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by Ava Kofman

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In the years since his byline first appeared in The New Yorker in 2006, Patrick Radden Keefe has become known for his revealing portraits of powerful people who refuse to speak to him. It is a testament to Keefe’s prowess that his subjects end up feeling more lifelike in his stories — more brazen, vulnerable, even sympathetic — than they do in their own memoirs and authorized biographies. This might explain why El Chapo, the Mexican drug lord and the focus of two of Keefe’s articles, wanted him to ghostwrite a book about his life — an assignment that Keefe politely declined.

Keefe’s recent output has cemented his reputation as one of the most popular and thrilling journalists at work today. In 2018, he published “Say Nothing,” a rigorously psychological account of the Troubles in Northern Ireland. A bestseller, it was followed by the hit podcast “Wind of Change,” a picaresque tour of the Cold War’s cultural front, and last year’s “Empire of Pain,” a meticulous investigation of the Sackler family’s role in the opioid crisis.

This summer marks the publication of “Rogues: True Stories of Grifters, Killers, Rebels and Crooks,” which collects a dozen of Keefe’s stories for The New Yorker, including his profiles of the celebrity chef Anthony Bourdain, the Hollywood producer Mark Burnett and the mass shooter Amy Bishop. Keefe has never had a dedicated beat at the magazine, but “Rogues” highlights his obsession with the mechanisms of repression and denial. Like Janet Malcolm, one of his influences, he’s unusually attuned to the self-delusions of both criminals and crusaders.

It can sometimes seem as though Keefe’s interest in a subject is proportional to the reporting difficulties it presents, and his stories hold a particular how-did-he-do-that? fascination for other journalists. A typical Keefe narrative will tend to note the formidable obstacle course that stands in his way. “Steinmetz, who made his name in the diamond trade, hardly ever speaks to the press, and the corporate structures of his various enterprises are so convoluted that it is difficult to assess the extent of his holdings” reads one characteristic setup. For fellow practitioners, part of the pleasure of Keefe’s work comes from watching him ingeniously clear each hurdle without seeming to break a sweat.

Last month, Keefe spoke to me about his reporting strategies and writing process over Zoom from his home in Westchester County, New York. Our conversation has been edited for length and clarity.

“Rogues” spotlights your interest in unearthing the codes that govern sub rosa institutions: Swiss tax havens, American hedge funds, the international arms trade, the Sinaloa cartel. People always ask you where your interest in secrets comes from. If you were to profile yourself, how would you go about answering that question?

Gosh. If someone like me were profiling me, I would run in the opposite direction. [Laughs] I don’t know. My mother is a retired professor of philosophy who wrote books about a series of psychiatric conditions — about madness and multiple personality disorder and melancholy and depression. This idea that we are all strangers to ourselves is an idea that I was probably exposed to growing up because it was a theme that animated a lot of her work. It’s not that I grew up — at least, I don’t think I did — in an environment where I was surrounded by great secrets, but certainly the ways in which truth can be warped in the retelling and the ways in which there are strains of denial in my family, as there are in most families, propels some of this interest.

But there’s no “Rosebud” moment, and that’s funny because I’m often looking for those types of moments with the people I write about. In “Empire of Pain,” there’s one story about Isaac Sackler, the original patriarch, losing everything and telling his children that he’d given them a good name. I remember when I stumbled across that in an interview that Arthur Sackler gave to the student newspaper at Tufts in the ’80s. It wasn’t online, but I got somebody to digitize it, and just discovering that unlocked so much of what I hadn’t been able to understand about him as a person. But listen, if Arthur Sackler were alive and with us, he would probably contest the notion that his whole life could be summed up by that anecdote. There is something reductive about this kind of writing, right?

When you’re finding that key or putting that psychoanalytic pressure on someone’s life, do you ever hear back from subjects who say, “Actually, it wasn’t quite like that?” I’m thinking of your profile of the lawyer Judy Clarke, which is collected in “Rogues.” You write about how it’s not completely obvious what drove her into controversial criminal defense work, representing people like the Unabomber, but you speculate that it might stem from some early family history.

I never heard back from Judy Clarke. I did hear from some people who know her, who felt that it was quite an accurate portrait and a flattering one, I should say. Part of what I like about that piece is that there are people who read it and are uncomfortable about her and the role that she plays and there are others who regard her as very saintly.

It’s awkward. I remember having a conversation with Anthony Bourdain about this. I spent a year working on the profile, and I said something to him about how if any of us were shown a very close-up photo of our own faces in a harsh light — I don’t mean designed to be unflattering, I just mean in a way that wasn’t airbrushed or tweaked — that would make most of us uncomfortable. In a strange way, if a portrait that I’m writing about somebody doesn’t induce a little bit of discomfort in them, I would almost feel that I hadn’t done my job. It would be weird for me to have somebody come back and say: “Thank God, finally, somebody’s captured my true essence as I see myself in the mirror.” I’m not the ventriloquist for the person I’m writing about. There’s always that little bit of dissonance there.

What criteria do you use to decide that a story is going to be worth pursuing, even if you can’t get to that Rosebud or “a-ha!” kind of moment? Has podcasting changed your conception of what counts as a viable story?

I can answer both questions with the same answer. For years, I would bring my editor at The New Yorker, Daniel Zalewski, ideas that were mysteries that I didn’t have the solution to. He always had a view — and he eventually brought me around to this view — that if it’s an 8,000-word magazine article and it’s a mystery story, you pretty much need to solve it. Occasionally there are exceptions, but there’s something about the compact with the reader that if they’re going to devote 45 minutes of their life to reading your piece, and at the end, you throw your hands in the air and say, “We’ll never know,” they feel cheated.

What that has meant for me is that, by and large, I don’t go into stories that are open-ended mysteries if I feel as though I may not be able to crack them. In the case of “Say Nothing,” what was funny was that it was a whodunit, but I never thought of it as a mystery story. I didn’t care who killed Jean McConville, because I always assumed that it was some anonymous IRA gunman, it wasn’t one of my characters, and I had been so ruthless with that book about making sure that the narrative didn’t get too far afield from my central characters. The weirdness of that experience was that it turned out to have been one of my characters all along.

With “Wind of Change,” I did it as a podcast and not as an article because I knew from the start that it would end in an ambiguous place. If it was true, it would be very difficult for me to prove that dead to rights, and if it wasn’t true, it would also be difficult for me to prove that negative. I struggled, because I wanted to write about it, but I didn’t know how to do it in a way that wouldn’t feel indulgent. Then I woke up in the middle of the night one day and thought: “No, it’s a podcast. That’s what it wants to be.” There’s something weird about podcasting where I think there’s more generosity, maybe even more indulgence, from the listener.

You’re strict about what’s included and what’s left out of the frame in “Say Nothing” and “Empire of Pain,” which at times gives the books the feel of chamber dramas. How early in the reporting are you thinking about structure? How big of a part of what’s drawing you to a story is the chance to tell it from a new angle?

When I talk about this stuff, I always want to acknowledge the enormous privilege I have to be doing this work. It’s a huge luxury to be able to spend six or eight months or a year on a piece and to write 10,000 or 12,000 or 15,000 words. When it comes to the reporting, it’s not that I’m driving around in town cars and staying in nice hotels, but it’s basically carte blanche if I need to buy court transcripts, or hire fixers, or go back to France, or go back to Northern Ireland the second time, or whatever it is, and all of that really helps.

What it means is that there sometimes are stories that have been explored in one way or another by newspapers or by other magazines. In terms of the books, sometimes there are other books. There was already a huge literature on the Troubles, obviously, and same with the opioid crisis. So a lot of the time, what’s happening is, I’m coming in, as you say, from a different angle. It’s not that I’m a hugely counterintuitive thinker. It’s much more driven by my own desires as a reader. I had read the other opioid crisis books, and two of them had a few chapters about the Sacklers, and I found, when I was reading them, that I wanted to skip ahead to the next chapters about the Sacklers, which, right there, told me something.

Similarly, with the Troubles. There are a lot of amazing books about the Troubles, but many of them are impenetrable because there’s a highly digressive style of telling stories about the Troubles. You have all these people who are interconnected, so there’s this idea that you can’t tell the story of this person without telling the story of that other person, but then in order to understand them, you need to move to a third person. They’re full of names and acronyms of different armed groups. There’s also this notion that you can’t really understand 1972 without first looking at 1916, but in order to understand 1916, you really need to go back to the 19th century, and suddenly, you’re a thousand years off from where you started. As a reader, I had found that frustrating and forbidding, so I set out to do it a little differently. But it’s more driven by what’s interesting to me than it is by any crafty meta effort to tell a different story.

I want to ask you about openings. Your Bourdain profile, to take an example, starts somewhat left of center stage with a detailed description of President Barack Obama’s motorcade. How do you know when you’ve found your opening?

I often know it when I see it. I’m always thinking about structure, and I’ve gotten better at that over the years having the confidence as I’m reporting to be thinking, “How am I going to tell this story?” To me, an opening is like the top of the water slide. I just need to get you over there and get you going, and hopefully, once I have you there, the rest of it will fall into place.

A lot of the time I’m thinking about trying to upend your expectations. In the case of Bourdain, here was a guy who’d been profiled a thousand times, so it was very important to me to try and start in a place that no other Bourdain profile started before you found your way to him. There’s a wonderful screenwriting expression — the cold open — where you start an episode in a TV show and you’re not with your characters, you’re somewhere else. The back-of-the-mind analytical pleasure for the viewer is: You’ve deposited me in some random place. How are you going to get me back to the main road?

Another example would be the El Chapo story. There’s a certain person who feels like they’ve read drug cartel stories or that they aren’t the kind of person who reads drug cartel stories. There’s a sameness to it all. So when I found this very dramatic moment where an assassin was arrested in Amsterdam at the airport, I knew that was the way in. He wasn’t even a central character, but I thought, if you can see that it’s a story about a Mexican drug cartel but you find yourself in Amsterdam in the first paragraph, I’ll be hopefully overcoming that impulse you have to say, “I’m going to turn the page because I’ve already read this story.” Better yet, maybe I’m putting a question in your mind, which is, “How is Keefe going to get me from Amsterdam back to where I know this story will ultimately unfold, which is Mexico?”

You’ve written screenplays and talked about the influence that screenwriters have had on your work. Has writing in that form changed the kinds of details you report for?

The screenplays I’ve written, none of which have been made — I’m a terrible screenwriter — I don’t know if they’ve actually changed my reporting much. There’s a schlocky journalism that aspires to be a screenplay — and I think a lot of the time is aspiring for a Hollywood option — that I really hate. I have an allergy to a certain “We open on...” writing that is striving for the adjective “cinematic.” Even just using that adjective, I feel, gives short shrift to good narrative nonfiction. As much as I can, I always want you to be able to see things in your mind’s eye. I want to know what things smell like. I want to know how things sound. But none of that is the screenwriting. The sense in which screenwriting has been helpful has much more to do with transitions: when you get into a scene, when you get out of a scene and how you juxtapose scenes. There’s a kind of economy to the structure of a screenplay that I have found really helpful.

How do you organize and outline all of the materials you gather as you’re reporting?

It’s always the same: It starts with a series of big beats. If it’s an article, it starts with eight beats on the back of an envelope, so I’ll know where the piece starts, I’ll know where I want the transition after the first section to be, and even if I’m feeling my way, I’ll know where the big moments are later on. The reason it’s useful to do the outline on the back of an envelope is that I naturally gravitate to complicated stories — and I like the complication — but I think you need to back away from that and be able to see the topography of the story.

Then, as I’m reporting, I’m filling those beats in with more detail along the way, and I’m always trying to find ways to fold in exposition so that, hopefully, you don’t notice it. That’s something I’m pretty fanatical about. One thing I really dislike is the paragraph break or the chapter break, where it’s like, “Now, 5,000 words of exposition.”

As I’m filling it in, I try to get to the point where when I sit down to write, all the ingredients are there. I think of it like a chef with his mise en place. Of course, when I cook, I never do this, but people who are cooking the way they’re supposed to will have all their ingredients measured out and ready before they start preparing the meal. The way I like to feel with writing is that I don’t have to go digging around in a notebook, because it’s all right there, laid out in roughly the right place, so that all I’m doing is coming in and putting the finishing work on something that is already pretty well-populated.

Keefe working on “Empire of Pain” at home during the pandemic (Courtesy of Justyna Gudzowska) A lot of your stories are write-arounds, where you lack direct access to your main subject. You’ve said that you’ll often request an interview early on and that if you’re rebuffed, you’ll remind the subject before publication that the train is leaving the station: The story will happen with or without their cooperation. But the story can’t really happen — or can’t be as successful — without the cooperation of your subject’s close friends or former associates. How do you make that pitch to the people in their orbit?

It totally varies from story to story. I have the advantage of spending months and months and months working on these pieces, and I’ll often interview 25, 40, 60 people for a piece. The advantage of that is that sometimes people will say “no” initially and then they just keep getting emails from people they know saying, “Oh, I just talked to that reporter.” Or, when I make a second overture, I’ll say, “Oh, I just talked to this person and this person,” and so sometimes people do come around, even the central people, but it really varies.

In the reporting phase, I try to be compassionate and to meet people where they live. I don’t usually come in with a big agenda, which is not to say that I don’t form judgments, but that all happens later in the writing phase. I’m pretty bloodless in the writing phase, but in the reporting, I want to be open. It’s helpful if I can interview somebody for two hours and they really get a sense of the cut of my jib: they know the kinds of questions I’m asking, they get a sense of the other people I’ve talked to and then they can report back to the subject. I think the fear that people often have is, “Oh, this is going to be a hatchet job.” But the truth is if you interview somebody for two hours and you really get into the nitty-gritty, they can usually see that you’re going to approach the story responsibly.

In terms of the case that I make, I always say: “I’m going to do the work. I’ll keep coming back. I’ll talk to as many people as possible.” Sometimes that backfires. What I said to Gerry Adams’ people was something like: “Nobody works harder than me. I’ll get to the bottom of everything,” and in retrospect, I realized that was not what they wanted to hear at all. [Laughs] When I said that, they said, “OK, well, we won’t be talking to you.” But I think most of the time you’re just earnestly telling people that you want to understand.

by Paige Pfleger

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

For two decades, Judge Donna Scott Davenport oversaw the illegal arrests and detentions of more than a thousand children in her Rutherford County courtroom.

Her decisions eventually caught up with her: The county settled a multimillion-dollar lawsuit, and an investigation by Nashville Public Radio and ProPublica brought to light what had been happening for years, unchecked. Tennessee lawmakers called for her ousting, the governor asked for a review, and Middle Tennessee State University cut ties with the judge, who taught criminal justice at the school. There were nationwide calls for reform.

As pressure mounted, Davenport announced her retirement as ​​juvenile court judge one afternoon in January, leaving voters to pick a new judge to fill her seat. Early voting starts today and runs through July 30, and election day is Aug. 4.

From the outside, her retirement might seem like the end of a painful chapter. Within the community, local pastor Vincent Windrow said, it’s far from over.

“Those young children who were victimized, that’s not closure for them,” Windrow said. “Just because she’s off the bench and retired, does that mean that they won’t have nightmares? Does that mean that suddenly, miraculously, they’re going to start trusting in law enforcement again?”

That’s the level of distrust that the candidates to replace her must confront, on top of convincing voters that they have the skills for the job.

The challengers are assistant district attorney Travis Lampley and pastor and Legal Aid Society attorney Andrae Crismon.

Rutherford County juvenile judge candidate Andrae Crismon, middle, talks with voters during last month’s Juneteenth celebration in Murfreesboro. (William DeShazer, special to ProPublica)

In a Republican-dominated district, Lampley has the benefit of having the letter “R” next to his name. He’s worked for a decade in juvenile courts.

In a recent WGNS radio forum, he was asked how he would rebuild trust.

“I would like to think that my experience would restore confidence,” he said.

He doesn’t dwell on the controversy over Davenport’s legacy. Instead, he is sharing ideas about other aspects of the job, like shortening the court’s months-long backlog.

“Justice delayed is justice denied,” Lampley said. “So the biggest obstacle is just to get in there, right the ship and plow forward.”

He said he wants to establish a family preservation court, which would connect people to support systems like substance abuse programs.

Lampley comes at the position from his experience inside the courtroom. Crismon, on the other hand, is vowing to be accessible to the community.

“I earnestly believe that there’s nothing wrong with Rutherford County that cannot be turned around by what’s right with Rutherford County,” Crismon said during a meet-and-greet at a coffee shop forum.

He is running as an independent because he believes it’s nonpartisan to do the right thing for kids.

And he doesn’t shy away from talking about the last judge. Crismon said Davenport operated behind closed doors. He said he hopes to turn the position inside out by hosting regular community and school meetings and educating people about what the role of juvenile court judge could be.

“We don’t want to be insular,” Crismon said. “We want to be leading the conversation of how to best deliver juvenile care services in the state. And we can do that and we can make that turnaround. But we’ve got to be willing to listen.”

Both candidates are focused on early intervention, but Crismon has proposals to keep kids out of the justice system altogether. For example, he said he’d like to work with law enforcement to create a list of juvenile offenses that would be handled with citations, instead of arrests.

That resonates with community member Robbie Snapp.

“It’s not always about a child being in trouble and you need to lock them up,” Snapp told Nashville Public Radio. “Everybody doesn’t need to be locked up. Somebody needs to be helped and have a hand up, instead of pushing them down.”

She said Crismon’s history as a legal aid lawyer and a pastor demonstrates his ability to bring compassion to the bench.

Increased Oversight

Whoever wins will be stepping into the role under more scrutiny than their predecessor, and more oversight.

One concrete change is that a newly appointed board will take over supervision of the county’s juvenile detention facility. That responsibility was taken away from Davenport after what happened.

But a more difficult change will be getting people to believe that the system will treat them fairly, said Dylan Geerts. He was locked up illegally by Davenport when he was 15, and was denied medication he had been prescribed for his bipolar disorder.

“A normal human being forgives when people apologize,” Geerts said. “But I mean, there’s not much to forgive, because at the end of the day, she doesn’t even think she did anything wrong.”

In announcing her retirement, Davenport said she was proud of her legacy on the court. She has since declined to be interviewed.

Without her taking responsibility, making amends will fall to the candidate who takes her seat.

But Windrow, the local pastor, warned that change cannot stop there. The new judge, he said, needs to be part of reforms to Rutherford County’s criminal justice system — a system that allowed illegal detentions to happen for so long. Otherwise?

“We’re just still the same horse,” he said. “We’re just changing riders.”

Do You Have a Tip for ProPublica? Help Us Do Journalism.

Meribah Knight, Nashville Public Radio, contributed reporting.

by Nicole Santa Cruz

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

Nearly four years after a woman ended an unwanted pregnancy with abortion pills obtained at a Phoenix clinic, she finds herself mired in an ongoing lawsuit over that decision.

A judge allowed the woman’s ex-husband to establish an estate for the embryo, which had been aborted in its seventh week of development. The ex-husband filed a wrongful death lawsuit against the clinic and its doctors in 2020, alleging that physicians failed to obtain proper informed consent from the woman as required by Arizona law.

Across the U.S., people have sued for negligence in the death of a fetus or embryo in cases where a pregnant person has been killed in a car crash or a pregnancy was lost because of alleged wrongdoing by a physician. But a court action claiming the wrongful death of an aborted embryo or fetus is a more novel strategy, legal experts said.

The experts said this rare tactic could become more common, as anti-abortion groups have signaled their desire to further limit reproductive rights following the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade. The Arizona lawsuit and others that may follow could also be an attempt to discourage and intimidate providers and harass plaintiffs’ former romantic partners, experts said.

Lucinda Finley, a law professor at the University at Buffalo who specializes in tort law and reproductive rights, said the Arizona case is a “harbinger of things to come” and called it “troubling for the future.”

Finley said she expects state lawmakers and anti-abortion groups to use “unprecedented strategies” to try to prevent people from traveling to obtain abortions or block them from obtaining information on where to seek one.

Perhaps the most extreme example is in Texas, where the Texas Heartbeat Act, signed into law in May 2021 and upheld by the U.S. Supreme Court in December, allows private citizens to sue a person who performs or aids in an abortion.

“It’s much bigger than these wrongful death suits,” Finley said.

Civia Tamarkin, president of the National Council of Jewish Women Arizona, which advocates for reproductive rights, said the Arizona lawsuit is part of a larger agenda that anti-abortion advocates are working toward.

“It’s a lawsuit that appears to be a trial balloon to see how far the attorney and the plaintiff can push the limits of the law, the limits of reason, the limits of science and medicine,” Tamarkin said.

In July 2018, the ex-husband, Mario Villegas, accompanied his then-wife to three medical appointments — a consultation, the abortion and a follow-up. The woman, who ProPublica is not identifying for privacy reasons, said in a deposition in the wrongful death suit that at the time of the procedure the two were already talking about obtaining a divorce, which was finalized later that year.

“We were not happy together at all,” she said.

Villegas, a former Marine from Globe, Arizona, a mining town east of Phoenix, had been married twice before and has other children. He has since moved out of state.

In a form his then-wife filled out at the clinic, she said she was seeking an abortion because she was not ready to be a parent and her relationship with Villegas was unstable, according to court records. She also checked a box affirming that “I am comfortable with my decision to terminate this pregnancy.” The woman declined to speak on the record with ProPublica out of fear for her safety.

The following year, in 2019, Villegas learned about an Alabama man who hadn’t wanted his ex-girlfriend to have an abortion and sued the Alabama Women’s Center for Reproductive Alternatives in Huntsville on behalf of an embryo that was aborted at six weeks.

To sue on behalf of the embryo, the would-be father, Ryan Magers, went to probate court where he asked a judge to appoint him as the personal representative of the estate. In probate court, a judge may appoint someone to represent the estate of a person who has died without a will. That representative then has the authority to distribute the estate’s assets to beneficiaries.

When Magers filed to open an estate for the embryo, his attorney cited various Alabama court rulings involving pregnant people and a 2018 amendment to the Alabama Constitution recognizing the “sanctity of unborn life and the rights of unborn children.”

A probate judge appointed Magers representative of the estate, giving him legal standing to sue for damages in the wrongful death claim. The case, believed to be the first instance in which an aborted embryo was given legal rights, made national headlines.

It’s unclear how many states allow an estate to be opened on behalf of an embryo or fetus. Some states, like Arizona, don’t explicitly define what counts as a deceased person in their probate code, leaving it to a judge to decide. In a handful of states, laws define embryos and fetuses as a person at conception, which could allow for an estate, but it’s rare.

An Alabama circuit court judge eventually dismissed Magers’ wrongful death lawsuit, stating that the claims were “precluded by State and Federal laws.”

Villegas contacted Magers’ attorney, Brent Helms, about pursuing a similar action in Arizona and was referred to J. Stanley Martineau, an Arizona attorney who had flown to Alabama to talk to Helms about Magers’ case.

In August 2020, Villegas filed a petition to be appointed personal representative of the estate of “Baby Villegas.” His ex-wife opposed the action and contacted a legal advocacy organization focused on reproductive justice, which helped her obtain a lawyer.

In court filings, Villegas said he prefers to think of “Baby Villegas” as a girl, although the sex of the embryo was never determined, and his lawyer argued that there isn’t an Arizona case that explicitly defines a deceased person, “so the issue appears to be an open one in Arizona.”

