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Jan 26, 2021

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This article was produced in partnership with The Frontier, which is a member of the ProPublica Local Reporting Network.

A federal economic relief package passed by Congress in March promised to provide a lifeline for hospitals, particularly those in rural communities where many facilities struggled to survive even before the coronavirus pandemic.

But over the past 10 months, the distribution of more than $100 billion in CARES Act funding for health care providers has been plagued by a dizzying rollout and, at times, contradictory guidelines for how to use the funding.The result has been a patchwork of problems for rural hospitals, which were already at far greater risk of closure than other health care facilities and in dire need of help, The Frontier and ProPublica found. The scope of those problems is clearly visible in Oklahoma, which tied for the third-highest number of hospital closures in the country in the nine years before the pandemic.

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One hospital used more than $1 million in federal aid to pay off its years-old debt to a management company that left before Oklahoma’s first coronavirus case was diagnosed, a potential violation of federal guidelines that could require the hospital to return the money, according to experts.

Three Oklahoma hospitals that were purchased last year after filing for bankruptcy were unable to access more than $6 million in funds deposited by the Department of Health and Human Services, the agency in charge of the rollout for health care providers. The money was instead deposited into accounts tied to the previous owners, leaving the new owners with few options as they tried to keep the facilities from becoming insolvent.

And administrators at yet other hospitals have left millions in relief aid untouched, spiraling deeper into debt for fear that the wrong decision could force them to return money.

“Every day we have new rules, new guidelines, and it’s a struggle,” said Shelly Dunham, CEO of Okeene Municipal Hospital in western Oklahoma. Dunham said she used only $50,000 of the $3 million the hospital received in April and May because of concerns that the facility would have to return the money. “I can't say we need more money right now. We just need to be able to keep what they've given us.”

Under the CARES Act, funding can be used to prevent, prepare for and respond to the coronavirus or to help with expenses or losses caused by COVID-19. The problem is in the details, which Congress left to HHS.

HHS has primarily managed concerns by publicly releasing responses to more than 100 frequently asked questions. Those responses have sometimes contradicted previous guidance from the agency, leaving health care providers confused about how money can be used and what the agency would seek to claw back. The whipsawing guidance has covered a range of topics, including how health care providers could calculate losses from the pandemic and whether they could use the money to pay for long-term capital improvement projects such as new heating, ventilating and air conditioning systems.

“Hospitals’ challenge right now is keeping their doors open and paying their debts,” said Carrie Cochran-McClain, vice president of government affairs and policy for the National Rural Health Association. “There is not enough flexibility to help providers really use the funds as Congress intended for the kinds of things that they need to address for COVID.”

Rural hospitals across Oklahoma and the country are disappearing at an alarming pace that could hasten without help from the federal government, Cochran-McClain said. In 2019, the year before the coronavirus pandemic, rural hospital closures reached a record high, with 18 nationwide. Texas led the country with three closures. Tennessee, Kansas and Oklahoma followed with two each.

Last year, despite the infusion of federal funding, another 17 rural hospitals shuttered, bringing the total number of closures since 2005 to 176.

Unlike larger, wealthier facilities, rural hospitals often have only a few weeks’ worth of cash on hand to operate with. Experts have warned that even with the federal relief aid, many hospitals would struggle. But without it, they would surely fail.

Cimarron Memorial Hospital in Boise City, Oklahoma, in 2019. The hospital was keeping as many lights off as possible to save on its electric bill. Nick Oxford for ProPublica

“There was a tussle between the desire early on to get funds out quickly into the hands of people and providers who need it first, and also a compelling need to have oversight of where the money is going,” said James Cosgrove, health care director for the Government Accountability Office. After the first distribution of $50 billion in April, the GAO found that the federal government had sent $558,000 to four closed hospitals that either declined or returned the money.

The Frontier and ProPublica found six other hospitals that closed in 2019 but received more than $3.2 million combined in federal relief payments. More than half of the money went to a hospital in Ellwood City, Pennsylvania, that closed in December 2019 after state inspectors found unsafe conditions for patients.

The relief money was being used for security and to respond to medical records requests until Ellwood City Medical Center could be sold, a bankruptcy trustee said in a December 2020 court filing. The trustee did not respond to requests for comment.

An HHS official said the agency is “in the process of recovering payments'' from hospitals that permanently closed before Jan. 31, 2020, but would not say how much it was pursuing or identify any closed facilities that had received aid. Officials said they could not comment specifically on the six hospitals identified by The Frontier and ProPublica because the agency does not release information on individual facilities.

The distribution of funding for health care providers is just one example of complications with the sweeping $2 trillion CARES Act. More than $174 billion in temporary tax breaks benefited mostly wealthy people and large companies. The Paycheck Protection Program, another effort aimed at helping small businesses stay afloat, drew widespread criticism after large companies, including the restaurant chains Ruth’s Chris and Shake Shack, qualified for loans, while smaller struggling businesses were shut out. Ruth’s Chris and Shake Shack later agreed to return the money.

The hospital rescue program similarly helped wealthier facilities pad their bottom lines, while poorer hospitals struggled. In the first round of funding, wealthier hospitals received a larger share of the $50 billion than poor and rural hospitals, according to a report from the Kaiser Family Foundation, a health policy research organization. The report found that those hospitals with a larger share of revenue coming from private insurers received about $44,000 per bed, while poor, rural hospitals got about half that amount.

Subsequently, HHS set aside billions more for rural health care providers and for hospitals with a higher percentage of COVID-19 patients. But that wasn’t enough to make up for the inequities, said Karyn Schwartz, a senior fellow for Kaiser.

“I think they (HHS) were under a lot of pressure to do it quickly, and so they prioritized a quick and simple formula over really targeting the money towards the providers who might be most vulnerable,” Schwartz said.

HHS officials said they have repeatedly made improvements to the system in response to feedback from Congress and health care providers. The agency has changed the way it distributes money, seeking a formal application instead of releasing funding to all hospitals. A new $900 billion pandemic relief package passed in December also gave hospitals more flexibility in calculating revenue losses from the pandemic.

“HHS has balanced the need for flexibility in use of funds to stabilize the health care system with program integrity requirements and the responsible use of taxpayer dollars,” the agency said in a statement released before President Joe Biden took office.

“We’re Doomed”

As rural communities across Oklahoma began experiencing an uptick in COVID-19 cases, the new owner of the only hospital in the small Oklahoma town of Prague fought for access to part of $3.2 million in federal relief aid.

The Prague Community Hospital was one of three that in June asked U.S. Bankruptcy Court Judge Joseph Callaway to help them solve what appeared to be an intractable problem.

The facilities, which included the Fairfax Community Hospital and the Haskell County Community Hospital, were among 11 that entered bankruptcy in 2019 amid accusations that the company that owned them, EmpowerHMS, had engaged in fraud. In a federal indictment unsealed in June, prosecutors accused the company’s owner, Jorge Perez, and nine others of a scheme that allowed rural hospitals to bill at higher rates for blood and urine tests performed elsewhere. The case is set to go to trial in September 2021. Perez and eight other defendants have pleaded not guilty. A tenth defendant has not yet appeared in court.

Each Oklahoma hospital owned by the company was auctioned off by a bankruptcy trustee in charge of settling financial debts incurred under EmpowerHMS.

After unexpected revenue losses from the pandemic, the new owners banked on federal funding from the hospital relief package. But when the money was dispersed, they got nothing.

HHS had instead deposited a total of $6.4 million into accounts connected to the hospitals’ previous owners and managed by bankruptcy trustee Thomas Waldrep.

Since federal rules prevented the money from being transferred, it had to be returned to HHS, Department of Justice attorney Michael Quinn said during a June bankruptcy court hearing.

The new owners would have to wait for another round of relief, Quinn said. Even then, they may not qualify because the money was distributed using the hospitals’ 2019 tax identification numbers and none of the current owners controlled the facilities at the time.

“This is not specific to this case, this is a response to an enormous program of unprecedented size that rolled out billions of dollars on an emergency basis to provide relief and used estimated data to get the money out the door as fast as possible,” Quinn said during the court hearing. “As soon as that happens though, that creates an expectation that, in some cases, the money will not go and land in the correct place. And here, it happened to land in the middle of a corporate sale of an asset.”

Waldrep, the bankruptcy trustee, later said in an interview that he believed the new owners should get a portion of the relief aid but he was hamstrung by the federal rules. The trustee also wanted to use a portion of the money to pay some of the hospitals’ debts from before the sale, including his fee and charges from the management company that operated the facilities during the transition.

“This puts our clients in a very bad position in terms of the continued delivery of care in these very critical needed areas,” Hugh Robert, an attorney for Transcendental Union with Love and Spiritual Advancement, said during the hearing. The Tulsa-based nonprofit that purchased the Prague Community Hospital in May.

Attorneys for the new owners of the three hospitals and for Waldrep asked the judge to allow them to use the money despite objections from the federal government. During the hearing, Callaway grew increasingly irritated at what he viewed as the federal government’s failure to help the clearly struggling hospitals.

The lack of guidance and flexibility from the federal government endangered hospitals instead of helping communities keep them open, Callaway said.

“We don’t do things like this around here,” he said. “All I hear are reasons from the government of why it can't be done, instead of reasons why it can be done.”

The judge eventually allowed Waldrep to reach agreements with the hospitals. As part of the final plan, Waldrep could use about $750,000 to pay his fees and expenses for overseeing the bankruptcy cases. He would use another $1.4 million to pay Cohesive Healthcare Management and Consulting, which operated the hospitals in bankruptcy.

Some of the money would also go to expenses that were incurred before the sale but were directly related to COVID-19.

The Fairfax and Prague hospitals would each then receive a portion of the remaining $4 million. But because the federal government threatened to later take back money it determined was misused, the hospitals would have to obtain a line of credit that would protect the previous owner from any collection attempts.

Dr. Vishal Aggarwal, who founded the nonprofit that purchased the Prague hospital, said he was never able to secure the financing that would serve as collateral because of the facility’s poor financial state.

“If a second wave hits us, we are doomed,” Aggarwal said in an interview.

Coming to Collect

During the pandemic, hospitals were forced to forgo elective surgeries and other nonessential services that help drive the minimal revenue that rural facilities bring in annually. The losses, coupled with the added costs of preparing hospitals for the pandemic, heightened the urgency of obtaining federal relief.

Some Oklahoma rural hospitals received federal relief aid before the coronavirus pandemic spread to their small towns and immediately began using the money without considering how expenses could later be justified.

In May, Cimarron Memorial Hospital, in the Oklahoma Panhandle, was two weeks away from closing. It had fallen behind on state taxes and was working to settle a lawsuit filed months earlier by the electric company after the hospital failed to pay its several bills. It also owed $1.2 million in past-due fees to NewLight Healthcare, a management company that ran the hospital for nearly a decade before abruptly departing in January 2020.

The hospital received $3.5 million in federal relief payments and loans.

Tim Beard, Cimarron’s chief executive officer, used nearly a third of the relief aid to pay off NewLight Healthcare, a decision that experts say could force the hospital to repay the federal government. HHS has called it “highly unusual” that the relief aid could be used for expenses incurred before Jan. 1, 2020.

For nearly a decade, NewLight provided loans to the Cimarron hospital and deferred management fees, under a contract that allowed it to charge interest on the past-due amounts. The company then placed a lien on the hospital’s incoming payments. If NewLight chose to enforce the lien, as it had already done in another Oklahoma town, the hospital would be required to pay the company before it paid employees or covered bills for medical supplies.

Lee Hughes, an executive vice president for NewLight, declined an interview and did not respond to detailed written questions. In a statement, Hughes said that the company acted in good faith by settling for less than what it was owed.

“NewLight did this both to resolve all past indebtedness owed by the hospital, but also as a gesture of good will,” Hughes said.

The hospital had run out of options to settle its debts, said Beard, adding that he believed there were no restrictions on the coronavirus relief money.

“If I didn’t do things as I should have then we will pay the price for that but we got the community taken care of for eight months longer than we were looking at,” Beard said in an email.

Cimarron Memorial Hospital CEO Tim Beard works at his desk in November 2019. He decided to use nearly a third of the CARES Act relief aid his hospital received to pay off its debt to a management company. Nick Oxford for ProPublica

Hospitals will be required to start reporting how they spent the federal relief aid, but HHS officials said no deadline has been set. Those that received at least $750,000 must undergo audits that HHS will use to determine whether money must be returned.

“I think there's probably many in the industry optimistic that the government doesn't want to recoup this money, and they're going to come up with a way to allow the hospitals to keep it,” said Eric Shell, a rural hospital finance expert with the health care consulting firm Stroudwater Associates.

By the time COVID-19 arrived in Cimarron County, the hospital had already used $2 million in federal funds. Aside from the payment to NewLight, Beard said he used $250,000 to replace the hospital’s broken CT scanner, $81,000 to settle its debt to the electric company and another $750,000 to cover payroll and other bills.

The hospital still has $1 million in provider relief funds, according to Beard, who did not provide detailed financial records requested by The Frontier and ProPublica. Beard said he hadn’t compiled the information because it doesn’t have to be reported to the federal government until this year.

“If they take back the money or what we have in savings, we won’t survive,” Beard said in an email to The Frontier and ProPublica.

Another Shot at Relief Funding

Despite vastly different problems with the rollout of the federal program, hospital administrators share a fear that money they thought would save them could now accelerate their closure.

This month, Dunham started using more of the $3 million she had been holding on to. The hospital, she said, needs the money. But Dunham said she hasn’t stopped worrying about the crushing financial situation the hospital will face if the federal government disagrees with how the money is spent and asks for it to be returned.

The Prague hospital has now changed hands. City officials who purchased the hospital this month for $1.3 million say they are not concerned about whether the government will claw back federal funds. Instead, they’re worried about getting access to the money in the first place.

