 18 months during the pandemic. Families had only six weeks of summer vacation — closer to the European norm than the American one — before kids returned, and Wright and her staff were doing everything they could to make early-August school seem welcoming. Thus, the daily embraces and music, with a track list chosen by Gore.

“It brings a smile to put on their face every morning,” he said. “I’m out here every day.”

Beneath the good cheer of the greetings were weighty implications. The results of the 200-day academic years at Fairfield and Cardinal elementary schools will help determine whether Richmond adopts a similar approach at more schools across the 22,000-student district. For nearly three years, district leaders have been proposing to add days to the school calendar for some or all students or keep the same number of days but with a shorter summer break, to reduce what educators call “summer slide.” But, as ProPublica recently reported, that plan ran into stiff resistance from some school board members, teachers and parents. In the end, only two of the district’s 50-odd schools adopted the extended calendar for the coming year.

The pilot is being watched more widely too, as one of the highest-profile examples nationwide of schools taking aggressive action to address the unprecedented declines in student achievement since the pandemic’s onset.

The first big test has been simply seeing whether students show up. To qualify for the pilot, Fairfield Court, which has 217 students this year, had to demonstrate backing from its families, who are almost entirely African American and many of whom live in an adjacent public housing development. But a survey was one thing, warned skeptics of the proposal; getting kids to come to school in midsummer was quite another.

The turnout lagged initially, with about 80% attendance in the first week, below Fairfield Court’s average rate of 91% last year. The school’s “attendance engagement team” made repeated calls and even some home visits to absent students, trying to discern why they were out. In some cases, it was simply a matter of lacking money for new clothes or a haircut. With these targeted efforts, which included Wright herself offering to pick up kids whose parents weren’t able to walk them to school, they lifted the rate to an average of 87% by last week. “We’re down to the ones that aren’t here, we know exactly why they aren’t here,” Wright said.

The other school in the pilot project, Cardinal Elementary, which is three times larger than Fairfield Court and has a heavily Latino population, had strong attendance from the very start, 95% in the first week of the pilot, according to district data.

Principal Angela Wright of Fairfield Court advocated for the extra days and even offered to pick up kids whose parents couldn’t walk them to school. (Brian Palmer for ProPublica)

Not that everyone at Fairfield Court had needed cajoling. Several parents said their kids had been eager to return, a judgment buttressed by the alacrity with which the kids ran toward the music and into the building, where free breakfast awaited all. “They like going to school,” said Kay Brown, after her sons, a first grader and kindergartner, had dashed in. “Some kids give their parents a hard time. My kids love it.”

Renarda Bacon’s daughter, who is in third grade, had spent most of her summer break at a day care program, but Bacon was glad to see her back at Fairfield Court, where she would be getting more actual instruction. “I’m all about progressing,” she said. “If they’re going to get in a couple more days of learning, it’s not going to hurt them.”

Ashley Martin had driven her own two kids, a third grader and kindergartner, as well as three others from the neighborhood before heading to her job in a call center. She had been a staunch supporter of an extended school year from the get-go, she said, after seeing the news about Richmond’s plunging test scores during the past two years. She also thought that adding instructional time could help reduce the city’s high levels of youth violence. (Last year, a 17-­year-old boy was fatally shot and found in a garbage can in the adjacent housing development, and the school year ended two days early in June after a graduating senior and his father were shot and killed outside one high school’s commencement ceremony.)

“I definitely love this program,” Martin said. “They should keep it, and hopefully the school board expands it, so we can get these kids back on track.”

Inside school, veteran teacher Philip Canady started the day with math lessons for a dozen fifth grade boys. (This year, for the first time, the school had decided to separate fifth graders by sex, thinking it might improve outcomes.) Canady, regal-looking with a trim gray beard and wooden bowtie, moved back and forth among the desks, coaxing the boys through worksheets on identifying place value in numbers ranging to the millions.

“How many hundreds in that number?” he asked one boy. “Five? OK, put five in the hundreds column. How many tens do I have? OK, add two tens. No, no, that’s not tens. Put a two there. How many ones do I have? Four ones. Now I want you to create 2,034 for me. Do you have any hundreds? No. So what are you going to put there? Zero. You got it.”

And so on, on and on around the room, with only a few interruptions to address some minor squabbling at one table. If any calming was needed, a YouTube video waited on the big computer screen at the front of the room: “3 Hours of Amazing Nature Scenery and Relaxing Music for Stress Relief.” Nearby, some small fish swam in a tank.

For this extra month in the classroom, Canady and his fellow teachers were receiving an extra month of salary — roughly 10% of the usual annual sum — plus a $10,000 incentive and the chance at an additional $5,000 if the school met certain “accelerated learning goals” set by its leadership team. The district was paying for this, a total of a couple million dollars between the two schools, out of its slice of the $190 billion in pandemic recovery funds that the federal government has sent schools since 2020. (District Superintendent Jason Kamras has said that if the district chooses to expand the initiative, it could apply for special state funding for innovative programs or other outside funding.)

To qualify for the pilot, Fairfield Court also had to show support for it among its staff; only two employees had opposed it and transferred to other schools. In a room across from Canady’s, the operational base of the school’s academic dean and the instructional leaders for math and reading, the three educators said that they were liking the pilot. It had meant adjusting their vacation plans, but they had made good use of their five weeks off (faculty had started school a week before the kids, for professional development and classroom preparation), including going to a conference in Las Vegas with some R&R attached. And now, they were getting the satisfaction of seeing students get a head start on the year.

“I know there were a lot of naysayers, but I see a lot of happy children every morning,” said the academic dean, Nsombi Morrison.

It was time for one of the trio’s regular check-ins with the teachers for each grade level, this time with the third grade team. The three teachers came in, and together the six women reviewed tables with each student’s progress toward grade-level metrics in math and reading, and discussed upcoming assessments to gauge whether the school was reaching the goals it had set for the extra month. The educators were so fully into the stride of the year’s instructional march it was hard to believe that nearly all of the district’s other schools remained closed, with some 21,000 students not returning until Aug. 21.

Back in the principal’s office, Wright said she was keenly aware of the responsibility the school bore in showing the rest of the district that the extra time can make a difference. She had recently attended a meeting with other principals, she said, and her message to them had been this: “My whole goal is for this to run so effectively and to see that data increase so much that when two or three schools come on board next year, that here’s a blueprint. Here’s what you need to do to make it.”

She added: “I would love to hear, OK, this has now gone so well at these two schools, we’re bringing in four more schools next year.”

by Paige Pfleger, WPLN/Nashville Public Radio, with research by Mariam Elba, ProPublica

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

This story contains a description of a 911 call that took place as a homicide was being committed.

Michaela Carter felt like she was being hunted.

She fled her family’s home on Nov. 15, 2021, and called 911 with her mother, pulling into the parking lot of a discount store in southeast Nashville, Tennessee, to await the police.

“Are they sending people?” Carter can be heard asking her mom on the 911 call.

An excerpt of the first call Carter and Jones-Mbuyi made to 911. Jones-Mbuyi told the dispatcher that Carter’s estranged husband, James Leggett, had been seen with a gun. (Obtained by WPLN)

Her mother, Kimberly Jones-Mbuyi, told the dispatcher that Carter’s estranged husband had just been seen walking around a family member’s apartment complex with a gun.

James Leggett had gotten out of jail 10 days earlier. He’d been locked up since Carter reported to police that he’d repeatedly hit her in the face with a bottle of Jack Daniel’s. Since he was released, he’d started calling her and sending increasingly desperate text messages.

The night before, he posted on Facebook: “Somebody with nothing to lose won’t give a fuck when shit gets real.”

Then, that morning: “Today is the day.”

Leggett posted on Facebook before and after Carter was shot. (Obtained by WPLN)

Federal and state laws should have protected Carter by preventing Leggett, who had a felony record, from having a gun. And Carter had an extra safeguard: an order of protection against Leggett. That meant he was barred from contacting her, coming near her or having a firearm. According to the law, if he violated the order, he would be arrested.

But weak oversight of gun laws allowed him to get a weapon. And when the officers arrived, they said they didn’t have enough evidence to prove that Leggett had violated the order.

The officers escorted Carter and her mother home. Carter had packed a go-bag, and she wanted to get her ID and the paper copy of her protection order. One of the officers, who was still in training, did a sweep of the yard.

According to Carter’s family, the officers suggested that if she saw Leggett with a gun, she should try to take his photo.