In a 2021 motion arguing for dismissal, the ex-wife’s attorney, Louis Silverman, argued that Arizona’s probate code doesn’t authorize the appointment of a personal representative for an embryo, and that granting Villegas’ request would violate a woman’s constitutional right to decide whether to carry a pregnancy to term.

“U.S. Supreme Court precedent has long protected the constitutional right of a woman to obtain an abortion, including that the decision whether to do so belongs to the woman alone — even where her partner, spouse, or ex-spouse disagrees with that decision,” Silverman said last year.

Gila County Superior Court Judge Bryan B. Chambers said in an order denying the motion that his decision allows Villegas to make the argument that the embryo is a person in a wrongful death lawsuit, but that he has not reached that conclusion at this stage. Villegas was later appointed the personal representative of the estate.

As states determine what is legal in the wake of Dobbs and legislators propose new abortion laws, anti-abortion groups such as the National Right to Life Committee see civil suits as a way to enforce abortion bans and have released model legislation they hope sympathetic legislators will duplicate in statehouses nationwide.

“In addition to criminal penalties and medical license revocation, civil remedies will be critical to ensure that unborn lives are protected from illegal abortions,” the group wrote in a June 15 letter to its state affiliates that included the model legislation.

James Bopp Jr.,general counsel for the committee, said in an interview with ProPublica that such actions will be necessary because some “radical Democrat” prosecutors have signaled they won’t enforce criminal abortion bans. Last month, 90 prosecutors from across the country indicated that they would not prosecute those who seek abortions.

“The civil remedies follow what the criminal law makes unlawful,” he said. “And that’s what we’re doing.”

The National Right to Life Committee’s model legislation, which advocates prohibiting abortion except to prevent the death of the pregnant person, recommends that states permit civil actions against people or entities that violate abortion laws “to prevent future violations.” It also suggests that people who have had or have sought to have an illegal abortion, as well as the expectant father and the parents of a pregnant minor, be allowed to pursue wrongful death actions.

Under the legislation, an action for wrongful death of an “unborn child” would be treated like that of a child who died after being born.

In one regard, Arizona has already implemented a piece of this model legislation as the state’s lawmakers have chipped away at access to abortion and enacted a myriad of regulations on doctors who provide the procedure.

The state’s “informed consent” statute for abortion, first signed into law by then-Gov. Jan Brewer in 2009, mandated an in-person counseling session and a 24-hour waiting period before an abortion. It allows a pregnant person, their husband or a maternal grandparent of a minor to sue if a physician does not properly obtain the pregnant person’s informed consent, and to receive damages for psychological, emotional and physical injuries, statutory damages and attorney fees.

The informed consent laws, which have changed over time, mandate that the patient be told about the “probable anatomical and physiological characteristics” of the embryo or fetus and the “immediate and long-term medical risks” associated with abortion, as well as alternatives to the procedure. Some abortion-rights groups and medical professionals have criticized informed consent processes, arguing the materials can be misleading and personify the embryo or fetus. A 2018 review of numerous studies concluded that having an abortion does not increase a person’s risk of infertility in their next pregnancy, nor is it linked to a higher risk of breast cancer or preterm birth, among other issues.

The wrongful death suit comes at a time of extraordinary confusion over abortion law in Arizona.

Until Roe v. Wade was handed down in 1973, establishing a constitutional right to abortion, a law dating to before statehood had banned the procedure. In March, Gov. Doug Ducey, a Republican who has called Arizona “the most pro-life state in the country,” signed into law a bill outlawing abortions after 15 weeks, and said that law would supersede the pre-statehood ban if Roe were overturned. But now that Roe has been overturned, Arizona Attorney General Mark Brnovich, another Republican, said he intends to enforce the pre-statehood ban, which outlawed abortion except to preserve the life of the person seeking the procedure. On Thursday, he filed a motion to lift an injunction on the law, which would make it enforceable.

Adding to the muddle, a U.S. district court judge on Monday blocked part of a 2021 Arizona law that would classify fertilized eggs, embryos and fetuses as people starting at conception, ruling that the attorney general cannot use the so-called personhood law against abortion providers. Following the Supreme Court decision in Dobbs, eight of the state’s nine abortion providers — all located in three Arizona counties — halted abortion services, but following the emergency injunction some are again offering them.

In the wrongful death claim, Martineau argued that the woman’s consent was invalidated because the doctors didn’t follow the informed consent statute. Although the woman signed four consent documents, the suit claims that “evidence shows that in her rush to maximize profits,” the clinic’s owner, Dr. Gabrielle Goodrick, “cut corners.” Martineau alleged that Goodrick and another doctor didn’t inform the woman of the loss of “maternal-fetal” attachment, about the alternatives to abortion or that if not for the abortion, the embryo would likely have been “delivered to term,” among other violations.

Tom Slutes, Goodrick’s lawyer, called the lawsuit “ridiculous.”

“They didn’t cut any corners,” he said, adding that the woman “clearly knew what was going to happen and definitely, strongly” wanted the abortion. Regardless of the information the woman received, she wouldn’t have changed her mind, Slutes said. Slutes referenced the deposition, where the woman said she “felt completely informed.”

Martineau said in an interview that Villegas isn’t motivated by collecting money from the lawsuit.

“He has no desire to harass” his ex-wife, Martineau said. “All he wants to do is make sure it doesn’t happen to another father.”

In a deposition, Villegas’ ex-wife said that he was emotionally abusive during their marriage, which lasted nearly five years. At first, she said, Villegas seemed like the “greatest guy I’ve ever met in my life,” taking her to California for a week as a birthday gift. But as the marriage progressed, she said, there were times he wouldn’t allow her to get a job or leave the house unless she was with him.

The woman alleged that Villegas made fake social media profiles, hacked into her social media accounts and threatened to “blackmail” her if she left him during his failed campaign to be a justice of the peace in Gila County, outside of Phoenix.

Villegas denied the allegations about his relationship but declined to comment further for this story, Martineau said.

Carliss Chatman, an associate law professor at Washington and Lee University in Virginia, said certain civil remedies can also be a mechanism for men to continue to abuse their former partners through the court system.

“What happens if the father who is suing on behalf of the fetus is your rapist or your abuser? It’s another way to torture a woman,” Chatman said.

Chatman added that these legal actions can be a deterrent for physicians in states where abortion is banned after a certain gestational period, because the threat of civil suits makes it harder for doctors to get insurance.

The lawsuit has added to the stresses on Goodrick, who has been performing abortions in Arizona since the mid-1990s, and her practice. She said that since the lawsuit was filed, the annual cost of her medical malpractice insurance has risen from $32,000 to $67,000.

Before providers in Arizona halted abortions following the Supreme Court decision, people would begin lining up outside Goodrick’s clinic at 6 a.m., sometimes with lawn chairs in hand, like “a concert line,” Goodrick said.

“Every year there’s something and we never know what it’s going to be,” Goodrick said recently at her Phoenix clinic. “I’m kind of desensitized to it all.”

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by Stefanie Dodt, ARD German TV

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This story was co-published with ARD German TV.

In the year since the United States blocked Mexicans from entering the country to sell their blood, the two global pharmaceutical companies that operate the largest number of plasma clinics along the border say they have seen a sharp drop in supply.

In a suit challenging the ban, the companies acknowledged for the first time the extent to which Mexicans visiting the U.S. on short-term visas contribute to the world’s supply of blood plasma. In court filings, the companies revealed that up to 10% of the blood plasma collected in the U.S. — millions of liters a year — came from Mexicans who crossed the border with visas that allow brief visits for business and tourism.

The legal challenge by Spain-based Grifols and CSL of Australia relates to an announcement last June that U.S. Customs and Border Protection doesn’t permit Mexican citizens to cross into the U.S. on temporary visas to sell their blood plasma. The suit was initially dismissed by a federal judge but reinstated by the U.S. Court of Appeals for the D.C. Circuit. The drug companies’ lawyers have said in court filings that the sharp reduction in Mexicans selling blood to the border clinics is contributing to a worldwide shortage of plasma and is “precipitating a worldwide public-health crisis that is costing patients dearly.”

ProPublica, ARD German TV and Searchlight New Mexico reported in 2019 that thousands of Mexicans were crossing the border to donate blood as often as twice a week, earning as much as $400 per month. Selling blood has been illegal in Mexico since 1987.

Many countries place strict limits on blood donations — Germany, for example, allows a maximum of 60 donations per year with intensive checkups before every fifth donation. But the Food and Drug Administration doesn’t require comparable donor checkups and allows people visiting American clinics to sell their blood twice a week, or up to 104 times a year.

The limits that other countries set on blood donations have made the U.S. one of the world’s leading exporters of blood. In 2020, U.S. facilities collected 38.2 million liters of plasma for the production of medicine, accounting for approximately 60% of such blood plasma collected worldwide.

Until now, it has been unclear how much of the U.S. blood plasma supply came from Mexican citizens, and pharmaceutical companies had downplayed border clinics’ role in meeting demand for plasma. Grifols noted in 2019 that “more than 93% of the centers [are] at a far distance from the border between the U.S. and Mexico.”

But in its recent court filings, Grifols stressed the importance of the border clinics. A statement from a company executive disclosed that at the company’s Texas centers alone, there were “approximately 30,000 Mexican nationals donating and supplying over 600,000 liters of plasma [a year].” He describes Mexican donors as “loyal and selfless in their commitment to donating plasma.”

According to a filing by Grifols and CSL, the 24 border centers run by Grifols alone account for an “annual economic impact of well over $150 million” and represent approximately 1,000 jobs.

The trade organization for the pharmaceutical companies, the Plasma Protein Therapeutics Association, has similarly reframed its arguments on the issue. In a 2019 statement, the association urged reporters not to attach any significance to “donation centers that happen to fall within areas states define as border zones.” It said then that it had no estimate of how much blood was being bought at the border or whether the amount was disproportionate when compared to the rest of the country.

But a recent court filing by the association said there are 52 plasma centers in the border zone, and “the average center along the border collects higher than average (31% more) plasma than the average center nationwide.”

Some of those donation centers were set up just steps away from the U.S.-Mexico border. Their location, court papers make clear, was part of a strategic effort to bring in Mexican donors: A memorandum written by the companies’ lawyers acknowledged that the centers were located to “facilitate” donations made by Mexican nationals, and that Grifols and CSL “have also spent ‘several million dollars in the last several years’ on advertising to encourage Mexican citizens to donate plasma in exchange for payment at the centers located along the border.” The memorandum did not specify if the ads were published in Mexico, but advertising for paid plasma donations is illegal in Mexico.

The Mexican nationals selling their blood previously entered the U.S. on what are known as B-1 or B-2 visas, documents that allow visitors to shop, do business or visit tourist sites. U.S. Customs and Border Protection had long viewed the practice of selling blood as a “gray area,” with some officials allowing short-term visitors to go to the centers while others did not. In 2021, about a year and a half after we published our 2019 story, the Border Patrol issued internal guidance that barred short-term visa holders from selling blood.

CSL and Grifols challenged that action, asserting that for 30 years, CBP had “largely allowed B-1/B-2 visa holders from Mexico to enter this country for the purpose of donating their plasma at collection centers that provide a payment to donors.” The CPB disagreed. Matthew Davies, a supervisory border security officer, told the court that selling plasma for compensation had never been a permissible activity.

On June 14, 2021, CBP sent out “clarifying guidance” that selling plasma on a visitor visa was not allowed. The announcement created chaos at the border centers. Two days later, Grifols wrote — and later deleted — a post on its Spanish-language Facebook page that said, “We are replying to the hundreds of messages asking when people with a visa can come back to donate. For the moment, the response is, you can’t.” An angry reply stated “Now, we’re no longer heroes who are saving lives. They just used us.”

Since then, donations at border centers have dropped dramatically. The pharmaceutical companies told the court that a survey of 12 centers in Texas found a 20% to 90% decline. “One particularly large center, which normally collects 5000+ donations per week, has decreased to a level closer to 200,” said the plasma association president, Amy Efantis.

Some previous donors interviewed by ProPublica said they would welcome a court ruling that set clear rules for people crossing the border to sell their blood. Genesis, a 23-year-old student from Ciudad Juárez, said she had worried about losing her visa when she entered the United States for her regular visits to the border clinics.

A current manager of a plasma collection center at the border, who asked not to be named because of the ongoing court case, said that he had to lay off about two-thirds of his employees and cut the center’s hours. “It would be good if they allowed [Mexicans] to donate again,” he said. “People are depending on this, on both sides.”

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Correction

July 14, 2022: This story originally misidentified one of the news organizations involved in the 2019 investigation. It was Searchlight New Mexico, not Searchlight Mexico.

by Jeremy Schwartz and Kiah Collier

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This article is co-published with The Texas Tribune, a nonprofit, nonpartisan local newsroom that informs and engages with Texans. Sign up for The Brief weekly to get up to speed on their essential coverage of Texas issues.

In the spring of 2009, Elliott Naishtat persuaded his colleagues in the Texas Legislature to pass a bill that he believed would require the state to report court-ordered mental health hospitalizations for Texans of all ages to the national firearms background check system.

Nearly two years had passed since a student with a history of serious mental illness had gone on a deadly shooting rampage that left 32 dead at Virginia Tech. And Naishtat, then a Democratic state representative from Austin, argued that Texas was as vulnerable as Virginia had been to such mass shootings because it didn’t require the reporting of involuntary mental health commitments to the FBI’s National Instant Criminal Background Check System, known as NICS. Federally licensed dealers are required to check the system before they sell someone a firearm.

“This bill will ultimately save lives, and I hope you’ll give it your most serious consideration,” Naishtat said when he introduced the measure.

But 13 years after the legislation became law, following a string of mass shootings carried out by troubled young men, an investigation by ProPublica and The Texas Tribune has uncovered a major gap in the law and its implementation.

Despite language in Naishtat’s bill that says local courts should report to the state’s top law enforcement agency any time a judge orders any person, regardless of age, to receive inpatient mental health treatment, the news organizations found that they are not reporting juvenile records because of problems with the way the law was written, vague guidance from the state and conflicts with other Texas laws.

The widespread reporting failures are all the more important today because Congress passed legislation last month that requires checks of various state databases that should include juvenile mental health records for would-be gun buyers under 21. The bipartisan measure was passed swiftly after the May 24 school shooting in Uvalde that left 21 dead.

Currently, Texans who were involuntarily committed to a mental institution as minors aren’t ending up in NICS, so as soon as they turn 18 they can walk into a federally licensed gun shop and legally acquire a rifle because they will pass the required background check, assuming they do not have criminal records. (Americans typically have to be 21 to purchase handguns.)

County and district court clerks and juvenile probation officials in five of the state’s six largest counties, as well as Uvalde County, told the news organizations they weren’t reporting juvenile mental health commitments, either as a matter of policy or because they didn’t think they had to. These include Harris, Tarrant, Bexar, Travis and Collin.

“In light of what is happening too many times these days and in recent years, it bothers me tremendously to hear that this law may not have been implemented in the way that it clearly was intended to be implemented,” Naishtat said in an interview. “That legislation with respect to juveniles is probably more important today than ever.”

The gap came to light only after the Uvalde massacre, when ProPublica and the Tribune started asking questions about reporting requirements for juveniles. The shooter was an 18-year-old who had passed a background check before buying two AR-15 semi-automatic rifles, despite what officials have described as a troubled mental health history. It is unclear if he was ever committed.

Officials with the Texas Department of Public Safety, which under the 2009 law is charged with collecting mental health records from local courts and passing them along to the FBI for inclusion in NICS, said that the agency routinely reports juvenile criminal records but not juvenile mental health records. Local courts do not provide DPS with juvenile mental health data, agency officials said.

“There are a lot of protections that surround mental health data and juvenile mental health data,” ML Calcote, assistant general counsel for DPS, said in a statement.

Experts, including county juvenile probation department officials and a former longtime juvenile judge, say the 2009 state law did not take into account the complexities of the juvenile justice system in Texas, which places strict limits on what records can be reported.

Following questions about reporting requirements from ProPublica and the Tribune, the state agency tasked with helping local courts abide by new laws moved to update its official guidance to clerks to make clear that the mental health reporting requirement applies to juveniles as well. A spokesperson for the Office of Court Administration shared a draft version of supplementary guidance that she said the office would put on its website and incorporate into future manuals.

ProPublica and the Tribune presented a summary of their findings to the offices of Lt. Gov. Dan Patrick and House Speaker Dade Phelan, who control the legislative agenda. They did not respond to questions about whether the issue is a priority for discussion in the next legislative session, which begins in January.

Dysfunctional Reporting

When it comes to the reporting of adult mental health records, the Texas law has been highly effective. By the end of 2021, the state had sent more than 332,000 mental health records — the sixth-highest number in the country — to the national background check system, according to FBI data.

Unlike adult records, juvenile records are tightly controlled under state law, which includes criminal penalties for officials who release them unlawfully. That has likely contributed to widespread confusion about the reach of the 2009 law, which does not differentiate between adults and minors, said Dru Stevenson, a South Texas College of Law professor whose research focuses on gun violence and regulation.

“Anybody dealing with either health records or juveniles are super skittish about preserving privacy and confidentiality,” he said.

Mike Schneider, a former Harris County juvenile court judge, said the 2009 law fails to account for nuances in the juvenile code. For example, the law requires the reporting of all court-ordered mental health commitments. But Schneider and other juvenile officials say that in many cases juveniles end up in inpatient treatment not through a judge’s order, but via treatment plans agreed to by mental health professionals working on their cases. Additionally, Schneider said he interprets the law to directly address only the mental health commitments of juveniles already in lockup, not those first entering the system.

As a result, he estimated that some 99% of juvenile mental health commitments in the state are not the result of the kinds of judicial orders spelled out in the 2009 law.

“It’s just a really, really, really tiny sliver and would miss most of the people who are juveniles who have court-ordered mental health services,” he said.

The Office of Court Administration convened a task force of clerks, judges and various state officials more than a decade ago to figure out how to increase the number of all mental health records being sent to DPS.

The resulting report, published in 2012, found that “DPS lacks the resources to assist the district and county clerks with reporting mental health information.” It made a number of recommendations for ensuring better reporting across the state, including that OCA distribute a reporting manual to clerks detailing the law’s exact requirements. But neither the report nor the resulting manual addressed the reporting of juvenile records.

The agency has since moved to remedy that.

“Recently, because of increased questions, we decided to update the quick reference table to make it even more clear that juvenile records should be included under those provisions, and an updated FAQ section will be going in the manual,” spokesperson Megan LaVoie wrote in an email last month.

Amid a lack of clear direction, courts across the state aren’t following the law as Naishtat intended.

In Uvalde County, for instance, Chief Juvenile Probation Officer Mary Lou Ruiz said “there’s no specific way for us to report that to DPS.” When asked why, Ruiz cited limitations of electronic reporting tools.

Travis County Probate Judge Guy Herman, who was a driving force behind the 2009 law and also chaired the OCA task force, said that his court has reported juvenile mental health commitments to DPS in the past, but that it hasn’t had such a case in several years. Juvenile department and district clerk officials in the county say they operate under the belief that state guidelines don’t require juvenile mental health reporting, according to a county spokesperson.

In Harris County, which oversees the largest juvenile justice system in Texas, district clerk spokesperson Al Ortiz told the publications no juvenile mental health records are reported to the state, citing what he described as long-standing guidance from the OCA and DPS.

On the other hand, the Dallas County District Clerk Felicia Pitre said her office reports juvenile mental health records to DPS, in accordance with state law. Pitre declined to say how many commitments have been sent. She did not respond to a request for comment about DPS’ statement that Texas courts are not reporting juvenile mental health records.

LaVoie, the OCA spokesperson, said in an email that the office communicated to clerks that they had to report certain juvenile mental health commitments to DPS but declined to say when or provide specifics about its messaging. DPS’ press office has not responded to questions about what reporting guidance it has provided to clerks.

Juvenile advocates and gun rights groups have urged caution in the reporting of juvenile records, calling for avenues to allow young adults to have their gun rights restored.

And mental health advocates have warned against using mental illness as a scapegoat when it comes to gun violence. “A vast majority of firearm violence is not attributed to mental illness,” the American Psychiatric Association said in a statement after the Uvalde shooting. “Rhetoric that argues otherwise will further stigmatize and interfere with people accessing needed treatment without addressing the root causes of firearm violence.”

But recent shootings have again raised questions about whether it is too easy for young people with histories of mental illness to obtain firearms.

As in Texas, questions emerged about New York’s mental health reporting laws following the May 14 supermarket shooting in Buffalo that killed 10 people, most of them Black.

The gunman, an 18-year-old New York man, had been taken into custody as a juvenile for a psychiatric evaluation after he threatened to commit a murder-suicide. But under the state’s mental health reporting law, because the gunman wasn’t ordered into treatment, the psychiatric evaluation alone did not trigger a report to the background check system. A 2013 New York law requires mental health professionals in the state to report patients who in their “reasonable professional judgment” are likely to harm themselves or others, but no such report was made.

It’s unclear whether Texas’ law would have prevented the Uvalde gunman from purchasing two semi-automatic rifles at a federally licensed local gun shop.

DPS has said the 18-year-old Uvalde shooter, who killed 19 children and two teachers, didn’t have a mental health record, but agency officials also have consistently added a caveat: “That we know of.”

A memorial for the 21 victims of the May 24 school shooting in Uvalde. (Evan L'Roy for The Texas Tribune)

In news reports, the gunman’s acquaintances have alleged that he had a history of truancy, cruelty to animals and violence at home and at school.

Texas Sen. John Cornyn, the GOP negotiator in the recently passed federal legislation, has implied the shooter had mental health issues as a juvenile.

“Enhanced background checks of juvenile court, police, and mental health records likely would have disclosed what everyone in the community knew,” he wrote on Twitter on June 12. “The shooter was a ticking time bomb.”

Eliminating Ambiguity

The new federal legislation was mostly met with praise from gun control groups, especially for its provisions on juvenile records.

Lindsay Nichols, federal policy director with the Giffords Law Center, which is the legal arm of a national gun safety group created by Gabrielle Giffords, a former Democratic congresswoman who survived a shooting in 2011, said the measure now gives the background check system enough time to “make an accurate determination about whether the person is eligible to purchase guns.”

The new federal law gives the FBI up to 10 business days — seven more than are allotted under current rules — to investigate if an initial background check on a would-be firearm purchaser under 21 flags potentially disqualifying juvenile records. If the agency doesn’t find anything during that time frame, dealers are legally able to make the sale. Any mental health commitments ordered before the person is 16 would not disqualify them from purchasing a firearm.

The law also directs federal investigators conducting background checks to contact local law enforcement agencies and state-level custodians of mental health records, as well as search juvenile criminal history databases, for information that would disqualify a person from purchasing a firearm. Yet as it stands today in Texas, checks with such entities would fail to reveal many court-ordered juvenile commitments.

While most states now require some level of mental health reporting, gun control advocates like Giffords and Everytown for Gun Safety don’t track how many states require searches of juvenile mental health records before gun purchases. An FBI spokesperson said the bureau doesn’t keep track of it either. According to the Giffords Law Center, the 13 states that carry out their own background checks tend to conduct more comprehensive searches on juvenile records. And several of those so-called “point of contact” states appear to offer clearer guidance on the issue.

Like Texas, Florida has a mental health reporting law that doesn’t explicitly mention juveniles. But a spokesperson for the Florida Department of Law Enforcement, David Fierro, made clear that the law applies to people who are under 18.