The 25-bed hospital has been operating at or near capacity since Thanksgiving, when Oklahoma experienced a spike in COVID-19 cases that continues to grow. The city loaned the hospital $236,000 from its emergency reserves to pay employee salaries in November and December, according to city officials. And the hospital still needs to make various improvements, including replacing an antiquated system that supplies oxygen to patients.

Prague’s mayor, Cliff Bryant, acknowledged the risk the city took in buying the hospital, given the facility’s history of financial problems and the additional pressures from the ongoing pandemic. But, he said, the move was necessary to ensure residents had access to quality health care.

“It’s either that or shut it down, so it’s not a real good choice,” Bryant said.

Bryant said the city plans to apply for another round of relief money, probably early this year, but he worries about another denial. HHS has an estimated $24 billion left to allocate. The agency has not released details about which providers will qualify and how much they will receive.

Meanwhile, the $1.7 million in relief money intended to help the Prague hospital weather the pandemic is still sitting in a bank account controlled by the bankruptcy trustee. He’s unsure what will happen to the money.

“I think one possibility is that it would just get sent back to the government,” Waldrep said.

Jan 25, 2021

Peter Kalmus, out of his mind, stumbled back toward the car. It was all happening. All the stuff he’d been trying to get others to see, and failing to get others to see — it was all here. The day before, when his family started their Labor Day backpacking trip along the oak-lined dry creek bed in Romero Canyon, in the mountains east of Santa Barbara, the temperature had been 105 degrees. Now it was 110 degrees, and under his backpack, his “large mammalian self,” as Peter called his body, was more than just overheating. He was melting down. Everything felt wrong. His brain felt wrong and the planet felt wrong, and everything that lived on the planet felt wrong, off-kilter, in the wrong place.

Nearing the trailhead, Peter’s mind death-spiralled: What’s next summer going to bring? How hot will it be in 10 years? Yes, the data showed that the temperature would only rise per decade by a few tenths of a degree Celsius. But those tenths would add up and the extreme temperatures would rise even faster, and while Peter’s big mammal body could handle 100 degrees, sort of, 110 drove him crazy. That was just not a friendly climate for a human. 110 degrees was hostile, an alien planet.

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Lizards fried, right there on the rocks. Elsewhere, songbirds fell out of the sky. There was more human conflict, just as the researchers promised. Not outright violence, not here, not yet. But Peter’s kids were pissed and his wife was pissed and the salience that he’d so desperately wanted others to feel — “salience” being the term of choice in the climate community for the gut-level understanding that climate change isn’t going to be a problem in the future, it is a crisis now — that salience was here. The full catastrophe was here (both in the planetary and the Zorba the Greek sense: “Wife. Children. House. Everything. The full catastrophe”). To cool down, Peter, a climate scientist who studied coral reefs, had stood in a stream for an hour, like a man might stand at a morgue waiting to identify a loved one’s body, irritated by his powerlessness, massively depressed. He found no thrill in the fact that he’d been right.

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Sharon Kunde, Peter’s wife, found no thrill in the situation either, though her body felt fine. It was just hot … OK, very hot. Her husband was decompensating. The trip sucked.

“I was losing it,” Peter later recalled as we sat on their front porch on a far-too-warm November afternoon in Altadena, California, just below the San Gabriel Mountains.

“Yeah,” Sharon said.

“Losing my grip.”

“Yeah.”

“Poor Sharon is the closest person to me, and I share everything with her.”

Sometimes everything is both too much and not enough. George Marshall opened his book, “Don’t Even Think About It: Why Our Brains Are Wired to Ignore Climate Change,” with the parable of Jan Karski, a young Polish resistance fighter who, in 1943, met in person with Supreme Court Justice Felix Frankfurter, who was both a Jew and widely regarded as one of the great minds of his generation. Karski briefed the justice on what he’d seen firsthand: the pillage of the Warsaw Ghetto, the Belzec death camp. Afterward, Frankfurter said, “I do not believe you.”

The Polish ambassador, who had arranged the meeting on the recommendation of President Franklin Roosevelt, interrupted to defend Karski’s account.

“I did not say that he is lying,” Frankfurter explained. “I said that I didn’t believe him. It’s a different thing. My mind, my heart — they are made in such a way that I cannot accept. No no no.”

Andrew White, special to ProPublica

Sharon, too, possessed a self-protective mind and heart. A high school English teacher and practiced stoic from her Midwestern German Lutheran childhood, she didn’t believe in saying things you were not yet prepared to act upon. “We find it difficult to understand each other on this topic,” Sharon, 46, said of her husband’s climate fixation.

Yet while Sharon was preternaturally contained, Peter was a yard sale, whole self out in the open. At 47, he worked at NASA’s Jet Propulsion Lab, studying which reefs might survive the longest as the oceans warm. He had more twinkle in his eye that one might expect for a man possessed by planetary demise. But he often held his head in his hands like a 50-pound kettlebell. Every time he heard a plane fly overhead, he muttered, “Fossil fuel noise.”

For years, in articles in Yes! magazine, in op-eds in the Los Angeles Times, in his book “Being the Change: Live Well and Spark a Climate Revolution,” on social media, Peter had been pleading, begging for people to pay attention to the global emergency. “Is this my personal hell?” he tweeted this past fall. “That I have to spend my entire life desperately trying to convince everyone NOT TO DESTROY THE FUCKING EARTH?”

His pain was transfixing, a case study in a fundamental climate riddle: How do you confront the truth of climate change when the very act of letting it in risked toppling your sanity? There is too much grief, too much suffering to bear. So we intellectualize. We rationalize. And too often, without even allowing ourselves to know we’re doing it, we turn away. At virtually every level — personal, political, policy, corporate — we repeat this pattern. We fail, or don’t even try, to rise to the challenge. Yes, there are the behemoth forces of power and money reinforcing the status quo. But even those of us who firmly believe we care very often fail to translate that caring into much action. We make polite, perhaps even impassioned conversation. We say smart climate things in the boardroom or classroom or kitchen or on the campaign trail. And then … there’s a gap, a great nothingness and inertia. What happens if a human — or to be precise, a climate scientist, both privileged and cursed to understand the depth of the problem — lets the full catastrophe in?

Once Peter, Sharon and their 12- and 14-year-old sons set their packs down at the car on that infernal Labor Day weekend, they blasted the air conditioning, then stopped for Gatorade and Flamin’ Hot Doritos to try to recover from their trip. But the heat had descended not just on Peter’s big mammal body but on millions of acres of dry cheatgrass and oak chaparral.

That same afternoon, around 1 p.m., the Bobcat fire started five miles from their house in the Los Angeles hills.

Andrew White, special to ProPublica

Peter’s climate obsession started, as many obsessions do, with the cross-wiring of exuberance and fear. In late 2005, Sharon got pregnant with their first child, and in the throes of joy and panic that accompanied impending fatherhood, Peter attended the weekly physics colloquium at Columbia University, where he was working on an astrophysics Ph.D. The topic that day was the energy imbalance in the planet — how more energy was coming into earth’s atmosphere from the sun than our atmosphere was radiating back out into space. Peter was rapt. He’d grown up a nerdy Catholic Boy Scout in suburban Chicago, and had always been, as his sister Audrey Kalmus said, someone who “jumped into things he believed in with three feet.” He’d met Sharon at Harvard. They’d moved to New York so she could earn a teaching degree. For a while, before returning to school, Peter had made good money on Wall Street writing code. Now here he was hearing, really hearing for the first time, that the planet, his son’s future home, was going to roast. Full stop.

This was a catastrophe — a physical, physics catastrophe, and here he was, a physicist about to have a son. He exited the lecture hall in a daze. “I was kind of like, ‘Are we just going to pretend this is like a normal scientific talk?’” he told me, recalling his thoughts. “We’re talking about the end of life on Earth as we know it.”

For the next eight months, Peter walked around Manhattan, “freaking out in my brain,” he said, like “one of those end-is-near people with the sandwich boards.” He tried converting Columbia’s undergraduate green groups to his cause. Did they care about the environment? Yes. Did they care about the planetary catastrophe? Well, yes, of course they did, but they were going to stick with their project of getting plastic bags out of dining halls, OK? He tried lobbying the university administrators to switch to wind power. Couldn’t even get a meeting. Nothing made sense. Why was Al Gore spending a fortune to make a climate movie only to flinch at the end of “An Inconvenient Truth” and say, essentially, Just buy more efficient light bulbs? Almost nobody saw it — really saw it. WE ARE HAVING AN EMERGENCY. There was only one possible endgame here if humans didn’t stop burning fossil fuels, fast: global chaos, mass violence, miserable deaths.

Peter and Sharon’s friends came over to meet and bless their baby, Braird, shortly after he was born in June 2006. All the guests went around the room offering wishes for the unborn child. When Peter’s turn came, he said he hoped that his son didn’t get shot at in climate-induced barbarity and that he did not starve.

Andrew White, special to ProPublica

Peter and Sharon rented a house with a big avocado tree when they moved to California, in 2008, for Peter’s dream postdoc studying gravitational waves at CalTech. Braird was 2 and Sharon was nursing newborn Zane. Peter and Sharon had both come from families with four kids, and they didn’t want Braird to be an only child — and having a child when you want one is also immeasurably wonderful, too wonderful, in this case, to give up. (They did later decide to forgo a third.) In Peter’s first run at grassroots activism, he organized a climate protest with a friend. Only two people showed up. Peter joined Transition Pasadena, a community group dedicated to producing “a more resilient city and for living lighter on our Earth.” He also said he tried pushing “to focus the group around global heating and climate breakdown,” but the members, he said, wanted to talk about “gardening and city council meetings,” not the apocalypse, so Peter and Transition Pasadena parted ways.

Four years into climate awakening and action, Peter felt he had accomplished nearly zero. One night, frustrated with inaction and disgusted with fossil fuel use, he sat at his computer and calculated the sources of all his own emissions so he could go about reducing them.

In the morning he presented Sharon with a pie chart.

This was one of those moments that both distorted and crystalized the scale problems inherent in addressing climate change, the personal and the planetary, the insignificant and the enormous, warping and reverberating as if modulated by a wah-wah pedal. Peter himself believed that you can’t fix climate change with individual virtue any more than you can fix systemic racism that way. But he also knew, at some point, “You have to burn your ships on the beach,” as Richard Reiss, a climate educator and fellow at the Institute for Sustainable Cities at Hunter College, put it. You need to commit, perhaps even create drama, and make real changes in your life.

By far the biggest wedge of the pie chart was Peter flying to scientific meetings and conferences. For the family, if Peter quit flying, it meant he’d be home more to help with the kids. Sharon reserved the right to keep flying if she wanted. Win-win.

Peter’s second-largest source of emissions was food. So he started growing artichokes, eggplant, kale and squash, plus tending fruit trees, and that was great. Then he started composting — OK, that’s great, too. He also started keeping bees and raising chickens, and soon raccoons and possums discovered the chickens and Peter began running outside in his underwear in the middle of the night when he heard the chickens scream. Baby chicks lived in the house, which the boys loved. Braird got stung by bees while Sharon was at a meditation retreat and it turned out Braird was allergic and he went into shock.

Next came dumpster diving (which eventually — and thankfully — morphed into an arrangement with Trader Joe’s to pick up their unsellable food every other Sunday night). Peter’s haul — “seven or eight boxes,” according to Sharon; “three boxes,” according to Peter — included dozens of eggs with only one broken. Flats of (mostly not moldy) strawberries. Bread past its sell-by date. Peter did his best to put things away before he fell asleep because waking up to the mess drove Sharon nuts. But … it was a lot. Low-carbon living was a lot.

Andrew White, special to ProPublica

They stopped using the gas dryer. They stopped shitting in the flush toilet and started practicing “humanure,” composting their own crap. Sharon had lived with an outhouse in Mongolia, “so that was something I was used to,” she said. Plus, to be honest, she liked the local, organic anti-capitalist politics of it. “Marx writes about this in ‘Capital, Volume 1’ that one of the reasons Europeans started to use chemical fertilizers is because people started to move into the cities and off of the land, … and people stopped pooping out in the countryside, so it became less fertile.” The main problem, for Sharon, was that their bathroom was small and the composting toilet was inside. They used eucalyptus leaves to try to cover up the smell, but then little bits of leaves got all over the bathroom, too. After a while Peter moved the composting toilet outdoors. He also built an outdoor shower that Sharon found quite lovely, “rustic and California.”

Sharon commiserated with a friend who was married to a priest. How do you have an equal marriage with a man who’s trying to save the world? The priest’s wife, too, found “it impossible for her to have any space for herself,” Sharon said. “Because he was called by God to minister to people. When she tried to do her own thing, it wasn’t as important as his.” Motherhood was hard enough. Sharon wanted to write a novel. She wanted to write poetry. She wanted to go for a run, or even a walk, in peace. “His dreams were so much more heroic and important that I had to sort of, I don’t know,” she said. “I had to go along with it.”

The most trying component of the low-carbon experiment for Sharon was the 1985 Mercedes that Peter converted to biodiesel. Maeby, as Sharon hate-named the car — as in Maeby we’ll get there, Maeby we won’t — arrived in their lives in 2011, just as Sharon was starting an English Ph.D. at UC Irvine and commuting 50 miles each way. Yes, they took family summer road trips to go camping and visit friends. But on the winter trips to visit their families in the Midwest, the grease coagulated in the cold, which made Maeby break down more. Some nights Sharon cried in the motel room, but “when it’s daytime it all seemed better,” she said. She talked about renting a car or even flying home but never did. Still, late one night on a very cold, dark and lonely Utah highway when Peter was under the broken-down car, and Braird and Zane were in the back seat, screaming, and Sharon was revving the engine at Peter’s request — she started to wonder if she had Stockholm syndrome.