Then the police left.

Ten minutes later, according to police records, Leggett busted down the door and shot Carter.

The Metropolitan Nashville Police Department declined to comment because of a pending lawsuit filed against it by Carter’s family. An internal investigation found the officers broke department protocols for domestic violence cases.

Carter had packed a go-bag with basic necessities in case she needed to flee. (Carter’s ID has been blurred by ProPublica.) (William DeShazer for ProPublica)

While the botched police response received local media attention at the time, what hasn’t been reported is that it was only the final mistake of a criminal and civil justice system in Tennessee that has repeatedly failed to stop dangerous people from accessing guns.

In fact, what was remarkable about Carter’s shooting was not that it was atypical, but just how common it was.

Carter was one of at least 75 people killed in domestic violence shootings in Nashville since 2007, when the police switched to a searchable record system. Of those, at least 29 victims — nearly 40% — were shot by people who were legally barred from having a gun, according to a WPLN and ProPublica analysis of court records in Davidson County, where Nashville is located.

One of the youngest victims was 5 years old while the oldest was in his 70s. Some were shot during heated arguments. Others were killed while playing in the snow.

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The problem of how, or even whether, to separate dangerous people from their guns is now front and center on the state and national agenda. Next week, legislators will gather for a special session on public safety in response to a Nashville school shooting in March that claimed the lives of three young children and three school staffers. And this fall, the U.S. Supreme Court will hear arguments in a case on whether it’s constitutional to bar people subject to domestic violence orders from possessing guns.

There’s a lot at stake in Tennessee, which consistently ranks in the top 10 states in the rate of women killed by men. As in most states, Tennesseans convicted of certain types of felonies and domestic violence misdemeanors or who are juveniles or subject to protection orders are explicitly prohibited from possessing guns.

But while other states have policies to get people to turn over their weapons, Tennessee’s laws offer few mechanisms to retrieve guns after someone has been barred from having them.

Law enforcement rarely goes to someone’s home to make sure they don’t have a firearm, unless an incident prompts them to. And at protection order hearings, judges seldom ask follow-up questions about weapons like: “How many guns do you have? Where are they kept?” Or even, “Who are you going to give them to, now that you’ve been ordered to relinquish them?”

That last question is part of a dangerous loophole in Tennessee called third-party dispossession. In some states, when people are ordered to give up their guns, they have to give them to law enforcement or a licensed firearms dealer. However, in about a dozen states including Tennessee, they can also give guns to a friend or a relative.

An excerpt from an order of protection states that firearms must be transferred to “any person who is legally allowed to have them.” (Obtained by WPLN)

Tennessee doesn’t require the third party to even be identified on the firearms dispossession affidavit. There are also no guardrails to ensure that those third parties aren’t themselves also prohibited from having guns or to punish them if they give guns back to the owners.

In response to the March school shooting, Republican Gov. Bill Lee has proposed expanding those dispossession laws to people with mental illnesses who are deemed a threat to themselves or others. It would essentially be an expansion of the system that is failing victims of domestic violence by allowing guns to slip through the cracks.

But even the smallest of reforms might be in doubt: Time and again, the conservative Tennessee Legislature has not only refused to pass tougher gun laws but loosened restrictions, making it easier for people to buy and carry guns.

An Easily Accessible Gun

Carter met Leggett about a decade ago when they were both in high school. She excelled at track and liked to read and to write in her journal. One day, she wrote, she walked into class, and Leggett couldn’t take his eyes off her. Carter had the kind of smile that lit up her whole face, even the whole room, her mom said. Leggett and Carter started dating, and from the outside, they seemed like a happy couple — always laughing and dancing together.

Carter, left, and Jones-Mbuyi (Courtesy of Kimberly Jones-Mbuyi)

But they drifted apart when Leggett ran into trouble with the law and spent time in and out of jail. His criminal record has several felony convictions from 2013 and 2017 for robbery, burglary and drug possession — convictions that barred him from having a gun.

WPLN and ProPublica requested an interview with Leggett through his lawyer and by sending him a letter in prison. But the letter was never answered, and Leggett’s lawyer said his client declined to comment. Leggett was charged with first-degree murder. He has not yet entered a plea and is set to appear in court in September.

Despite Leggett’s history and occasional probation violations, Carter always held out hope that he might change, her family said.

Carter and Leggett were back together but living separately in April 2020 when police were sent to his parents’ house for a domestic assault — but not one involving Carter.

Marvin and Elizabeth Leggett were both 60 years old and lived in a two-story house with a brick facade in Antioch, a neighborhood in southeast Nashville. According to a police report, they were trying to kick their son out and gather his belongings when he turned violent, pushing his mother to the ground, then throwing his father against the wall.

When Elizabeth Leggett approached him, the police report says, he grabbed his dad’s revolver and pointed it at her.

“Get back, bitch,” he said coolly.

Then he fled, taking the gun with him.

Marvin and Elizabeth Leggett told law enforcement they wanted to press charges. But the charges were later dismissed by a judge in August 2021 when they didn’t show up to court. The Leggetts declined to comment for this story.

Marvin Leggett also decided not to report his gun as stolen. But thanks to the initial charges, the police, courts and probation office all had access to information that a gun was easily available to Leggett and that he had been accused of threatening people with it.

It’s unclear if Leggett returned the weapon to his father. But according to the police, it was the same gun he would use to kill Carter.

“This Person Is Dangerous”

Of the people charged with domestic violence homicides who were barred from having a weapon, most were prohibited by state law because of a prior felony conviction. Those ranged from drug charges to homicide. In some cases, the person had already been charged once with unlawful possession of a gun.

But despite being barred for a felony, the law doesn’t spell out how to ensure the person doesn’t have guns. Often, it’s discretionary if law enforcement pursues a search warrant to retrieve someone’s gun, said Jenny Charles, an assistant district attorney in Nashville with nearly two decades of experience on domestic violence cases.

“There have been a lot of cases where I feel like I’m on a mountain screaming: ‘This person is dangerous. This person is dangerous,’” she said. “But without the person being on probation or under an order of protection, there’s just very little we can do.”

Because the state’s probation office is required to monitor people after they leave prison, it often has the best chance of catching people if they illegally have a gun. The probation office declined to comment on what it knew about Leggett’s access to guns or what it did to check on him.

But it said its officers explicitly tell offenders during intake that they can’t have access to weapons and ask others in the home to remove or secure weapons. They also ask about weapons during home visits and routinely do searches for them, the agency said.

Tennessee’s other gun laws have also made it more difficult for law enforcement and the courts to track illegal gun ownership, Charles said. Tennessee, like more than half of the United States, allows private sales without background checks, which opens the door for people prohibited from buying firearms to purchase them anyway. In addition, the state does not require a permit to carry and is one of only eight states that prohibit the creation of a gun registry entirely.

As a result, even after a crime is committed with a gun, it’s rare to have a full understanding of where that weapon came from.

“If I Stay, I’m Going to Die”

While there are gaps in enforcement when it comes to felony gun prohibitions, Carter also had a safeguard many other victims didn’t have — a protection order, which she got after a brutal beating in July 2021, four months before the shooting.

KiAndrea Jones remembers her little sister coming around the corner with her head hung low, her long dreads falling over her face. The only illumination was from a nearby streetlight.

When she came closer, Jones gasped.

Carter was brutally beaten in July 2021, and afterward she got a protection order against Leggett. (Courtesy of Kimberly Jones-Mbuyi)

Half of Carter’s face was swollen beyond recognition. Leggett had hit her in the face multiple times with a glass bottle of Jack Daniel’s, according to criminal court records.

Jones pulled her sister into her arms.

“You don’t have to be scared,” she told her. “I’m not going to ever let him hurt you again.”

Earlier that night, Carter’s family had thrown Leggett a surprise 27th birthday party. Afterward, some of them had gone to Lower Broadway, Nashville’s tourist strip of bars and honky tonks.

There, Jones said, she noticed Carter and Leggett arguing.

She said it was like Jekyll and Hyde: One side of Leggett was charming, the life of the party. But this other side of him was angry and controlling.

“His whole demeanor just changed,” she said. “Like, I’d never seen him the way that I seen him that night.”

But it turned out that night wasn’t the first time he’d lashed out. As Carter sat in a hospital bed early the next morning with her battered face, her family listened as she recounted the history of violence to a police officer.