“There are no age limitations or exemptions. All court orders are required to be submitted,” he said. “The subject of these orders is disqualified from the transfer of a firearm.”

Schneider, the former Harris County juvenile judge, said the Legislature should address the narrowness and ambiguity that has resulted in the widespread failure to report juvenile mental health records, though he said such an effort will require lawmakers to answer difficult questions about how to handle sensitive records. In his mind, the law should cover young Texans with troubling histories of bullying, animal cruelty and sexual assault, behavior that foreshadows what experts call “future dangerousness.”

“What do you do with kids who have tortured a cat or a dog or done something really cruel, sexually or not, to another kid?” he said. “Those are, I think, the ones that people really worry about, because that seems to be so strongly correlated with really, really bad outcomes in the future.”

Asked if more clarity from the Legislature would make the law more effective, LaVoie, the OCA spokesperson, said: “Eliminating ambiguity is always helpful.”

by Uri Blau

This article is co-published with Shomrim. Shomrim is an Israel-based nonprofit and nonpartisan independent news organization.

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Israeli cybersecurity company NSO Group, the company behind the notorious Pegasus spyware, has been conducting a broad campaign in the United States to get off the U.S. government’s blacklist.

Pegasus is a hacking tool that could be used to vacuum up a phone’s contents remotely without the target having to fall into a phishing trap by clicking on a deceptive link. The spyware can even use the phone to remotely track and record its user.

The Biden administration added NSO to a Commerce Department list of restricted companies last November after a series of investigations revealed that Pegasus had been used by foreign governments against journalists and human rights activists. A forensic analysis from last July, for example, revealed that two people close to journalist Jamal Khashoggi were targeted by the spyware before and after his assassination in October 2018. Khashoggi, an exiled Saudi Arabian journalist and American resident, was murdered in Turkey by Saudi authorities. The NSO Group has said its technology “was not associated in any way with the heinous murder of Jamal Khashoggi.”

NSO has invested hundreds of thousands of dollars in the past year in payments to lobbyists, public relations companies and law firms in the U.S., in the hope of reversing the Biden administration’s November decision, according to public records filed under the Foreign Agent Registration Act and conversations with people familiar with the effort. These firms have approached members of the U.S. House and Senate, as well as various media outlets and think tanks across the U.S., on NSO’s behalf.

Companies on the Commerce Department’s blacklist, officially called the “Entity List,” are not completely prohibited from doing business in the U.S. However, they are subject to licensing and other trade restrictions, making it more difficult to conduct business in the country or with Americans. NSO’s business has reportedly suffered since the designation.

NSO is trying to get the matter raised during a meeting between U.S. President Joe Biden and Israeli Prime Minister Yair Lapid when the former visits Israel this week. In addition, NSO lobbyists unsuccessfully tried to set up a meeting between representatives of the company and U.S. National Security Adviser Jake Sullivan, but it did not take place.

Asked for comment, an NSO spokesperson declined to comment on the campaign but “thanked” Shomrim for publishing an article on its efforts, which he described as “supportive.”

The American military contractor L3Harris also held talks to try to purchase NSO, with backing from the Defense Department, according to The New York Times. L3Harris has abandoned the effort, the paper said.

Placement on the Entity List is a serious sanction but less significant than being placed on the Specially Designated Nationals list. In the past, companies have won removal from the Entity List after settling charges with the U.S. government and promising reforms.

NSO said at the time of the U.S. administration’s decision to add it to the list that it would work to have the move reversed. Public records show that the firm started recruiting various North American consultants even before it was blacklisted. In July last year, it hired the Pillsbury Winthrop Shaw Pittman law firm to advise it on tenders and various compliance requirements in the United States. The firm was initially hired for six months at a cost of about $75,000 per month. NSO continued to retain its services at least into the first half of 2022.

Pillsbury then hired strategic advisory group Chartwell for six months at a cost of $50,000 to $75,000 per month, according to public records. Chartwell met with representatives of the House Intelligence Committee, whose members called last year for more serious sanctions of NSO under the Magnitsky Act. The lobbying firm also approached, among others, Senators Mitt Romney, R-Utah, and Mike Rounds, R-S.D., as well as Reps. Tom Malinowski, D-N.J. and Mike Turner, R-Ohio. Romney, Rounds, Malinowsky and Turner did not respond to a request for comment. Chartwell has also reached out to various media outlets on behalf of NSO, and distributed material in which the company reiterated its assurances that it would investigate any misuse of its products.

In January 2022, the company hired the services of the Paul Hastings law firm for $10,000 a month. Hastings then had a call with Sen. Ron Wyden, D-Ore., on behalf of NSO. Moreover, less than four months ago, NSO signed an agreement with Washington, D.C.-based public relations and media consulting firm Bluelight Strategies, which has strong ties with the Democratic Party. The firm’s managing director, Aaron Keyak, went on unpaid leave to join Biden’s campaign staff in July 2020 and currently serves as the State Department’s deputy special envoy to combat and monitor antisemitism. NSO paid Bluelight $100,000 in February for two months of work, with an option to extend the contract for $50,000 a month.

The contract between the parties, signed by NSO founder Shalev Hulio and Bluelight President Steve Rabinowitz, also allows Bluelight to hire a subconsultant at a cost of up to $20,000 a month. “NSO’s tools provide limited and specifically targeted intelligence capabilities that have been repeatedly used for instance to help rescue scores of children from human trafficking as well as stopping numerous terrorist attacks,” wrote Brian E. Finch, a partner at Pillsbury, to Rep. Malinowsky earlier this year. “NSO’s Pegasus customers are solely law enforcement and intelligence agencies, and by far are mainly democratic allies of the U.S. and Israel in Western Europe,” he added.

NSO Group “worries about improper or otherwise abusive use of its tools against journalists, human rights advocates, and others,” wrote Finch. “NSO has strict protocols in place to avoid misuse of its products and to terminate access to such products in cases where misuse has been alleged.” The attorney wrote that “NSO stands ready and willing to work with the U.S. government to identify and develop global standards that reflect shared values — protecting citizens of the United States and safeguarding human rights and privacy concerns.”

In a different letter distributed by the firm this year, NSO states it has “developed a human rights governance compliance program,” saying it would conduct a review of all users to see whether they might use the technology used to “violate human rights.”

Pillsbury, Chartwell, Paul Hastings and Bluelight did not respond to a request for comment. The Department of Commerce did not respond to a request for comment.

NSO representatives have approached various people within the administration in order to get a clear understanding of what steps the company could and should take to be taken off the blacklist. They presented NSO’s “kill switch,” which allows the company to terminate contracts when their product is misused, and have warned that if NSO shuts down, Chinese and Russian companies will take its place. So far, the lobbying campaign has generated little response. NSO has not been told what it needs to do to remove itself from the list, according to the people familiar with the campaign.

by Umar Farooq

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Ethiopian Prime Minister Abiy Ahmed was in a tough spot last August when he paid a visit to Turkey. For nearly a year, his government had been at war with rebels from the Tigray People’s Liberation Front, which was now pushing south from its stronghold near the Eritrean border and threatening to move on the country’s capital of Addis Ababa. Thousands had already been killed, and the United States and the United Nations had accused all the warring parties of blockading aid, committing sexual assault and deliberately targeting civilians.

With only a small, aging fleet of Soviet-era military jets, Abiy needed a way to quickly — and cheaply — expand his air campaign against the rebels. Turkey had just the solution: a military drone known as the TB2 that could be piloted from nearly 200 miles away. China and Iran also supplied drones, but the TB2, outfitted with cutting-edge technology, had fast become the new favorite of the world’s embattled nations, helping to win wars even when it was pitted against major powers.

On Aug. 18, Abiy met Turkish President Recep Tayyip Erdoğan to sign a military pact. It’s unclear whether drones were part of the agreement. But two days after the signing, publicly available flight records showed that an Ethiopian Airlines charter flight took off from Tekirdağ, an hour’s drive west of Istanbul, at an airstrip known for testing and exporting the Turkish drones. It was the first of at least three such runs over roughly a month, the records show. Neither the Turkish nor the Ethiopian governments responded to questions about the flights, but officials in Turkey have previously acknowledged drone sales to Ethiopia.

Within months, Turkish-made drones, as well as ones made by China and Iran, hovered over crowded town centers across rebel-held Ethiopia, watching those below before launching missiles at them. News seeped out of towns like Alamata and Mlazat that the drones’ missiles were killing not just suspected rebels but dozens of people, many of them civilians, as they rode buses or shopped in markets. Human rights groups took note of armed drones in the skies and examined images of missile fragments from airstrikes to try to identify exactly what aircraft were involved, hoping that publicly naming their origin would prompt the sellers to reconsider their actions.

As the death toll mounted, the Biden administration, which had authorized sanctions against any party involved in the fighting, said it had “profound humanitarian concerns” over Turkey’s drone sales to Ethiopia. And U.S. officials meeting with their Turkish counterparts raised reports of drone use in the conflict. But there the warnings stopped. Unlike its decisive actions targeting drone programs in China and Iran, Washington took no further action against the program in Turkey, a NATO ally.

So the Ethiopian air campaign continued, including a strike by a Turkish-made drone on a camp for displaced civilians in Dedebit that killed 59 people and attracted widespread condemnation. The bloodshed again drew a rebuke from the U.S., this time directed at Ethiopia. President Joe Biden called Abiy and “expressed concern that the ongoing hostilities, including recent air strikes, continue to cause civilian casualties and suffering,” according to a White House summary of the conversation. Little changed, and by late February, about six months after Abiy’s visit to Turkey, at least 304 civilians were dead from airstrikes, according to the U.N.

The Ethiopian government did not respond to requests for comment, but authorities have previously denied targeting civilians in the war.

A drone expert with the anti-weapons-proliferation group Pax flagged an aircraft that he identified as a TB2 drone in satellite imagery of Ethiopia’s Bahir Dar air force base from December 2021. (Screenshot from Twitter)

Today, much of the discussion around the TB2 drone centers on Ukraine, where it is playing a pivotal role in the war against Russia. Ukraine has put out a steady stream of propaganda videos that show TB2s taking out equipment like surface-to-air missiles and helping other aircraft and artillery target Moscow’s forces. Some lawmakers in Congress have even cast the drone as a crucial weapon and are pushing for the U.S. to help Ukraine buy more. In Lithuania, a recent crowdfunding campaign raised $5.4 million in three and a half days to help Ukraine purchase another TB2.

But the public relations blitz obscures growing concerns around the world about Turkey and the proliferation of a weapon that is changing the nature of modern warfare. At least 14 countries now own TB2s, and another 16 are seeking to purchase them. The technology offers even the smallest militaries the capacity to inflict the kind of damage that was once the exclusive province of wealthy, Western nations, and Turkey seems eager to expand global sales of the weapon.

“They are a game changer,” said Richard Speier, a former Defense Department official who drafted and negotiated a key international agreement that now governs the sale of armed drones. “It’s going to be necessary to take account of them and put a lot of effort in dealing with the drone problem … [because] you can do things on a small budget that you couldn’t do before.”

Amid the criticism, Turkish officials, along with the drone maker itself, Baykar Technology, have defended the TB2 as a critical tool for developing nations and embattled democracies like Ukraine. The drone “is doing what it was supposed to do — taking out some of the most advanced anti-aircraft systems and advanced artillery systems and armored vehicles," Selçuk Bayraktar, the firm’s chief technology officer, told Reuters in May. “The whole world is a customer.”

Officials tout the drone as the product of Turkish industry, with nearly all of its components coming from within Turkey. But time and again, wreckage from downed drones in multiple conflicts have shown otherwise. In fact, a whole range of components — from antennas to fuel pumps to missile batteries — were made by manufacturers in the U.S., Canada and Europe, according to images of wreckage examined by ProPublica and statements by companies, some of whom have acknowledged sales to Turkey.

Some lawmakers have called on the Biden administration to pressure Turkey to restrict sales of the drone by suspending exports of U.S. technology that could be used in the uncrewed aircraft. They argue that the drones and their missiles are sparking more instability around the world, and, in some cases, violating American and international arms embargoes meant to contain wars like the conflict in Ethiopia.

“Turkey’s drone sales are dangerous, destabilizing and a threat to peace and human rights,” said Sen. Robert Menendez last year, as he pushed for an investigation into whether U.S. exports are being used in the Turkish drones. “The U.S. should have no part of it.” Menendez’s office did not respond to a request for comment for this story.

It’s unclear, though, whether the Biden administration will take any further action. A spokesperson for the State Department declined to answer questions for this story, providing only a general statement about arms sales. “We encourage all countries to abide by U.N. arms embargoes, avoid arms transfers to persons who are sanctioned by the United States or the United Nations, and avoid destabilizing arms transfers,” it read.

To better understand how Western technology has made its way into Turkey’s armed drones, ProPublica reviewed videos and photos of TB2s released by media outlets and government agencies, as well as reports by the United Nations and anti-arms-proliferation advocates. The news organization then compiled a list of key parts and consulted with U.S. arms experts to check whether their sale violated export regulations. They did not. Many of the components in the TB2s were commercial-grade parts found in a variety of consumer products, such as HD video cameras or self-driving cars, so they evaded the strict regulatory scrutiny applied to military parts in the U.S.

Still, other countries, including Canada, have instituted export bans that have kept some key commercial parts from flowing to Turkey. And experts say the U.S., if it chose to, could take similar measures at home and step up enforcement abroad.

Cameron Hudson, former Director for African Affairs on the National Security Council, compared the impact of drones like TB2s to the Stinger missile, the shoulder-fired weapons the U.S. distributed to mujahedeen fighters in Afghanistan in the 1980s to repel Soviet forces, then spent decades trying to recover.

“As the technology continues to improve, as they become cheaper, as they become more mobile and portable, as you need less infrastructure to operate them, they modernize conflict around the world,” he said.

The U.S. demonstrated the lethal power of armed drones in the George W. Bush and Barack Obama administrations, when officials used them for targeted killings in places like Iraq and Afghanistan. Since then, international regulators have largely focused on policing sales of larger models, like the Predator and Reaper drones used by the American military. Their primary enforcement tool: the Missile Technology Control Regime, an agreement developed toward the end of the Cold War that today has 35 signatories, including the U.S., Russia and Turkey. The pact calls on members not to sell so-called Category 1 systems, technology designed to carry missiles long distances and deliver nuclear, chemical or biological payloads.

Thus far, proliferation experts say the agreement has succeeded in stemming the flow of those kinds of weapons. But, they added, it has failed to capture the rising development of smaller drones, like the TB2.

In the last decade, China has developed its own drones and marketed them to developing countries, while Iran has expanded its drone program to help fight its proxy wars in Syria and Yemen. Israel also runs a major export operation — including surveillance and so-called kamikaze drones — though experts say the country officially restricts the sale of drones capable of firing missiles.

Turkey supercharged its own efforts after the U.S. declined to sell the country armed drones. U.S. officials were concerned about potential human rights violations, as Turkish officials planned to use the weapons in conflicts with Kurdish insurgents, said Vann Van Diepen, who helped oversee nonproliferation programs at the State Department until 2016.

The turning point came in 2015 when Bayraktar, an MIT-educated engineer who ran an armed drone program out of his father’s defense manufacturing firm in Istanbul, debuted the TB2. Using a Turkish-made missile, he held a demonstration to show that the drone could hit a target from miles away. Bayraktar, who would later marry Erdoğan’s daughter, touted the TB2s as a way for Turkey to become a global superpower without relying on U.S. drones.

For Baykar and its customers, the design had a key feature: The 40-foot-wide, 20-foot-long drone can be controlled from ground stations up to 185 miles away, just below the range that’s subject to Category 1 missile technology restrictions. The drone also has plenty of high-tech firepower. From an altitude of 18,000 feet, where it can hover for more than 24 hours, the TB2 can find and track targets, then hit them with laser-guided weapons, usually a lightweight missile called an MAM-L, made by the Turkish manufacturer Roketsan.

Bayraktar portrayed the drones as a Turkish success story, designed, manufactured and armed by Turkish companies. But it wasn't long before people searching through the wreckage of downed drones discovered that the TB2s relied on imported parts.

In 2020, for example, amid a conflict between Azerbaijan and Armenia, images published by local media outlets and the Armenian Ministry of Defense showed parts with identifying information that matched those sold by manufacturers in other countries, including the U.S. Hardware that allowed the drones to receive GPS signals from satellites was made by Trimble, headquartered in Sunnyvale, California. The drone’s engine was made in Austria by Bombardier Recreational Products, based out of Quebec, Canada. A sophisticated, programmable microchip was made by San Jose, California-based Xilinx. The drone’s camera, perhaps the most important TB2 component, was made by Wescam, a Canadian subsidiary of L3Harris, based in Melbourne, Florida.

In the wake of the revelations, several companies, including Trimble, Bombardier and Xilinx, issued statements saying they were surprised to learn their products were being used in the conflict and had taken steps to ensure their parts no longer ended up in Baykar’s drones.

But today, key parts continue to be sourced from manufacturers based in Western countries. The German company Hensoldt, for example, told ProPublica it supplies one version of the drone’s camera. And video of TB2 strikes in Ukraine, along with Canadian export records, show the drones there still use the camera made by Wescam, according to researchers at Project Ploughshares, a Canadian anti-arms-trade nonprofit that tracks the proliferation of military technology. L3Harris, Wescam’s parent company, did not answer questions for this story, but said it “fully supports and adheres to all government export regulations applicable to our products and services used by the U.S., its allies and partners.”

Baykar declined to respond to questions about the source of key components in its drones or how it had obtained them. The company would only say that ProPublica’s questions were based on unspecified “false accusations.” In March, Bayraktar, the company’s CTO, said on social media that “93%” of the components in the TB2s are locally made.

Baykar is not unique in its use of commercial parts for its drones; many of Iran’s and China’s globally marketed drones also use parts that are not necessarily intended for military purposes. But those countries must find ways around a web of U.S. sanctions and export restrictions, so they cannot simply buy parts directly from U.S. companies. Importers in Turkey, on the other hand, are not subject to such restrictions. The country is a NATO ally and a party not only to the missile technology agreement, but also to the Wassenaar Arrangement, a broader set of voluntary guidelines set by 42 participating states seeking to control the spread of dual-use technologies that could be used for weapons that destabilize the world. Those qualifications put Turkey on a government list of countries preapproved to import many of the commercial parts found in the TB2s.

Under U.S. rules, those components “would not be controlled,” said Kevin Wolf, who helped oversee the export of dual-use technologies in the Commerce Department until 2017. “You have to rely upon the Turkish government for regulating its export to embargoed or other countries of concern.”

Turkey began using, and perfecting, the TB2s in its own war on Kurdish insurgents — the same conflict for which the U.S. had refused to provide armed drones. From 2016 to 2019, authorities trumpeted their success in press releases about strikes that “rendered ineffective” more than 400 people in the Kurdish-majority southeast of the country, where the Kurdistan Workers’ Party, or PKK, was most active. In strikes both inside Turkey and across the border in northern Syria and Iraq, the TB2s delivered massive losses to the PKK, effectively putting an end to its ability to launch attacks.

But by 2018, this posed problems for U.S. forces, which were relying on the same PKK-linked fighters in the battle against the Islamic State group in the region.

Although Turkey’s actions, including its drone strikes, did not ultimately keep the U.S. and the Kurds from defeating the group, they made the war, and its aftermath, far more complicated, said Gen. Michael Nagata, who headed U.S. Special Operations Command until 2015, then served as director of strategy for the National Counterterrorism Center until 2019.

With the proven success of its new tool, it soon became clear Turkey did not intend to keep the TB2s all to itself.

“The Whole World Is a Customer”

Countries around the globe are adding TB2s to their arsenals. At least 14 countries now own the drones, and another 16 are seeking to purchase them.

Source: News reports and statements from government officials and the drone-maker Baykar Technology

In 2019, Turkey sent TB2 drones, along with pilots to operate them, to Libya to help the Tripoli-based Government of National Accord in a complicated civil war it was fighting against Khalifa Haftar, a warlord backed by Russia, Jordan and Turkey’s regional enemies, Egypt and the United Arab Emirates. Haftar’s forces — which were themselves equipped with Chinese Wing Loong drones provided by the UAE — had mounted a major assault that threatened Tripoli, but the TB2s helped push them back.

But by supplying drones and other weapons, Turkey, as well as Jordan and the UAE, broke a U.N. arms embargo that was meant to keep the Libyan civil war from escalating, the U.N. would later say in a scathing 548-page report. The U.N. singled out the Chinese and Turkish drones — which carried out more than 1,000 strikes in the battle over Tripoli — saying they transformed the situation from “a low-intensity, low-technology conflict” into a bloody war that, by the World Health Organization’s count, killed more than a thousand people, including about 100 civilians.

The Turkish Foreign Ministry did not respond to a request for comment for this story, including on the U.N.’s finding that Turkey broke the arms embargo on Libya. Jordan and the UAE have said they are committed to complying with the U.N. arms embargo.

A cargo manifest and airway bill from a U.N. report show that drones were transferred from Turkey to Libya in May 2019. (Source: United Nations Security Council)

Alarmed by the U.N.’s findings, Congress called for the White House to put forth a comprehensive strategy for countering the destabilizing influence of foreign powers in 2020. Senators at the time even wrote to the State Department asking it to “press the UAE, Russia, Turkey, and Jordan to halt all transfers of military equipment and personnel to Libya.”

But the White House did not take action against Turkey, or any of the other countries, over Libya. And when Azerbaijan looked to retake the long-disputed territory of Nagorno-Karabakh from its neighbor Armenia in 2020, Turkey sold its allies, the Azeris, TB2 drones. The TB2s allowed Azerbaijan to quickly control the skies and decisively win the war in just six weeks. Videos of the TB2 drone strikes became ubiquitous propaganda, put out daily by the Azerbaijan defense ministry. Some clips played on giant screens set up in public squares in the capital, Baku.

Nagata, the former special forces commander, said Libya and Nagorno-Karabakh should have been a wake-up call for the U.S. military, which was surprised when the TB2s “literally turned the tide of war there.” Beyond the strategic implications though, it should have also worried U.S. policymakers because it showed how quickly the drones were proliferating, Nagata said. “It is a harbinger of things to come, that this is going to expand beyond Turkey,” he said. “If Turkey can do this, any country with some sort of industrial manufacturing base can do this.”

Indeed, while the U.S. has focused on keeping its most advanced systems under control, Turkey, China and Israel have made hefty profits selling their own drones, which are less-sophisticated but often effective, said Max Hoffman, a former adviser to the U.N. and the House Armed Services Committee.

“The Israelis and the Chinese, and now the Turks, have really not caught up fully [to the U.S.], but exploited that middle and down market that the U.S. had let go,” Hoffman said. “And obviously Turkey has not had many scruples in who they sell the drones to.”

A military truck in Baku, Azerbaijan, carries a TB2 drone at a parade celebrating the Azerbaijani army’s victory in Nagorno-Karabakh. (Photo by Mustafa Kamaci/Anadolu Agency via Getty Images)

Some of Turkey’s other NATO allies, including Canada, did take action, curtailing defense exports in 2019 after a Turkish incursion into northern Syria threatened to disrupt the fight against the Islamic State group.