Andrew White, special to ProPublica

Sometimes, Sharon thought of Peter as being like “John the Baptist, a voice in the wilderness, crying out, ‘Repent, repent!’” This was said with love but also annoyance. As Larissa MacFarquhar explored in her book “Strangers Drowning,” extreme do-gooders often provoke us. We find them ridiculous, self-righteous, sometimes even perverse or narcissistic moralists for whom, MacFarquhar writes, “It is always wartime.” Just figuring out how to raise children on the Earth, right now, presented so many existential questions. Peter often indulged in a half-joking zombie apocalypse mentality. He wanted to teach his boys to grow crops, to defend themselves, to fix things. “I do think we need to be talking about the collapse of civilization and the deaths of billions of people,” he said.

When she was at her gloomiest, Sharon, too, felt scared to leave her sons on this planet, but she also called on her tight-lipped German upbringing to create a bubble of denialist peace. “Things you don’t want to confront, just ignore it. Pretend it’s not there,” she said. Her “ethics of care,” as she called it, involved encouraging the boys to take music lessons, read books and even meditate when she could persuade them to join her. She wanted to prepare her sons to be creative and resilient. If the planet was crumbling, they’d need rich interior lives.

Did Sharon want the boys to worry? “I don’t know, I don’t know,” she said. That was the never-ending, urgent, timeless question. How much do we want our children to understand about the horrors of the world?

In 2012, Peter switched fields, from astrophysics to earth science, because he just couldn’t stop obsessing. This meant backpedaling in his career, quitting the Laser Interferometer Gravitational-Wave Observatory (LIGO) experiment, three founding members of which would go on to win the 2017 Nobel Prize in physics. Still, even his new job was a strange fit. Science itself — with its cultural terror of appearing biased — was a strange fit.

Andrew White, special to ProPublica

Peter had given up expecting emotional comfort. He’d given up on decorum. He had nightmares about being on planes. “The emissions, you know,” he said. “It feels like the plane is flying on ground-up babies to me.” Even the simplest decisions led him into deep philosophical rifts. The boys’ music lessons, to Peter, seemed woefully, almost willfully anachronistic, a literal fiddling while Rome or Los Angeles burned.

Peter kept trying to figure out ways to make his voice heard. He organized climate cafes, modeled on death cafes, places for people to gather to share grief (Sharon did not attend). He started No Fly Climate Sci, a grassroots group of academic institutions and individual scientists committed to flying less. He kept writing, posting, organizing, talking. This was not always well received. Before the pandemic, Peter stood on the sidelines of Braird’s soccer games when it was 113 degrees. “And I’d be telling the other parents: This is climate change,” he said. “And, you know, they don’t want to hear that during a soccer game. But I can’t not do it. I can’t.”

WE ARE HAVING AN EMERGENCY — Peter thought that all day, every day. “Here I am with a retirement account,” Peter said. Did he need a retirement account? What was the world going to be like in 2060, when he was an old man? He’d been careful with himself not to become a doomer. Doomers, in his mind, were selfish. They’d given up on the greater good and retreated to their own bunkers, leaving the rest of us to burn. Still, despite Peter’s commitment to keep working toward global change, Sharon found Peter’s florid negativity distasteful at times. “There’s almost like a pornographic fascination with ‘Oh, I’m going to imagine just how bad everything is going to be,’” she said.

Sharon staged minor rebellions to maintain a sense of self — little stuff, like using lots of hot water when she did the dishes, and bigger stuff, like she stopped talking sometimes. Braird and Zane, too, each absorbed and reacted to Peter’s passionate cri de coeur in their own ways. Zane, the younger one, started doing his own regular, Greta Thunberg-style climate strikes in front of city hall. Braird, the older, meanwhile, was entering his teens, differentiating and waxing nihilistic. When asked what he wanted to do with his future, Braird said, “What future?” When asked what he thought about climate change, he sunk a dagger into his father’s heart like only a child can. Braird said, “I don’t really think about it.”

Andrew White, special to ProPublica

On the Tuesday evening after Labor Day, two days after the family returned from their infernal backpacking, Peter, still recovering from heat exhaustion, stood at the sink doing dishes. Braird played League of Legends on his bed. Sharon sat meditating, as she did from 7-8 p.m. each night. Then the emergency alerts blew up their phones. An evacuation warning, the Bobcat fire. The day before, in the ongoing horrible heat, they’d taped their windows shut against the smoke but they hadn’t packed go bags. They never really believed their house would burn. The state was a climate warzone. Military helicopters had rescued 200 people trapped in a Sierra lake by the Creek fire, which had thrown up a plume of flames 50,000 feet. Cal Fire was predicting the Bobcat fire would not be contained for six weeks.

Sharon finished meditating. Then she started photographing all their stuff, including the insides of closets and drawers, because that’s what insurance adjusters tell you to do: Document your property so you can make a stronger claim. Peter snapped. He didn’t care about the pictures or the insurance. He just wanted to let the house incinerate. He felt done pretending that anything was normal, and he decided that now would be a good time to tell Sharon that he’d felt frustrated and gaslit by her all these years.

“WE NEVER EVEN TALK ABOUT CLIMATE CHANGE! DO YOU EVEN CARE ABOUT CLIMATE CHANGE?” he said. This did not go well.

She threw a laundry basket. “YOU HAVE GOT TO BE FUCKING KIDDING ME,” she shouted. “Our entire lives are about climate change.”

There it was, that gap we build around knowing and integrating, to protect our own lives and minds. Yet after the fight, after finally saying aloud what he’d been thinking for almost 15 years, Peter felt better. Not because anything was different. Nothing was different. The situation remained unshakably, cosmically wrong. The only reason to care about insurance, books, paintings, the house, was if you believed that there would be a stable planet on which to enjoy those things in 20 or 40 or 80 years. If you believe there’d be a “planet with seasons, where you can grow food and have water, and you can go outside without dying from heatstroke,” Peter said. “I don’t have that anymore, that sense of stability.”

Andrew White, special to ProPublica

But he also knew, deep down, that Sharon could not, and should not, give that up. She was a more anxious person than he was. They both knew that. “For me to stay sane, there’s only so much I can take,” Sharon said. Earlier on the night of their big fight they’d watched “The Handmaid’s Tale,” as they did each Tuesday. Sharon often thought about the main character, June. “You have to moderate how you think. You have to think in little chunks, so you can endure, just like June does,” she told me. “You have to make sacrifices so you can survive. If you can survive to fight another day, then maybe the right opportunity will present itself. You can’t kill yourself well, you can. But that’s not the option I want to take.”

Maeby is now gone. Peter drives an electric car. The composting toilet remains outside, though Peter admits, “The other three family members are not interested in contributing at all.” Peter’s current project is making climate ads. Is this how he can tell the story of what is happening to the world in a way that will make people not just hear and retreat but act? He thinks about this all the time. How do you describe an intolerable problem in a way that listeners — even you, dear reader — will truly let in?

All through October and November, the Bobcat fire continued to burn. It grew to 115,000 acres. Its 300-foot-high flames licked up against Mount Wilson Observatory, where scientists first proved the existence of a universe outside the Milky Way. The fire continued to burn well into December, when UN Secretary-General António Guterres urged, with middling effect, the nations of the world to declare a climate emergency. So far, 38 have done so. The United States is not one of them. In January, a team of 19 climate scientists published a paper, “Underestimating the Challenges of Avoiding a Ghastly Future,” that said, “The scale of the threats to the biosphere and all its life forms — including humanity — is in fact so great that it is difficult to grasp for even well-informed experts.” The language of this sentence could not be more dire. It makes the mind go numb.

So how, with our limited human minds, do we attend enough to make real progress? How do we not flinch and look away? The truth of what is happening shakes the foundations of our sense of self. It asserts a distorting gravity, bending our priorities and warping our whole lives. The overt denialists are easy villains, the monsters who look like monsters. But the rest of us, much of the time, wear pretty green masks over our self-interest and denial, and then go about our days. Then each morning we wake to a new headline like: “The planet is dying faster than we thought.”

While I was trying (and failing) to process it all, Peter called to make sure I understood the importance of a comment he’d made: He’s no longer embarrassed to tell people he would die to keep the planet from overheating. He’s left behind the solace of denial. He’s well aware of the cost. “What a luxury to feel that the ground we walk on and this planet that is rotating around the sun is in some sense OK.”

Correction, Jan. 25, 2021: This story originally misstated the title of a paper published by a team of 19 climate scientists. It is “Underestimating the Challenges of Avoiding a Ghastly Future,” not “Understanding the Challenges of Avoiding a Ghastly Future.”

Correction, Jan. 26, 2021: This story originally misstated the rate of the rise in temperature caused by global warming. The temperature will rise by a few tenths of a degree Celsius per decade, not by year.

Jan 23, 2021

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In May of last year, ProPublica health care reporter Caroline Chen reflected on the first 100,000 lives lost to COVID-19 and posed an important question: “How do we stop the next 100,000?” Eight months later, with 300,000 additional American lives lost and the chaotic distribution of the vaccine underway, Chen shares her thoughts on where we are and what happens next.

In your 100,000 lives lost piece, you wrote about questions we needed to ask at that moment: “How do we prevent the next 100,000 deaths from happening? How do we better protect our most vulnerable in the coming months? Even while we mourn, how can we take action, so we do not repeat this horror all over again?” It’s been almost eight months since then. What are the biggest questions we need to be asking now?

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I’m afraid that we did end up repeating this horror all over again — and again — and again. There’s no way of dancing around this: We’ve failed to protect our most vulnerable. We’ve let the virus spread out of control across America. We’ve let the worst happen.

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So here’s the question on my mind now: How are we going to end the pandemic? We have a vaccine in hand, and I’m so grateful for it. It is, truly, a game changer. But there are different ways that this story can go from this moment in January. We can end the pandemic as quickly as possible, with rapid distribution and uptake of the vaccine, with everyone doing their best to maintain best practices (social distancing, etc.) while they wait their turn, prioritizing those who need the vaccine most, doing whatever we can to alleviate the pressure on exhausted health care workers and public health officials.

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Or we can drag it out, with a chaotic and sputtering vaccine rollout, exacerbating inequities in society by letting those who have connections, or money, or power get the vaccine first, and continue to ignore what science tells us, so we have so many more COVID-19 cases that we give the virus evermore chances to mutate away from our currently effective vaccine. We are the authors of the final chapters of this story. How are we going to determine its ending?

In November, parishioners of a church in Minneapolis, Minnesota, light candles in remembrance of members who have died of COVID-19. Renee Jones Schneider/Star Tribune via Getty Images

You also wrote about choices our nation’s leaders have had to make. What choices are the most pressing right now for the Biden administration?

Biden’s administration does not have the luxury of doing one thing at a time. I’ve watched America lurch from one pandemic theme du jour to another. For a while contact tracing was really hot. Then we all got into antibody testing. Now the hype is about vaccines. This virus is incredibly wily, it’s spreading out of control and front-line workers are exhausted. The administration really needs to be able to work on multiple fronts, bringing in funding, staffing and supplies to sustain public health officials who are trying to do testing while conducting contact tracing interviews while also setting up vaccine clinics.

We can’t rush to vaccinate then drop the testing ball. We still do not have a clear strategy for testing asymptomatic people. I’d love to see a nationwide sharing of sequencing data so we can track and evaluate variants more robustly. Every single health care staff — and hey, what about meatpacking workers and other front-line laborers — should have access to N95s. It’s insane to me that I am still told by some nurses that they have to reuse their masks for two weeks. Last but not least: Clear, consistent and transparent communication from the White House, the Department of Health and Human Services, the Centers for Disease Control and Prevention, the Food and Drug Administration and all branches of government would be desperately welcome.

We’re hearing a lot about mutations and new variants of the virus that spread more quickly. Should we be changing our behavior?

Viruses are constantly mutating; it’s just what viruses do. A lot of these mutations aren’t actually meaningful, and it’s only when they have some sort of functional difference that we consider them a new variant, like the B.1.1.7 variant (also known as the U.K. variant). When a new variant is detected, the question is always, what’s the significance? In the case of the B.1.1.7 variant, it’s pretty clear now that it’s more transmissible, but there isn’t enough data so far to say whether it causes more severe disease.

Still, a more transmissible variant will result in the virus spreading faster, meaning more cases, more overloaded hospitals, diminished therapeutic resources and thus probably a worse outcome if you do get sick — not because you got more severely ill in the first place, but because you didn’t get as good care as you would have otherwise if hospitals weren’t stretched so thin. So far, some B.1.1.7 cases have been found in the U.S., but it doesn’t appear to be dominant. And we need to make sure that doesn’t happen. Epidemiology Professor Andrew Lover at the University of Massachusetts Amherst told me he thinks we’re in a critical period right now — with hospitals still recovering from post-holiday surges, vaccine protection yet to kick in and pandemic fatigue at an all time high. “The vaccine is on the horizon, but it’s really challenging to message that it won’t have a major impact for months,” he said.

Epidemiologist Marc Lipsitch at the Harvard T.H. Chan School of Public Health has argued that contact tracers should prioritize any case that involves a B.1.1.7 variant, because those cases will spread faster. To be able to do that, testing resources — specifically the type of tests that can identify B.1.1.7 — need to be ramped up and widely distributed. As for individuals, however, there’s nothing you need to change about your behavior if you’re worried about variants. You already know what to do, you just have to fight the fatigue and do it. Wash your hands. Wear a mask. Social distance. Seek the outdoors. Get your vaccine when it’s your turn. Do whatever you can to not be a case.

Of all of the great reporting you and other science reporters have done on the pandemic, most people experience only a swath of what the big picture of the pandemic is — the bigger picture that you as a reporter have. You’ve reported on some of these smaller swaths, individual stories and experiences, but also the larger systemic failures. What do we lose sight of with the big picture, and what do we lose sight of with the small picture?