She told them that since they eloped in December 2020 and moved in together, Leggett had become controlling. He would listen in on her phone calls, read her text messages and take her phone away to isolate her. He tried to convince her that her family didn’t really love her, she told the police. He started abusing drugs again and cheating on her. She had tried to leave him a few months earlier, she said, but he beat her up until she wasn’t able to walk.

Carter told her family that the abuse had gotten so bad that she had tried to kill herself by overdosing. She said she felt that the only way out of her relationship with Leggett would be if one of them were dead.

As she recounted the horrors, it was clear to her family that she had hit her breaking point. She was ready to leave him.

“She looked at it like: ‘If I stay, I’m going to die. And if I leave, I’m taking a chance,’” her mom said. “And she took that chance.”

First image: Jones-Mbuyi. Second image: Jones-Mbuyi wears a lock of her daughter’s hair around her wrist every time she goes to court. (William DeShazer for ProPublica)

She told police she wanted to press charges against Leggett. And after leaving the hospital in the morning, Carter petitioned the court for a protection order against him.

Leggett was arrested. But the assault charges were dismissed less than two weeks later. Right before a hearing, Carter found out that she’d have to face him in court. She had a panic attack and left the courthouse. While the family said they had communicated her fear to the district attorney’s office, prosecutors said they could only go forward if she identified him in court.

Though the charges were dropped, Leggett remained behind bars for violating his probation. And in August, Carter’s protection order was granted. A judge ordered Leggett to stay away from Carter when he got out of jail, and he was barred from having a gun.

Yet after exhausting legal options to protect herself, Carter still didn’t feel safe.

“She was holding up the paper that they gave her,” Jones said she remembered from the day the protection order was granted. “And she was saying: ‘This is just paper. This is just a piece of paper. He can shoot me through this piece of paper.’”

An excerpt of Carter’s order of protection against Leggett (Obtained by WPLN) “The System Failed”

On paper, protection orders are considered one of the most powerful tools for domestic violence victims. If someone violates the terms, they can be arrested and held for at least 12 hours, separating them from their victims. They also require people subject to them to turn over their firearms to someone else within 48 hours and to file declaration forms in court listing the make, model, caliber and serial numbers of the guns they relinquished.

But there are problems with Tennessee’s system: Protection orders can be hard for domestic violence victims to get. They aren’t always enforced. And people subject to them can simply turn their firearms over to a friend or relative, leaving them with easy access to their guns. There isn’t even a space on the gun dispossession form for the name of the person holding the weapons.

WPLN and ProPublica found that of the approximately 75 domestic violence homicides, only three cases had an active order of protection at the time of the shooting.

At least three other people had protection orders filed against them leading up to the incident, but the orders were dismissed after the court had trouble reaching the victim.

“If the petitioner is going into a shelter, they might be harder to reach,” said Becky Bullard of Nashville’s Office of Family Safety.

Sometimes protection order hearings can be delayed for months, she said, even though the statute indicates they should be held within 15 days. “We’re giving the respondents a lot of time to ramp up their violence and to potentially coerce the petitioner not to come to court,” she said.

And occasionally, Bullard said, victims choose not to pursue an order of protection at all out of fear that it might enrage their abuser and escalate the violence. WPLN and ProPublica found that in some cases just a few months passed between the petition for a protection order and the homicide.

For 30-year-old Temptress Peebles, that window was just one week. She asked for an order of protection on Oct. 10, 2019. By Oct. 17, 2019, she was dead.

An excerpt of Temptress Peebles’ petition for a protection order against Brandon Horton (Obtained by WPLN)

“The system failed my child terribly,” said her mother, Karen Peebles, who described her daughter as free-spirited and outgoing, with a high and lilting voice, which earned her the nickname Chippie. “They didn’t respond like they should have, which I think cost my daughter her life.”

According to court records, the order was the third she had sought against her ex-boyfriend, Brandon Horton, in the year leading up to her death.

In January 2019, she told the court, Horton threatened to kill her rather than see her date someone else. Six months later, she reported, he burst through her back door with a gun and pointed it at her.

Her final petition for a protection order includes a statement from Peebles that is especially prescient.

“Brandon has threatened to kill me before,” she wrote in the document. “He once said to me, ‘Since you put all that warrants on me, before they catch me, I am going to kill you.’”

“I am terrified that Brandon is going to kill me,” she wrote.

A week later, police said, he did — in front of her 8-year-old daughter — with a gun he wasn’t supposed to have.

An excerpt of Peebles’ July 2019 temporary order of protection against Horton (Obtained by WPLN)

WPLN and ProPublica contacted Horton through his lawyer and by writing a letter to him in prison, but his lawyer said he declined to comment. He was charged with first-degree murder. He has not yet entered a plea, and his trial is forthcoming.

“Help Me”

A little over three months after Carter got her protection order, her fears that it was no more than a piece of paper came true.

Shortly after the police left her house on Nov. 15, 2021, she ran outside to get in her friend’s car. She had stuffed clothing, a toothbrush and her protection order into her green camouflage backpack and planned to get as far away from home as possible.

But when she looked down the street, her family said, she realized it was too late. Leggett was walking quickly toward the house with a gun in his hand, his face set in angry determination.

She ran back into the house, yelling: “Mama, mama! He’s here! He’s here!”

Jones-Mbuyi’s former home, where the shooting took place (William DeShazer for ProPublica)

Jones-Mbuyi went to the window with her phone in her hand. She tried to take a photo of Leggett like the police had asked. But she was shaking too hard. Her phone kept falling to the floor.

Carter called 911. The two women ran into the bedroom and locked the door.

When the dispatcher answered, Carter spoke in a low, urgent whisper.

“He’s here, he’s here,” she said. “The police just left, but he’s here.”

The dispatcher started asking questions: How do you spell his name? How old is he? What does he look like?

One minute into the call, Carter asked: “Are you sending somebody? Did you already send somebody?”

The dispatcher didn’t answer. Instead, she kept asking questions.

Two minutes into the call, Carter pleaded, “Can you just send somebody?”

“I have to ask these questions for police safety,” the dispatcher snapped back.

“Did you already send a squad car or not?” Carter asked again. “Why are you not answering me?” Jones-Mbuyi took the phone.

Three minutes into the call, and the dispatcher was still asking questions: Has anyone been drinking? Is he by himself? What was that address again?

But before they were able to answer, Jones-Mbuyi said, “He just bust the door down.”

There’s a loud boom — the noise of her bedroom door being knocked off the hinges.

Then, a scream. The sharp pops of gun fire.

“Michaela, what’s happening?” the dispatcher asked.

“He just shot her,” Jones-Mbuyi cried out.

In the background, Carter screamed in agony. She was shot twice — once in the chest and again in the leg. She fell face down onto the floor.

Four minutes into the call, Jones-Mbuyi was overtaken by the horror in front of her. She screamed. It was guttural. Heart-wrenching.

“Send an ambulance, send an ambulance!” she shouted into the phone.

Five minutes into the call, the dispatcher confirmed that an ambulance was on its way.

Carter’s screams turned into labored moans.

“Ambulance,” she slurred.

Ten minutes into the call, the paramedic arrived.

“Are you still able to breathe?” he asked her.

“Barely,” she choked out.

“Help me,” she said. “It’s getting hard — it’s getting hard to breathe.”

Then, the call ended.

A few days later, Carter died of her injuries at the hospital. She was just hours away from turning 25.

“Life has been stagnant — so I feel like every day is Nov. 15, 2021,” said Jones, her sister. “It’s hard to heal and move past something when we have been failed so many times. And now we have to fight. Not just for Michaela, but for other women in her situation.”

Jones-Mbuyi with Jones (William DeShazer for ProPublica) Help Us Report on Tennessee’s Gun Dispossession Laws

by Beth Hundsdorfer and Molly Parker, Capitol News Illinois

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

State officials this week named a new leader of Choate Mental Health and Developmental Center amid a drumbeat of criticism and investigations into abuse and poor care at the southern Illinois facility.

Bryant Davis, who served as Choate’s top administrator since 2014, has been replaced by Stephany Hoehner, who has worked as a project manager at the facility since March, according to an email to staff on Monday obtained by reporters.

In March, Illinois Department of Human Services Secretary Grace Hou unveiled a plan to move more than half of Choate’s 225 residents with developmental disabilities out within three years and improve safety at the center for those who remained. She also announced that the state would undertake a review of the best use for the facility. At the time, Hou told reporters that she decided to keep the facility leaders in place during the transition for continuity because they’ve known many of the patients and their guardians for years.