Publicly, Turkish officials shrugged off the trade restrictions, saying the country had enough of an industrial base that it could produce what it needed on its own. But in private, Turkish officials, as well as the drone maker Baykar, pushed Canada to allow the sale of a key part: the MX-15 imaging and targeting system, which was made by Wescam. The company had received public funding from Canada, including a $75 million grant in 2015, to develop such a system. Upgraded versions of the MX-15 have been used over the years by the Predator and Reaper, and by a number of other systems by NATO partners.

The Turkish Foreign Minister told his Canadian counterpart the MX-15 would only be used on drones intended for protecting civilians in Syria against Russian attacks, and the Turkish defense ministry told Canada it would not export the cameras to any third party.

But six months later, the TB2s showed up in Azerbaijan, with Baku’s propaganda drone strike videos clearly indicating the MX-15s were being used there. Photos of crashed drones, taken by Armenian forces and posted on social media, showed that the cameras had been made in Canada as late as June 2020. This time the Trudeau government undertook a larger review, and in October 2020 it suspended all existing export permits that had allowed Wescam to ship the cameras to Turkey. Canadian officials said Turkey appeared to have broken the U.N. arms embargo on Libya and illegally exported the TB2s with the Canadian MX-15 camera system to Azerbaijan, in violation of its pledges. (L3Harris, Wescam’s parent company, did not respond to questions about the Canadian actions. At the time, Wescam declined to comment on the Armenian photographs, but it confirmed for Canadian officials that it had sold MX-15s to Turkey under a preexisting permit.)

Baykar Technology, maker of the TB2 drone, posted photos of Ukrainian President Volodymyr Zelenskyy visiting its production facility. (Screenshot from Twitter)

Less than two weeks later, though, in an apparent bid to keep the parts flowing, Erdoğan called Trudeau and surprised him by putting Ukrainian President Volodymyr Zelenskyy on the phone. Canadian documents, released as part of an inquiry by lawmakers, show the call’s agenda included the export permits. At the time, Ukraine was seeking to add more TB2 drones to its military arsenal.

In 2020, lawmakers in Germany were also pressing to limit the Turkish drone program, said Andrej Hunko, a member of the Bundestag from the Left Party.

Hunko, who had been outspoken over the years about the U.S. drone program, joined lawmakers from the Green Party in asking the government to explain weapons sales to Turkey that they believed were connected to the TB2 drones. The government confirmed that German defense manufacturer TDW had exported missiles and parts to Turkey while another German firm, Numerics, had sold software. Hunko said he and his colleagues concluded that those sales had helped influence the design of the Turkish MAM-L missiles used by the TB2s. TDW did not answer questions for this story, but referred to a statement it made in 2020, which said it had not sold parts to Turkey since 2019. The statement also said TDW has never had “a relationship for a delivery or supply for the Bayraktar TB2 drone or its armament.” Numerics did not respond to a request for comment.

But Hunko soon found a more direct link after Baykar posted photos of its drone from a military parade in Turkmenistan. The images appeared to show ARGOS II cameras from German manufacturer Hensoldt, which later confirmed it had sold the equipment to Turkey for drones, undercutting Baykar’s claims that it used only local parts. Hensoldt told ProPublica it continues to supply the ARGOS II for Baykar’s TB2 drones. The camera, it said, “is developed by Hensoldt’s South African subsidiary and contains no parts that would fall under German export control law.”

Anti-arms activists in the United Kingdom had previously made a similar discovery when they analyzed wreckage of downed drones in 2020. The TB2s had used a missile rack that came from U.K. firm EDO MBM Technology, another subsidiary of Florida-based L3Harris, despite Baykar’s claims of local sourcing.

Hunko and other opposition lawmakers in Germany ultimately called for halting exports of key drone parts, but the government did not take any such action. Hunko said his concerns continue, prompted not only by Turkey’s own use of drones in the region, but also by what they mean for warfare in general. “It’s not like if you send [manned] military planes,” he said. “It’s lowering the threshold for entering into a war.”

The issue hit Washington’s political radar in November 2020, after a report from the Armenian National Committee of America (ANCA), a pro-Armenia lobbying group that has pushed for tougher action against Turkey. The report contained evidence that TB2 parts, found in wreckage of drones shot down by Armenian forces in the Nagorno-Karabakh war, had come from U.S.-based firms.

ANCA and other groups critical of Turkey mobilized supporters to write to parts manufacturers, winning pledges from many that they would stop selling to Baykar Technology. Six U.S.-based manufacturers whose parts showed up in the TB2 drones responded to ProPublica, confirming that they had taken steps to stop direct sales to Turkey of parts that could be used by Baykar for the drones. But experts said it was probably difficult to stop Turkey from acquiring the parts through distributors and resellers on the open market.

That dynamic exposes how U.S. laws, which were crafted decades ago to police parts that had an obvious military purpose, fall short in the modern era. For instance, the U.S. Munitions List — which designates certain materials as defense-related, meaning they require licenses from the State Department detailing their buyers and end uses — contains things like flamethrowers and the chemicals needed to make C4 explosives. But other technologies, including those used on the TB2 drones, appear instead on another list, known as the Commerce Control List. Overseen by the Commerce Department, these parts do not usually require prior authorization for sales.

In August 2021, a bipartisan group of 27 members of Congress pressed the Biden administration to take action, saying Turkey was using U.S. technology to fuel drone proliferation around the globe. “Turkish actions have continued to run contrary to its responsibilities as a NATO member state,” the lawmakers wrote in a letter. “​​The potential for these drones to further destabilize flashpoints in the Caucuses, South Asia, the Eastern Mediterranean, the Middle East, and North Africa is too great to ignore.”

The group asked the State Department to assess whether Turkey was violating existing sanctions or NATO rules. They also pressed for a suspension of exports of U.S. technology that could be used in the TB2s, a step the administration hasn’t taken.

In November 2021, Menendez, the chair of the Senate Foreign Relations Committee, followed up by proposing an amendment to the 2022 National Defense Authorization Act. The measure mandated that the Biden administration investigate whether any U.S. exports since 2018 had been used in the Turkish drones and whether that use, and their reexport to other countries, violated U.S. law.

“This amendment is a recognition that we must prevent U.S. parts from being included in these Turkish weapons,” he said in a statement at the time. Menendez’s office did not respond to a request for comment for this story.

Turkey pushed back. At the same time that lawmakers were calling on the Biden administration to crack down, the Turkish Embassy in Washington hired LB International Solutions on a ​​$544,998 contract to lobby on its behalf with Congress, according to Foreign Agents Registration Act filings. The firm in turn paid D.C. lobbyist Mark W. Murray $35,000 for setting up more than a dozen meetings with members of Congress, including those on the Senate and House Foreign Affairs Committees. Among the items on the agenda: drone sales to Ukraine. Murray declined to answer questions for this story, saying, “I no longer work for LB International on Turkey.” He referred ProPublica to the lobbying firm, which did not respond to a request for comment.

In the end, the final defense bill, passed in December 2021, did not reference Turkish drones specifically, but still required the Biden administration to report to Congress within 180 days on whether U.S. “weapon systems or controlled technology” were used in the Nagorno-Karabakh war. A spokesperson for the Defense Department, which is tasked with leading that review, said that the department was working on finalizing the report and had not yet delivered it to Congress.

The war in Ukraine, however, has since softened some of the criticism. Much like Azerbaijan did in 2020, Ukraine has produced propaganda videos of TB2 strikes on Russian forces, including a catchy song extolling the drones’ prowess on the battlefield. The drones, in turn, drew praise from some in Congress.

“We must find ways to quickly provide Ukraine with more armed drones, such as the Turkish TB-2, which has been very effective apparently,” said Republican Sen. Rob Portman, speaking on the Senate floor in March. Sen. Marco Rubio, a Republican who in 2019 criticized then-President Donald Trump for allowing Turkey to fight Kurdish groups in Syria, wrote on Twitter that Ukraine was “inflicting substantial damage on Russia’s supply lines with Bayraktar TB2 Turkish made unmanned combat aerial vehicles.” Rubio, who sits on the Foreign Relations Committee, declined to comment for this story. Portman’s staff did not respond to a request for comment.

“Everybody in NATO is now looking for ways to deter Putin and up the cost of further Russian military action in Ukraine, and the [Turkish] drones, as proven on the battlefield, are one of the best ways to do that,” said Matthew Bryza, former U.S. ambassador to Azerbaijan.

Indeed, the war has prompted a major effort to arm Ukraine, even in countries that had previously sought to stop or slow drone proliferation.

Canada, for instance, announced in March that it was sending $50 million in lethal and nonlethal aid to Ukraine, including “Canadian-made cameras used in military drones and other specialized equipment” — the same MX-15 optical systems that it had banned from being exported to Turkey last year over human rights concerns. Even before the announcement, Project Ploughshares, the Canadian anti-arms-trade group, had concluded that Ukraine’s TB2s were using the cameras. The analysis was based in part on Canadian export records and Ukrainian video of drone strikes that show the MX-15’s distinctive overlay. Kelsey Gallagher, a researcher with the group, said the equipment had likely been exported to Ukraine instead of Turkey. Before the Russian invasion, Ukrainian officials had announced plans to set up a joint production facility with Baykar in the country.

Canada’s Global Affairs department forwarded questions for this story to the Department of National Defence, which did not respond.

The U.S. now faces a slippery diplomatic quandary: On one hand, the TB2s are aiding allies like Ukraine, which has used them to turn the tide against Russian forces. On the other hand, they are rapidly changing modern warfare, giving warring factions a way to kill quickly, cheaply and remotely.

Pakistan’s military, which the U.S. has long refused to sell drones to over concerns about the country’s nuclear weapons program, is now advertising the TB2s as a part of its arsenal.

And in Morocco, the Polisario Front, an opposition group in the disputed Western Sahara region, accused the Moroccan air force of deploying drones after a decades-old ceasefire broke down. The Moroccan government has not acknowledged possession of the Turkish drones, but in October 2021 Reuters reported that Turkey was negotiating a sales deal for TB2s with the country. By December, video taken by activists captured the drones in the skies, and local news reports showed fragments of Turkish MAM-L missiles that had reportedly been used in strikes. Neighboring Algeria denounced what it called “targeted killings committed with sophisticated weapons of war … against innocent civilians.” The Moroccan Foreign Ministry did not respond to a request for comment. Officials have previously denied targeting civilians.

Critics say the U.S. should find ways to slow the spread of Turkish drones.

“The proliferation of this kind of weaponized technology is unstoppable, but that doesn’t mean we shouldn’t try to at least create friction against it. And that’s a policy choice,” said Nagata, the former head of special operations.

Van Diepen, the former State official who helped oversee nonproliferation programs, said that if the Biden administration chose to take action, it could start by activating so-called end-use checks on key drone parts.

The State Department, for example, has staff in diplomatic missions abroad, including in Istanbul, tasked with carrying out on-site inspections of companies importing goods from the U.S. and ensuring that the products are not being diverted for other uses. The program, called Blue Lantern, focuses mostly on major sanctioned parties, groups like Islamic State, or entities linked to states like Iran. While the TB2 components from the U.S. are not directly controlled as military parts, the fact they were known to be used to build a military weapons system should have raised flags within the Defense, State and Commerce departments, former U.S. officials said.

Experts said the U.S. could also use other tools to slow the flow of parts to the drones. Last September, for example, the White House said it had the authority to penalize any party involved in the Ethiopia conflict. Van Diepen said the Biden administration could use that power to place Baykar Technology on a targeted sanctions list, making it illegal for U.S. companies to do business with the firm altogether.

The U.S. has taken similar measures against China and Iran, sanctioning Iranian companies and individuals for their involvement in Tehran’s armed drone program, and sanctioning Chinese-drone maker DJI for its role in surveillance of ethnic Uyhgurs in Xinjiang.

To some of the strongest critics of Turkey’s armed drones though, it appears there is little will in Washington to do more.

“Canada, they did the due diligence and took actions that haven’t happened here,” said Aram Hamparian, executive director of ANCA.

In the U.S., “it’s just business as usual. So then why even bother having these laws? And the answer to my question is: So we can use them conveniently when it advances some policy aim.”

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by Andrea Suozzo

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The Family Research Council’s multimillion-dollar headquarters sit on G Street in Washington, D.C., just steps from the U.S. Capitol and the White House, a spot ideally situated for its work as a right-wing policy think tank and political pressure group.

From its perch at the heart of the nation’s capital, the FRC has pushed for legislation banning gender-affirming surgery; filed amicus briefs supporting the overturning of Roe v. Wade; and advocated for religious exemptions to civil rights laws. Its longtime head, a former state lawmaker and ordained minister named Tony Perkins, claims credit for pushing the Republican platform rightward over the past two decades.

What is the FRC? Its website sums up the answer to this question in 63 words: “A nonprofit research and educational organization dedicated to articulating and advancing a family-centered philosophy of public life. In addition to providing policy research and analysis for the legislative, executive, and judicial branches of the federal government, FRC seeks to inform the news media, the academic community, business leaders, and the general public about family issues that affect the nation from a biblical worldview.”

In the eyes of the Internal Revenue Service, though, it is also a church, with Perkins as its religious leader.

According to documents obtained via the Freedom of Information Act and given to ProPublica, the FRC filed an application to change its status to an “association of churches,” a designation commonly used by groups with member churches like the Southern Baptist Convention, in March 2020. The agency approved the change a few months later.

The FRC is one of a growing list of activist groups to seek church status, a designation that comes with the ability for an organization to shield itself from financial scrutiny. Once the IRS blessed it as an association of churches, the FRC was no longer required to file a public tax return, known as a Form 990, revealing key staffer salaries, the names of board members and related organizations, large payments to independent contractors and grants the organization has made. Unlike with other charities, IRS investigators can’t initiate an audit on a church unless a high-level Treasury Department official has approved the investigation.

The FRC declined to make officials available for an interview or answer any questions for this story. Its former parent organization, Focus on the Family, changed its designation to become a church in 2016. In a statement, the organization said it made the switch largely out of concern for donor privacy, noting that many groups like it have made the same change. Many of them claim they operated in practice as churches or associations of churches all along.

Warren Cole Smith, president of the Christian transparency watchdog MinistryWatch, said he believes groups like these are seeking church status with the IRS for the protections it confers.

“I don’t believe that a lot of the organizations that have filed for the church exemption are in fact churches,” he said. “And I don’t think that they think that they are in fact churches.”

The IRS uses a list of 14 characteristics to determine if an organization is a church or an association of churches, though it notes that organizations need not meet all the specifications. The Family Research Council answered in the affirmative for 11 of those points, saying that it has an array of “partner churches” with a shared mission: “to hold all life as sacred, to see families flourish, and to promote religious freedom.” The group says there is no set process for a church to become one of the partners that make up its association, but it says partners (and the FRC’s employees) must affirm a statement of faith to do so. It claims there are nearly 40,000 churches in its association, made up of different creeds and beliefs — saying that this models the pattern of the “first Christian churches described in the New Testament of the Bible.”

Unlike the Southern Baptist Convention, whose website hosts a directory of more than 50,000 affiliated churches, the FRC’s site does not list these partners or mention the word “church” anywhere on its home page. The FRC’s application to become an association of churches didn’t include this list of partner churches, nor did it provide the names to ProPublica.

To the question of whether the organization performs baptisms, weddings and funerals, the FRC answered yes, but it said it left those duties to its partner churches. Did it have schools for religious instruction of the young? That, too, was the job of the partner churches.

The FRC says it does not have members but a congregation made up of its board of directors, employees, supporters and partner churches. Some of those partner churches, it says, do have members.

Does the organization hold regular chapel services? According to the FRC’s letter to the IRS, the answer is yes. It wrote that it holds services at its office building averaging more than 65 people. But when a ProPublica reporter called to inquire about service times, a staffer who answered the phone responded, “We don’t have church service.” Elsewhere in the form, it says that the employees make up those who attend its services.

Answers From the Family Research Council to the IRS’ Church Characteristics Questionnaire

The following are excerpts from a document obtained by ProPublica. Click the arrows to explore it.

by ProPublica

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Applications are now open for five spots in ProPublica’s Local Reporting Network. We’re seeking to work with local journalists who are interested in investigating wrongdoing and abuses of power in their communities.

Our new partners will begin work on Nov. 1, 2022, and continue for one year. Journalists from all local and regional newsrooms are eligible to apply.

ProPublica will pay the salary (up to $75,000), plus an allowance for benefits, for each full-time reporter. Local reporters work from and report to their home newsrooms, while receiving extensive support and guidance for their work from ProPublica, including collaboration with a senior editor and access to ProPublica’s expertise with data, research, engagement, video and design. The work will be published or broadcast by your newsroom and simultaneously by ProPublica.

Applications are due Aug. 22, 2022, at 11:59 p.m. Pacific time. Here are more details for those interested in applying.

ProPublica launched the Local Reporting Network at the beginning of 2018 to boost investigative journalism in local newsrooms. It has since worked with nearly 60 news organizations. The network is part of ProPublica’s local initiative, which includes offices in the Midwest, South and Southwest, plus an investigative unit in partnership with the Texas Tribune.

Reporting by the Local Reporting Network and its local partners have had significant impact.

MLK50, a nonprofit news organization in Memphis, Tennessee, reported on how the area’s largest hospital system sued and garnished the wages of thousands of poor patients, including its own employees, for unpaid medical debts. The hospital subsequently curtailed its lawsuits against patients, erased $11.9 million in unpaid medical debts, dramatically expanded its financial assistance policy for hospital care and raised the minimum wage it pays employees. The stories won the Selden Ring Award for Investigative Reporting.

Our partnership with the Miami Herald looked at the deeply troubled Florida program intended to provide services and a financial cushion for the families of children born with devastating brain injuries. The series found that the program protected doctors at the expense of suffering families and that it had amassed $1.5 billion in assets while families waited for help. The reporting pushed the state legislature to quickly enact long-needed reforms and spurred the program’s executive director to roll out further benefits for the families and subsequently resign.

And our collaboration with Nashville Public Radio (WPLN) went deep into one county in Tennessee that was arresting and locking up children at extraordinary rates. The series about Rutherford County was read more than 3.5 million times and spurred demands for reform. Eleven members of Congress called for the U.S. Department of Justice to open a civil rights investigation. Tennessee’s governor called for a review of Rutherford County’s juvenile court judge. In January 2022, legislators introduced a bill to remove the judge, citing an “appalling abuse of power.” An hour after ProPublica wrote about that bill, the judge announced she would retire this year rather than run for election.

Applications to join the Local Reporting Network should be submitted by newsroom leaders proposing a particular project and a specific reporter. If you lead a newsroom and are interested in working with us, we’d like to hear from you about:

• An investigative project. The proposed coverage can take any number of forms: a few long stories, an ongoing series of shorter stories, text, audio, video or something else. Please tell us why this coverage will be crucial to your community, lay out any similar coverage that has been done before it, say why this project has particular urgency now and offer a plan for executing the work. Please also explain why your region and your newsroom are right to tell this particular story.
• The reporter whom you ideally envision spearheading the work and the market salary you would need to pay them from Nov. 1, 2022, through Oct. 31, 2023. This could be someone already on staff or someone else — for example, a freelancer with whom you hope to work. Please include a personal statement by the reporter explaining their interest, at least three clips and, of course, a resume.

Freelancers are also welcome to apply, but must submit a joint application with an eligible news organization willing to publish their work.

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Please submit your proposal by Aug. 22, 2022, at 11:59 p.m. Pacific time. Entries will be judged principally by ProPublica editors. Selected proposals will be announced by October.

by Melissa Sanchez and Emily Hopkins

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

Update, July 20, 2022: On July 20, the Chicago City Council rejected a measure that would have repealed Mayor Lori Lightfoot’s lowered threshold for $35 speed camera tickets.

As Chicago’s City Council debates whether to rein in a controversial expansion of the city’s speed camera ticketing program, elected officials are wrestling with whether the devices have improved traffic safety enough to justify their financial burden on Black and Latino motorists.

It’s a difficult, complex question, and it comes at a moment when the city has witnessed a series of high-profile fatal traffic crashes — including several involving children.

In this context, Mayor Lori Lightfoot is defending her policy lowering the threshold for speeding tickets from 10 mph over the limit to 6. The lowered threshold, which comes with $35 tickets and went into effect in March 2021, is projected to bring in some $40 million to $45 million in revenue this year. (Previously, the city issued $35 tickets to motorists caught speeding 10 mph over the limit and $100 tickets for those caught at higher speeds.)

The City Council is expected to vote this month on a measure proposed by Alderman Anthony Beale, who represents a ward on the South Side, to repeal the lowered threshold.

Beale and his allies say the mayor’s move was a cash grab that comes at the expense of motorists who can least afford it. Lightfoot and those who support maintaining the lowered threshold say they are motivated by safety.

ProPublica’s reporting has helped inform the debate. Since 2018, we have reported on how Chicago’s ticketing system — including parking, compliance and automated red-light and speed camera citations — disproportionately hurt Black motorists, sending tens of thousands into bankruptcy.

In January, we reported on how households in Black and Latino ZIP codes received camera tickets at about twice the rate of those in white ZIP codes. That reporting was primarily based on an analysis of data on red-light and speed camera citations issued between 2015 and 2019, but we also examined tickets issued to motorists going 6 to 9 mph over the speed limit in the first two months of the program’s expansion. Racial disparities persisted.

ProPublica identified some road design and neighborhood-based differences that seem to contribute to the disparities in ticketing, such as wider streets with more lanes that lend themselves to speeding in areas with higher proportions of Black and Latino residents.

A study from the University of Illinois at Chicago released in January found similar racial disparities in camera ticketing in addition to a greater financial burden from late penalties on households in low-income Black and Latino neighborhoods. The study also found a 15% reduction in the expected number of crashes leading to fatal and incapacitating injuries during a three-year period after cameras were installed.

Beale’s motion passed out of the Finance Committee in June; when a vote was scheduled for the full City Council, Lightfoot’s allies used a parliamentary maneuver to postpone it, reportedly to buy time to kill it. It’s now expected to go to the City Council on July 20. If it’s approved, Lightfoot is expected to veto the measure, which would be a first for her administration.

Given all this, here are a few important points to consider as the City Council weighs whether to change the program:

1. There has been no extensive analysis of the safety benefits of the lowered threshold for issuing speeding tickets.

City officials pointed to the UIC research on the safety effects of the speed cameras as a reason to keep the lower threshold in place. That study, however, covers a time period before the lowered threshold took effect.

In response to questions, city Department of Transportation officials said that the average recorded speeds of all vehicles passing by cameras dropped about 1 mph and the number of tickets issued to drivers going 11 mph or more over the limit has also dropped since the change. In addition, the city said there is preliminary evidence that the number of injury-producing crashes near cameras has decreased since the threshold was implemented. These changes, the city said, reflect a “collective slowing down of vehicles.”

2. The city has not acted on some of the UIC research, which it commissioned.

Stacey Sutton and Nebiyou Tilahun, both of UIC’s College of Urban Planning and Public Affairs, found that the safety benefits from the speed cameras were not universal. At 16 of the 101 camera sites studied, researchers observed what they called a “marked” increase in crashes over what would have been expected had the devices not been installed at those locations.

They recommended that, where cameras have not reduced crashes, the city move the devices to other locations or turn them off, and that it examine the decision-making process it uses to choose where to put them.

That process is ongoing, the city said. “We are obligated to perform an empirical and thoughtful process, before abruptly removing a safety tool from our streets,” city officials said in a statement. “With that said, we have not ruled out moving or eliminating cameras and are prepared to make changes to the program in the near future.” In January, city officials had told ProPublica they would not consider reducing the number of the speed cameras in the program.