Sometimes when I’m looking at the charts, I have to remind myself what the numbers mean. It’s become so easy after months and months of this to become numb. For example, even though the case count is finally starting to go down in Los Angeles County, and that is good news, it’s not just a trend line. Those are people. And even if I can be happy on one level that the tide seems to be turning in LA County, I should also keep in mind that that’s still 7,900 individuals who were diagnosed with COVID-19 yesterday, and close to 200 people who died. Each person — as my May essay said — was somebody’s everything. I have to remember that, so I don’t ever treat the numbers like just numbers in my reporting.

Maricela Arreguin Mejia and her brother Nestor Arreguin mourn the death of their father Gilberto Arreguin Camacho on Dec. 31, 2020 in Whittier, California. Camacho died from COVID-19. Patrick T. Fallon/AFP via Getty Images

On the flip side, when I’m listening to people’s stories, I always keep in mind that one person’s experience may not speak for the whole. There are a lot of vaccine snafus happening across the country right now. Some of them are dysfunctions unique to that particular vaccine site, and as a national reporter, they’re not my story to tell. So I talk to a lot of people and gather as many stories as I can. And when I start to hear the same themes repeat over and over, that’s when I start to think, Hmmm, there’s something going on here. It’s not a good sign when clinics across the country are all canceling appointments on the same day. That’s when I swing into action to try and find out the Why. That’s a ProPublica story.

You wrote eight months ago: “I refuse to succumb to fatalism, to just accepting the ever higher death toll as inevitable. I want us to make it harder for this virus to take each precious life from us. And I believe we can.” What were you feeling then that fueled you to write about refusing to succumb to fatalism, and what are you feeling now?

What was I feeling? Oh, boy. I was leaking tears and writing at the same time because our brilliant visuals editor Andrea Wise was sending me her selections for that essay and I was looking at the images just thinking how awful it was for people to have to be going through this: not just to be sick and die, but in so many cases to have to die alone — or to have a loved one in the hospital and not be able to be by their side. There’s one image in there of a funeral home in New Jersey with the spaced out chairs that seemed so bleak to me. Even after your loved one’s death, you couldn’t lean close to a friend or relative for comfort.

I didn’t want people to just roll over and accept that more people would die. It angered me that some people were ignoring the guidance of public health officials and what science told us could help reduce cases. I wanted people to realize that there’s accountability at all levels: from federal policies all the way down to your own actions, every day.

And now? I’m tired. I miss my family so much (they’re mostly overseas). But I still haven’t given up. I remind myself that I can’t solve the world’s problems, but I can do my little bit as a health reporter and hope it helps, somehow. And now there’s a new administration. I don’t think it’ll be perfect by any means, but I am hopeful to see that President Biden takes the pandemic seriously and I look forward to seeing what actions his administration takes in the coming weeks.

We know the vaccine distribution isn’t going well. But what reasons do we have to be hopeful?

Well for starters, we have a vaccine that works! Two, in fact, and potentially another on the way (Johnson & Johnson’s). As a former biotech reporter, I know that drug development is a slog, so the fact that we have two very efficacious vaccines that made it to market in under a year is truly amazing.

A healthcare worker and patient at a free COVID-19 test center in Los Angeles. Ringo Chiu/AFP via Getty Images

But of course, shots in the vial are pointless if they don’t get to people’s arms. So where am I seeing hope? So far, production appears to be going OK. There obviously isn’t as much available vaccine as the demand, but there haven’t been any major manufacturing snafus, so I expect Pfizer and Moderna to continue to ramp up as planned.

I am also hoping that as more vaccines become available, this should (fingers crossed) coincide with federal, state and local entities sorting out the logistical issues that have plagued the rollout so far. Ideally, things will go more smoothly when the bulk of the supply becomes available. I’ll stay optimistic, while looking out for everything that may be going wrong, of course. That’s my job.


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Jan 22, 2021

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When I first heard E. Yvonne Lewis tell the story, it was a hot July day in downtown Flint, Michigan. We and about 70 others had gathered in the high-ceilinged ballroom of the Northbank Center, just west of the river, where the Michigan Civil Rights Commission was conducting its 2016 hearings on how this Great Lakes city learned that its own water was a threat.

Lewis, a community health worker and mother of three, testified that she kept a Crock-Pot in her bathroom. To take a bath, she filled the cauldron with bottled water, waited for it to heat, poured it into her bathtub, then repeated this process until she had enough to wash.

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The image of the slow cooker in her bathroom haunts me, one of many such stories I heard while writing a book about the crisis in Flint, where toxic water was delivered to a city of nearly 100,000 people for 18 months before the state acknowledged the problem. As I sat for hour after hour, trying to put words to these experiences, I struggled with the fact that there was no ending. My book couldn’t conclude with a rousing sense of wrongs righted and justice served. Not only had no one been held accountable, but the true toll of the crisis for both the city and its inhabitants would not be known for years, maybe decades.

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“People are dead,” Lewis said when I spoke with her last weekend. “Children are ill. We still don’t know the long-term implications of the exposure.”

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This ambiguity stands in contrast to recent news that suggests Flint’s story is headed for resolution. On Thursday, a federal judge granted preliminary approval of a $641 million class-action settlement in the case, believed to be the largest in state history. It will provide for “every person exposed while a minor child; every adult exposed with a resultant injury; every residential property owner, renter, or person responsible for paying Flint water bills; and certain business owners,” according to the decision. That ruling comes exactly a week after nine public officials, including former Gov. Rick Snyder, were indicted on 42 counts of wrongdoing involving their alleged roles in the water crisis. All nine have pleaded not guilty.

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Criminal charges and a class-action settlement may seem like the last chapter in Flint’s story, which has already begun to fade in public memory. But much of Flint’s unfinished business lingers, including policies that lie at the root of the crisis.

The problem with Flint’s water began when a state-appointed emergency manager decided to leave Detroit’s water system. In 2014, while awaiting the construction of a new regional system, officials rebooted the city’s old treatment plant and used the Flint River as a water source. But the plant did not get the resources to properly treat the water. Most seriously, the water did not receive corrosion control, as required by federal law, causing pipes to break down. Brown water coming out of taps: that was corroded iron, or rust.

Despite escalating concerns from residents, boil-water advisories and other red flags (the water so badly corroded machinery at a General Motors plant, the company switched to another city’s water system), it took large-scale organizing for a year and a half before the city returned to Detroit’s water system. By then, people had been exposed not only to high amounts of lead, a neurotoxin that is especially damaging to children, but a series of bacterial outbreaks. A Legionnaires’ disease outbreak officially sickened 90 and killed 12. As FRONTLINE documented, the number of those harmed by the outbreak is likely more.

To address the heart of the crisis, though, you have to look beyond a courtroom. Nearly five years after Snyder’s own investigative commission cited Michigan’s emergency manager law — which hands total political authority over a city or school district to state-appointed officials — as a contributing factor in the water crisis, the law remains on the books, unchanged. That is despite some unsuccessful legislative efforts to turn the position into a three-person board and to add some limits to its authority. Two of the four people who formerly held that post are among those charged in last week’s indictments. While the state has not had an active emergency manager since 2018, ending an 18-year streak, the law’s defenders argue that it is a necessary tool, pointing to the one who steered Detroit through America’s largest municipal bankruptcy. But Peter Hammer, director of the Damon J. Keith Center for Civil Rights at Wayne State University Law School, disagrees.

“It is tragic and reprehensible that the EM law has not been repealed in Michigan,” he said in an email, arguing that its provisions have disproportionately affected the democratic rights of Black communities. “It is not enough that the measure has not been used in the past few years, it must be removed. The dangers are even greater with looming crises in municipal finance in the wake of the Covid pandemic.”

Michigan is also one of only two states that exempts both the governor and Legislature from open records requests, a fact that delayed or denied access to critical information on the decisions made about Flint’s water. After years of effort, the most recent push for bipartisan legislation that would make Michigan’s government more transparent died after the Senate Oversight Committee failed to send it to the full Senate, even though its chair, Sen. Ed McBroom, R-Vulcan, was one of the bill’s co-sponsors. Both he and Sen. Jeremy Moss, D-Southfield, the other co-sponsor, said the bill was scheduled for hearings in March, but it was delayed by the COVID-19 pandemic and then later ran out of time as other issues took the Senate’s attention: McBroom pointed to criminal justice reform; Moss to allegations of perceived election fraud. Both also say they expect transparency legislation to be reintroduced in 2021. “I think the need is as clear as it’s ever been,” McBroom said.

Nationally, in the first update of the Lead and Copper Rule since it was adopted in 1991, the Environmental Protection Agency developed testing requirements for water at schools and child care centers, and requires public inventories of millions of lead service lines that remain in America’s drinking water systems. But the new guidelines slow down the replacement of those lines, with the new standard calling for a 3% annual replacement rate for water systems that show especially high levels of lead, rather than the previous 7% rate. In a fact sheet, the EPA said the new rule is more effective because it closes loopholes that left the previous standard unmet. But many advocates are disappointed. The Natural Resources Defense Council, an environmental advocacy law firm, has sued the EPA, with a top official in the organization asking, “Have we learned nothing from Flint?”

More broadly, the chronic disinvestment in communities like Flint has deepened their precariousness. It even worsened the water crisis. People and businesses fled Flint, leaving the city with fewer than half the taxpayers it had in 1960, but the water system remained as massive as ever. This led to unaffordable rates and water sitting stagnant in corroding pipes, making it more vulnerable to contaminants.

Even the steps taken to address the wrongs done to the people of Flint aren’t as clear-cut as they appear. The charges filed last week are the second attempt at prosecutions; the first effort was scrapped by new lead prosecutors who promised to build stronger cases. Several of the defense lawyers not only claim prosecutors have failed to make those cases, but they strongly decry the secretive one-judge grand jury process that led to the charges, a system unique to Michigan and rarely used in the state.

The pending $641 million class-action settlement may be the largest in the state’s history, surpassing the $500 million allotted two years ago to gymnasts abused by Dr. Larry Nassar. But, given the huge size of the class (to say nothing of attorney fees), it may not result in much for any individual. For all that the city has lost, 95,538 people still called Flint home as of 2019; in comparison, the Nassar settlement involved 332 survivors. Some residents have protested the terms of the settlement, saying that compared with what they endured, it isn’t enough. A number of other lawsuits, including a negligence suit against the EPA, are still pending.

Despite all that remains undone, Flint’s legacy has inspired some promising change, with implications that go far beyond the city borders. Michigan has strengthened its water testing, setting a higher standard than the federal minimum. It also mandates that every community in the state replace its lead service lines. Because of a 2017 legal settlement with the state, Flint had a head start. Nearly 10,000 of the city’s lead lines have been replaced as of late December (but not yet all of them). The state also created the new Office of the Environmental Justice Public Advocate to better respond to concerns about inequitable treatment.

Many residents have drawn on lessons from the water crisis to build new models for democracy and public health. Their work includes an innovative program where community members help develop, vet and carry out research proposals from academics, bringing transparency along the way; a water lab in a refurbished school where residents, including young people, work with scientists to test their own drinking water; and an environmental justice movement, with teachings on using data and community organizing to rebuild crumbling infrastructure.

“One of the things I think we’ve learned in our work is that component is absolutely essential to doing things the right way — not just engagement but collaboration,” said Benjamin Pauli, author of “Flint Fights Back: Environmental Justice and Democracy in the Flint Water Crisis.” His family, including two young children, were exposed to the water.

The story of Flint goes on, and on. There are days I wish I could sneak into bookstores, find copies of my book, “The Poisoned City,” and staple addendums to the back cover. But when I was writing the book and still today, it comes down to the same thing: learning to accept the reality of all that’s uncertain and incomplete, without losing clarity on the truth, or the worth of Flint’s people.

It’s not just theory; it's personal. Lewis is talking with her adult daughter about how the water crisis might affect her ability to have a healthy pregnancy — and child. She is thinking about what her own life will be like as she ages. Every single physical or mental ailment in the decades to come, she said, will have her asking: What if...?

“In the back of my mind,” she said, “there’s always one question — the impact of that exposure.”

In the most intimate of ways — in the bodies of those who experienced it — the water crisis goes ever on.

Jan 22, 2021

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During the past two years, U.S. counterterrorism officials held meetings with their European counterparts to discuss an emerging threat: right-wing terror groups becoming increasingly global in their reach.

American neo-Nazis were traveling to train and fight with militias in the Ukraine. There were suspected links between U.S. extremists and the Russian Imperial Movement, a white supremacist group that was training foreigners in its St. Petersburg compounds. A gunman accused of killing 23 people at an El Paso Walmart in 2019 had denounced a “Hispanic invasion” and praised a white supremacist who killed 51 people at mosques in Christchurch, New Zealand, and who had been inspired by violent American and Italian racists.

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But the efforts to improve transatlantic cooperation against the threat ran into a recurring obstacle. During talks and communications, senior Trump administration officials steadfastly refused to use the term “right-wing terrorism,” causing disputes and confusion with the Europeans, who routinely use the phrase, current and former European and U.S. officials told ProPublica. Instead, the FBI and Department of Homeland Security referred to “racially or ethnically motivated violent extremism,” while the State Department chose “racially or ethnically motivated terrorism.”

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“We did have problems with the Europeans,” one national security official said. “They call it right-wing terrorism and they were angry that we didn’t. There was a real aversion to using that term on the U.S. side. The aversion came from political appointees in the Trump administration. We very quickly realized that if people talked about right-wing terrorism, it was a nonstarter with them.”

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The U.S. response to the globalization of the far-right threat has been slow, scattered and politicized, U.S. and European counterterrorism veterans and experts say. Whistleblowers and other critics have accused DHS leaders of downplaying the threat of white supremacy and slashing a unit dedicated to fighting domestic extremism. DHS has denied those accusations.

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In 2019, a top FBI official told Congress the agency devoted only about 20% of its counterterrorism resources to the domestic threat. Nonetheless, some FBI field offices focus primarily on domestic terrorism.

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Former counterterrorism officials said the president’s politics made their job harder. The disagreement over what to call the extremists was part of a larger concern about whether the administration was committed to fighting the threat.