The department’s about-face on Choate’s top leader follows months of reporting on poor conditions at the facility by Capitol News Illinois, Lee Enterprises Midwest and ProPublica. And it comes on the heels of a sweeping new report from Equip for Equality, the state’s federally designated advocacy and protection agency for people with developmental disabilities.

After months of monitoring the facility at IDHS’ request, the nonprofit made recommendations that drew a hard line: Regardless of who is in charge, “no individuals with developmental disabilities should remain at Choate.”

Equip for Equality’s report, titled “Why No One Should be Left Behind,” detailed ongoing, serious lapses in care and recommended that the remaining residents with developmental disabilities who live there be moved out.

Equip for Equality also reported that its site visits between October and July found that little has changed for the residents of the facility, despite the department’s reforms. Choate patients told the monitors that they continued to feel unsafe. They reported numerous serious abuse allegations, and said many instances of abuse go unreported because the staff has a history of taking away patients’ privileges as retaliation.

Patients told Equip for Equality monitors that they’ve been slapped, punched, choked and threatened as punishment at Choate. In late 2022, a patient said an employee slapped her after she reported that person for abuse. She feels “threatened and scared” and cries everyday, the report stated. She told the monitor, “It hurts my heart to be here.”

The facility has also failed to ensure residents received the care they needed, the report said, leading to instances of self-harm such as an incident in September where a patient tore off all 10 of their toenails.

Keeping people with developmental disabilities at Choate is “antithetical to their well-being and the reason for their placement” because they are subjected to abuse and neglect, and are not receiving the intensive treatment they need to transition out, the report said.

Residents frequently felt “bored” and had few opportunities to engage in meaningful activities such as developing work and life skills, the report said. The monitors also observed that residents spent most of their days watching television, sleeping or doing arts and crafts.

Further, residents were subjected to unnecessary restraints and verbal abuse. These safety issues and failures of care were not isolated to the residents whom state officials have prioritized for relocation, the report said.

The report cited the case of a nurse who, according to IDHS’ inspector general, failed to follow procedures when she ordered a patient into restraints. The nurse told an investigator with the IDHS Office of the Inspector General, the agency’s watchdog, that the patient became angry after she did not immediately answer a question about his medication and he pushed a medicine cart at her, threw a water bottle and tried to attack her. The patient was escorted to his room, then the nurse ordered restraints.

The OIG found she failed to assess the patient’s mental status at the time of the order as required by IDHS policy. At least three technicians and a lead worker told an OIG investigator that the patient was calm at the time a nurse ordered the restraints, though other workers gave conflicting accounts. The nurse was reassigned during the 13-month investigation.

“In the end, it not only appears that the restraints were used in a retaliatory manner, but the whole incident could have been avoided if the nurse had respected his right to ask questions about his medication,” the report stated.

Capitol News Illinois reporters discovered this nurse applied for and received a supervisory position in the midst of that ongoing investigation. Eight months after taking that job, the OIG substantiated the neglect claim against the nurse in the restraint case.

In her request for reconsideration of the finding, the nurse denied any wrongdoing. That request for reconsideration was denied.

IDHS said in a statement that it imposed “administrative consequences” on the nurse after the completion of the OIG investigation. She remains a nursing supervisor at Choate.

The report also faulted administrators for not taking timely and robust action to address problems, and said they have “failed to demonstrate the ability to right the ship and keep individuals safe.” That finding echoed a June OIG report, which said leadership had failed to hold employees accountable and accepted “substandard work performance.” That same month, the Illinois Department of Public Health found filthy conditions in the units, including peeling paint, feces in the shower and on a patient’s bedding, and dried tobacco spittle covering a clock radio

In July, the news organizations documented ongoing problems under current leaders at Choate despite IDHS’ reform promises.

Davis began at Choate as a social worker in 2000. He became facility director in 2014, responsible for staffing decisions, employee evaluations, responding to critical incidents and discipline for both the mental health and developmental disability divisions at Choate, according to job descriptions. Davis received an annual salary of $133,000. He declined to comment through an IDHS spokesperson.

Davis, along with Assistant Facility Director Teresa Smith and Quality Assurance Manager Gary Goins, faced charges of official misconduct last year for allegedly interfering with a patient abuse investigation. The charges against the three were later dropped by the prosecutor.

Smith and Goins will remain in their current positions. They also declined to comment through an IDHS spokesperson.

In response to a question about Davis’ future with the agency, IDHS said in an email: “Davis will no longer work at Choate following a one-month transition period. At this time, we are not able to share anything beyond that.”

But Equip for Equality, in its report, cautioned that changing leadership isn’t enough to fix conditions for the residents with developmental disabilities at Choate. It found deeper cultural problems at the facility have taken root over several decades. Appointing new leadership “could serve as a distraction that only delays the timely transition of all individuals with developmental disabilities away from Choate,” according to the report. The report did not address the much smaller state-run psychiatric hospital that is also on the grounds of the 229-acre campus.

Equip for Equality has had monitors stationed at Choate on and off since 2021. IDHS officials requested their assessment of Choate on the heels of a rash of arrests of employees on felony charges alleging abuse and cover-ups. Since then, the monitors have logged more than 2,000 hours on the facility’s grounds.

Last summer, in part based on Equip for Equality’s review, IDHS implemented a series of care and safety reforms. Those included adding surveillance cameras to public areas, beefing up security and improving services for residents who needed therapy to address trauma they’d experienced and for those who wanted help transitioning from the institution and into a community home.

“Despite the state’s ongoing investments in this institution and the high level of scrutiny it has been under since early 2021,” Equip for Equality’s report said, it is clear that “an influx of more resources will not fix the multiple and serious problems at Choate.”

This is the second comprehensive report on poor conditions at Choate from Equip for Equality in the past two decades. It was strikingly similar to the organization’s 2005 monitoring report detailing abuse and poor care, which was followed by a Department of Justice investigation two years later.

“Here we are 20 years later with the same problems,” said Stacey Aschemann, vice president of Equip for Equality’s monitoring unit.

IDHS spokesperson Rachel Otwell said in a statement that the agency is evaluating Equip for Equality’s report, alongside other recent reports from the OIG and the Southern Illinois University School of Medicine, which provided recommendations to repurpose Choate and address safety and staffing issues.

“Ultimately, the department wants to serve patients and residents in the best possible way, retain excellent staff, and strengthen the Choate campus to serve the public interest,” she said.

At present, the department is committed to “the careful transition of the 123 residents” previously identified to be moved by state officials. “It is critical to focus on these early moves to ensure they are smooth and successful for the long term.”

Since the plan was announced in early March, 19 residents have moved out of Choate. About half of those moved to other developmental centers, which have also been linked to cases of abuse and neglect.

by Cezary Podkul

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

Imagine if each time your wages were deposited in your bank account, your employer deducted a fee of 1.5% to 5% to provide the money electronically. That, increasingly, is what health insurers are imposing on doctors. Many insurers, after whittling down physicians’ reimbursements, now take an additional cut if the doctor prefers — as almost all do — to receive funds electronically rather than via a paper check.

Such fees have become routine in American health care in recent years, according to an investigation by ProPublica published on Monday, and some medical clinics say they’ll seek to pass those costs on to patients. Almost 60% of medical practices said they were compelled to pay fees for electronic payment at least some of the time, according to a 2021 survey. With more than $2 trillion a year of medical claims paid electronically, these fees likely add up to billions of dollars that could be spent on care but instead are going to insurers and middlemen.

Congress had intended the opposite to happen. When lawmakers passed the Affordable Care Act in 2010, they encouraged the use of electronic payments in health care. Direct deposits are faster and easier to process than checks, requiring less labor for doctors and insurers alike. “The idea was to lower costs,” said Robert Tennant of the Workgroup for Electronic Data Interchange, an industry group that advises the federal government.

When the Centers for Medicare & Medicaid Services created rules for electronic payments in 2012, the agency predicted that shifting from paper to electronic billing would save $3 billion to $4.5 billion over 10 years.

That’s not how it played out. CMS quickly began hearing complaints from doctors about fees. An industry of middlemen had begun sprouting up, processing payments for insurers and skimming fees off the top. Sometimes they shared a portion of the fees with insurers, too. The middlemen companies say they offer value in return for their fees and insist that it’s easy to opt out of their services, but doctors say otherwise.