Sutton said she was disappointed the city had not yet acted on the recommendations. “The cameras do improve safety,” she said, “but they don’t all improve safety all of the time.”

The city said it did respond to the UIC findings on racial disparities. Before the report was published, the mayor rolled out a program that offers low-income motorists some debt forgiveness if they sign up for a plan to pay off some of their recently accrued citations, minus any late penalties.

3. Nationally, cities are looking at Chicago — and learning from its mistakes.

“The numbers [showing racial disparities] are stark and awful, and it’s a warning sign to many of us to think differently and to step back,” said Leah Shahum, the founder and executive director of Vision Zero Network, a national nonprofit group that helps communities set and reach the goals of eliminating traffic fatalities and severe injuries. “We are asking the question: Are we thinking of unintentional consequences?”

She pointed to examples of cities and states on the West Coast that have tried to incorporate equity and infrastructure into their camera programs. In Washington state, for example, lawmakers require cities with new speed camera programs to direct some of the ticket revenue toward improving safety for pedestrians, cyclists and people with disabilities. In addition, state law requires cities that install new speed cameras to produce an equity report at the end of a pilot period.

In California, lawmakers have considered — but not passed — legislation that would allow some cities to try speed camera programs as long as equity is taken into account in the placement of the devices, among other restrictions. The only way cities could maintain cameras is if they could be shown to improve safety through a reduction in the number of tickets issued.

Concerns about racial equity in automated camera enforcement have been picking up across the country and even internationally since the ProPublica and UIC reports. In February, the nonprofit transportation news site Streetsblog New York examined New York City’s camera enforcement program, raising questions about inequities in infrastructure and ticketing that are similar to those in Chicago.

In Toronto, transportation safety advocates supported a measure this winter to require the city to conduct an equity analysis after an expansion of that city’s speed camera program. That initiative, which was ultimately withdrawn, aimed to ensure the automated enforcement did not “result in over policing of racialized communities and people,” according to the measure’s language.

Meanwhile, Priya Sarathy Jones, national policy and campaigns director with the nonprofit Fines and Fees Justice Center, said she’s been getting calls from more and more cities that are interested in camera enforcement as an alternative to potentially biased police officers making traffic stops.

“We’re also seeing that there’s a lot more acknowledgement that it’s not a straightforward solution,” she said. “We’re getting questions about how and if we can implement an equitable automated enforcement program, and if you can, what does that look like?”

4. Traffic safety and racial equity advocates agree there needs to be more emphasis — and money spent — on making streets and infrastructure safer for pedestrians, cyclists and motorists.

Olatunji Oboi Reed, the president and CEO of Equiticity, a Chicago-based racial equity in transportation organization, supports repealing the lowered speeding threshold because it would reduce the volume of tickets to Black and Latino motorists.

Instead of relying on a punitive strategy, Reed said, “what the city should be doing is reengineering our streets to reduce traffic violence and reduce the need for automated enforcement.”

Groups that have long supported speed camera ticketing also want to see a larger focus on the underlying infrastructure.

“What Chicago really needs is a citywide approach to redesign dangerous streets and add life-saving infrastructure that protects people when walking and biking and makes the street safer for everyone,” Kyle Whitehead, a spokesperson for the Active Transportation Alliance, a local road safety advocacy group, said in a statement.

Although Active Transportation initially spoke out against the lowered threshold, saying it was unclear how low-income and minority motorists would be affected, it now wants to keep the lower threshold in place. “High-crash streets in majority Black and Brown neighborhoods should be prioritized for safety improvements to ensure rates of speeding decline and residents in these areas are not overburdened with fines,” Whitehead said.

Sutton, one of the researchers behind the UIC report, said the city should spend the ticket revenue it’s getting from the lowered threshold on infrastructure and traffic-calming measures, including reducing the number of lanes, installing speed bumps and adding signs that tell motorists how fast they’re going.

We don’t actually know exactly how that revenue is spent. The city is limited by state law in how it can use the money it gets from speed camera tickets; police spending accounts for the vast majority of what’s allowed, according to budget documents. But city officials said they could not provide a breakdown of how the additional revenue from the lowered threshold is spent.

The city said it has made significant investments in pedestrian infrastructure during Lightfoot’s administration. Officials pointed to her capital infrastructure plan, which provides $20 million a year for programming aimed at eliminating traffic fatalities and injuries, and an average of 400 pedestrian safety improvements installed a year. The city also plans to install 100 more of those digital speed signs near speed cameras this year.

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by Laurence Du Sault, Open Vallejo

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

This story contains detailed descriptions of pursuits and killings by police officers.

Around dinner time on Feb. 13, 2018, Ronell Foster was riding his bike on a wide road that runs through the historic downtown of Vallejo, California. The 33-year-old did not own a car, and cycled nearly everywhere he went around his hometown, often flanked by his teenage son and 5-year-old daughter.

But that night, Foster was riding alone, swerving in and out of traffic lanes without a bike light, and caught the attention of officer Ryan McMahon, who pursued Foster in his car. Foster hit the brakes, and McMahon ordered him to “come over and sit in front of my car,” according to the officer’s deposition in a civil rights lawsuit filed by Foster’s family.

“Stop messing with me,” Foster responded before taking off on his bike in the opposite direction, McMahon recalled in his deposition testimony. The officer got back in his car and chased him down.

Foster soon fell from his bike and ran away. When McMahon continued the chase on foot, Vallejo policy required him to notify the department by radio. But that’s not what he did. Instead, he left his patrol car and followed Foster toward a dark walkway between two houses.

As they ran, McMahon tased the African-American man in the back without a warning, although officers are required to give one unless it puts them in danger. The officer later said he did so in part because he saw Foster grabbing his pants, causing him to think Foster had a firearm. Foster, who was unarmed, kept running but fell. As he tried to get up, McMahon pushed him, causing Foster to fall down a small flight of cement stairs, the officer testified in the lawsuit. McMahon then straddled his back.

Body camera footage shows Foster lying on the pavement without fighting back when McMahon, standing next to him, fired his Taser once more. Then the officer struck Foster in the head and body with a 13-inch metal flashlight, Foster’s family alleged in court records. As McMahon swung to hit again, Foster caught the flashlight and tried to get up.

While some facts of the case are disputed, what happened next is not: McMahon shot Foster seven times. Autopsy records show he hit Foster once in the head, four times in the back and twice on the left side of his body, killing him.

“It’s all good,” McMahon said as backup arrived minutes later. “He’s down. He’s down.”

Ronell Foster (Kate Copeland for ProPublica)

A diverse waterfront city of 125,000 located in the San Francisco Bay Area, Vallejo has garnered national attention in recent years for its rate of police killings, which far outpaces those of all but two California cities, San Bernardino and South Gate, according to a 2019 NBC Bay Area report. Eight families of people killed by police over the last decade have filed civil suits against Vallejo, which has paid out more than $8.3 million in settlements so far, with three cases ongoing. (The single largest settlement, $5.7 million, went to the Foster family.) In July 2020, Open Vallejo exposed a tradition in which officers bent their badges to mark their fatal shootings.

Now, Open Vallejo and ProPublica have looked at what happens inside the department after those killings occur, examining more than 15,000 pages of police, forensic, and court files related to the city’s 17 fatal police shootings since 2011. Based on records that emerged after dozens of public records requests and two lawsuits filed by Open Vallejo, the news organizations found a pattern of delayed and incomplete investigations, with dire consequences.

In the Foster case, when top department leadership ultimately reviewed reports and evidence more than a year and a half after Foster was killed, it found McMahon had violated department policies — both by pursuing Foster on foot without notifying the department and without backup and by failing to turn on his body camera before using deadly force. (While McMahon only turned on his body camera after he fired, the camera is designed to automatically capture 30 seconds of pre-activation footage.)

“Officer McMahon failed to recognize his safety and the safety of the suspect Ronnell Foster outweighed apprehension for a minor traffic/pedestrian violation,” then-police chief Joseph Allio wrote in a memorandum. Allio ordered that McMahon “attend a 1 to 3-day course on officer safety and tactics focusing on critical incidents.”

But by the time that training was ordered, the officer had been involved in the killing of another African-American man.

According to our first-of-its-kind review of Vallejo’s investigations of police killings, six of the department’s 17 fatal shootings between 2011 and 2020 involved an officer using deadly force while still under investigation for a prior killing. In three of those cases, including McMahon’s, department officials noted officers’ initial mistakes in their reports, but not until after their second killing. In all three, the investigation into the second killing also revealed significant tactical errors, like not considering the use of nonlethal weapons. In one case, officials identified the same mistake in two killings involving the same officer.

Investigations Into Police Killings Were Ongoing When the Same Officers Used Deadly Force Again

Vallejo's reviews of police killings have dragged on for years. Six times since 2011, the incident was still under review when the same officer was involved in another fatal encounter.

Note: The Vallejo Police Department was unable to produce a final administrative report for the killings of Sherman Peacock and Peter Mestler. The end date for the investigations into those two killings reflects the district attorney's final review of each case. All officers either declined to comment or did not respond to requests for comment for this story. (Graphic by Lucas Waldron, ProPublica)

The news organizations also found that the department consistently failed to properly complete essential investigative tasks and took more than a year on average to close its administrative investigations of fatal shootings — methods that experts say are at odds with best practices promoted by the U.S. Department of Justice and used by police agencies around the country.

“This isn’t accepted practice. This isn’t even basement standard practice,” said Louis Dekmar, the police chief in LaGrange, Georgia, since 1995, and a former civil rights police monitor for the U.S. Department of Justice. “Any agency that takes that long is saying that this isn’t a priority.”

Officials in the Foster case mishandled a crucial piece of evidence, police records show, then took months to request that the crime lab analyze it for fingerprints. Nineteen months passed between the killing and the submission of investigative findings to the police chief. Only then was the chief able to fully assess the case and consider discipline for that shooting. McMahon later testified that he feared for his life and that Foster, holding the flashlight, faced him “in a boxer type stance.” But body camera footage does not support the officer’s claim that Foster was facing him, and an expert for Foster’s family who reviewed enhanced footage and other forensic evidence concluded that Foster had immediately turned away. McMahon remained on the job, and was later fired over his involvement in the killing of another man, during which, a department investigation found, he endangered a fellow officer by shooting from behind him. He did not respond to requests for comment for this story.

In a March phone call, Shawny Williams, Vallejo’s police chief since November 2019, agreed to an interview but declined to schedule it; after we shared our findings with the department in writing, he provided a statement that pointed to recent administrative changes, like implementing a yearly crisis intervention training and requiring officers to use de-escalation tactics when possible before engaging with a suspect. Williams also noted proposed reforms to how the department investigates its fatal shootings — some of which mirror recommendations first made to the department by a law enforcement consultant two years ago. Among them: a deadline for officials to produce their findings once all the evidence has been gathered.

Williams declined to answer questions about any specific cases.

“While I cannot comment on critical incidents which occurred prior to my arrival, or on ongoing matters, I can confirm that overall, the VPD continues the process of implementing police reforms,” the chief wrote. “All the above changes are designed to create enhanced internal accountability and will provide a more transparent process for our department and the community.”

“A Remarkable Amount of Incompetence”

While there is no universal timeline for internal investigations, guidelines developed for the Department of Justice by a group of local police officials say departments should, at minimum, complete their probes before any statute of limitations on officer discipline expires (one year, in California, with some exceptions). “It is preferable,” the group wrote, “to conclude investigations within 180 days.”

But in some of the DOJ’s own reviews of police departments across the country, it has pushed for even shorter deadlines when it comes to investigating an officer’s use of force, including fatal shootings.

In 2012, for example, the Justice Department mandated that the East Haven Police Department in Connecticut complete deadly force investigations within 60 days and forward a report to the chief, who has 45 days to complete the review. And in 2014, the DOJ required a similar deadline in Albuquerque for reviews of serious uses of force.

But in Vallejo, Open Vallejo and ProPublica found that the police department has taken an average of 20 months to review fatal shootings, from the time of a police killing to the date a chief signed off on the investigation.

A number of mistakes drove delays in Vallejo and undermined the integrity of investigations. One core problem: Some witnesses to killings reported long delays before officers took their statements.

That’s what happened in 2012, after Jaime Alvarado and his wife, Rocio Alvarado, said they witnessed Vallejo police shoot their neighbor Jeremiah Moore, a young man whose mother said he was on the autism spectrum.

Police had responded to 911 calls about loud noises coming from Moore’s home, including the sound of glass breaking. Although officers and an intoxicated witness later claimed Moore had been armed with a .22-caliber rifle, Jaime Alvarado said Moore was naked and unarmed, with his hands up and shaking from fright, when he was shot and killed by a Vallejo officer. (A forensic analysis could not find Moore’s fingerprints on the rifle, which was recovered in his home, while a later one found small traces of his blood on it.)

Jeremiah Moore (Kate Copeland for ProPublica)

Alvarado said he tried to approach a Vallejo officer a few hours after he saw the killing through his second-floor window, but was told that “we don’t have time to talk” and to “get inside the house.” No one from the department tried to contact him after that, he said.

“They would not pay attention to me,” Alvarado told Open Vallejo and ProPublica.

According to Alvarado, detectives didn’t take his statement until several months later, after an attorney hired by Moore’s family to sue the city facilitated the interview. Yet there is no record of that interview in Vallejo’s case file, and the department ultimately cleared the officer in the killing. Neither the Moore family attorney nor the police department responded to questions about Alvarado’s account. The Moore family’s lawsuit was settled in 2016 for $250,000.

It was one of three investigations among the 17 killings in which Vallejo detectives interviewed one or more eyewitnesses months later or did not interview them at all, despite a county policy that states department officials are responsible for “immediately” securing crime scenes, including identifying and sequestering witnesses in order to obtain their statements. In each of these cases, the witnesses’ accounts directly contradicted claims by police that the victims had been armed.

But it was not the only type of delay. In 11 of the 17 cases, investigators did not meet a 30-day goal set by the county to complete their reports. Detectives often took even longer to request analysis on important evidence, such as bullets fired by officers, fingerprinting, DNA samples and weapons allegedly carried by the victims. In six investigations, Vallejo sent requests for evidence testing to a crime lab half a year or more following the killings. In most of those cases, the delayed analyses appear to have hampered the investigations or led to cases being closed by investigators before some forensic reports could be included.

What Went Wrong in Vallejo Investigations

City, county and federal agencies require or recommend certain steps after a police killing. Here’s how Vallejo officials fell short in investigating fatal police encounters since 2011.

In Foster’s case, detectives didn’t seek fingerprint testing of the flashlight that McMahon claimed Foster used as a weapon until eight months after the killing. When they finally made a request, the lab could not find Foster’s fingerprints. Experts say long delays can cause biological evidence to degrade.

“The consequences of delayed resolutions of investigations are severe,” the Justice Department wrote in its investigation of the Chicago Police Department in 2017, triggered after a white officer fatally shot Black teenager Laquan McDonald. “Memories fade, evidence is lost, and investigators may not be able to locate those crucial witnesses needed to determine whether misconduct has occurred.”

For years, the Solano County district attorney based their decisions about whether to charge Vallejo police officers primarily on evidence gathered by Vallejo officials. This made some of the detectives’ missteps especially meaningful. For example, in three of the killings from 2012, prosecutors cleared officers before all the evidence in the case had been analyzed by forensic experts.

“Either there is a remarkable amount of incompetence or it’s malicious,” said Seth Stoughton, a professor at the University of South Carolina School of Law and former Florida police officer, about the Vallejo Police Department. “Neither should be acceptable.” Stoughton testified as a national police standards expert for the prosecution in the trial of former Minneapolis police officer Derek Chauvin, who was convicted of the murder of George Floyd.

Williams, the Vallejo police chief, declined to answer specific questions about the numerous delays.

Solano County’s current district attorney, Krishna Abrams, who took office shortly after the officer involved in the Moore shooting was cleared, also declined to comment on the findings of this investigation.

The crime scene outside Jeremiah Moore’s home, where police fatally shot the young man in 2012. A neighbor claimed Moore was unarmed but told Open Vallejo and ProPublica that the department “would not pay attention to me.” (Obtained by Open Vallejo and ProPublica by California Public Records Act request)

However, Abrams wrote in a statement that her office has continued to make it a priority to use best practices for investigating officer-involved fatal incidents. She pointed to rule changes from 2020 that require that future investigations of Vallejo killings involve criminal investigators from other departments in the county. She did not comment, however, on another rule change made that year that removed a 30-day target for detectives to complete their reports.

While Investigations Drag, Officers Kill Again

As Vallejo’s investigations dragged on, sometimes for years, officers who had killed patrolled the city’s streets, their mistakes unaddressed. In three cases, department officials flagged officers’ actions only after they were involved in another killing, police records show.

Officer Sean Kenney killed Anton Barrett in May 2012. Kenney was still under investigation for that shooting when, on the morning of Sept. 2, 2012, he and his partner, Dustin Joseph, pulled up in front of the home of a man named Mario Romero. Romero, who identified as Black, Indigenous and Latino, was sitting in his parked Ford Thunderbird with his brother-in-law, police and court records show. The two white officers claimed that the young men seemed shocked to see them approaching and that Romero’s car was encroaching on the sidewalk, according to the officers’ depositions in a civil rights lawsuit filed by Romero’s family. Kenney also claimed that a similar vehicle had been involved in a shooting the prior month.

Within seconds and without exchanging a word, Kenney and Joseph exited their vehicle and started firing, according to Joseph’s deposition. Then, Kenney jumped on the hood of the Thunderbird, according to court and police records.

The officers fired 31 rounds in total, striking Romero, a father of one, 30 times in the face, neck, forearms, chest and left side of his body. His brother-in-law was hit once in the pelvis and survived. Officers pulled both men from the car after the shooting.

Mario Romero (Kate Copeland for ProPublica)

Joseph told detectives that Romero had briefly gotten out of the car and grabbed the butt of a gun in his waistband, though officials never found a firearm. Kenney claimed he recovered a pellet gun wedged between the rear portion of the driver’s seat and the center console. Two weeks after the incident, the officers were sent back to patrol. While police experts said many departments don’t prohibit this, they also said that having officers with open deadly force investigations go out on patrol can be dangerous for officers and community members alike.

It would take detectives another eight weeks to interview Romero’s three sisters, eyewitnesses in the case who contradicted the officers’ accounts. They said they never saw Romero with a firearm and that their brother remained inside the car during the incident.

Before those interviews happened, though, Kenney had killed again.

On Oct. 21, 2012, the day after Romero’s funeral, Kenney fatally shot Jeremiah Moore, the young man who Alvarado said was unarmed. It was Kenney’s third deadly incident that year.

The next year, on March 20, 2013, Joseph and two others were involved in the fatal shooting of 42-year-old William Heinze, who had barricaded himself in a house with a firearm during a mental health crisis. It was Joseph’s second deadly incident in just over six months.

William Heinze (Kate Copeland for ProPublica)

In 2014, with investigations into those two killings pending, Joseph received a departmental Life-Saving Medal for a separate event and was promoted to corporal. Kenney, with three open deadly force investigations, was awarded the Medal of Valor for his role in the Moore shooting, according to Kenney’s deposition.

Roughly two years after the Romero shooting, the department’s Critical Incident Review Board finally issued findings in the administrative probe. The panel is supposed to evaluate whether officers’ use of force was justified.

In October 2014, it flagged the officers’ tactics during the incident. The board found that Kenney placed himself in a “tactically disadvantageous position with a potentially armed subject” when he jumped on the hood of Romero’s car, and noted officers could have waited at their car for backup, records show. Nevertheless, officials noted, “The board felt that the officers relied upon their past training to successfully endure this dangerous and rapidly evolving incident.”

It still recommended additional training, without specifying whether the training was intended for the two officers or the department as a whole. The board then failed to forward its own completed report to supervisors for nearly a year. During that time, the city settled the lawsuit for $2 million.

In 2013, Officer Dustin Joseph and two others fatally shot William Heinze, who had barricaded himself inside a house during a mental health crisis. Joseph was under investigation for a prior shooting at the time (Obtained by Open Vallejo and ProPublica by California Public Records Act request)

Yet another year would pass before then-Vallejo Police Chief Andrew Bidou assessed the case for disciplinary, training and policy considerations. Bidou approved the board’s findings, but he did not take further action in the case, the files show. By then, criminal accountability had been ruled out, too. The district attorney had declined to file charges three years earlier. His report noted that Vallejo investigators had interviewed Romero’s sisters long after the incident; the prosecutor suggested that the delay made their statements less credible than the officers’ accounts. He was also missing forensic analyses that would later show that the DNA and fingerprints taken from the pellet gun could not be matched to Romero.

“If that investigation had been run properly, Kenney would have been off the street and he wouldn’t have killed my son,” asserted Lisa Moore, the mother of Jeremiah Moore, Kenney’s third shooting victim, about Vallejo’s handling of the case. “Four years, that’s a long time to figure out ‘Oh, we messed up. What did we do wrong so that this doesn’t happen again?’”

Kenney retired from the Vallejo Police Department in 2018, after the board cleared him in the Moore shooting. He declined to comment for this story. As for Joseph, the Vallejo board ultimately flagged officers' tactics during his second deadly incident, and recommended training. Joseph, who did not respond to requests for comment, left Vallejo in 2019 to join the nearby Fairfield Police Department, where Fairfield officials said he is currently on leave.

Crime scene photos from the Romero killing. Three of Romero’s sisters witnessed the shooting and contradicted officers’ claim that their brother got out of his car with a firearm. But prosecutors discredited their testimony, in part because it took so long before Vallejo investigators interviewed them. (Obtained by Open Vallejo and ProPublica by California Public Records Act request) “With This Delay There Is No Justice”

The review board’s actions in the Romero case were not an anomaly.

Made up of two to six ranked officers from within the Vallejo PD, the Critical Incident Review Board reviews an investigation, identifies whether officers violated any policies and makes recommendations to the chief, according to the department’s policy manuals. Our analysis of the 17 cases found those reviews were consistently delayed. In 11 cases, the panel sent its report up the chain of command more than one year after the incident. And in six of those cases, the board sat on its findings for months before forwarding them, delaying the review of the chief of police, who makes the final decision on discipline, according to the analysis by Open Vallejo and ProPublica. In two cases from 2011 and 2012, the department was unable to show that a final administrative review was completed.

The news organizations’ analysis found that the board often cleared officers even when it noted problems with how they had handled a shooting. In fact, the CIRB never determined that any officers had violated department policies, according to the department’s records. Often, it recommended training. But in at least a few of those cases, there is no evidence in training and investigative files that the involved officers completed it.

In two cases in which the chief considered potential discipline, he opened yet another investigation because the board’s probe was insufficient, creating additional delays. All these delays by both the CIRB and the chief matter in part because California law gives departments only one year to impose discipline once officials learn of an incident, though that timeline is paused during a criminal investigation. (That timeframe expired in one of the 17 killings that we reviewed.)

Experts said Vallejo’s approach is fundamentally flawed.

“That’s the whole purpose of having a disciplinary process in place: to assess quickly whether or not officers have engaged in misconduct, and if they’re a threat to the public, to get them removed from the department and off the streets,” said Judge LaDoris Hazzard Cordell, a former Superior Court judge for the County of Santa Clara. From 2010 to 2015, Cordell served as the independent police auditor for the city of San Jose, which created the office in 1993 following the beating of Rodney King by the Los Angeles Police Department.