“The rhetoric at the White House, anybody watching the rhetoric of the president, this was discouraging people in government from speaking out,” said Jason Blazakis, who ran a State Department counterterrorism unit from 2008 to 2018. “The president and his minions were focused on other threats.”

Other former officials disagreed. Federal agencies avoided the term “right-wing terrorism” because they didn’t want to give extremists legitimacy by placing them on the political spectrum, or to fuel the United States’ intense polarization, said Christopher K. Harnisch, the former deputy coordinator for countering violent extremism in the State Department’s counterterrorism bureau. Some causes espoused by white supremacists, such as using violence to protect the environment, are not regarded as traditionally right-wing ideology, said Harnisch, who stepped down this week.

“The most important point is that the Europeans and the U.S. were talking about the same people,” he said. “It hasn’t hindered our cooperation at all.”

As for the wider criticism of the Trump administration, Harnisch said: “In our work at the State Department, we never faced one scintilla of opposition from the White House about taking on white supremacy. I can tell you that the White House was entirely supportive.”

The State Department focused mostly on foreign extremist movements, but it examined some of their links to U.S. groups as well.

There was clearly progress on some fronts. The State Department took a historic step in April by designating the Russian Imperial Movement and three of its leaders as terrorists, saying that the group’s trainees included Swedish extremists who carried out bombing attacks on refugees. It was the first such U.S. designation of a far-right terrorist group.

With Trump now out of office, Europeans and Americans expect improved cooperation against right-wing terrorists. Like the Islamist threat, it is becoming clear that the far-right threat is international. In December, a French computer programmer committed suicide after giving hundreds of thousands of dollars to U.S. extremist causes. The recipients included a neo-Nazi news website. Federal agencies are investigating, but it is not yet clear whether anything about the transaction was illegal, officials said.

“It’s like a transatlantic thing now,” said a European counterterror chief, describing American conspiracy theories that surface in the chatter he tracks. “Europe is taking ideology from U.S. groups and vice versa.”

The Crackdown

International alliances make extremist groups more dangerous, but also create vulnerabilities that law enforcement could exploit.

Laws in Europe and Canada allow authorities to outlaw domestic extremist groups and conduct aggressive surveillance of suspected members. America's civil liberties laws, which trace to the Constitution's guarantee of free speech spelled out in the First Amendment, are far less expansive. The FBI and other agencies have considerably more authority to investigate U.S. individuals and groups if they develop ties with foreign terror organizations. So far, those legal tools have gone largely unused in relation to right-wing extremism, experts say.

To catch up to the fast-spreading threat at home and abroad, Blazakis said, the U.S. should designate more foreign organizations as terrorist entities, especially ones that allied nations have already outlawed.

A recent case reflects the kind of strategy Blazakis and others have in mind. During the riots in May after the death of George Floyd in Minneapolis, FBI agents got a tip that two members of the anti-government movement known as the Boogaloo Bois had armed themselves, according to court papers. The suspects were talking about killing police officers and attacking a National Guard armory to steal heavy weapons, the court papers allege. The FBI deployed an undercover informant who posed as a member of Hamas, the Palestinian terrorist group, and offered to help the suspects obtain explosives and training. After the suspects started talking about a plot to attack a courthouse, agents arrested them, according to the court papers. In September, prosecutors filed charges of conspiring and attempting to provide material support to a foreign terrorist organization, which can bring a sentence of up to 20 years in prison. One of the defendants pleaded guilty last month. The other still faces charges.

If the U.S. intelligence community starts using its vast resources to gather information on right-wing movements in other countries, it will find more linkages to groups in the United States, Blazakis and other experts predicted. Rather than resorting to a sting, authorities could charge American extremists for engaging in propaganda activity, financing, training or participating in other actions with foreign counterparts.

A crackdown would bring risks, however. After the assault on the Capitol, calls for bringing tougher laws and tactics to bear against suspected domestic extremists revived fears about civil liberties similar to those raised by Muslim and human rights organizations during the Bush administration’s “war on terror.” An excessive response could give the impression that authorities are criminalizing political views, which could worsen radicalization among right-wing groups and individuals for whom suspicion of government is a core tenet.

“You will hit a brick wall of privacy and civil liberties concerns very quickly,” said Seamus Hughes, a former counterterrorism official who is now deputy director of the Program on Extremism at George Washington University. He said the federal response should avoid feeding into “the already existing grievance of government overreach. The goal should be marginalization.”

In recent years, civil liberties groups have warned against responding to the rise in domestic extremism with harsh new laws.

“Some lawmakers are rushing to give law enforcement agencies harmful additional powers and creating new crimes,” wrote Hina Shamsi, the director of the ACLU’s national security project, in a statement by the organization about congressional hearings on the issue in 2019. “That approach ignores the way power, racism, and national security laws work in America. It will harm the communities of color that white supremacist violence targets — and undermine the constitutional rights that protect all of us.”

The Pivot Problem

There is also an understandable structural problem. Since the Sept. 11 attacks in 2001, intelligence and law enforcement agencies have dedicated themselves to the relentless pursuit of al-Qaida, the Islamic State, Iran and other Islamist foes.

Now the counterterrorism apparatus has to shift its aim to a new menace, one that is more opaque and diffuse than Islamist networks, experts said.

It will be like turning around an aircraft carrier, said Blazakis, the former State Department counterterrorism official, who is now a professor at the Middlebury Institute of International Studies.

“The U.S. government is super slow to pivot to new threats,” Blazakis said. “There is a reluctance to shift resources to new targets. And there was a politicization of intelligence during the Trump administration. There was a fear to speak out.”

Despite periodic resistance and generalized disorder in the Trump administration, some agencies advanced on their own, officials said. European counterterror officials say the FBI has become increasingly active in sharing and requesting intelligence about right-wing extremists overseas.

A European counterterror chief described recent conversations with U.S. agents about Americans attending neo-Nazi rallies and concerts in Europe and traveling to join the Azov Battalion, an ultranationalist Ukrainian militia fighting Russian-backed separatists. About 17,000 fighters from 50 countries, including at least 35 Americans, have traveled to the Ukrainian conflict zone, where they join units on both sides, according to one study. The fighting in the Donbass region offers them training, combat experience, international contacts and a sense of themselves as warriors, a theater reminiscent of Syria or Afghanistan for jihadis.

“The far right was not a priority for a long time,” the European counterterror chief said. “Now they are saying it’s a real threat for all our societies. Now they are seeing we have to handle it like Islamic terrorism. Now that we are sharing and we have a bigger picture, we see it’s really international, not domestic.”

Galvanized

The assault on Congress signaled the start of a new era, experts said. The convergence of a mix of extremist groups and activists solidified the idea that the far-right threat has overtaken the Islamist threat in the United States, and that the government has to change policies and shift resources accordingly. Experts predict that the Biden administration will make global right-wing extremism a top counterterrorism priority.

“This is on the rise and has gotten from nowhere on the radar to very intense in a couple of years,” a U.S. national security official said. “It is hard to see how it doesn’t continue. It will be a lot easier for U.S. officials to get concerned where there is a strong U.S. angle.”

A previous spike in domestic terrorism took place in the 1990s, an era of violent clashes between U.S. law enforcement agencies and extremists. In 1992, an FBI sniper gunned down the wife of a white supremacist during an armed standoff in Ruby Ridge, Idaho. The next year, four federal agents died in a raid on heavily armed members of a cult in Waco, Texas; the ensuing standoff at the compound ended in a fire that killed 76 people.Both sieges played a role in the radicalization of the anti-government terrorists who blew up the Oklahoma City federal building in 1995, killing 168 people, including children in a day care center for federal employees. Oklahoma City remains the deadliest terrorist act on U.S. soil aside from the Sept. 11 attacks.

The rise of al-Qaida in 2001 transformed the counterterrorism landscape, spawning new laws and government agencies and a worldwide campaign by intelligence agencies, law enforcement and the military. Despite subsequent plots and occasionally successful attacks involving one or two militants, stronger U.S. defenses and limited radicalization among American Muslims prevented Islamist networks from hitting the United States with the kind of well-trained, remotely directed teams that carried out mass casualty strikes in London in 2005, Mumbai in 2008 and Paris in 2015.

During the past decade, domestic terrorism surged in the United States. Some of the activity was on the political left, such as the gunman who opened fire at a baseball field in Virginia in 2017. The attack critically wounded Rep. Steve Scalise, a Republican legislator from Louisiana who was the House Majority whip, as well as a Capitol Police officer guarding him and four others.

But many indicators show that far-right extremism is deadlier. Right-wing attacks and plots accounted for the majority of all terrorist incidents in the country between 1994 and 2020, according to a study by the Center for Strategic and International Studies. The Anti-Defamation League reported in 2018 that right-wing terrorists were responsible for more than three times as many deaths as Islamists during the previous decade.

“There have been more arrests and deaths in the United States caused by domestic terrorists than international terrorists in recent years,” said Michael McGarrity, then the counterterrorism chief of the FBI, in congressional testimony in 2019. “Individuals affiliated with racially-motivated violent extremism are responsible for the most lethal and violent activity.”

During the same testimony, McGarrity said the FBI dedicated only about 20% of its counterterrorism resources to the domestic threat. The imbalance, experts say, was partly a lingering result of the global offensive by the Islamic State, whose power peaked in the middle of the decade. Another reason: Laws and rules instituted in the 1970s after FBI spying scandals make it much harder to monitor, investigate and prosecute Americans suspected of domestic extremism.

The Trump Administration and the Europeans

Critics say the Trump administration was reluctant to take on right-wing extremism. The former president set the tone with his public statements about the violent Unite the Right rally in Charlottesville, Virginia, in 2017, they say, and with his call last year telling the far-right Proud Boys group to “stand back and stand by.”

Still, various agencies increased their focus on the issue because of a drumbeat of attacks at home — notably the murders of 11 people at a synagogue in Pittsburgh in 2018 — and overseas. The Christchurch massacre of worshippers at mosques in New Zealand in March 2019 caught the attention of American officials. It was a portrait of the globalization of right-wing terrorism.

Brenton Tarrant, the 29-year-old Australian who livestreamed his attack, had traveled extensively in Europe, visiting sites he saw as part of a struggle between Christianity and Islam. In his manifesto, he cited the writings of a French ideologue and of Dylann Roof, an American who killed nine people at a predominantly Black church in South Carolina in 2015. While driving to the mosques, Tarrant played an ode to Serbian nationalist fighters of the Balkan wars on his car radio. And he carried an assault rifle on which he had scrawled the name of an Italian gunman who had shot African immigrants in a rampage the year before.

Christchurch was “part of a wave of violent incidents worldwide, the perpetrators of which were part of similar transnational online communities and took inspiration from one another,” said a report last year by Europol, an agency that coordinates law enforcement across Europe. The report described English as “the lingua franca of a transnational right-wing extremist community.”

With its long tradition of political terrorism on both extremes, Europe has also suffered a spike in right-wing violence. Much of it is a backlash to immigration in general and Muslim communities in particular. Responding to assassinations of politicians and other attacks, Germany and the United Kingdom have outlawed several organizations.

Closer to home, Canada has banned two neo-Nazi groups, Blood and Honour and Combat 18, making it possible to charge people for even possessing their paraphernalia or attending their events. Concerts and sales of video games, T-shirts and other items have become a prime source of international financing for right-wing movements, the European counterterror chief said.

During the past two years, officials at the FBI, DHS, State Department and other agencies tried to capitalize on the deeper expertise of European governments and improve transatlantic cooperation against right-wing extremism. Legal and cultural differences complicated the process, American and European officials said. A lack of order and cohesion in the U.S. national security community was another factor, they said.

“There was so little organization to the U.S. counterterrorism community that everybody decided for themselves what they would do,” a U.S. national security official said. “It was not the type of centrally controlled effort that would happen in other administrations.”

As a result, the U.S. government has sometimes been slow to respond to European requests for legal assistance and information-sharing about far-right extremism, said Eric Rosand, who served as a State Department counterterrorism official during the Obama administration.

“U.S.-European cooperation on addressing white supremacist and other far-right terrorism has been ad hoc and hobbled by a disjointed and inconsistent U.S. government approach,” Rosand said.

The semantic differences about what to call the threat didn't help, according to Rosand and other critics. They say the Trump administration was averse to using the phrase “right-wing terrorism” because some groups on that part of the ideological spectrum supported the president.

“It highlights the disconnect,” Rosand said. “They were saying they didn’t want to suggest the terrorism is linked to politics. They didn’t want to politicize it. But if you don’t call it what it is because of concerns of how it might play with certain political consistencies, that politicizes it.”

Harnisch, the former deputy coordinator at the State Department counterterrorism bureau, rejected the criticism. He said cooperation with Europeans on the issue was “relatively nascent,” but that there had been concrete achievements.

“I think we laid a strong foundation, and I think the Biden administration will build on it,” Harnisch said. “From my perspective, we made significant progress on this threat within the Trump administration.”

Jan 22, 2021

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Ten years ago, the Department of Labor wrapped up a lengthy investigation of Arise Virtual Solutions, a company that recruited customer service agents to work from home fielding calls for big brand names like Disney and AAA. The so-called gig economy was in its infancy, with Uber launching and TaskRabbit starting to go national.

The question for the Obama administration’s Labor Department: Did Arise employ those customer service agents? Arise trained the agents and exercised extraordinary control over their work. But it treated them as independent contractors rather than employees. That meant the agents weren’t entitled to minimum wage, overtime or other employment protections. They paid for their own training and equipment, and even had fees deducted from each paycheck for use of Arise’s technology platform.

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The Labor Department investigator concluded that the company was violating federal law and cheating its workforce. The agents, no matter what Arise called them, were functioning as employees and should be paid and protected accordingly, the labor department found.

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The investigator estimated that over two years, Arise had shortchanged its network of agents by $14.2 million.