CMS responded to the complaints in August 2017 by publishing a notice on its website reminding the health care industry that electronic payments were not a profit-making opportunity. The agency cited a long-standing rule that prohibited charging fees. (Technically, the government banned “fees or costs in excess of the fees or costs for normal telecommunications,” such as the cost of sending an email.) The rule had been on the books since 2000, but the insurers and their middlemen weren’t abiding by it.

Within six months of that pronouncement, however, CMS suddenly removed the fee notice from its website. The decision baffled doctors such as Alex Shteynshlyuger, a New York urologist who has made it his mission to battle the fees. Shteynshlyuger began filing voluminous public records requests with CMS to obtain documents showing why the agency reversed course. The records that he eventually obtained, which he shared with ProPublica, provided a rare nearly day-by-day glimpse of how one industry lobbyist got CMS to back down.

The lobbyist, Matthew Albright, used to work at the CMS division that implemented the electronic payment rule. In fact, he was its chief author. He had since moved on to Zelis, a company that handles electronic payments for over 700 insurers and other “payers.” Internal CMS emails show that Albright protested the notice prohibiting fees and demanded that CMS revise the document. Over the ensuing months, as ProPublica outlined, Albright used an artful combination of cajoling, argument and legal threat. He claimed the rule against fees applied only to direct transactions between insurers and doctors, but electronic payments involved middlemen such as Zelis, so the prohibition didn’t apply. CMS ultimately dropped its ban on fees.

The move benefited Zelis and other payment processors. The losers were doctors, who say they’re often not given an option to get paid electronically without agreeing to a fee. In March, for example, when Shteynshlyuger called Zelis to enroll in electronic payments from one insurer, a Zelis rep quoted him a fee of 2.5% for each payment. When he complained, the call got transferred to another rep who said, “The lowest we can go is 2.1%.”

Zelis said in a statement that it “removes many of the obstacles that keep providers from efficiently initiating, receiving, and benefitting from electronic payments. We believe in provider choice and actively support their ability to move between payment methods based upon differing needs and preferences.” Zelis did not respond to detailed questions about Albright’s interactions with CMS or make him available to discuss that topic. CMS said that it “receives feedback from a wide range of stakeholders on an ongoing basis” to understand “where guidance and clarification of existing policy may be needed.”

As for Shteynshlyuger, he’s still on a quest to help doctors avoid electronic payment fees. Meanwhile, his inability to persuade the insurance middlemen often leads him to a step that is the antithesis of efficiency: Whenever he’s asked to pay a fee for an electronic payment, he requests a paper check instead.

Read the full story of the rise of electronic payment fees in ProPublica’s investigation.

Do You Have Insights Into Health Insurance Denials? Help Us Report on the System.

by Cezary Podkul

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

It was a multibillion-dollar strike, so stealthy and precise that the only visible sign was a notice that suddenly vanished from a government website.

In August 2017, a federal agency with sweeping powers over the health care industry posted a notice informing insurance companies that they weren’t allowed to charge physicians a fee when the companies paid the doctors for their work. Six months later, that statement disappeared without explanation.

The vanishing notice was the result of a behind-the-scenes campaign by the insurance industry and its middlemen that has largely escaped public notice — but that has had massive financial consequences that have rippled through the health care universe. The insurers’ invisible victory has tightened the financial vise on doctors and hospitals, nurtured a thriving industry of middlemen and allowed health insurers to do something no other industry does: Take one last cut even as it pays its bills.

Insurers now routinely require doctors to kick back as much as 5% if they want to be paid electronically. Even when physicians ask to be paid by check, doctors say, insurers often resume the electronic payments — and the fees — against their wishes. Despite protests from doctors and hospitals, the insurers and their middlemen refuse to back down.

There are plenty of reasons doctors are furious with the insurance industry. Insurers have slashed their reimbursement rates, cost them patients by excluding them from their provider networks, and forced them to spend extra time seeking pre-authorizations for ever more procedures and battling denials of coverage.

Paying fees to get paid is the final blow for some. “All these additional fees are the reason why you see small practices folding up on a regular basis, or at least contributing to it,” said Dr. Terence Gray, an anesthesiologist in Scarborough, Maine. Some medical clinics told ProPublica they are seeking ways to raise their rates in response to the fees, which would pass the costs on to patients.

“It’s ridiculous,” said Karen Jackson, who until her retirement in March was a veteran senior official at the Centers for Medicare & Medicaid Services, the federal agency that posted, then unposted, the fee notice. Doctors, she said, shouldn’t have to pay fees to get paid.

But that’s precisely what’s happening. Almost 60% of medical practices said they were compelled to pay fees for electronic payment at least some of the time, according to a 2021 survey. And the frequency has increased since then, according to medical clinics. With more than $2 trillion in medical claims being paid electronically each year, these fees likely add up to billions of dollars annually.

Huge sums that could be spent on care are instead being siphoned off to insurers and middlemen. The fees can cost larger medical practices $1 million a year, according to an April poll by the Medical Group Management Association, which represents private medical practices. The figure sometimes runs even higher, according to a 2020 complaint to CMS from a senior executive of AdventHealth, which has 53 hospitals in nine states: “I have to pay $1.8M in expenses that I could use on PPE for our employees, or setting up testing sites, or providing charity care, or covering other community benefits.” Most clinics are smaller, and they estimated annual losses of $100,000 or less. Even that figure is more than enough to cover the salary of a registered nurse.

The shift from paper to electronic processing, which began in the early 2000s and accelerated after the Affordable Care Act went into effect, was intended to increase efficiency and save money. The story of how a cost-saving initiative ended up benefiting private insurers reveals a lot about what ails the U.S. medical system and why Americans pay more for health care than people in other developed countries. In this case, it took less than a decade for a new industry of middlemen, owned by private equity funds and giant conglomerates like UnitedHealth Group, to cash in.

How these players managed to create this lucrative niche has never previously been reported. And the story is coming to light in part because one doctor, initially incensed by the fees, and then baffled by CMS’ unexplained zigzags, decided to try to figure out what was going on. Dr. Alex Shteynshlyuger, a urologist who runs his own clinic in New York City, made it his mission to take on both the insurers and the federal bureaucracy. He began filing voluminous public records requests with CMS.

Dr. Alex Shteynshlyuger is on a crusade against payment processors’ fees, which he says threaten his practice. (DeSean McClinton-Holland for ProPublica)

What he discovered in internal emails and government documents, which he shared with ProPublica, was a picture sharply at odds with the image of CMS as a hugely powerful force in health care. The records showed, again and again, federal officials deferring not only to a single company, but to a single executive.

Over the past five years, CMS adopted that company’s positions on fees. Shteynshlyuger discovered that, when it comes to the issue he cares about, the most powerful decision-maker wasn’t a CMS official. It was the chief lobbyist for a middleman company called Zelis. And that man just happened to be a former CMS staffer who had authored a key federal rule on electronic payments.

For Shteynshlyuger, the intersection of medicine and money has a particular resonance. He was born in the Soviet Union, in what is now Ukraine, and his brother nearly died of pneumonia as an infant because doctors refused to administer an antibiotic. The doctors wanted his family to pay a “bribe,” according to Shteynshlyuger. His grandmother ended up finding a different doctor to pay off and his brother got the medicine. Shtenynshlyuger’s parents emigrated to the U.S. in 1991, when he was an adolescent, and they settled in Brooklyn’s Brighton Beach area.

Today, Shteynshlyuger sees the fees for electronic payment through a similar lens. He’s a gadfly, but one with a wry, sometimes humorous disposition and an intellectual bent. He studied biology and economics in college and is capable of both rage at perceived unfairness and dispassionate observations about health policy. The unjust fees, as he sees them, threaten his medical practice, which he designed to serve middle-class patients. He prices his services at a discount. “Low cost is what keeps me in the business,” he said.

As a result, administrative combat has become a big part of his life. Unmarried, Shteynshlyuger, 45, stays up into the wee hours, writing lengthy memos to regulators. One recent missive spanned 155 pages, including appendices.

This New Year’s, he joined his family for a week off at his parents’ condo near Miami. Shteynshlyuger arrived with a desktop computer, which he set up in one of the bedrooms alongside two monitors that he keeps at the condo. While his nieces and brother enjoyed the beach, Shteynshlyuger sat indoors, drafting a 38-page memo to aid in one of two lawsuits he has filed in an effort to pry documents out of CMS.