“What is happening in Vallejo is quite the opposite: It's just delay, delay. And with this delay there is no justice,” Cordell said.

Over and over, the board seemed to miss opportunities to help the department fix practices that contributed to those killings. Despite delays, the CIRB did, in fact, note plenty of problems: officers who didn’t turn on their body cameras, failed to use less lethal options, mismanaged crime scenes or did not wait for backup. But, time and again, the board reports neither called out individual officers for problematic behavior nor recommended policy changes as a result of the failures they repeatedly identified.

The most common problem identified by the CIRB in its reviews of killings was that officers acted without sufficient “cover,” meaning they didn’t properly use structures like cars for protection when confronting civilians, amplifying the risk to themselves and others in already-dangerous situations. When officers don’t take cover, “they put themselves in jeopardy — they create jeopardy,” said Dekmar, the former civil rights police monitor for the U.S. Department of Justice. “That results in a use of force that may have been avoided.” Investigators noted cover issues in six of Vallejo’s 17 killings since 2011.

It first surfaced in the 2012 case of Marshall Tobin, a 43-year-old Black man who was sitting in his car sobbing over his phone when two officers, both under deadly force investigations for prior killings, approached him. Police had received a call about an armed man in a parking lot. After Tobin emerged from his car, officers tased him and then fired at least 11 rounds at him, killing him. The officers told investigators that after he was tased, Tobin had reached for a gun in his waistband. They did not respond to requests for comment for this story.

Marshall Tobin (Kate Copeland for ProPublica)

A year and a half later, the CIRB found in its review that the officers had approached Tobin on foot, “leaving the cover and concealment of the vehicles.” It recommended additional department training in how to use cover, but it did not officially flag the officers’ behavior or find that they had violated a policy. (Two months after that, one of those two officers, from inside his patrol car, shot at a Latino man fleeing a traffic stop — the officer’s third fatal incident in two years. The board approved of the shooting, and the chief cleared him.)

At some point after the Tobin killing, then-police chief Joseph Kreins, who reviewed seven fatal shootings between 2012 and 2014, did add a clause to the policy manual that “encouraged” officers on vehicle pursuits to “remember the importance of cover, concealment, and safe distance.” But in 2015, despite the board’s findings in the Romero and Tobin shootings, the next chief of police, Andrew Bidou, removed it. Neither Kreins nor Bidou responded to requests for comment.

The issue emerged again in 2017, when officers killed Jeffrey Barboa, a father of one who police said was wanted for an armed robbery. Following a high-speed pursuit that ended in a crash, Barboa had approached officers while holding a knife over his head. The officers, standing within 15 feet, did not step back, police records show. As Barboa slowly walked toward the officers, they fired approximately 50 rounds at him, hitting him at least 30 times in the chest, face, neck, arms and legs.

Jeffrey Barboa (Kate Copeland for ProPublica)

More than 28 months after that shooting, in December 2019, the CIRB found in its report that had the officers taken cover or put more distance between themselves and Barboa, they would have created time to communicate with him and “deploy less-lethal alternatives.” “It is this positioning that likely caused the situation to speed up,” the board wrote.

Nevertheless, the review board responded as it usually did: It identified no policy violation or specific officer at fault and issued a list of training recommendations with no accompanying plan to implement them. There is no evidence in the department’s reports that Vallejo officials took further action in the case.

Help Us Investigate the Vallejo Police Department

Reporting for this project was supported by a grant from the Fund for Investigative Journalism.

Mariam Elba contributed research. Geoffrey King contributed reporting.

by Paul Kiel and Mick Dumke

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For billionaire Ken Griffin, it was well worth spending $54 million to ensure he and other rich Illinoisans wouldn’t have to pay more tax.

By the time Illinois voters streamed into voting booths on Election Day in 2020, Griffin, then Illinois’ wealthiest resident, had made sure they’d heard plenty about why they should not vote to raise taxes on him and the state’s other rich people. His tens of millions paid for an unrelenting stream of ads and flyers against an initiative on that year’s ballot, which would have allowed Illinois lawmakers to join 32 other states in setting higher tax rates for the wealthy than for everyone else.

In the end, Griffin spent about $18 for every one of the 3.1 million votes against the initiative. After initial optimism about its prospects, the measure came up hundreds of thousands of votes short and went down to defeat.

Rarely does the public get a clear view of the payoff for wealthy Americans who put their money down to achieve a political outcome. But in this case, ProPublica’s trove of IRS data can provide crucial context for the ballot fight. For Griffin and many of his fellow ultrawealthy Illinoisans, spending even such a vast amount was well worth it when compared with what a tax hike might have cost them.

According to the data, Griffin averaged an annual income of $1.7 billion from 2013 to 2018. That was the fourth-highest in the country, behind only the likes of Bill Gates.

Using that average income as a guideline, the new state tax increase, which aimed to raise the rate from 5% to 8% on the highest incomes, would have cost Griffin around $51 million every year in extra tax. In especially good years — in 2018, Griffin reported income of almost $2.9 billion — he might have been forced to pay more than $80 million more.

A Citadel spokesperson responding on Griffin’s behalf pointed out that, according to ProPublica’s previously published data, Griffin paid the second-highest amount of taxes of any American from 2013 to 2018. “Over the past decade,” he said in a statement, “it is almost a certainty that Ken has been the largest individual taxpayer in the State of Illinois — a state notorious for profligate spending and rampant corruption.” Griffin has said he’s not against raising taxes; he opposed the measure, he added in his statement, because “Illinois needs to put its fiscal house in order before burdening hard-working families with yet more taxes.”

The state’s current flat tax rate of 5% is far below the top rates in other large states run by Democrats like California and New York and comparable to those in some Republican-led states like Utah. Advocates for raising the rates on the wealthy in Illinois say the state needs additional revenue, pointing to its regular budget deficits and deep pension debts.

Not all Griffin’s political bets pay off. A candidate for Illinois governor he supported with tens of millions of dollars went down to defeat in June’s Republican primary. Meanwhile, even though the income tax initiative was defeated, Griffin announced last month that he was moving Citadel’s headquarters to Miami and relocating there himself.

Though no other donor to the anti-tax fight came close to matching the tens of millions that Griffin gave, others made contributions that were more than what most Illinois households earn in a year. ProPublica analyzed the tax data of nine other ultrawealthy supporters of Griffin’s anti-tax campaign. According to our estimate, this group of heirs and business owners, which includes some of the wealthiest people in Illinois, can expect to see a healthy return on their contributions and save millions in taxes over the coming years.

The math behind our estimate is simple: Wealthy Illinoisans will save about 3% of their income, because that was the size of the proposed tax increase on the wealthy. That’s essentially how Illinois’ state income taxes work for Illinois residents. With some adjustments, a state tax rate is applied to the income listed on their federal returns. ProPublica contacted all 10 of the anti-tax donors mentioned in this article and the accompanying chart. None challenged the methodology used to estimate their tax savings.

For Ultrawealthy Illinoisans, It Paid to Oppose Tax Hike on the Rich

Some of the state’s richest people spent big to defeat a ballot initiative that would have enabled a higher tax rate on the rich. Using IRS data, ProPublica estimated how much some of the biggest backers saved when the measure failed.

Note: “Average Annual Income” is based on adjusted gross income as filed. ProPublica contacted all those listed in this chart. Most did not respond. David MacNeil declined to comment, as did a spokesperson for Zell. The responses from Ken Griffin and Richard Colburn are noted in the story. (Sources: IRS data, Illinois State Board of Elections, ProPublica analysis.)

Richard Uihlein, who along with Griffin has emerged as a conservative megadonor on the national stage, pitched in $100,000 to the anti-tax campaign — for him a modest amount given his average annual income of $492 million in recent years. Through his family foundation, Uihlein has also given millions of dollars to the Illinois Policy Institute, a small-government group that fought the graduated tax plan. Uihlein’s average income would lead to about $15 million of annual tax savings from the defeat of the ballot initiative.

Sam Zell, the real estate mogul known in Chicago for putting together a leveraged buyout of the Tribune Company that preceded its bankruptcy, gave $1.1 million. Based on his recent income, he would save $1.6 million in taxes each year. A spokesperson for Zell declined to comment.

Patrick Ryan made his billions in insurance, and Northwestern University’s football stadium and basketball arena bear his family’s name, thanks to the hundreds of millions he’s given the school. He gave $1 million. His recent income suggests $2.1 million in annual tax savings.

Richard Colburn, whose billionaire family owns the electrical parts maker CED, gave $500,000 to the anti-tax campaign, which would help save him $5.5 million each year in taxes, according to our estimates. In an email message to ProPublica, Colburn said his reasons for opposing the graduated tax were simple: It would have “eaten substantially” into his investment earnings, some of which he passes on to a nonprofit foundation he manages. Like Griffin, he contended the state would not have used the money well.

“Though I enjoy living in the Chicago area, I could save immensely by moving to a lower-tax state, and therefore I ‘invested’ to limit the temptation on me to relocate,” Colburn wrote. “Another element of my ‘investment’ stems from my desire to limit the mis-spending by the State of Illinois that occurs every time Springfield has extra money.” (His full statement is here.)

Donald Wilson, founder of the trading firm DRW, gave $250,000 to the anti-tax campaign. That donation in particular looks modest when weighed against his potential tax savings: Based on Wilson’s average annual income of $114 million, the proposed tax increase would have cost him $3.5 million more every year.

Some of the contributions to the anti-tax campaign came from trusts, special legal entities often used by the wealthy to hide or protect assets, as well as to avoid the estate tax. Richard Stephenson, founder of a chain of for-profit hospitals called Cancer Treatment Centers of America, contributed $300,000 through his Celebrate Life Trust. Stephenson is a longtime Republican donor and such an enthusiast of Ayn Rand’s message of uncompromising self-interest that he was an executive producer on two movies based on the novel “Atlas Shrugged.”

Uihlein, Ryan, Wilson and Stephenson also did not respond to requests for comment.

One $25,000 contribution came from the Philip M. Friedmann Family Charitable Trust. Friedmann made his fortune by selling the greeting card company he co-founded to a private equity firm.

Friedmann’s trust, unlike Stephenson’s, is a personal foundation. That means Friedmann likely received a tax deduction for donating to his own organization, which then used some of the funds to fight an increase in his taxes.

The contribution to the anti-tax campaign by Friedmann’s foundation appears to have violated federal tax law, three nonprofit tax law experts told ProPublica. Personal foundations are prohibited from spending to try to influence legislation, a category that includes contributions to a ballot initiative committee, said Lloyd Hitoshi Mayer, a law professor at Notre Dame. Organizations that break that law are required to pay a penalty of up to 25% of the expenditure in addition to attempting to retrieve the money.

Although this prohibition is spelled out on the IRS’ online guide for private foundations, “smaller family foundations don’t always know the applicable rules,” said Ellen Aprill, a law professor at Loyola Marymount University.

Friedmann did not respond to requests for comment.

Illinois didn’t have an income tax of any kind until 1969, when a deal between GOP Gov. Richard Ogilvie and Democratic Chicago Mayor Richard J. Daley resulted in a flat statewide tax of 2.5% on individuals and 4% on corporations. Some Democrats said the tax disproportionately punished low-income families, and pushed for higher rates on the wealthy. But Republicans and other critics argued for expiration dates or rate limits, warning that otherwise lawmakers would simply keep hiking and expanding income taxes. The following year, a compromise was encoded in the state’s updated constitution. It clarified that the General Assembly had the power to impose an income tax but only “at a non-graduated rate.”

As the state’s fiscal problems grew in the following decades, governors and legislators repeatedly raised the flat tax rate until it was up to 5% on individuals. In 2014, multimillionaire private equity investor Bruce Rauner, a Republican backed by Griffin, was elected governor after promising to slash taxes, and the rate was lowered to 3.75%. But as Rauner fell into a bitter standoff with the Democratic-controlled General Assembly, the state went without a budget for more than two years, leaving it in an even deeper financial hole.

The General Assembly, including some Republicans, voted in 2017 to raise the income tax again, to 4.95% on individuals.

Democrat JB Pritzker, a billionaire investor whose family founded the Hyatt hotel chain, launched his campaign for governor by casting himself as a wealthy man who would fight for the middle class — and for a graduated tax that was less burdensome for low-income families than the flat-rate system. Rauner vowed to stop him. Their 2018 campaigns spent more than $250 million combined, including $22.5 million that Griffin gave to Rauner, before Pritzker won that November.

With the support of a committed and rich governor, a graduated income tax suddenly seemed possible in Illinois.

“That created a bunch of new momentum,” said Ralph Martire, executive director of the Center for Tax and Budget Accountability, a think tank that argued in favor of a graduated income tax. “That was enough political support to really get the grassroots groups working on it.”

Outside of a special convention, both the Illinois House and Senate must sign off on a state constitutional amendment by three-fifths majorities. Voters then need to approve it, either by a clear majority of all voters casting ballots in a general election or a three-fifths majority of those voting on the measure itself.

In 2019 the Senate and then the House each met that threshold, passing a measure that would eliminate the graduated income tax ban if voters approved an amendment. Companion legislation laid out what the new tax schedule would be: Rates would either drop or remain at 4.95% for people reporting income up to $250,000; they would climb from there, to a rate of 7.99% on individuals earning above $750,000 and couples above $1 million. The top rate was within the range of those in other Midwest states with graduated systems — higher than Missouri’s but lower than Iowa’s.

Supporters and opponents then had more than a year to make their cases.

Illinois election laws set some limits on campaign donations and spending. But the rules are riddled with loopholes, and they impose no limits on political committees formed to advocate for or against ballot initiatives like the income tax proposal.

Opponents of the graduated income tax formed at least five different campaign committees that raised nearly $63 million altogether. The best funded, by far, was the Coalition to Stop the Proposed Tax Hike Amendment, which collected almost $60 million, including the $54 million from Griffin. The coalition received most of its remaining money from other billionaires and millionaires, according to state campaign donation records.

On the other side, Pritzker created the Vote Yes for Fairness committee, plowing $58 million of his own fortune to support the “fair tax” campaign. Apart from Pritzker’s donations, the committee received just one $250 contribution, records show.

Griffin also launched other offensives. In October 2020, the Chicago Tribune reported that Griffin had lambasted Pritzker as “a shameless master of personal tax avoidance” in an email to Citadel’s Chicago staff.

The bulk of Pritzker’s wealth ($3.6 billion, according to Forbes) is in trusts, some domestic and some located offshore. Pritzker has said some were set up by his grandfather. As ProPublica reported last year, it was common for 20th century patriarchs to set up trusts that passed fortunes down through the generations free of estate taxes.

Pritzker has released his personal tax returns, but has not provided detailed information about the trusts. For 2020, Pritzker’s office released returns showing $5.1 million in personal income for the governor and his wife, MK. The domestic trusts benefiting the governor also paid $16.3 million in Illinois taxes and $69.6 million in federal taxes in 2020, according to Pritzker spokesperson Natalie Edelstein.

ProPublica’s IRS data does not shed light on those trusts. When ProPublica requested further detail, Edelstein said the governor is not releasing documents concerning the trusts because he “is not the only beneficiary, so he does not have authority to release all of the information.” She said that the governor had not personally accepted any disbursements from the offshore trusts, instead giving them to charity. She did not address whether the trusts had been set up to avoid estate taxes, only saying they were “established generations ago.”

At the height of the graduated income tax campaign, advertisements for and against the initiative seemed to be everywhere in Illinois — in mailboxes, online, all over the airwaves.

“You couldn’t even watch TV — it was just one ad after another,” recalled David Merriman, a public administration professor at the University of Illinois Chicago.

Merriman’s research had found that Illinois received less revenue from income taxes and placed a higher tax burden on low-income taxpayers than neighboring states with graduated systems, including states led by Republicans. But, perhaps predictably, the ads largely avoided policy discussions in favor of political appeals.

“At the worst possible time, Springfield politicians are pushing a constitutional amendment that would give them new powers to make it easier to raise taxes on all Illinois taxpayers,” a narrator in one anti-tax ad declared. “And if there’s one thing we know about Springfield politicians, it’s that you can’t trust them.”

The fair-tax campaign accused the rich of trying to fool middle-class families and claimed, based on the state Senate bill that had already passed, that as many as 97% of taxpayers would pay the same or less under the governor’s plan.

But voters weren’t convinced. Federal investigations of several Chicago and state politicians were making headlines, and Merriman said the graduated tax advocates failed to persuade voters that they would benefit from the amendment. The initiative failed by a vote of 53% to 47%.

“It showed just how distrustful everyone is of the government,” he said.

The big money battle has continued in the Illinois governor’s race this year. This January, Pritzker deposited $90 million into his own reelection fund — the largest single political contribution in Illinois in decades and probably ever. Under state election law, candidates can lift donation limits in a race by funding their own campaigns.

Several of the anti-tax funders contributed large sums to Republicans aiming to unseat Pritzker this fall. Once again, Griffin led the way, spending $50 million, but his handpicked candidate lost the GOP primary last week to Darren Bailey, a right-wing state senator propelled by more than $17 million Uihlein gave to his campaign and an aligned super PAC. Pritzker and the Democratic Governors Association also went head-to-head with Griffin, paying for ads attacking his candidate, Richard Irvin.

Bailey received an endorsement from Donald Trump the weekend before the election and finished with about 58% of the vote. Irvin faded to third place with 15%. In his election night victory speech, Bailey ripped Pritzker as an “out-of-touch, elitist billionaire.”

“Do you feel overtaxed?” Bailey called out to his supporters. Their response: “Yeah!”

By then, Griffin had made a big announcement that meant his state tax bill would plummet.

In a letter to Citadel employees, Griffin announced that he was moving the company’s headquarters to Miami and that he himself had already moved his family to the area.

Florida does not have a personal income tax. Experts told ProPublica Griffin will still pay some personal income tax in New York and Illinois since Citadel has offices there. But his bill is sure to shrink dramatically, likely saving him tens of millions a year.

In response to ProPublica’s questions, Citadel did not address whether taxes motivated his move. Instead, in its statement the spokesperson cited crime concerns as the prime motivator: “Ken left Illinois for a simple reason: the state is devolving into anarchy. Senseless violence is now part of daily life in Chicago.”

Griffin’s letter to Citadel staff also made no mention of taxes as being a reason for the move. Instead, it rhapsodized about how Miami “embodies the American Dream — embracing the possibilities of what can be achieved by a community working to build a future together.”

Help Us Report on Taxes and the Ultrawealthy

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Jeff Ernsthausen contributed reporting.

by Perla Trevizo

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

This article is co-published with The Texas Tribune, a nonprofit, nonpartisan local newsroom that informs and engages with Texans. Sign up for The Brief weekly to get up to speed on their essential coverage of Texas issues.

The Department of Justice is investigating alleged civil rights violations under Operation Lone Star, a multibillion-dollar border initiative announced last year by Texas Gov. Greg Abbott, according to state records obtained by ProPublica and The Texas Tribune.

The Legislature last year directed more than $3 billion to border measures over the next two years, a bulk of which has gone to Operation Lone Star. Under the initiative, which Abbott said he launched to combat human and drug smuggling, the state has deployed more than 10,000 National Guard members and Department of Public Safety troopers to the border with Mexico and built some fencing. Thousands of immigrant men seeking to enter the country have been arrested for trespassing onto private property, and some have been kept in jail for weeks without charges being filed.

Since the operation’s launch, a number of news organizations, including ProPublica and the Tribune, have outlined a series of problems with state leaders’ claims of success, the treatment of National Guard members and alleged civil rights violations.

An investigation by the Tribune, ProPublica and The Marshall Project found that in touting the operation’s accomplishments, state officials included arrests with no connection to the border and statewide drug seizures. The news organizations also revealed that trespassing cases represented the largest share of the operation’s arrests. DPS stopped counting some charges, including cockfighting, sexual assault and stalking, after the publications began asking questions about their connections to border security.

Another investigation by the Tribune and Army Times detailed troubles with the National Guard deployment, including reports of delayed payments to soldiers, a shortage of critical equipment and poor living conditions. Previous reporting by the Army Times also traced suicides by soldiers tied to the operation.

Angela Dodge, a DOJ spokesperson, said she could not “comment on the existence or lack thereof of any potential investigation or case on any matter not otherwise a part of the public court record.”

“Generally, cases are brought to us by a variety of law enforcement agencies — federal, state and local — for possible prosecutorial consideration following their investigation into a suspected violation of federal law,” Dodge wrote in an email. “We consider each such case based on the evidence and what can be proven beyond a reasonable doubt in a federal court of law.”

But at least two Texas agencies involved in carrying out the border initiative have pointed to a DOJ investigation in records obtained by ProPublica and the Tribune through the Texas Public Information Act.

In an internal email in May, DPS officials said that the DOJ was seeking to review whether Operation Lone Star violated Title VI of the Civil Rights Act of 1964, which bars discrimination on the basis of race, color or national origin by institutions receiving federal funding.

According to the emails, the federal government requested documents that include implementation plans, agreements with landowners and training information for states that have supported Operation Lone Star by sending law enforcement officers and National Guard members to Texas.

“If you are not already aware, the Civil Rights Division of the DOJ is investigating Operation Lone Star,” Kaylyn Betts, a DPS assistant general counsel, wrote in a May 23 email to a department official. She added that the agency should respond in a timely and complete manner.

In a letter sent Friday to the state’s attorney general, the Texas Department of Criminal Justice also cited a “formal investigation” of Operation Lone Star by the DOJ. The agency, which manages the state’s prison system, pointed to the investigation while fighting the release of public records sought by the news organizations.

In the letter, the department’s deputy general counsel wrote that the DOJ is investigating whether the state agency is subjecting people who are arrested as part of the border operation to “differential and unlawful conditions of confinement based on their perceived or actual race or national origin.”

None of the agencies have publicly released information related to the DOJ’s requests.

Neither DPS nor the Texas office of the attorney general, which is representing the state, responded to requests for comment. Amanda Hernandez, a spokesperson for the Texas Department of Criminal Justice, said in an email that her agency provided the DOJ the requested information.

“The agency has and continues to follow all state and federal laws as the state of Texas responds to the ongoing crises at the border,” she wrote in an email to the news organizations.

State and federal lawmakers as well as civil rights and immigrant groups have repeatedly called for investigations into Operation Lone Star. In the letters to the DOJ and the Department of Homeland Security, the groups have cited reporting from the Tribune that shows some immigrants were illegally detained or kept in jail too long due to delays by prosecutors, in violation of state law.

“It is critically urgent that the Biden administration not only investigate but hold agencies accountable for violations of Title VI to protect the civil rights of people in South Texas,” said Kate Huddleston, staff attorney for the American Civil Liberties Union. The nonprofit, along with more than 100 other groups, filed a 50-page Title VI complaint in December with the DOJ asking it to investigate alleged civil rights violations.

Operation Lone Star, Huddleston added, “is targeting individuals for enhanced punishment and subjecting them to a separate state criminal system that is created specifically for this purpose that is riddled with civil rights violations.”

Abbott’s office has said the arrests and prosecutions under the operation “are fully constitutional.”

Lexi Churchill contributed reporting.

by Will Sennott, The New Bedford Light

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

Before dawn, Jerry Leeman churned through inky black waters, clutching the wheel of the fishing vessel Harmony.