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In September 2010, the investigator and a higher-up met with two lawyers for Arise. One of the Arise lawyers, three years before, had been in charge of the very division that conducted the Labor Department investigation, appointed to that position by George W. Bush.

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The Arise lawyers “politely disagreed” with the department’s findings, according to a report written by the investigator and obtained by ProPublica through a public records request. Arise refused to change its practices. It also refused to pay any back wages.

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“They said no to both,” one person familiar with the investigation told ProPublica.

The Labor Department, faced with Arise’s refusal, responded with what amounted to a shoulder shrug. The department didn’t take Arise to court to collect back wages and enforce compliance with federal law. Instead, it walked away without collecting a single dollar for the agents. The investigator submitted his file to the Labor Department’s regional office in Atlanta as “RTP / RTC,” which stands for Refusal to Pay, Refusal to Comply.

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The department’s Arise investigation, built on scores of interviews and an extensive review of the company’s business model, had the potential to help check what has become a defining feature of the 21st century economy. An additional 6 million workers joined the gig economy in the past 10 years, according to an analysis of payroll data by the ADP Research Institute. Companies like Lyft, Grubhub, Instacart and others shed labor costs by classifying many workers as independent contractors rather than employees.

“It’s absolutely a missed opportunity for the Labor Department,” said Erin Hatton, a sociology professor at the University of Buffalo who specializes in labor policy and the gig economy. “It tells companies, almost explicitly, that they can flout the law.”

In the years after the Labor Department investigation, Arise expanded from the 20,000 agents it had at the time of the investigation. Last spring, it had 70,000. Its list of corporate clients, past and present, has included Carnival Cruise Line, Comcast, Airbnb, Peloton and Intuit, the maker of TurboTax. The company, one former CEO told a trade publication, helps its corporate clients “squeeze wastage out of a typical workday” by not having to pay these customer service representatives for “lunch, breaks and training” because the agents are treated as independent contractors.

Those agents have included people like Krystin Davenport, a Las Vegas woman who took a $12-per-hour job to help Intuit customers only to see her pay, after fees, chopped to $2.52 an hour.

ProPublica wrote about Arise in October, drawing on transcripts of arbitration hearings, financial slides, corporate contracts and other records.

Arise executives declined to be interviewed for this story. The company provided ProPublica with a written statement, saying, in part, that Arise “complies with all applicable laws. … We strongly believe, and communicated to the DOL at the time, that its determination in connection with the 2010 audit was incorrect.”

“The Larger the Case, the More Reluctant the Attorneys”

Unlike many Labor Department cases, the Arise investigation went deep.

The DOL investigator, whose name is redacted in the released records, interviewed at least 56 people in a probe that lasted over a year. The investigator determined the customer service agents were Arise employees. Arise “exerts an extraordinary degree of control” over the agents by dictating their training and charging them fees, among other measures, the investigator wrote. The agents’ work is also integral to Arise’s business, the investigator found: “In fact it is the principle, primary, and primordial part of the employer’s business.”

Arise owed $14.2 million in back wages, the investigator estimated. That was a huge number by Labor Department standards. In previous years, the average unpaid back wages per department investigation had been about $16,000, according to a 2010 report. Plus, the Labor Department had authority to seek double damages, potentially putting Arise on the hook for $28.4 million, all of which would have gone to the workers.

But in March 2011, the investigator received a memorandum from John Bates, then director of enforcement for the Labor Department’s southeast region, instructing the office to seek back wages only for those specific agents who had been interviewed about unpaid overtime or minimum-wage violations. That dropped the figure dramatically, from $14.2 million to $40,502.69.

While Arise says it doesn’t “have any correspondence” about the exact amount of back wages the Labor Department was seeking, the company refused to pay any money at all. In a written statement to ProPublica, the company said it “strongly” disagrees that it shortchanged workers.

One of Arise’s two lawyers in the case was Paul DeCamp, who had been hired as outside counsel, according to Labor Department records. DeCamp had served as administrator of the Wage and Hour Division in 2006 and 2007. (He didn’t reply to interview requests from ProPublica.)

A Labor Department official declined to comment to ProPublica on the details of the Arise case but said that the agency is constrained by limited staff in deciding which cases to pursue in court. “We can’t be everywhere,” the official said. “Ultimately we have to make some tough choices based on the resources of our agency and the resources of our solicitor’s office.”

Bates, who is now retired, told ProPublica in a recent interview that the case “didn’t go very far because there was little cooperation from the employees.”

“It was determined there was insufficient proof to go forward with litigation. You can say there is a violation, but if they refuse to accept it, the only way to enforce it is to go to court,” he said.

But another person familiar with the investigation said that “many, many” agents were interviewed for the investigation. This person added, “It seemed the larger the case, the more reluctant the attorneys were to get involved.”

A 2010 report to the Labor Department’s Wage and Hour Division, which is responsible for enforcing federal laws governing minimum wage, overtime, family medical leave and child labor, expounded on the need for expanded litigation, saying it “can have broad impacts on employer behavior.”

Shannon Liss-Riordan, a Boston attorney who has litigated worker misclassification claims against not only Arise, but also Uber, FedEx, Amazon and others, told ProPublica that it is “shocking” the Labor Department didn’t take action against Arise based upon its findings. “If companies know that they can just refuse to comply and there will be no repercussions, what message does that send?” she said.

After the Labor Department investigation, Arise lost two separate claims brought by agents who, represented by Liss-Riordan, alleged the company had misclassified them as independent contractors. The company was ordered in 2015 to pay one agent $11,683.64 and another $13,052. But the agents, who as a condition of signing on for this work had waived their right to join any class action litigation against Arise, won those awards in individual arbitration proceedings held in private. Arise paid the relatively small amounts and thereafter continued to classify its network of agents as independent contractors.

An Investigation of the Investigators

The Labor Department’s 2010 investigation of Arise took place a year after the Government Accountability Office published two reports on the department’s sluggishness and ineptitude in these very kinds of cases.

To test the Wage and Hour Division’s competence, the GAO set up a sort of undercover sting. The GAO filed 10 fictitious complaints, complete with pretend employees and employers.

Wage and Hour employees failed to so much as enter five of the 10 complaints in the department’s database, producing no trace that a complaint was ever filed.

The GAO found that employees discouraged complaints (“You’re sure you don’t want to just have a nice conversation with him [employer] yourself?” one Wage and Hour Division representative asked a complainant); pleaded to being powerless (“Once the employer tells me that they’re not going to pay and they can’t, my ability to, you know, force payment has ended,” another representative said); lied about what investigative steps the division had taken; and, in one instance, failed to investigate when informed of children working at a meat-packing plant, operating circular saws.

(The Labor Department, in its response to the report, said it had determined the child-labor complaint was bogus, but did not provide any supporting documentation that would allow the GAO to confirm its account, according to GAO records.)

The GAO provided a three-minute excerpt of these audiotaped calls, available here: https://youtu.be/GVHpdzDHprI. Here are some screen grabs from those excerpts:

In one of the 10 cases, the fictitious employer of a fictitious receptionist in Virginia admitted to not paying minimum wage as required. But the employer refused to pay back wages. When informed of this, the “investigator accepted the refusal without question,” according to GAO records. When the employee asked why the Wage and Hour Division couldn’t do more to help, the investigator told the employee to take it up with his congressman.

A second GAO report published in 2009 focused on the Labor Department’s handling of claims about worker misclassification, the issue at the heart of the subsequent Arise investigation. The report described how treating employees as independent contractors can harm not only vulnerable workers, but also law-abiding companies: “[E]mployers with responsible business practices may be undercut by competitors who misclassify employees to reduce their costs, for example, by not paying payroll taxes or providing benefits to workers.”

The report found a “lack of targeted investigations” focusing on misclassification; a failure by WHD investigators to “consistently review documents” that could indicate misclassification; and, in those instances when the Labor Department did find misclassification, a lack of follow-up to ensure that back wages were paid and the law thereafter followed.

Will the Department of Labor under President Joe Biden be different than it was under the early years of the Obama-Biden administration? A renewed focus on worker classification offers a test.

Earlier this month, as the Trump administration neared its end, the department finalized a rule that would make it easier for businesses to classify workers as independent contractors. But Biden, who has named Boston Mayor Marty Walsh, a former union worker, as his choice to be labor secretary, could freeze the rule before it takes effect.

Another issue will be staffing, which has suffered in recent years from stagnant funding and a hiring freeze. A just-released GAO report says that from fiscal year 2010 to 2019, the number of Wage and Hour investigators dropped from 1,035 to 780, a 25% decline.


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Mollie Simon contributed reporting.

Jan 21, 2021

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As reports emerge across the country of health facilities throwing out unused and spoiled COVID-19 vaccines, some state governments are failing to track the wastage as required by the Centers for Disease Control and Prevention, leaving officials coordinating immunization efforts blind to exactly how many of the precious, limited doses are going into the trash and why.

In Washington, a health facility allegedly threw out some COVID-19 vaccine doses at the end of workers’ shifts because staff believed state guidelines blocked them from giving unused shots to people below the top priority tier. In Maryland, workers appear to have tossed thawed doses when they ran out of time to administer them safely. How many doses, exactly, have been wasted in those states is unknown because neither state is tracking unused or wasted vaccines.

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In Indiana, where hospitals have told the media about discarding some shots, the state Health Department said it requires wastage to be reported but wasn’t able to tell ProPublica how many doses have been tossed statewide. Nonetheless, it asserted that “wastage has been minimal.”

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Experts say that waste reporting is essential during a vaccination campaign to encourage careful handling and the use of every viable dose and, more importantly, to identify potential problems in the shipping and cold storage operations. With inconsistent reporting requirements and no enforcement of a federal mandate to report wastage, vaccine providers have little incentive to acknowledge wasting vaccines, said Dr. Ashish Jha, dean of the School of Public Health at Brown University.

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Jha said he thinks that the true number of wasted doses across the country is far higher than a handful. After he detailed one anecdote he heard about an ER physician forced to waste vaccine doses in a thread on Twitter, his phone quickly filled with more than a dozen messages from other medical workers, confirming what he suspected: At a time when the U.S. is desperately short on vaccines, a significant number of doses are ending up in the trash.

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Clinics and hospitals have “gotten slammed” when the media has learned of them wasting even a few doses, he said. “And the signal to everybody else is, if you have waste, don't report it. Because if you do, you're gonna get into a lot of trouble. That combination means, at least in my assessment, there's a lot of waste and a lot of underreporting of that waste."

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The CDC requires all organizations that administer the vaccine to report the number of vaccine doses “that were unused, spoiled, expired, or wasted as required by the relevant jurisdiction.” The CDC also asked states to describe their wastage monitoring method during the distribution planning process.

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Vaccine providers, such as pharmacies and hospitals, are supposed to provide data on wasted doses to their state health agencies, which then send the information to the CDC. Like many parts of the vaccine rollout, that has not gone according to plan. State by state, ProPublica found, reporting requirements vary and are not reliably communicated to vaccine providers. Even when the rules are clear, they are not regularly enforced, nor are numbers reported to the public.

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Maryland’s Hospital Association said wastage data “is not systematically collected,” while the state’s Health Department said that “unless they are reported to us, MDH does not track specific instances of accidental vaccine wastage at the local level.”A Washington State Health Department spokesperson said that the state “does not systematically capture wasted dose information.” The spokesperson added that providers are encouraged to use up all of the shots they receive and that “if a provider doesn’t have enough qualifying employees under” the top priority group, “they can help vaccinate workers who aren’t receiving vaccine directly from their employers.”

Michigan’s Department of Health and Human Services said, “We have not asked that vaccine providers report this data,” though it said that 10 wasted doses had been reported to it as of Jan. 13.In some cases, states said they were aware of specific instances of wastage. New Jersey said that it was “aware of 16 vials that had to be discarded because they arrived broken when the boxes were open.”

While a spokesperson noted that providers are instructed to give vaccines to people on waitlists to minimize the chances of vaccine being discarded, the spokesperson didn’t respond to questions about whether providers were mandated to report wasted doses.

Other states do have wastage reporting mandates. Pennsylvania, for example, said it requires providers to report any doses that are received and are not able to be used and was able to give a percentage — 0.1% of doses received for injections as of Jan. 11 — that had to be disposed of. “The majority of discarded vaccine is related to vials broken in handling and syringe issues, such as bent or broken needles or clients refusing after the vaccine dose was drawn,” said Department of Health spokesman Barry Ciccocioppo.

Colorado also said that waste is being tracked. “The state is aware that Pueblo Local Public Health rendered 300 doses of the Pfizer vaccine unusable after a portable vaccine storage unit malfunction,” a spokesperson from the state’s Joint Information Center said. “The state’s goal is to use every single available vaccine, acknowledging that emergencies may occur infrequently in the distribution process.”

In every mass vaccination effort, some share of doses unavoidably goes into the trash rather than arms. However, data on wasted shots — especially in large quantities — is an essential tool for federal and state health agencies trying to spot problems in how the vaccine is being shipped, stored and given to the public.

State vaccine officials monitor wastage numbers to determine if providers are mishandling shipments or improperly maintaining the temperature of their vials, said Dr. Kelly Moore, deputy director of the Immunization Action Coalition and former head of Tennessee’s immunization program. "Are they tracking things and responding appropriately, if you're seeing extremely low wastage rates and everything is always perfect?" Moore said. "When things look too good to be true, they usually are."

The two vaccines currently authorized, made by Moderna and Pfizer-BioNTech, both must be used within six hours of leaving cold storage, reaching room temperature and being opened. If there are no-shows for vaccination appointments, pharmacists have to quickly find replacements before the thawed vaccines expire.

Complicating the count is the fact that the number of doses available in a vial sometimes exceeds the amount prescribed on the label — pharmacists have commonly found that they can squeeze a sixth dose out of Pfizer’s vials, even though they are labeled as containing five. That means that a vaccine site could be allocated a certain number of doses on paper, have a few extra ones left that need to be tossed and still come out net positive. In that situation, it is unclear if the discarded doses should count as waste.