Shteynshlyuger’s accent, with its distinctive Brooklyn-Russian mix, is unmistakable in calls with customer service representatives at insurance companies and payment processors. (He recorded many of the calls and shared them with ProPublica.) The calls follow a similar pattern: Posing questions in the manner of a genial but persistent litigator, Shteynshlyuger asks why he’s being charged a fee.

Ultimately, he’s informed that there’s no way to have an electronic funds transfer, or EFT, sent straight to his bank account without paying a fee. When the calls get escalated, representatives sometimes offer to shave a tiny amount off the fees — charging, say, 2.1% rather than 2.5%, a proposal made on one recent call with Zelis — but rarely is he offered a free transfer.

Shteynshlyuger spends hours on the phone with payment processors like Zelis, fighting their attempts to impose fees on electronic payments. (DeSean McClinton-Holland for ProPublica)

A spokesperson for Zelis, the payment-processing company that Shteynshlyuger has tangled with most often, said the company refers requests for free electronic payments to the insurers, but recordings and transcripts of recent calls show that did not happen when Shteynshlyuger called.

Shteynshlyuger and other doctors say payment processors routinely sign them up for high-fee payment methods without their consent. A brochure for one payment company, Change Healthcare, boasted of automatically enrolling 100,000 doctors and hospitals in a plan to receive virtual credit cards and sharing some $8 million a year in revenues with the large insurer it was working for. (Virtual credit cards are a form of electronic payment in which a payer sends a string of numbers that are typed into a credit card reader to generate a one-time payment. Fees for VCCs run as high as 5% versus a typical 2.5% for other kinds of electronic payments.)

Payment processors often boost insurers’ revenues by sharing the fees from virtual credit cards. One processor, VPay, says in its marketing materials that insurers can “make money on every virtual card transaction.” In response to questions from ProPublica, UnitedHealth, which owns Change and VPay, asserted that its services help medical clinics streamline recordkeeping, reduce administrative burdens and accelerate payments.

Zelis and other payment processors say they offer value in return for their fees: Doctors can sign up to receive reimbursements from hundreds of insurers through a single payment processor, and they can also get services that help match up electronic payments and receipts. Zelis asserted in a statement that its services remove “many of the obstacles that keep providers from efficiently initiating, receiving, and benefitting from electronic payments.” Zelis and other companies insist that it’s easy to opt out of their services, but Shteynshlyuger and other doctors say otherwise.

Virtual credit cards come with fees as high as 5%. (Courtesy of Dr. Terence Gray. Redacted by ProPublica)

When Shtyenshlyuger embarked on his mission of fighting the fees in 2017, his first step was research. He quickly came across an article from the American Medical Association that said the law was on his side.

Shteynshlyuger then approached the companies. He emailed senior executives of Zelis and VPay, asserting that the fees violated CMS rules. The companies denied breaking any rules and wouldn’t budge on the fees.

So Shteynshlyuger started filing complaints with CMS. The responses he received struck him as curious. CMS itself usually didn’t offer an opinion. Instead, it forwarded letters from a Zelis executive named Matthew Albright, who answered Shteynshlyuger’s complaints on at least five occasions. (The agency said this passive approach is part of its “informal” complaint resolution process.)

When Shteynshlyuger pressed a CMS official to articulate the agency’s position after it passed along Albright’s answer, the official wrote that the agency receives the “identical legal response” from Zelis to all such complaints. She added: “They believe that, according to their interpretation of the regulation, they are compliant.”

Shteynshlyuger was flummoxed. Who was Matthew Albright? A quick Google search revealed that Albright had once worked for CMS. That only piqued Shteynshlyuger’s interest. Had Albright been involved in the removal of the CMS notice prohibiting fees?

To Albright, the 2010 passage of the Affordable Care Act was a historic event of a magnitude akin to the moon landing. Then a policymaker with Washington state’s Health Care Authority, Albright was awed by the importance of the looming rewrite of U.S. health care rules. He felt he had to be part of it. “This is the Apollo 11 for regulators,” he recalled thinking, in an interview with ProPublica. “I’ve got to get to D.C. and write regulations.”

Matthew Albright, now chief legislative affairs officer at Zelis, made a series of explanatory videos in his days at the Centers for Medicare & Medicaid Services. (Screenshot via YouTube)

Now 55, Albright had unusual training for his new role. Instead of following the typical path through law school, he had studied sacred texts, first at the Pontifical University of St. Thomas Aquinas in Rome and later at Harvard University, where he earned a master’s degree in divinity. Those studies, Albright said, fostered what he called a “scholastic fascination with words and how they’re used to tell people what to do,” whether those words are in the Ten Commandments or the Code of Federal Regulations.

Articulate and cheerful, today Albright can still sound more like a divinity professor than a lobbyist when he describes his current job as studying laws and rules. “Hermeneutics,” he said, “it’s just like Bible study, right? Breaking it down into its understandable parts. And then, frankly, turning around and teaching it or turning around and explaining it in the vernacular, if you will. So I think that most of my job is looking at regulations and reading them and then explaining them to internal and external audiences.”

At CMS, Albright drafted a rule, published in 2012, that laid out standards for paying doctors via electronic funds transfers. The Affordable Care Act required all insurers to offer EFTs and encouraged doctors to accept them, and electronic payments quickly became the go-to method for handling medical claims. A CMS analysis predicted that eliminating the labor of manually processing paper checks and receipts would lead to savings of $3 billion to $4.5 billion over 10 years.

Albright became the agency’s point man on the issue. He looked every bit the government bureaucrat in a gray shirt and dark suit as he extolled the virtues of “administrative simplification” in earnest-but-stiff video segments that emulated a talk show. (Albright also created a personal YouTube channel when he taught a philosophy course. It had bite-sized explanations of, among other things, Kantian ethics — “do not use people” — and Ayn Rand’s philosophy — “selfishness is good.”)

Albright’s work at CMS, by his description, became a “turning point” for health care payments. The shift to electronic funds transfers facilitated the growth of an industry of payment processors. It also made Albright’s skill set very valuable. In 2014, he was recruited to the industry he previously regulated. Two years later, he landed at Zelis. The company had just been created via a merger of four businesses owned by Parthenon Capital, a private equity firm. Zelis is now co-owned by private equity giant Bain Capital and headed by a former Bain partner. (Parthenon declined to comment; Bain referred a request for comment to Zelis.)

Zelis, which once described itself as having a “regulatory-based business model,” touted Albright’s government resume when it hired him as vice president of legislative affairs. Albright said at the time he would “advocate for rational regulatory approaches.”

Rational regulatory approaches, from Zelis’ perspective, included the right to charge doctors for electronic payments. That was a crucial revenue stream for the company, but it could dry up if CMS enforced a rule prohibiting such fees. Who better than Albright, the man who had drafted rules on electronic payments, to help the company navigate the situation?

When Shteynshlyuger began to receive documents from CMS in response to his Freedom of Information Act requests, he was first struck by how deferential CMS officials seemed to be to Albright. In July 2019, for example, as Shteynshlyuger continued to complain about Zelis, a CMS official named Gladys Wheeler contacted Albright. “You may be familiar with Dr. Alex Shteynshlyuger,” Wheeler wrote. “To assist with resolution of the complaints, I have a few questions. Can I send the questions to you, or can you redirect me?” She added, “Just let me know the best approach. Thanks, and take care, Gladys.” (Wheeler did not respond to requests for comment.)

The tone of the conversations between Albright and CMS could be downright chummy. “Should we respond to it as per usual?” Albright asked in another July 2019 email about a new complaint filed by a doctor in Washington state. “Send the Zelis response for documentation purposes,” Wheeler responded in between banter that she and Albright exchanged about Chicago’s winter weather (bad) and architecture (great).

Shteynshlyuger was growing more frustrated. He didn’t understand why CMS had yanked the notice about the prohibition on fees from its website. If his months of effort couldn’t extract clear answers, how could other doctors with less inclination for bureaucratic battle figure out what to do?

What Shteynshlyuger didn’t know was that, less than two years earlier, a lobbying campaign had begun behind the scenes at CMS. The documents that he eventually obtained would provide a rare, nearly day-by-day glimpse into how one lobbyist — Albright — managed to bend the agency to his will with an artful combination of cajoling, argument and legal threats.