The 85-foot trawler, deep green and speckled with rust, was returning from a grueling fishing trip deep into the Atlantic swells. Leeman and his crew of four had worked 10 consecutive days, 20 hours a day, to haul in more than 50,000 pounds of fish: pollock, haddock and ocean perch, a trio known as groundfish in the industry and as whitefish in the freezer aisle.

As sunrise broke over New Bedford harbor, the fish were offloaded in plastic crates onto the asphalt dock of Blue Harvest Fisheries, one of the largest fishing companies on the East Coast. About 390 million pounds of seafood move each year through New Bedford’s waterfront, the top-earning commercial fishing port in the nation.

Leeman and his crew are barely sharing in the bounty. On deck, Leeman held a one-page “settlement sheet,” the fishing industry’s version of a pay stub. Blue Harvest charges Leeman and his crew for fuel, gear, leasing of fishing rights, and maintenance on the company-owned vessel. Across six trips in the past 14 months, Leeman netted about 14 cents a pound, and the crew, about 7 cents each — a small fraction of the $2.28 per pound that a species like haddock typically fetches at auction.

On his return to New Bedford, Jerry Leeman maneuvers equipment to unload fish onto the dock. (Tony Luong, special to ProPublica)

“It’s a nickel-and-dime game,” said the 40-year-old Leeman, who wore a flannel shirt beneath foul weather gear and a necklace strung with a compass, a cross, and three pieces of jade — one piece for each of his three children. “Tell me how I can catch 50,000 pounds of fish yet I don’t know what my kids are going to have for dinner.”

Leeman’s lament is a familiar one in New Bedford, an industrial city tucked below Cape Cod on the south coast of Massachusetts. In recent years, the port of New Bedford has thrived, generating $11.1 billion in business revenue, jobs, taxes and personal income in 2018, according to one study. But a quiet shift is remaking the city and the industry that sustains it, realizing local fishermen’s deepest fears of losing control over their livelihood.

Blue Harvest and other companies linked to private equity firms and foreign investors have taken over much of New England’s fishing industry. As already harsh working conditions have deteriorated, the new group of owners has depressed income by pushing expenses onto fishermen, an investigation by ProPublica and The New Bedford Light has found. Blue Harvest has also benefited from lax antitrust rules governing how much fish it can catch.

Since it was founded in 2015, Blue Harvest has been acquiring vessels, fishing permits and processing facilities up and down the East Coast. It started with the self-proclaimed goal of “dominance” over the scallop industry. It has expanded into groundfish, tuna and swordfish, as well as becoming a government contractor, winning a $16.6 million contract from the U.S. Department of Agriculture this past February to supply food assistance programs.

The acquisitions are backed by $600 million in capital from Bregal Partners, a Manhattan-based private equity firm. Bregal is an arm of a firm owned by a Dutch billionaire family, who are best known for their multinational clothing company, which maintains a steady track record of environmental philanthropy and low-wage labor around the globe.

Bregal, its parent company and Blue Harvest President Chip Wilson did not respond to questions. Wilson said in an email that he has been “fighting a handful of fires” and that “speaking with the press has been low on my priority list of late.” He is more concerned “about moving our strategy forward so that the 200+ folks who work for Blue Harvest can be confident about their future,” he said.

“New Bedford is an interesting community, particularly in this ‘colorful’ sector, and the rumor mill is particularly vicious,” he added. “I cannot tell you how many times I have listened to employees scared to the core for themselves and their families due to unsubstantiated rumors about our company.”

In the first half of 2021, private equity firms, which often invest in privately held companies with the goal of ultimately selling them for a profit, accounted for 34% of mergers and acquisitions in the fishing industry, nearly double the 2017 percentage, according to trade publication Undercurrent News. Last fall, one such firm, ACON Investments, purchased three seafood processing companies, including one with a 38,000-square-foot plant in New Bedford. Another private equity company — Solamere Capital, which boasts as partners former Speaker of the House Paul Ryan and Taggart Romney, son of former Massachusetts Gov. and current Utah Sen. Mitt Romney — also acquired processing plants.

“What we’re seeing is a fundamental transformation of the fishing industry,” said Seth Macinko, a former fisherman who’s now an associate professor of marine affairs at the University of Rhode Island. “Labor is getting squeezed and coastal communities are paying the price.”

(Tony Luong, special to ProPublica)

To be sure, private equity can inject capital to buy new equipment or renovate a processing facility. Boosters say that consolidation can improve efficiency and make U.S. seafood more competitive against cheaper fish imported from foreign countries that subsidize their fleets.

Still, private equity’s gain has largely been small fishermen’s loss. Known for seeking profits by slashing costs in retail sectors such as toys and shoes, private equity investors have taken a similar approach to the fishing industry, which offered an opportunity to make a significant return on investment through economies of scale.

The number of employers in New Bedford’s fishing industry has dropped by more than 30% in the past decade, according to Bureau of Labor Statistics data. Fishermen are working much longer hours — 45% of fishermen reported working 18 hours or more per day in a federal survey published last year, up from 32% in 2012.

Leeman’s crew hauls fish from below deck. (Tony Luong, special to ProPublica)

Almost all fishermen in New Bedford are paid a share of the earnings from their catch. It’s an arrangement with origins in the 19th century, when whale oil made New Bedford the Dubai of its day. Whaling captains built the city’s historic mansions; the whale ships’ investors built churches and hospitals.

But today, companies like Blue Harvest take advantage of this pay structure to shift costs onto fishermen, reducing their income. Under the private equity takeover, regional economies like New Bedford’s are keeping less of the industry’s profits while a cut of the owners’ share is shuttled to skyscrapers in Manhattan and, in some cases, overseas. Despite rising consumer prices for New Bedford’s fish, the poverty rate in the city has been double the state average for the past decade.

“Without question, there is an increase in costs that are being passed down to crew,” said Matthew Cutler, who studies socioeconomic trends among fishermen for the regional arm of the National Oceanic and Atmospheric Administration. NOAA, which is part of the Department of Commerce, governs the fishing industry.

So far, private equity mainly dominates New England’s groundfish, which constitutes roughly 11% of all seafood caught off the region’s coast by weight. But a proposal being considered by federal regulators could expand private equity’s control over scallops — the most lucrative seafood for New Bedford fishermen. The proposal has roiled New Bedford, where more than 100 fishermen signed a petition against it. It also worries New Bedford Mayor Jon Mitchell.

“Private equity owns a piece of the waterfront now,” he said. “Remote ownership is always going to be driven by dollars and cents. Without any loyalty to the place, business decisions can become cold and harsh.”

Hundreds of vessels line the harbor in New Bedford, the top-earning commercial fishing port in the U.S. (Tony Luong, special to ProPublica)

Owning his own vessel was Jerry Leeman’s goal when he first started fishing with his grandfather at the age of 12. He climbed the ranks from deckhand to mate and finally to captain. He hoped to go into business for himself.

But an overhaul of federal rules adopted in 2010 halted Leeman’s ascent and that of thousands of other fishermen in the northeast. Promoted by an alliance of conservation groups and some of the largest seafood distributors, the new framework sought to end decades of overfishing that had devastated species like the Atlantic cod while also helping American businesses compete with cheaper, imported fish by making the domestic supply more predictable.

Under “catch shares,” as the system is called, regulators cap how much of each species can be fished and require permits to catch them. Federal scientists set a “total allowable catch,” determining the amount of each kind of fish that can be sustainably hauled from regional waters each year. Based on a decade of their catch history, individual fishermen and companies were granted rights to a percentage of the annual total allowable catch — in perpetuity — free to fish it, sell it or lease it to others.

The catch shares system has proven to be an effective tool to reduce overfishing. Overall, New England waters have “shown slow recovery since the major declines,” a 2021 study noted. But the change hurt small fishermen. Their shares were based on their historical percentages of the catch for a given species. As the total allowable catch for some species was reduced to avoid overfishing, the same percentages translated into fewer pounds of those fish. Many fishermen sold their permits to bigger companies that had been granted larger shares and rushed to expand. New England’s fleet of vessels actively catching groundfish was reduced from 596 in 2007 to 269 in 2015, according to a NOAA study.

“This is the door closing on an entire generation of fishermen,” said Brett Tolley, who comes from a family of Cape Cod fishermen. After a series of reductions, he said the catch allocated to his family — about one-third of 1% of pollock and haddock — was too small to make a living. They sold their permit a year ago to a midsize local company.

While consolidation started before catch shares, the new system accelerated the process. It “turned the privilege to catch a pound of fish into a commodity that could be bought or sold without owning a boat,” Macinko said. “It opened the door to private equity.”

Recognizing the potential for consolidation, the Pacific Coast branch of NOAA built in controls prohibiting any individual from owning more than 2.7% of groundfish permits, limiting the inroads that private equity could make. Accommodating business interests, the New England office initially set a much higher cap of 20% before reducing it to 15.5% in 2017.

“You have to limit entry in order to have a profitable fishery,” said Chad Demarest, an economist with the Northeast Fisheries Science Center under NOAA. “The goal is to create some profit in the industry that is shared by the owners.”

Because Leeman was a hired hand when catch shares were adopted, he wasn’t allocated any permits. And as the price of a single permit climbed to as much as $500,000 for groundfish, he couldn’t afford to buy in. His dream of captaining a fishing boat that he owned was dashed.

Rights to fish “were free 30 years ago,” he said. “But then came the conservation groups. Then there was consolidation. Then there was big money.”

Leeman on the Teresa Marie IV, the Blue Harvest boat he captains. (Tony Luong, special to ProPublica)

In the early years of catch shares, many smaller fishermen sold out to the same New Bedford fishing magnate: Carlos Rafael, often referred to as “the Codfather.” A first-generation immigrant from the Azores, a chain of Portuguese islands, Rafael arrived in New Bedford as a teenager. He started as a fish cutter, and over four decades he built one of the largest groundfish operations in the country, running more than 40 vessels.

A charismatic rogue who liked to describe himself as a modern-day pirate, Rafael was openly opposed to the catch shares system at first, believing it would eventually mean only one company would be left fishing on the East Coast. Yet as New England transitioned to the system, he was granted about 9% of the region’s total groundfish permits, one of the largest initial allocations. He decided that if only one company would be left standing, it would be his.

“So he [a smaller fisherman] doesn’t have the money to buy a fucking quota,” he said. “So he’s fucked either way. He’s hanging by his shoestrings. So this is a matter of fucking time for me to pick the rest of these fuckers and just get them all out of the picture….I always had the ambition to get fucking control of the whole fucking thing.”

According to court documents, Rafael made that statement to undercover IRS agents posing as Russian mobsters. He also divulged to them an illegal scheme he called “the dance.” On a February morning in 2016, the green-and-white panels of the Carlos Seafood building were reflecting red and blue as a team of federal agents raided the waterfront facility. He pleaded guilty in 2017 to 27 counts of fraud and tax evasion related to mislabeling almost 800,000 pounds of fish; he was sentenced to 46 months in prison.

At the time of Rafael’s downfall, Bregal Partners was rapidly tightening its grip on the fishing industry. It took its first plunges in 2015. It invested in Seattle-based American Seafoods, which Bregal has described as “the largest harvester of fish for human consumption in the US.” It also founded Blue Harvest, which quickly acquired four fishing operations on the East Coast.

A New Bedford fisherman mends a net on shore. (Tony Luong, special to ProPublica)

It first bought a large scallop fleet in Virginia, then a midsize company in New Bedford. In 2018, it added Maine-based Atlantic Trawlers. (Leeman, who had been working for Atlantic Trawlers, stayed on the same boat, now owned by Blue Harvest.) It capped off its buying spree with its biggest prize.

As part of a settlement with NOAA, Rafael had agreed to sell his empire, estimated to encompass a quarter of New England’s groundfish industry, to the highest bidder. Rafael had tried to sell his company to the undercover agents for $175 million. In 2020, Blue Harvest acquired a portion of Rafael’s holdings — 12 groundfishing vessels and 27 permits — for $25 million.

Along the way, Blue Harvest bought and expanded processing facilities off Herman Melville Boulevard, named after the “Moby-Dick” author, who sailed out of New Bedford on a whaling voyage in 1841. The goal, the then-chief executive said in 2020, was to establish the “first vertically integrated groundfish company on the East Coast” — folding a large slice of the waterfront into one streamlined operation: vessels, permits, processing and distribution.

The Blue Harvest processing facility on Herman Melville Boulevard (Tony Luong, special to ProPublica)

Controlling the supply chain enables Blue Harvest to reduce costs and compete with imports shipped frozen into the U.S. from Icelandic or Norwegian companies fishing in the North Atlantic. It also means that the company doesn’t have to pay its fishermen the market price for their catch.

Independent fishermen sell their catch at public auctions or to whichever wholesaler offers the best price. But Blue Harvest fishermen generally don’t have that opportunity. They must sell their fish to the company — sometimes at prices lower than they could get otherwise. Blue Harvest did not respond to questions about its payments to fishermen.

As it cast an ever-larger shadow over the port, Blue Harvest set a lofty goal: “transforming commercial fishing into an industry that is defined by sustainability, governed by transparency, and bound to the promise of delivering excellence to every plate.”

Leeman has never heard of the billionaire Brenninkmeijer family, but he’s working for them. Blue Harvest’s trail of global ownership winds from New Bedford’s industrial waterfront to Bregal Partners’ office in a sleek, 50-story skyscraper on Manhattan’s Park Avenue and then on to a Swiss company, Cofra Holding AG. Cofra, in turn, is wholly owned by the Brenninkmeijers, a Dutch family described by a former retail analyst at Morgan Stanley as both “highly secretive” and a “global powerhouse” in the retail industry. One member married into the Dutch royal family. Several have lived in a moated, five-story medieval castle on the River Rhine.

The family’s holding company has a wide-ranging portfolio. It has focused on renewable energies like solar and offshore wind, as well as on fossil fuel projects such as natural gas drilling and exploration in Appalachia’s Marcellus Shale. Its investments include shopping plazas in Spain, Belgium and the U.K. and commodities such as dairy, coffee, timber and, now, fish. Its sprawling supply chains encompass more than one million workers, from New Bedford to Bangladesh.

The family’s vast wealth originated in clothing. In 1841, brothers Clemens and August Brenninkmeijer began peddling textiles in a small region that now spans Germany and the Netherlands. In an era when most European clothing manufacturers catered mainly to affluent families, the brothers’ company, now called C&A, specialized in ready-to-wear clothing for the middle and working classes.

Under the Nazi regime, the company took advantage of opportunities afforded by “Aryanization” to take over stores owned by Jews fleeing persecution, according to a 2016 book by Mark Spoerer, an economic historian at the University of Regensburg, who was commissioned by the family to examine the company’s past. The German branch of C&A used forced labor in the Lodz Ghetto to manufacture clothing, Spoerer found. Soon after the war, C&A retail locations expanded around the world.

“It was opportunism,” acknowledged Maurice Brenninkmeijer, then chairman of Cofra Holding, in a 2016 interview with German newspaper Die Zeit. “I suspect that my relatives were solely focused on business, and in doing so they lost sight of our values.” He added, “I wish it had been different.”

In rare interviews, family members portray themselves as major donors to environmental initiatives. Their philanthropic arm, the Laudes Foundation, promotes sustainable usage of raw materials used in C&A clothing to address what it calls “the dual crisis of inequality and climate change.”

Yet C&A has come under fire for contracting with companies that have allegedly exploited workers. While it produces its own line of clothes, it also acts as an intermediary between Western companies and hundreds of garment factories in East Asia and South America. It’s most active in Bangladesh, where labor costs are among the lowest in the world.

In 2012, a fire swept through a Bangladesh factory producing clothes for C&A, killing at least 112 workers. The company agreed to pay compensation to victims and to assess safety conditions. Last year, a German human-rights organization filed a criminal complaint against C&A, among others, for sourcing cotton made with the forced labor of Uyghur Muslims in China. Cofra and C&A did not respond to requests for comment.

“Given the scale at which C&A operates, they could literally lift millions of garment workers out of abject poverty,” said Ben Vanpeperstraete, senior legal adviser with the European Center for Constitutional and Human Rights, who helped negotiate compensation for victims of the 2012 Bangladesh factory fire.

“In the end, they put profits first.”

A member of Leeman’s crew works below deck. (Tony Luong, special to ProPublica)

One July day in 2017, Joseph Drago woke up in a loud, dark cabin below deck of a scallop vessel owned by Blue Harvest. He had a splitting headache and couldn’t catch his breath. He stumbled onto the deck and asked the crew what was happening.

It was fumes, one replied in Spanish. An exhaust leak from the engine had been pouring into the sleeping quarters. Soon after, the engine blew out, leaving the vessel bobbing in swells 80 miles off the coast. It had to be towed into port.

Blue Harvest boats have had a number of mishaps. Last year, one Blue Harvest vessel burned at sea; another ran aground, which can be attributable to human error or weather conditions. Leeman had to cut a fishing trip short in January when the boat’s engine malfunctioned.

Current and former workers said that several vessels that Blue Harvest regularly operates were already past their prime when the company bought them. “Their next stop should have been the scrapyard,” said the former Blue Harvest mechanic, who requested anonymity out of concern for his career. “The boats had been worked like dogs.” Blue Harvest did not respond to questions about the condition of its fleet.

Captains and crew on Blue Harvest boats pay for maintenance, according to settlement sheets and fishermen. The company has also imposed other charges that fishermen say they haven’t encountered elsewhere in the industry, including a 3% “electronics fee” and a $400 “wharfage fee” for pulling up at the company dock to unload fish.

“The price stays the same but all our expenses just keep going up,” said Drago. “Every trip they’re taking more and more out of the crew’s share.”

Drago, like Leeman, aspired to buy his own boat. But with nerve damage in his hand from years working at sea, the 35-year-old plans to leave the industry as soon as he can find another job.

“You can no longer work your way up from the deck, become a captain and buy your own boat and permit. That was always the arrangement,” he said. “You’ll never make enough. They made it unattainable to do anything but work for them.”

Left: A member of Leeman’s crew fixes gear. Right: Haddock are tossed into a crate. (Tony Luong, special to ProPublica)

As Blue Harvest snapped up fleets, it also acquired their permits. Today, it is approaching the antitrust limit of 15.5% ownership of permits for groundfish caught off New England.

Blue Harvest owns 12% of the permitted catch overall, including 21% of haddock, 19% of winter flounder, 16% of ocean perch and 15% of cod. It stays below the aggregate cap by owning smaller shares of other species, like 2% of a certain northern flounder. The company’s groundfish permit holdings total about 46 million pounds.

But those figures underestimate Blue Harvest’s market share. In addition to owning permits, it also leases fishing rights from other permit owners. At the beginning of the year, the company will lease a “bucket of fish,” one Blue Harvest manager said. “If we’re short on something, we’ll buy it” for the year. The manager said that this practice addresses a weakness in the catch shares system, which allows individuals and organizations to hold permits and passively earn a profit through leasing rather than fishing themselves. About 40% of all groundfish permits are not used by their owners and are available only on the leasing market, records show.

Leasing provides a small but steady revenue stream for those owners, and it helps to ensure that enough seafood reaches the market to satisfy demand. The practice also enables the expansion of larger companies. That’s because NOAA’s antitrust rules apply only to ownership. “There is no restriction on leasing,” said NOAA’s Demarest. “It would be a very illiberal idea to try to cap the amount that each corporation can land.”Theoretically, Blue Harvest or any other major player can legally circumvent the 15.5% cap by leasing the rights to catch more fish. Because of leasing, the cap “does not really prevent consolidation at all,” said Mary Hudson, a manager at a Maine cooperative that makes permits available to independent fishermen at discount prices. “Private equity backing can come in, set [leasing] prices and still buy it all.” Instead of fishing, some small fishermen have taken to leasing out their rights, she added: “They just don’t have the capital to compete.”

Crates of fish below deck (Tony Luong, special to ProPublica)

The news organizations’ analysis could not determine how much quota — the industry term for the number of pounds of fish someone is allowed to catch — Blue Harvest is leasing, or from whom. That’s because groundfish permits belonging to individual fishermen, organizations and large corporations are generally pooled and managed in groups known as sectors. The sectors act as a black box — fish quotas can be seen flowing in and out, but who exactly is leasing them is hidden. NOAA tracks and publishes the weight of fish leased between sectors, but those transactions do not identify the specific lessor or lessee. Even the U.S. government doesn’t track that information.

“It’s not legally traceable,” Demarest said. “The government can’t get involved in what happens within sectors.”

In Blue Harvest’s case, most of the company’s permits are held in two sectors that have leased the rights to catch more than 14 million pounds of groundfish since 2018. But there are other permit owners in those sectors as well. “This sector acquires quota from just about every sector out there,” said Hank Soule, who manages both sectors where Blue Harvest operates. He declined to say which owners within the sector were leasing the most quota.

How Blue Harvest Stays Under the Antitrust Cap for Groundfish

Blue Harvest’s allotted quota for certain kinds of fish, like haddock, exceeds the federal 15.5% cap for groundfish. It stays under the aggregate cap by having rights to catch less than 15.5% of other types of fish, like pollock. (It also catches more groundfish through leasing arrangements that don’t count toward the cap.)

(Illustrations by Anuj Shrestha, special to ProPublica)

Blue Harvest boats “are the ones that are fishing, day and night,” said John Pappalardo, a member of NOAA’s regional council. “Nobody else is fishing at the level they are. Obviously, they are going to be the ones setting the price and moving the market.” The Cape Cod Commercial Fishermen’s Alliance, a cooperative headed by Pappalardo, originally opposed catch shares, fearing the system would gut the local industry. But when he realized that the new system was inevitable, he voted to adopt it. Today, he’s stoic about the entry of private equity into the fishing industry. “If not them, then who?” he said. “I don’t think you’re going to see a lot of independent vessels or communities get into the fishery again.”

Since Leeman doesn’t own permits, he isn’t eligible to lease them himself — that’s a perk afforded only to permit holders. But he ends up paying for it anyway. Blue Harvest passes the cost of leasing permits on to its fishermen, the same way it does for fuel, fishing gear or vessel maintenance, the manager and workers said. In November 2021, a settlement sheet shows, Blue Harvest deducted a $3,329.90 leasing charge from the pay for Leeman and his crew.

Left: Leeman’s crew sorts haddock on deck. Right: Crates of haddock await processing in Blue Harvest’s facility. (Tony Luong, special to ProPublica)

There’s a long history of foreign fishing in U.S. waters. In the 1970s, trawlers from Russia and elsewhere depleted East Coast fish populations, spurring a 1976 federal law pushing foreign fleets at least 200 miles offshore. In 1998, a cap was added, limiting a foreign entity to owning 25% of a U.S. fishing vessel.

In recent years, foreign companies have reentered U.S. fishing grounds through a different route: investing in local operations. They include Canada-based Cooke Seafood, which recently acquired a one-fourth interest in scallop fleets in New Bedford and North Carolina, and Profand, a Spanish company that did the same with Seafreeze Ltd., the largest squid and mackerel operation on the East Coast. According to Undercurrent News, Profand’s majority shareholder is Enrique García Chillón, who is known in his home country as “el emperador del pulpo,” or the emperor of octopus.

Federal enforcement of the 25% cap largely relies on companies’ own assurances that they are in compliance. The Coast Guard lacks the resources to vet businesses’ paperwork, a former official said, and is required by law to “minimize the administrative burden” on owners and operators of vessels.

“There should be more transparency in ownership. But there isn’t. It’s basically an honor system,” said Charlie Papavizas, a Washington, D.C., attorney specializing in maritime law. “As a result, there is a big gray area in what is permissible.”