Data on wasted doses is routinely monitored in childhood immunizations in large part because it is required by the federal Vaccines For Children program, which provides innoculations to millions of children not covered by private health insurance, said Dr. Sean O'Leary, a professor of pediatric infectious diseases at University of Colorado Medicine. “Practices that are participating in that program, which are the vast majority of pediatric practices and a lot of family medicine practices, are used to keeping track very carefully of their vaccine inventory.”

There isn't a federal program overseeing most adult vaccinations, so any wastage reporting for adult shots, like the flu shot, would be managed state by state.

While collecting wastage data is a good business practice, O’Leary said it is most useful as a deterrent against vaccine providers mishandling or discarding doses irresponsibly.

"It's being tracked as a disincentive to letting [wastage] happen,” he said, “for accountability for people who are delivering the vaccines that they are doing their best to give the vaccines and store them properly."

However, there is also a danger in stigmatizing the waste of vaccine doses, said Moore, the immunization coalition deputy director. Accidents and normal human error are going to make some vials unfit to use on patients. Doses compromised by unsafe temperatures or contamination need to be thrown out, not injected into people. “You never, ever want to have clinics feel pressured not to waste vaccine that needs to be wasted,” Moore said. “If you say, ‘No one should ever damage vaccine,' you're really going to be in trouble.”

The CDC says vaccine providers should avoid wastage and disclose when it happens.

“If there is excess vaccine, clinic staff should do everything possible to avoid wasting the dose. If vaccine wastage occurs, it should be reported into CDC’s Vaccine Tracking System (VTrckS),” said CDC spokeswoman Kristen Nordlund. “We are working to figure out how to provide this data online in the future when the data is more complete."

In the meantime, federal officials have begun to urge that priority guidelines not get in the way of using vaccines. “It’s more important to get people vaccinated than to perfectly march through each prioritized group,” Alex Azar, secretary of health and human services under President Donald Trump, said at a briefing on Jan. 6.

This means that a pharmacist should use a dose that’s about to expire on any available person — even someone who isn’t in a priority group — rather than letting it go in the trash. “There’s always someone in line. The whole nation is in line,” said Lori Freeman, chief executive officer of the National Association of County and City Health Officials. “There’s no reason for any vaccine to go to waste.”

Dr. Mysheika Roberts, health commissioner of Columbus, Ohio, said in an interview last week that her local vaccination site hasn’t had to waste a single dose of vaccine so far. Initially, if there were extra doses at the end of the day, they used them on their own staff, she said. After that, the mayor allowed them to put police officers on the waitlist — even though only health care providers were technically eligible at the time — so the vaccinators could call the station if they had extra doses. Managing a waitlist is complicated, Roberts said, because you need to have people who want the vaccine and have both the transportation and flexibility to get to the vaccine clinic within about 30 minutes, but so far it has worked out. The vaccine clinic has also managed to further reduce potential waste by getting appointment confirmations and defrosting vaccine vials close to appointment times, she said.

An Ohio Department of Health spokesperson said the state requires providers to report waste, and that 165 doses of the vaccine had been recorded as wastage as of Jan. 15.

“I hope to never be in a position where I have to waste a dose,” Roberts added. “I’d go on a street corner and find someone to give the vaccine to before I have to throw it away.”


Jan 21, 2021

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This story was co-published with THE CITY.

The New York Police Department patrol guide is clear about chokeholds: They are prohibited and have been since 1993 because they can kill, as the 2014 death of Eric Garner iconically illustrated. Yet six years after a now-infamous video captured him pleading, “I can’t breathe,” NYPD cops are still being caught on camera performing the dangerous move with the tacit acceptance — and sometimes, explicit approval — of department leaders.

In July 2018, Detective Fabio Nunez approached 33-year-old Tomas Medina after hearing loud music on the streets of Inwood in upper Manhattan and demanded to see his identification to write him a summons for the noise. Medina said he had none, then kept arguing with the officer about whether the summons was necessary. When Medina tried to walk away, Nunez put him in a chokehold that lasted more than 20 seconds and tased him multiple times.

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The next day, Chief of Department Terence Monahan told the New York Daily News that Nunez “used the necessary force to take that individual into custody.”

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The patrol guide provides no allowances for using the maneuver, defined as “any pressure to the throat or windpipe which may prevent or hinder breathing or reduce intake of air,” but other department guidelines note that chokeholds will be reviewed on a case-by-case basis “to determine whether, under the circumstance, the actions were reasonable and justified.”

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The department’s ambivalence was evident late last spring, after the nation watched George Floyd die with his neck under the knee of a Minneapolis police officer, when NYPD First Deputy Commissioner Benjamin Tucker contradicted himself on whether chokeholds are permissible.

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“The prohibition on chokeholds is firm; it shall not be used,” he said at an online City Council hearing. “There are those times, and maybe other times, when you can use it, but it is prohibited.”

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The Civilian Complaint Review Board, which investigates police misconduct, has substantiated 40 instances since Garner’s death of officers using prohibited chokeholds. The board can recommend discipline, and its lawyers serve as prosecutors in officers’ administrative trials, but the final say on punishment is up to the NYPD.

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Not a single cop since the Garner case has been fired for a substantiated chokehold.

Most lost vacation days or were not punished at all.

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It is within this context that videos keep emerging of men, mostly of color, with their necks in an NYPD officer’s grip. The footage demonstrates the ease with which officers still use chokeholds, even in cases where they face no physical threat.

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In a supportive housing site in the South Bronx, which serves homeless adults with a history of mental illness and substance abuse problems, Officer Omar Habib, without physical provocation, put a resident in a chokehold on Thanksgiving 2017 for calling him and others “fucking Keystone Kops,” according to interviews and Internal Affairs Bureau records.

And in the course of a single 2018 protest, against the detention of an immigrant rights activist, Officer Numael Amador put two people in chokeholds. “He grabbed me by the throat,” the Rev. Juan Carlos de Ruiz said. “I woke up the next day; my bones hurt, my throat. I was beat up.”

Nunez, whose chokehold was publicly excused by department leadership, went on to use another chokehold two months later.

It was the third chokehold complaint on his record, in a disciplinary history that included 46 allegations and five lawsuit settlements that cost city taxpayers over $200,000. As part of an ongoing lawsuit brought by Medina, a Manhattan federal judge, Alison Nathan, ruled that Monahan and then-Police Commissioner James O’Neill could be held liable for Nunez’s conduct.

“The NYPD’s custom of tacitly endorsing, or at least failing to discipline, the use of unconstitutional chokeholds proximately led to Nunez’s continued use of the practice,” she wrote in a ruling. “It was reasonably foreseeable that Nunez, and officers like him, would continue to engage in the practice unabated due to the relative impunity that resulted.”

Nunez’s discipline is pending for the 2018 chokeholds. Amador, who put two people in chokeholds during the protest, lost 30 days of vacation time and was transferred out of the Strategic Response Group, which is considered an elite unit. The NYPD would not disclose the punishment Habib got for the Thanksgiving chokehold because of an unresolved lawsuit aiming to keep the disciplinary histories of officers secret. He works the streets today.

“These dudes came in on a bunch of brute, brute shit … like they were looking for trouble,” said Dennis Prewitt, the man taken down by Habib and the officers with him. Prewitt was punched and tased during the confrontation. He wasn’t charged or arrested. “If this was a crime that I committed out in society … I’d be sitting in the jailhouse,” he said.

Officer Omar Habib Uses a Chokehold on Dennis Prewitt

Security camera video shows Habib attacking Prewitt after a verbal dispute in an elevator.

Officials with the NYPD did not respond to questions about discipline, training, the department’s position on chokeholds or incidents noted in this story. They ignored requests to interview Police Commissioner Dermot Shea as well as officers named in the piece. We tried to contact officers themselves but they either declined to comment, did not return calls and messages or could not be reached.

To understand why officers have been able to keep using chokeholds with little consequence, ProPublica and THE CITY analyzed CCRB data obtained this summer by ProPublica and the New York Civil Liberties Union and interviewed more than 50 former CCRB investigators and supervisors, former high-ranking NYPD personnel, attorneys and chokehold victims. All of the data cited on chokeholds stems from the two databases, which run through June 30, 2020.

The review found that the light punishments arise from a number of factors, including a lack of respect among NYPD leadership for the CCRB’s investigations and findings; the CCRB’s own recommendations sometimes calling for no more than forfeiture of vacation time; and a lingering mentality that chokeholds, a once-sanctioned alternative to lethal force, can at times be a useful tool for officers.

“It’s almost impossible to take a person into custody who’s resisting without some type of bear hug, arm lock,” said Joe Esposito, who was NYPD’s chief of department from 2000 to 2013. “People who don’t do this for a living are trying to make rules for people that do it every day.”

The CCRB has received 880 chokehold complaints since Garner’s death in 2014 through June 30, 2020. Because the maneuvers often don’t result in visible injuries, investigators can have trouble substantiating them without clear video evidence. The most useful views come from fixed security cameras, witness cellphone video or body-worn camera footage from a nearby officer. The body camera on an officer performing a chokehold, fixed to their chest, isn’t likely to capture a chokehold.

In the rare instances in which the CCRB can substantiate that an officer used a chokehold, it often asks the NYPD only to dock officers’ vacation time. Despite being set up as an independent check on the department, the CCRB still relies on police to produce documents and videos essential to its probes, and Jonathan Darche, its executive director, said that if punishment recommendations were too severe, it could hurt the board’s ability to influence disciplinary outcomes.

“In the end, our job is to win the cases,” he said. “Because what is the benefit of arguing for termination in a way that makes you less credible, and then you lose the case?”

Several new measures promise tougher consequences but come with caveats that could revert punishments to the status quo. A city law signed in July makes any police chokehold a misdemeanor crime, but it is tied up in a lawsuit and has already seen attempts to water it down by the same City Council that passed it. A state law enacted in June makes police chokeholds a felony, but only in cases with serious injury or death.

A much-touted guideline for penalties, known as a discipline matrix, was implemented just days ago by the NYPD. It was propelled by a separate city law and requires any officer found to have used a chokehold be terminated. If there are mitigating factors, the officer can be forced to resign, which may allow the officer to keep their pension benefits. However, officers need to be found guilty of chokeholds by the department itself in a disciplinary trial; officers have been found not guilty even of chokeholds the CCRB substantiated. And final decisions still rest with the police commissioner. Those who have served in the role have historically shown a willingness to downgrade penalties.

As long as police know there isn’t going to be consistent and significant punishment for chokeholds, they will continue to do them, said Paul Butler, a professor at Georgetown University Law Center and author of “Chokehold: Policing Black Men.” They may calculate that losing vacation time is worth it, “because I need to teach this motherfucker a lesson, or ... my life or my safety is in danger,” he said. “Why do the police do this? Because they can without consequence.”

Erosion of a Ban

Mayor Bill de Blasio named Richard Emery chair of the Civilian Complaint Review Board the morning of July 17, 2014. Hours later, Eric Garner was killed. His death was recorded by a bystander and quickly went viral, sparking national outcry.

Two days later, Emery ordered the agency to study the issue of chokeholds in a bid to understand why they were the focus of so many complaints against police officers despite the patrol guide’s ban. That October, the agency produced a 139-page report that described how the NYPD had treated chokehold complaints over the years.

A memorial for Eric Garner days after his death in New York. Garner was killed by an NYPD officer who put him in a chokehold. Eduardo Munoz/Reuters

In the mid 2000s, the administrative judges who recommend whether and how to punish police personnel for misconduct began to diverge from the patrol book definition in their decisions.

The judges, who work for the NYPD, introduced factors such as the intent of the officer, the length of time the maneuver was used and whether the victim’s breathing had been restricted, the report found. The language in the patrol guide makes no such allowances.

Eight of the nine cases in which the CCRB sought discipline from the NYPD for a chokehold between 2003 and 2008 were dismissed or yielded a not guilty finding, the report found.

The altered definition of a chokehold seeped into the CCRB’s work. The internal review found that some teams of investigators would only substantiate chokeholds if they could prove that a victim’s breathing had been restricted.

“In this respect, the chokehold rule ‘mutated’ to adapt to the NYPD disciplinary process, rather than the disciplinary process following the NYPD rule,” the report said.

Emery, who made a number of reforms to the agency’s structure early on, used the report’s findings as an opportunity to get his team back in line with the policy.

“What we did was we said: ‘No. No longer are you going to look at it from the point of view of an attempt to restrict breathing or blood flow,’” Emery said. “‘But if there’s a touching of the neck that could possibly restrict breathing or blood flow, you are to deem that a chokehold.’”

Around the same time, he pushed the NYPD to adopt a disciplinary matrix with the aim of making punishment more consistent and fair.

Those familiar with the disciplinary system say data at the time showed that punishment for internal infractions — such as an improper log book or refusal to follow an order — had often been more severe than for misconduct against civilians.

Emery said that top police officials seemed open to addressing it, and that a series of meetings and productive dialogue ensued. But in late 2014, the talks collapsed without an explanation from police officials.

“It was abandoned, and I couldn’t revive it, no matter how much I tried,” Emery said. “They didn’t ever say to me they were abandoning it. They just kept rescheduling and delaying and avoiding it. And the consequence of that was that it was never ultimately pursued.”

As Emery was working to bolster his agency’s handling of chokehold investigations, NYPD leadership was publicly maintaining wiggle room on the definition of a “ban.”

On June 29, 2015, then-NYPD Commissioner Bill Bratton testified at a City Council hearing that the department’s policies prohibited chokeholds — except in “exigent circumstances,” such as in defense of the officer’s life or the life of someone else.