On Aug. 11, 2017, CMS’ website had posted the notice that EFT fees were prohibited. Such notices, presented in the form of answers to frequently asked questions, are meant to explain the agency’s complex rules in plain language. CMS based the notice on a rule from 2000 that banned fees in excess of normal telecommunication costs (such as, say, the tiny fractions of a penny to cover the cost of an email) that a doctor would incur if they were receiving the bill “directly” from an insurer.

The notice triggered an immediate protest from Zelis, according to emails and an internal CMS memo. Albright had “multiple conversations” with CMS staff and demanded that the agency revise the notice.

The nub of Albright’s argument was that CMS’ 2000 rule prohibited insurers from charging excessive fees for “direct” transactions. But, he argued, the rule was meant to apply to insurers dealing with doctors. Albright represented payment processors who work for insurers; those weren’t direct transactions between insurers and doctors. Thus, he argued, the fee prohibition couldn’t apply to EFT payments.

CMS, which took months or longer to respond to Shteynshlyuger, quickly complied with Albright’s request and removed the fee notice on Aug. 14, 2017, only three days after it was posted.

CMS published an updated notice in late September 2017. But the agency stood firm on the key point: The new document stated that insurers and payment processors “should not charge providers communications fees” for EFTs.

Shortly after the revised notice went up, Albright emailed the director of the CMS division that issued it. “Hope the kids have settled into the school year okay,” he began. He then asked for “our day in court to educate” the agency. He suggested that Zelis was preparing to escalate its complaints but offered to “work through this without causing too much noise.”

Two days before Thanksgiving, Albright confronted Christine Gerhardt, then deputy director of the CMS division that issued the fee notice. In a phone call, Albright demanded that CMS revise the document again, according to Gerhardt’s summary of the call. Gerhardt refused. Albright began debating her on the legal differences between the explainer and the regulation that it summarized.

The following week, Albright pressed harder, asking Gerhardt whether the prohibition on fees was enforceable. He told Gerhardt that if she did not answer, that itself would be an answer. It would, Albright said, “give me a sense of what steps need to be taken next” to challenge the agency’s notice. Gerhardt, who is now retired, said she assured him that the agency wasn’t implementing a new rule; only clarifying existing rules. Albright was pushing hard, but at that point, Gerhardt hadn’t bent.

Then, in January 2018, Zelis brought in the lawyers. A firm called Nixon Peabody wrote to CMS, demanding that the agency “withdraw or correct the offending language” in its notice. Nixon Peabody argued that the fee prohibition wasn’t a restatement of existing rules but that it amounted to a new rule that should have been issued via the formal rulemaking process. Nixon Peabody threatened to sue if CMS didn’t comply with Zelis’ demand. (Nixon Peabody did not reply to a request for comment.)

The legal threat set off a scramble within CMS. “Let’s just take it down,” Gerhardt wrote in a Feb. 9, 2018, email to colleagues. Her division not only removed the notice saying that fees were prohibited but also went so far as to institute a moratorium on any new notices. CMS was essentially depriving all medical providers of guidance on these issues because one company had complained.

The response puzzled even some within CMS. “What was the basis for withdrawal if the request was from a single entity and potentially harms providers?” Jackson, then CMS deputy chief of operations, wrote in an email.

Albright, his goal accomplished, sought to soothe Gerhardt and two of her colleagues. “I know I butted heads with all three of you,” he wrote a few weeks later. Albright offered to meet to explain why Zelis is not “one of the bad guys in this area.” (Zelis did not address detailed questions about Albright’s interactions with CMS.)

In March 2018, after Zelis complained and CMS removed a notice saying that payments to doctors couldn’t carry fees, Albright emailed three key agency staffers to patch things up. (Email exchange provided by Alex Shteynshlyuger)

CMS told ProPublica in a statement that it reversed its position because it concluded that it had no legal authority to “flat-out prohibit fees.” The agency declined to comment on Shteynshlyuger’s complaints, but said it takes seriously any allegations of noncompliance with its rules. As for Zelis’ lobbying, CMS said it “receives feedback from a wide range of stakeholders on an ongoing basis. The information received helps the agency understand where guidance and clarification of existing policy may be needed.”

The American Medical Association and over 90 other physician groups have urged the Biden administration to reinstate guidance protecting doctors’ right to receive EFTs without fees. For its part, the massive Veterans Health Administration system has been refusing to pay the fees, which it has described as illegal in letters to Zelis and insurers.

So far the protests have had no visible effect. In fact, when CMS finally issued a new explainer that addressed fees in July 2022, more than four years after erasing the previous one, the agency made explicit what had previously been implicit: EFT fees are allowed.

Shteynshlyuger is continuing his lonely campaign. Two months after CMS stated that fees are OK, a Zelis customer service representative contacted him. Shteynshlyuger had just submitted his 80th complaint to CMS. Emails show the rep offered to help him get signed up for no-fee EFTs — but the offer only applied to payments from one of the more than 700 insurers and other payers that Zelis represents. Shteynshlyuger demurred, saying he did not want the issue resolved without CMS’ intervention because then other doctors could not get the same assistance. As often as not, Shteynshlyuger and other doctors are left with little recourse; many insist on being paid by paper check rather than allowing Zelis to take a cut.

In mid-December, Shteynshlyuger finally got the long-awaited replies to eight other complaints he had filed over the years. CMS dismissed all eight because Shteynshlyuger didn’t file them against insurers but instead against companies like Zelis, which CMS referred to as “business associates” of the insurers. CMS said it now believes its oversight extends only to insurers, not to their business associates. The phrasing may have been bureaucratic, but the news was dramatic: CMS had fully surrendered, giving up on regulating payment processors entirely.

Shteynshlyuger hasn’t filed a new document request yet to uncover whether Zelis or perhaps another company influenced that decision. He has his suspicions.

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by Robin Urevich, Capital & Main, and Gabriel Sandoval, ProPublica

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

The Los Angeles Housing Department has sent warning letters to the owners of 17 buildings meant for low-cost housing, demanding that they stop renting rooms to tourists in violation of city law.

The action follows a Capital & Main and ProPublica investigation that found 21 buildings, known as residential hotels, had advertised short-term rentals on travel websites despite a 2008 ordinance aimed at preserving residential hotels for affordable housing. Residential hotels mostly consist of basic single rooms and are often the only housing that many low-income, elderly and disabled people can afford.

The Los Angeles City Council will also soon consider a motion, filed last week, to require the Housing Department to report on its enforcement of the residential hotel law. The motion, in response to Capital & Main and ProPublica’s reporting, raises the possibility of creating a right for individuals to sue landlords who convert such housing without the city’s permission.

“I know very dramatically the impact of not having that enforced because that means more houses, more low-income units, that we as a city have to figure out how to build,” City Councilmember Bob Blumenfield, who presented the motion, said in an interview. “It means more people on the street and more services and more costs and more human suffering.”

The motion, which was seconded by City Councilmembers Monica Rodriguez and John Lee, notes that as the city contends with rising construction costs for affordable housing and a shortage of landlords who will accept emergency or long-term housing vouchers, “the loss of residential hotel rooms to tourist units may be exacerbating our homelessness crisis.”

Much of the information that the councilmembers requested is already supposed to be reported annually by the Housing Department under the terms of the residential hotel law. But in the 15 years since the ordinance was passed, the Housing Department hasn’t filed the reports, according to agency officials and the city clerk’s office.

In issuing the notices to comply last month, the Housing Department cited violations of both the residential hotel law and the city’s home-sharing ordinance, which is meant to crack down on illegal rentals on sites like Airbnb. The department used both laws “to aggressively pursue compliance,” Housing Department spokesperson Sharon Sandow said in an email.

Among the hotels cited were three that were highlighted in our initial story: the American Hotel in the Arts District, and the H Hotel and Hometel Suites, both in Koreatown.

The American’s owner, Mark Verge, said he’s hired an attorney and will discuss the matter with the Housing Department. “Our argument is we are a hotel,” said Verge, who previously said he had been unaware of the American’s residential designation. But he added, “Whatever they come up with will be fine.”

Becky Hong, the Hometel’s general manager, said in an email that the hotel has submitted documents to the city in response to the notices. Neither the H Hotel’s owner nor its manager responded to emails or a call for comment. Previously, the H’s manager said the hotel hasn’t accepted long-term residents since 2019 and has asked the city to remove its residential designation.

All three hotels continue advertising rooms to tourists on their websites.