The following year, the Police Department revised its use of force guidelines by delineating 11 factors that can be used to determine whether a use of force is justified. These include the nature and severity of the alleged crime and whether the suspect is resisting arrest, as well as the “presence of hostile crowd or agitators.” The revision noted that chokeholds and other uses of force would be reviewed on a case-by-case basis “to determine whether, under the circumstance, the actions were reasonable and justified.”

In a case shortly after the guideline changes, an NYPD administrative judge acknowledged that significant force by the officer during a struggle to handcuff a suspect had been justified, but also determined that a prohibited chokehold had occurred.

Bratton, the police commissioner at the time, reversed the guilty finding on the basis that the officer faced extreme danger during a lengthy struggle. Bratton felt the officer’s actions were necessary under the circumstances, the documents say. He declared the officer not guilty. Bratton didn’t respond to requests for comment.

This spring, amid a public conversation about chokeholds after Floyd’s death, then-City Council member Rory Lancman, D-Queens, criticized NYPD leadership over the use of force guideline changes. “This mayor and the NYPD in 2016 actually made it easier for an officer to get away with using a chokehold rather than harder,” said Lancman, who now works for the office of Gov. Andrew Cuomo.

Butler, the Georgetown law professor, said officers shouldn’t be asked to make calculations in the heat of the moment about the appropriateness of a chokehold and that exceptions create ambiguity. “A statement that police can’t use chokeholds unless A, B or C is the opposite of clarity,” he said. “A ban on chokeholds is clear. … We need a clear, straightforward rule: ‘You cannot do this.’”

But Emery said a hard and fast ban on chokeholds is perceived by many in police leadership as “unrealistic” and “not enforceable.” Some of the higher-ups were cadets at a time when the chokehold was still taught at the police academy as an alternative to lethal force. Others told reporters the messiness of police work means arms are going to end up near suspects’ necks at times, whether done intentionally or not.

“There’s a lot of sympathy for the cop in the field, trying to subdue somebody when that person is struggling and probably very strong and very capable of resisting,” Emery said.

The videos of chokeholds substantiated by the CCRB show they don’t all look the same. Some show hands putting pressure on throats; others show arms briefly — for a second or two — around necks amid a physical struggle. Some capture maneuvers that come with no physical provocation, last longer and appear more intentional.

Not all officers agree that chokeholds are an inextricable part of policing.

Wilbur Chapman, a former deputy commissioner of the NYPD who was once in charge of training, worked the streets at a time when chokeholds were taught and accepted. Still, he said he never used one and that he opted for tactics he felt had less potential for death.

“If I hit somebody across the kneecaps with a nightstick, that was the end of the battle. Because once you can’t walk, you can’t fight me,” Chapman said. “Yes, in a tussle, people are going to choke each other. But that’s not an excuse. The idea is not to get that far.”

It was a request by the police to turn down loud music outside the El Mundo Car Dealership in upper Manhattan that led to the physical encounter between Nunez and Medina in the summer of 2018. After Medina walked away, declining to show identification, Nunez pressed him against a vehicle and told him to put his hands behind his back. But Medina was gesturing with his arms as he continued questioning the escalation.

Nunez then put his right arm around Medina’s neck and pulled him backward, in a move that the CCRB determined to be a chokehold.

Detective Fabio Nunez Uses a Chokehold on Tomas Medina

Videos show Nunez, who has three chokehold complaints on his record, escalating the situation after responding to loud music.

CCRB investigators asked Nunez: Did he use a chokehold? His response reflected a fundamental misunderstanding of the banned maneuver.

“You need two arms to do a chokehold. You don’t do a chokehold with one arm — it’s impossible,” said Nunez, according to an audio recording of the interview obtained by THE CITY and ProPublica.

Nunez added: “If you use a chokehold on someone, they’re not able to speak at all. He was talking to me nonstop.”

That statement is “patently false,” said Gary Weissman, a lung specialist at the University of Pennsylvania Perelman School of Medicine. In the wake of Floyd’s killing last spring, Weissman co-wrote an article in the Annals of Internal Medicine debunking the myth that because someone can talk, they can also adequately breathe.

“Being able to speak does not at all imply that the patient is able to sufficiently ventilate, meaning that they’re able to breathe enough oxygen, enough air down into the right parts of the lungs, to sustain bodily functions,” Weissman said. “That’s a myth that needs to be removed and debunked.”

Weissman also said recent research shows that, aside from inadequate oxygen, there is a danger of inadequate blood flow to the brain when a chokehold is used.

NYPD did not respond to questions about how it trains officers about the dangers of chokeholds.

An Inhibited Board

At a disciplinary trial last month, held in a court-like room at 1 Police Plaza in lower Manhattan, a video displayed what CCRB investigators were certain was a chokehold. Ronald Grullon, who was ultimately sentenced to probation on drug charges, had scaled the 9-foot gate outside a Manhattan brownstone as he ran from police. Officer Paul Rodriguez caught him in a two-arm grip that was captured from behind by a building surveillance camera.

Moments later, with handcuffs bracing his wrists, Grullon wailed so loudly that a woman on the fifth floor fire escape of a building across the street heard him. “I started to hear him saying louder and louder, distressed wails, and saying, ‘I can’t breathe,’” Laura Davis testified.

The officer’s lawyer, Stuart London, argued at the hearing: “The evidence will show that ‘I can’t breathe’ is the new rallying cry if the police chase you and ultimately catch you. There was no chokehold.” He said Rodriguez’s left arm grabbed Grullon by the chin while the right arm pulled down on his nose or mouth.

To Claudia Avin, an attorney representing the CCRB, the video was indisputable. “This was not his arm around his chin and his nose. … It’s ridiculous to think that’s what’s depicted in the video,” she said in her closing statement. “There’s no doubt that a chokehold occurred here.”

When asked what punishment the CCRB thought Rodriguez deserved, Avin said he should lose 10 vacation days. “That’s what the evidence supports,” she said.

Davis, the witness, told THE CITY and ProPublica she had taken her role in the case seriously partly because of a harrowing police encounter experienced by her husband, who is Black. She said she was stunned when she learned only vacation days were at stake in the case.

“That terrifies me, for my kids, for my husband, for every one of my Black family and friends,” said Davis, who is white. “That’s not any sort of accountability to me whatsoever.”

A review of the 40 substantiated chokehold allegations since 2014 shows that of the 27 with final dispositions, the CCRB board or its prosecutors recommended vacation loss as the highest penalty in 17 of them.

Board members work in panels of three and make recommendations of whether to impose discipline at the precinct level — which handles punishments ranging from verbal reprimands to 10 days’ vacation loss — or whether to take the case to a disciplinary trial, where they can seek a harsher penalty ranging from more vacation loss to termination. At trial, it’s the CCRB prosecutors and their supervisors who specify the severity of discipline sought.

Former CCRB staffers said the recommendations of lesser punishment had to do in part with the composition of the panels and the influential voice of the police commissioner’s appointees. “Your ability after months of investigation to actually get a substantiation ... could largely depend on who was on the panel for your case,” said Katie Matejcak, an investigator from 2016 to 2018.

Emery said a lighter punishment could be justified in cases where an officer feared for his or her life.

He and Darche, the CCRB’s executive director, spoke of a need to preserve the board’s credibility by recommending punishments they thought the NYPD would adopt. Darche said the agency would appear unreasonable and less credible if it were to make penalty recommendations that were “out of line with precedent.” If previous officers had lost vacation days for a similar chokehold, the suggested discipline in subsequent cases would have to remain consistent.

Emery acknowledged such an approach means recommended penalties had to be softened at times, but he said there was little option because the NYPD maintained the final say anyway.

“I was very interested in making the CCRB relevant and getting [the department] to adopt our recommendations — both on misconduct and on punishment — at a much, much higher level than it ever had. The CCRB becomes meaningless unless there’s a high degree of correlation,” he said.

Richard Emery, former chair of the Civilian Complaint Review Board, at the announcement of his appointment on July 17, 2014. Christopher Gregory/Getty Images

Roger Smith, a top attorney at the CCRB from August 2007 to May 2016, said some of the seemingly light penalties stem from a recognition that the alternative option is worse. “Because we know what these relatively lenient penalties are replacing in some cases,” Smith said. “They’re replacing nothing.”

Butler said light punishment can send a different message to the community.

“It’s hard to think of a more explicit way of saying that Black life doesn’t matter,” Butler said. “There still is nothing approaching justice because the penalty is so light.”

In 2018, following concerns from CCRB board members about a lack of formal guidelines for determining penalties, the agency approved a framework for its discipline recommendations. The nonbinding guidance says they should seek “charges and specifications,” which means taking the cases to administrative trial for any substantiated chokehold.

Emery and Darche said the appropriate penalty for the use of a banned chokehold maneuver is termination, although Emery added that only applies to cases where there were no mitigating circumstances. Darche pinned his hope on a reset he expects the new matrix to bring.

“I think that termination is [the] appropriate penalty for using a chokehold, and I think that the new matrix reflects that,” he said.

Judge George Grasso, who was NYPD’s first deputy commissioner from 2002 to 2010, said with proper funding and expertise, it’s time for CCRB to have the final say in discipline for its complaints. “And then the officers would know, and the public would know, that there was real objective, outside accountability,” he said.

A Lenient Department

Since the Garner case, CCRB lawyers have taken 15 chokehold cases to disciplinary trial at the NYPD, including two recent cases whose outcomes haven’t been made public. In six of the cases, officers received no penalty after being found not guilty.

Officers can be cleared of a chokehold for a number of reasons. The complainant may not have mentioned the chokehold in early statements to investigators or the video may not clearly show exactly where the officer’s arms were placed.

It can be hard to deduce after the fact why the CCRB loses a case. In one reviewed by ProPublica and THE CITY, the NYPD determined Officer Richard Danese was not guilty of five use of force charges including a chokehold despite photos that the alleged victim provided as evidence of his injuries. There was no video evidence. It’s not clear if the decision was made by the trials judge or the police commissioner, and NYPD officials wouldn’t say.

Darrell Dennis, 21, said he was hanging out with friends near his Clifton Place apartment in Brooklyn on July 28, 2015, when Danese and other officers arrived and asked Dennis for ID. He said he left it at home and was threatened with arrest.

Within minutes, he was in handcuffs. Danese allegedly told him, “A little bitch like you — I will fuck up,” to which Dennis said he responded, “Suck my dick.”

Dennis says multiple officers then threw him face down onto the floor of a police van, shut the door and started driving to the 79th Precinct. Throughout the ride, Dennis said, Danese put his knee on his back, punched him several times in the face and pulled his neck back in a prolonged chokehold while punching his ribs.

Darrell Dennis shows a picture of swelling and a cut on his face he says were caused by NYPD officers during his arrest. Ben Fractenberg/THE CITY

Dennis was charged with assault for allegedly stabbing Danese with his keys. He disputed this claim, which was ultimately dismissed, arguing that he had been handcuffed from the outset of the encounter.

CCRB prosecutors sought the termination of Danese, who a decade earlier had been indicted along with his partner on multiple felony charges for allegedly taking an egg-throwing 14-year-old to a wooded area on Staten Island and leaving him there in his boxers and socks. The duo pleaded guilty to disorderly conduct, a misdemeanor, after the victim stopped cooperating with the district attorney’s office, according to reports at the time.

Danese is among three officers with substantiated chokehold complaints we examined who have been noted to have credibility issues in records compiled by local district attorneys, along with Nunez and Detective Manuel Cordova.

Cordova was involved in an August 2017 sting that led to the arrest and conviction of Robert Ortiz in East Harlem on charges that included drug possession. The CCRB substantiated a chokehold allegation against Cordova in the course of the arrest, but more than three years later, he has yet to face an administrative trial.

In a sign of the level of secrecy surrounding police discipline, even Dennis didn’t know that Danese’s disciplinary trial ended in a not guilty decision until he was informed by a reporter this month. The only outcome he knew of was the $77,500 civil settlement he won from the city in April 2017 for the same incident.

“It’s not really justice. It’s not, ‘We’re going to admit we were wrong.’ It’s more like: ‘Here, take this money. You’ll be fine,’” Dennis said. “I feel he should have gotten fired at least. He’s clearly a menace to our streets.”

In five of the 15 chokehold cases that went to administrative trial, the NYPD downgraded the punishments CCRB prosecutors recommended. This included three cases in which the attorneys sought a year of probation for officers, but administrative judges or the police commissioner decided to dock 10 vacation days instead.

Additionally, among eight cases where the CCRB board sought only vacation loss, seven resulted in the NYPD forgoing discipline altogether. The eighth case was downgraded by the NYPD from 10 to five vacation days’ loss.

The tendency to downgrade CCRB recommendations is not unique to chokeholds. Over the past two decades, the NYPD commissioner has imposed lesser discipline than what the CCRB recommended in 71% of the 6,900 cases where the CCRB sought the most serious charges, according to an analysis by The New York Times.

Elected officials and advocates hope the latest measures including the new matrix and the city and state laws criminalizing the use of chokeholds will lead to more substantive discipline.

To date, only one NYPD officer has been charged under the new laws, stemming from an incident on the boardwalk in Far Rockaway, Queens. The incident, captured on cellphone and body-worn camera, happened just days after the New York City Council passed the law criminalizing chokeholds. In the cellphone video, a man can be seen in a chokehold for about 10 seconds. The cop with his arm around the man’s neck, later identified by the victim’s public defender as Officer David Afanador, releases the man after onlookers complain about the chokehold and a fellow officer taps the cop to release his hold. The man’s body appears limp in the video and he was taken to a hospital. Afanador’s lawyer said he has pleaded not guilty to the charges. His next court date is March 24.

The new matrix, which CCRB officials hope will reset discipline standards, went into effect on Jan. 15. It will take months or longer to assess the impact.

Dennis said he isn’t confident much will change with the new measures.

“The law isn’t really going to change anything because they’ll find their way around it,” he said, “because they are the law.”

Sean Campbell contributed reporting.