The citations and the City Council motion are the latest fallout from Capital & Main and ProPublica’s reporting. In July, Mayor Karen Bass asked the Housing Department to investigate the 21 residential hotels in our story and report back on how to improve enforcement efforts.

Blumenfield’s motion also requests that housing officials recommend ways to strengthen the ordinance and asks the department to identify potential funding sources and additional resources needed to enforce it.

The Housing Department has pointed to short staffing as one reason it has struggled to enforce the residential hotel law. But Blumenfield, who chairs the council’s budget committee, said the agency hasn’t requested additional funding for enforcement.

“Nobody’s ever come to me and said, ‘We don’t have the money to enforce our residential hotel conversion’” law, he said. “Now that I’m aware of it, I’m going to do what I can to make sure that it does get enforced.”

Blumenfield’s motion has been referred to the council’s Planning and Land Use Management Committee. If approved, it will go to the full City Council for a vote.

by Melissa Sanchez

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.

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When Judy Kalepp became the municipal court judge in Abbotsford, Wisconsin, more than a decade ago, she was shocked to see how many Latinos were ticketed for driving without a license. She asked herself: Couldn’t they just get licensed and stop breaking the law?

Then she got to know some of the drivers, mostly Mexican immigrants who lived and worked in the community. Despite not speaking Spanish, she was able to communicate with many of them and learn that they were undocumented and prohibited by state law from getting driver’s licenses.

Over time, her views changed. While she still worries about road safety with so many unlicensed immigrants driving, she’s also come to recognize how important their labor is to the area around Abbotsford, a Central Wisconsin town that’s home to a meatpacking facility and is surrounded by dairy farms.

“The more I see of it,” Kalepp said, “the more I think we’re probably wrong in not allowing them to get a license.”

Last week ProPublica reported on how Wisconsin, a state that bills itself as “America’s Dairyland,” relies on undocumented immigrants to work on its dairy farms but doesn’t let them drive. As a result, many undocumented dairy workers struggle to take care of some of their most basic needs — from buying groceries and cashing in checks to visiting the doctor or taking their kids to school. They say they are trapped on the farms where they work and often live, dependent on others to take them where they need to go.

Immigrants who break the law and drive anyway risk getting ticketed and receiving hefty fines or even being arrested or deported. “It’s scary to drive,” said an undocumented Honduran immigrant who works on a farm near Abbotsford.

He’s lived mostly in isolation in his 10 years in Wisconsin: He’s never visited Milwaukee, he rarely sees friends from back home (they can’t legally drive either), and he doesn’t know how or when he’d ever meet a romantic partner. But he still gets behind the wheel six days a week to get to work — and then again every two weeks to go into town to cash his check, buy groceries and do his laundry. “To get anything done,” he said, “you have to drive.”

For years, advocates for immigrants have tried to persuade lawmakers in Wisconsin to allow undocumented immigrants to get driver’s licenses. Democrats have been mostly on board, with Gov. Tony Evers inserting the issue into his budget proposals. The challenge has been convincing Republicans, who control the state Legislature, to take an action that some of their constituents might fiercely oppose.

“I have some Republican voters and Republican colleagues that say, ‘Hey, they came here illegally. They didn’t come here through legal channels, so they shouldn’t be rewarded,’” said Rep. Patrick Snyder, a GOP lawmaker whose district sits a little to the east of Abbotsford and includes parts of Marathon County. “I understand their concerns. But in the same sense, if we suddenly kicked out all of the people here, the undocumented, our dairy farms would collapse. We have to come up with a solution.”

Snyder is one of a number of Republican lawmakers and local officials from the area who met with law enforcement officials, dairy farmers, civic leaders and immigration rights advocates in Abbotsford in March to discuss the impact on the community of a 2006 law banning undocumented immigrants from obtaining driver’s licenses. Wisconsin is one of 31 states that doesn’t allow undocumented immigrants to drive legally.

The meeting in Abbotsford, which straddles the border of Clark and Marathon counties, offers a window into how the politics around this issue might be changing. Some local officials who live in these places and routinely interact with undocumented immigrant drivers or hear from local dairy farmers are becoming more vocal about changing the law.

Like much of rural Wisconsin, both counties voted solidly in 2020 for then-President Donald Trump, whose stance against illegal immigration was a hallmark of his presidency.

Abbotsford, with a population of about 2,100, has a downtown that’s lined with Mexican restaurants and grocery stores. Local residents and dairy workers from around the area drive in to cash their checks, buy tortillas and other staples from back home, and go to the municipal court to pay their tickets for driving without a license.

This $124 citation is, by far, the most common processed in the municipal court, accounting for nearly one in three cases that ended with a guilty disposition and more than $19,000 in fines last year, records show. The court does not track defendants’ race or ethnicity, but ProPublica found that 134 of the 157 tickets for driving without a valid license involved defendants with common Hispanic surnames, such as Cruz, Lopez and Garcia. (The U.S. Census Bureau says more than 85% of people with these last names are Hispanic.)

Jason Bauer, the chief of the Colby-Abbotsford Police Department, said he wishes the state would allow undocumented immigrants to get trained and tested to get driver’s licenses. But in the meantime, he said, he can’t tell his officers to stop enforcing the law when they encounter a driver without a license. “Then I’d have to say, ‘You’ve got to treat everybody the same,” he said, “including the 15-year-old white kids” who are driving.

Still, tickets for driving without a license are so common that Bauer has asked his officers to stop seeking criminal charges on repeat offenses — which is what typically happens — to help drivers avoid mandatory court appearances. Bauer said he also wants to avoid overwhelming his local county district attorneys. (Melissa Inlow, Clark County’s district attorney, said she stopped pressing criminal charges on repeat offenses for driving without a license last fall due to limited resources, but drivers still have to pay a fine.)

Abbotsford Mayor Jim Weix said he talks to Bauer several times a week and knows just how frequently drivers are ticketed for this offense. Weix is a Republican who backs Trump and supports tougher border policies. But he doesn’t think the current state law, which lets undocumented immigrants own cars but prohibits them from driving, makes sense.

“We need these people to learn how to drive and our rules and regulations and everything,” Weix said.

But like many fellow Republicans, Weix worries about voter fraud and said he wouldn’t want undocumented immigrants to use driver’s licenses to vote illegally. Since Wisconsin residents can use driver’s licenses as proof of ID for voting, he would urge lawmakers to ensure that any type of driver’s license that’s created for undocumented immigrants be clearly marked “not to be used for voting.”

At the March meeting, law enforcement officials expressed concern about having so many people on the road who haven’t passed a local driving test. “That’s a danger. We want to keep roads safe,” Clark County Sheriff Scott Haines said in an interview. “I am looking more for the safety of all citizens.”

Haines said the meeting opened his eyes to the issue’s complexities. But he said changing the law “is out of our hands.” Like Bauer, he said that unless the Legislature allows undocumented immigrants to get licenses, he has to enforce the law.

Dairy farmers at the meeting spoke about how the state law makes it difficult for their workers to get to and from work without risking tickets and arrest. Among the farmers: Hans Breitenmoser, who operates a 470-cow farm in Lincoln County, northeast of Abbotsford.

“Dairy cows are 24/7,” Breitenmoser said in an interview. “I don’t have the luxury of just shutting down the machines. We have to milk them every single day, three times a day. If someone doesn’t show up it’s kind of a big deal compared to in other industries; we’re dealing with live creatures.”

ProPublica reached out to the four Republican lawmakers who attended, as identified by the meeting’s organizers and other attendees. Sen. Jesse James declined to comment, though he recently told Wisconsin Public Radio he would be open to considering legislation to give undocumented immigrants access to driver’s licenses. Rep. Calvin Callahan did not respond to interview requests. But in a June press release, he explained how Republicans had removed “liberal wish list” items from the governor’s budget proposal, including driver’s licenses and other “new benefits for illegal immigrants.”

Meanwhile, Snyder and Rep. Donna Rozar, whose district includes Abbotsford, said they’d support legislation restoring driving privileges to undocumented immigrants in Wisconsin. But both acknowledged it’d be a tough sell to some of their Republican colleagues.

The real problem, they said, is Congress’ failure to fix the country’s broken immigration system.

“There are a lot of us that believe we’re being invaded and the federal government doesn’t care,” Rozar said. “And I get the sense that some of my colleagues believe that if we start chipping away at this undocumented worker issue, we are taking some of the responsibility away from the federal government to do their job.”

Maryam Jameel contributed reporting.