In a 2015 press release, Bregal Partners acknowledged that, “as an arm of German-Dutch Brenninkmeijer Group,” it was limited by law to “a 25 percent ownership in any quota-holding fishing company.” Ownership forms for four of Blue Harvest’s vessels from 2018 and 2019 — submitted to NOAA and obtained through a public records request — listed four owners for each of the boats. One was Jeff Davis, who served as Blue Harvest’s CEO before retiring from the company in 2018. Another was Chris Lischewski, who was then chief executive of Bumble Bee Seafoods, known for its canned tuna. The others were Mark Thierfelder, a lawyer who has represented Bregal Partners, and Michael Arougheti, chief executive of a finance company that has advised Bregal on acquisitions in the fishing industry.

Davis and Thierfelder could not be reached for comment. A spokesperson for Arougheti declined to comment. Lischewski stepped down as CEO of Bumble Bee after he was indicted for conspiring to fix canned tuna prices. He was found guilty in 2019 and sentenced to 40 months in prison. NOAA lacks the regulatory authority to require investors to disclose the percentage of their stake in a vessel or permit, said Ted Hawes, chief of NOAA’s regional permitting office.

Blue Harvest said in a statement that the Coast Guard had approved its “capital and ownership structure” in advance and that the company has “continued to submit all required notices and reporting materials” to regulatory authorities. “At no time has Blue Harvest been owned 100% by Bregal,” it added.

On May 11, more than 160 scallop fishermen, business owners, marine scientists, attorneys and vessel owners crowded into the New Bedford Whaling Museum for a rowdy meeting. Attendance was especially high because the seas were stormy and many fishermen stayed in port. To loud applause, more than a dozen people denounced a proposal, backed by Blue Harvest and other large companies, that independent local fishermen fear would enable private equity to storm their last stronghold — scallops.

Leasing scallop permits is currently prohibited, but the proposal would allow it. The biggest companies in the market, which are running up against a cap on permit ownership, are advocating for the change.

New Bedford fishermen object to allowing scallop permits to be leased. They say the proposal would accelerate consolidation in their industry. (Tony Luong, special to ProPublica)

Current scallop regulations allow one permit per boat, up to a total of 17 vessels. One local company, Eastern Fisheries, has reached the limit, according to a letter it sent to NOAA in 2021. In its own letter, Blue Harvest listed 15 scallop vessels.

“This is going to hurt the fishermen and the local economy,” said Tyler Miranda, a third-generation fisherman from New Bedford and captain of two scallop vessels who is leading the opposition. “The only people to benefit are the owners of the largest companies. How much do the biggest owners need to take out of our wages and bring into theirs? How much is enough?”

One of the few speakers in favor of the proposal was George LaPointe, a policy consultant to Blue Harvest and a former commissioner of Maine’s Department of Marine Resources. “We believe that we can improve flexibility,” said LaPointe, who was there to represent large scallopers, including Blue Harvest. As he returned to his seat, many fishermen booed.

New Bedford fishermen had a strong union until the mid-1980s, when the union was broken in the heat of a strike. Now, with private equity setting its sights on scallops as well as groundfish, talk of a union is beginning to stir again.

Leeman said he would welcome a union to fight for fair pay. On his own, he spends his days on land making calls to check how the rate that Blue Harvest paid compares to the market price.

Last year, after a 10-day fishing trip, he took a look at his settlement sheet and burst into the management office, demanding fair pay for him and his crew. “I said, ‘Until we get this straight, I’m not leaving the dock,’” he recalled.

And with the weight of a multibillion-dollar industry resting on the labor of a few hundred New Bedford fishermen, the company relented and paid him what he said was the market rate. “If I didn’t say anything, they’d still be paying us half of what that fish was worth.”

About the Data: How We Tracked Blue Harvest’s Fishing Permits

After hearing from local fishermen that Blue Harvest Fisheries is dominating New Bedford’s fishing industry, we set out to document how much of the total allowable catch the company is pulling in.

A first step was to find out how many permits the company owns. The National Oceanic and Atmospheric Administration provided a database breaking down the permit holdings in the groundfish industry for the 2022 fishing year. Each permit has a unique identification number and represents a certain percentage of the total allowable catch of a species of groundfish. Blue Harvest holds permits in the names of limited liability companies. Most of these companies have “BHF” as part of their corporate name, and we confirmed that they were linked to Blue Harvest through their corporate filings, which list Blue Harvest’s executives. Our analysis was limited to permits that could be clearly linked to Blue Harvest through these records. It is possible that Blue Harvest holds additional permits.

We measured Blue Harvest’s share of permits as a percentage of the total quota by weight. When aggregating across different kinds of groundfish, these percentages were averaged, consistent with how NOAA calculates its 15.5% cap. We found that Blue Harvest owns permits for 12% of groundfish quota — the industry’s term for the total pounds a permit-holder is allowed to catch — in the current fishing year.

In addition to owning permits outright, companies can also lease permits. However, company-level lease agreements are not made public. Instead, NOAA posts leasing transactions at a more summary level.

Permits are managed in groups of permit holders known as “sectors.” If one permit holder leases to another in its own sector, NOAA does not publish the transaction. If a holder leases to a party in another sector, that transaction is recorded publicly, but only the sectors are identified, not the specific lessor or lessee.

Most of Blue Harvest’s permits are kept in two of the 18 sectors. NOAA’s leasing records through May of this year show that more than 14 million pounds’ worth of fishing quota have flowed from other sectors into those two sectors since 2018.Interviews with individual fishermen and others in the industry indicate that Blue Harvest has a significant leasing operation; however, lack of precise data from NOAA makes it impossible to determine the exact extent of the company’s leasing.

Alex Mierjeski contributed reporting, and Joel Jacobs contributed data reporting.

by Lisa Song

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The Supreme Court decision to limit the Environmental Protection Agency’s ability to regulate greenhouse gases from power plants set off widespread worries that federal agencies won’t be able to protect Americans from harm.

The 6-3 ruling, announced last week, triggered immediate questions at ProPublica, which had spent more than a year reporting on where Americans are exposed to dangerous levels of hazardous air pollutants regulated by the Clean Air Act, the same law at the heart of the Supreme Court case. In a 2021 series, ProPublica showed how industrial polluters have turned neighborhoods into “sacrifice zones” where some 250,000 Americans breathe in carcinogens that expose them to cancer risks the EPA has deemed unacceptable. A lack of air monitoring and enforcement left communities ill informed about the risks they faced, ProPublica found. In the wake of our reporting, the agency stepped up its enforcement and pledged to do more. Did this ruling put those reforms at risk?

To understand the implications of this historic court decision on both the EPA and other federal regulators that hold corporations accountable, ProPublica spoke to two environmental law experts: Patricia Ross McCubbin, a Clean Air Act expert and law professor at Southern Illinois University, and Victor Flatt, a University of Houston law professor and faculty co-director of the Environment, Energy & Natural Resources Center.

At issue in the case, West Virginia v. Environmental Protection Agency, is a 2015 rule issued under President Barack Obama’s administration that was aimed at slashing greenhouse gas emissions from coal power plants, in part by shifting electricity production to cleaner energy types. Lawyers in the case made their arguments before the Supreme Court on Feb. 28, the same day the United Nations released a crucial report warning that climate change kills people and that the world will need to drastically slash emissions in order to avoid the most catastrophic consequences of a warming planet.

Both experts said the Supreme Court decision hinges on a basic question: Did Congress give the EPA, as part of the agency’s mission to reduce pollution, the authority to reduce power plant emissions in the manner the agency proposed in that 2015 rule? The majority on the court said Congress hadn’t granted the agency that power. The ruling relied on what’s called the “major questions doctrine,” which requires that Congress explicitly define what power an agency has to regulate matters that have national significance. This decision, the experts said, could force agencies to tread carefully. However, Flatt and McCubbin said it likely won’t impact the EPA’s regulation of the type of pollutants ProPublica spotlighted in the “Sacrifice Zones” series because Congress has spelled out, in detail, how the EPA should oversee those industrial chemicals.

In her dissent, Justice Elena Kagan wrote that Congress provides overall policy outlines but relies on federal agencies with expertise to figure out the best ways to accomplish those goals. The court itself has no such expertise, she wrote: “Whatever else this Court may know about, it does not have a clue about how to address climate change. And let’s say the obvious: The stakes here are high. … The Court appoints itself — instead of Congress or the expert agency — the decision-maker on climate policy. I cannot think of many things more frightening.”

Justices Stephen Breyer and Sonia Sotomayor joined Kagan’s dissent.

Flatt and McCubbin said the ruling tilts power away from the executive branch and toward Congress, turning on its ear the traditional authority that agencies have to act when Congress’ direction is ambiguous. Our conversation has been edited for clarity:

Can you summarize what the decision means?

Flatt: So, what the ruling said was that EPA can regulate greenhouse gases. But it cannot do certain things unless Congress has explicitly given them the authority to use those tools. ...

That’s a change from the past, where the courts have said, “Well, if Congress isn’t completely clear, we will defer to the agency as long as Congress hasn’t said they cannot do certain things.”

McCubbin: In one sense, this ruling is somewhat narrow. The only thing that the court technically did was declare that EPA could not, under Section 111(d) of the Clean Air Act, require existing power plants to limit greenhouse gas emissions by shifting electricity generation to cleaner energy sources. The court did not say that EPA couldn’t regulate greenhouse gases in some other fashion, even under 111(d). The court did not say EPA couldn’t use other provisions to try to address greenhouse gases.

The basis for the ruling though — this concept called the major questions doctrine — that is a huge potential barrier. Basically, every federal agency is now focused on this phrase.

What is the major questions doctrine?

McCubbin: The major questions doctrine says, in simple terms, that if a federal agency is going to address the really big thorny questions of our day, that agency has to be able to point to some clear authority from Congress, in a statute, to address that big thorny question. Here in this case, the court thought deciding what energy mix we’re going to have in our society is a pretty important question that Congress should weigh in on [and] not leave it to this agency.

And I think there is some truth to that. I think the pendulum maybe has swung to where we have agencies addressing profound issues for our society with very little guidance from Congress. The court’s theory is that Congress is functional enough to actually address these big important issues, and maybe 10 years ago when the House passed Waxman-Markey [a climate change bill from 2009], we were close to being functional. But in this day and age, that theory doesn’t match up with practicality.

I would argue that the concepts of the major questions doctrine have been in other Supreme Court decisions, but this is the first time that the majority has actually used that phrase.

The problem is … the justices in this opinion don’t all agree on what is a really big thorny question. No one knows precisely. For example, Chief Justice John Roberts has one sort of test. Justice Neil Gorsuch in his concurrence has a different sort of test.

How will this ruling affect future climate regulation?

Flatt: Overall, it means that it is going to be more difficult, if not impossible, for the EPA to use certain kinds of regulatory tools. In particular, Justice Roberts, in the majority opinion, called out the potential use of emissions trading that was in the Clean Power Plan, saying that all this fuel switching and requiring different fuels is a very big thing to do. And Congress did not give you authorization to do that. What you need to do with greenhouse gases is essentially regulate them like you’ve regulated other pollutants — using control technology at the source of the pollution itself.

McCubbin: The one good thing about this opinion, actually, is that it did not second-guess an earlier decision where the court said EPA can address greenhouse gases under the Clean Air Act. There were people who were worried that this case would actually go that far. And the court didn't.

So the court wants the EPA to use more traditional forms of pollution control, like installing equipment to reduce emissions at the smokestack. But the EPA said it’s impossible to get significant greenhouse gas reductions through that method.

McCubbin: That’s exactly right. I would suspect that at least some people are wondering, under this opinion now, could EPA require carbon capture and sequestration at a coal facility? That’s a very expensive technology. Would that be a traditional enough method? Or would it still be too big? Would it be too controversial? Would it be too expensive? We don’t know.

What does this mean for the EPA’s ability to regulate the types of hazardous air pollutants discussed in our “Sacrifice Zones” series? The EPA regulates these pollutants under the Clean Air Act, which Congress amended in 1990.

McCubbin: Many of these statutes are quite old and quite generic. But the hazardous air pollutant provision [a section of the Clean Air Act] is an example of, I think, what the court thinks Congress should do. In 1990, Congress … really did its job and specified a lot of details for how to address toxic pollutants. It listed 189 pollutants that had to be regulated. It told the EPA how many facilities to look at in each particular category of industry to determine the maximum emission control.

The agency has pledged to better regulate hazardous air pollutants in response to our reporting last year. Could this ruling affect those promises, or the EPA’s ability to step up enforcement?

Flatt: Enforcement is always something that the agency is given a great deal of flexibility on. … The ability to enforce is always a core agency power. So if you’re just saying you’re going to enforce better, that’s fine.

The ruling cited an earlier case related to the major questions doctrine, where the Supreme Court said the Occupational Safety and Health Administration couldn’t require COVID-19 vaccines or testing in workplaces. It said Congress would need to give OSHA the power to do that. Many of the statutes that govern federal agencies were written decades ago, before issues like climate change became as relevant or urgent as they are today. Is it realistic to wait for Congress to give more instruction, especially when Congress is deadlocked?

Flatt: Even if Congress were functional, it slows down the ability to deal with issues and novel problems. Congress can’t do things in an emergency way. They literally might not be in session. So that really does show that even with a functional Congress, you’re really kneecapping the ability of the government to do things.

McCubbin: That is the problem here. The court is asking for a clear statement from Congress. And it is very doubtful in this day and age that we’re going to get that on big major issues. So one potential implication is that we are not going to have very much federal action, and it’s going to default to the states on everything from climate change to abortion rules.

Could this decision have a chilling effect on proposed rules from the EPA and other federal agencies?

Flatt: Not in this administration. Yes, agencies don’t like to be overturned. But they’re going to try to do what they want to do. Now, on the other hand, I don’t expect any lessening of any challenges from state attorneys general, whatever the EPA does. That’s just the blood sport. That’s always going to happen. It’s political.

McCubbin: Yes, I definitely think so. It will have that — if not chilling, at least slowing down effect — because they’ll have to be double careful.

They’re going to have to at least think hard: Are we stepping into an area where we might be seen as addressing a major question? And without a bit of guidance, there may be a slight chilling effect or pulling back. Or they may say, “Let’s aggressively go forward and test the limits.” But it will change agencies’ behavior because of this signal from the court.

by Charles Ornstein

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Following the Supreme Court’s decision overturning Roe v. Wade, advocates for privacy and reproductive health have expressed fears that data from period-tracking apps could be used to find people who’ve had abortions.

They have a point. The Health Insurance Portability and Accountability Act, the federal patient privacy law known as HIPAA, does not apply to most apps that track menstrual cycles, just as it doesn’t apply to many health care apps and at-home test kits.

In 2015, ProPublica reported how HIPAA, passed in 1996, has not kept up with changes in technology and does not cover at-home paternity tests, fitness trackers or health apps.

The story featured a woman who purchased an at-home paternity test at a local pharmacy and went online to get the results. A part of the lab’s website address caught her attention as a cybersecurity consultant. When she tweaked the URL slightly, a long list of test results of some 6,000 other people appeared.

She complained on Twitter and the site was taken down. But when she alerted the Office for Civil Rights within the U.S. Department of Health and Human Services, which oversees HIPAA compliance, officials told her they couldn’t do anything about it. That’s because HIPAA only covers patient information kept by health providers, insurers and data clearinghouses, as well as their business partners.

Deven McGraw is the former deputy director for health information privacy at the HHS Office for Civil Rights. She said the decision overturning Roe, called Dobbs v. Jackson Women's Health Organization, should spark a broader conversation about the limits of HIPAA.

“All of a sudden, people are waking up to the idea that there’s a lot of sensitive data being collected outside of HIPAA and asking, ‘What are we going to do?’” said McGraw, who is now the lead for data stewardship and data sharing at Invitae, a medical genetics company. “It’s been that way for a while, but now it’s in sharper relief.”

McGraw noted how that’s not just the case for period-tracking apps but also some apps that store COVID-19 vaccine records. Because Congress wrote HIPAA, lawmakers would have to update it to cover those cases. “Our health data protections are badly out of date,” she said. “But the agencies can’t fix this. This is on Congress.”

Consumer Reports’ digital lab evaluated eight period-tracking apps this spring and found that four allowed third-party tracking by companies other than the maker of the app. Four apps stored data remotely, not just on the user’s device. That makes the information potentially subject to a data breach or a subpoena from law enforcement agencies, though one of the companies surveyed by Consumer Reports has said it would shut down rather than turn over users’ data.

In a press release last week, HHS sought to allay worries with some advice that sounds reassuring.

“According to recent reports, many patients are concerned that period trackers and other health information apps on smartphones may threaten their right to privacy by disclosing geolocation data which may be misused by those seeking to deny care,” HHS said in the release.

The document quoted HHS Secretary Xavier Becerra about the protections provided by HIPAA: “HHS stands with patients and providers in protecting HIPAA privacy rights and reproductive health care information,” Becerra said. He urged anyone who thinks their privacy rights have been violated to file a complaint with the Office for Civil Rights.

The release later acknowledged that, in most cases, HIPAA rules do not protect the privacy or security of individuals’ health information when they access or store it on personal cellphones or tablets. It offered guidance on steps people can take to protect their information.

Since the court’s decision overturning Roe, some period-tracking apps have taken steps to minimize the risk of personal information being shared. One such company called Flo said it is developing an “anonymous mode” that would not require users to provide their name or email address.

“Flo does not share or sell any health data with any other company, but wanted to take this additional step to reassure users who are living in states affected by an abortion ban,” the company said in a press release. “It is important to note that once this mode is activated, users will no longer be able to recover data when the device is lost, changed, or stolen and there may be limitations to using the app’s full personalization benefits. This is why Flo is offering Anonymous Mode as an option for concerned users instead of activating it by default.”

In a statement after the Supreme Court decision, the digital civil liberties group Electronic Frontier Foundation said consumers should pay attention to “privacy settings on the services they use, turn off location services on apps that don’t need them, and use encrypted messaging services.

“Companies should protect users by allowing anonymous access, stopping behavioral tracking, strengthening data deletion policies, encrypting data in transit, enabling end-to-end message encryption by default, preventing location tracking, and ensuring that users get notice when their data is being sought,” the EFF statement said. “And state and federal policymakers must pass meaningful privacy legislation. All of these steps are needed to protect privacy, and all are long overdue.”

by Craig Silverman

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The day after Russia’s February invasion of Ukraine, Senate Intelligence Committee Chairman Mark Warner sent a letter to Google warning it to be on alert for “exploitation of your platform by Russia and Russian-linked entities,” and calling on the company to audit its advertising business’s compliance with economic sanctions.

But as recently as June 23, Google was sharing potentially sensitive user data with a sanctioned Russian ad tech company owned by Russia’s largest state bank, according to a new report provided to ProPublica.

Google allowed RuTarget, a Russian company that helps brands and agencies buy digital ads, to access and store data about people browsing websites and apps in Ukraine and other parts of the world, according to research from digital ad analysis firm Adalytics. Adalytics identified close to 700 examples of RuTarget receiving user data from Google after the company was added to a U.S. Treasury list of sanctioned entities on Feb. 24. The data sharing between Google and RuTarget stopped four months later on June 23, the day ProPublica contacted Google about the activity.

RuTarget, which also operates under the name Segmento, is owned by Sberbank, a Russian state bank that the Treasury described as “uniquely important” to the country’s economy when it hit the lender with initial sanctions. RuTarget was later listed in an April 6 Treasury announcement that imposed full blocking sanctions on Sberbank and other Russian entities and people. The sanctions mean U.S. individuals and entities are not supposed to conduct business with RuTarget or Sberbank.

Of particular concern, the analysis showed that Google shared data with RuTarget about users browsing websites based in Ukraine. This means Google may have turned over such critical information as unique mobile phone IDs, IP addresses, location information and details about users’ interests and online activity, data that U.S. senators and experts say could be used by Russian military and intelligence services to track people or zero in on locations of interest.

Last April, a bipartisan group of U.S. senators sent a letter to Google and other major ad technology companies warning of the national security implications of data shared as part of the digital ad buying process. They said this user data “would be a goldmine for foreign intelligence services that could exploit it to inform and supercharge hacking, blackmail, and influence campaigns.”

Google spokesperson Michael Aciman said that the company blocked RuTarget from using its ad products in March, and that RuTarget has not purchased ads directly via Google since then. He acknowledged the Russian company was still receiving user and ad buying data from Google before being alerted by ProPublica and Adalytics.

“Google is committed to complying with all applicable sanctions and trade compliance laws,” Aciman said. “We’ve reviewed the entities in question and have taken appropriate enforcement action beyond the measures we took earlier this year to block them from directly using Google advertising products.”

Aciman said this action includes not only preventing RuTarget from further accessing user data, but from purchasing ads through third parties in Russia that may not be sanctioned. He declined to say whether RuTarget had purchased ads via Google systems using such third parties, and he did not comment on whether data about Ukrainians had been shared with RuTarget.

Krzysztof Franaszek, who runs Adalytics and authored the report, said RuTarget’s ability to access and store user data from Google could open the door to serious potential abuse.

“For all we know they are taking that data and combining it with 20 other data sources they got from God knows where,” he said. “If RuTarget’s other data partners included the Russian government or intelligence or cybercriminals, there is a huge danger.”

In a statement to ProPublica, Warner, a Virginia Democrat, called Google’s failure to sever its relationship with RuTarget alarming.

“All companies have a responsibility to ensure that they are not helping to fund or even inadvertently support Vladimir Putin’s invasion of Ukraine. Hearing that an American company may be sharing user data with a Russian company — owned by a sanctioned, state-owned bank no less — is incredibly alarming and frankly disappointing,” he said. “I urge all companies to examine their business operations from top to bottom to ensure that they are not supporting Putin’s war in any way.”

Google’s initial failure to fully enforce sanctions on RuTarget highlights how money and data can flow through its market-leading digital advertising systems with little oversight or accountability. An April report from Adalytics showed that Google had continued serving ads on Russian websites that had been on the Treasury sanctions list for years. In June, ProPublica reported that Google helped place, and earned money from, more than 100 million gun ads, despite the company’s strong public stance against accepting such ads.

The findings about RuTarget also come as Google and other tech companies face intense scrutiny from legislators about their handling of personal data.

Sen. Ron Wyden, D-Ore., who sits on the Senate Intelligence Committee, criticized Google for its failure last year to provide him and his colleagues with a list of the foreign-owned companies it shares ad data with.

“Google has refused to disclose [to senators] whether its ad network makes Americans’ data available to foreign companies in Russia, China and other high-risk countries,” he said in a statement to ProPublica. “It is time for Congress to act and pass my bipartisan bill, the Protecting Americans’ Data From Foreign Surveillance Act, which would force Google and other networks to radically change how they do business and ensure unfriendly foreign governments don’t have unfettered access to Americans’ sensitive information.”

Wyden and his colleagues introduced the bipartisan bill last week to prevent sensitive data about Americans from being sold or transferred to “high-risk foreign countries.” Wyden and a different group of Senate colleagues also sent a letter to Federal Trade Commission Chair Lina Khan last week asking her to investigate Google and Apple for enabling mobile advertising IDs in cellphones. These unique IDs can be combined with other data to personally identify users.

Wyden’s letter cited mobile IDs as one way that Google and Apple transformed “online advertising into an intense system of surveillance that incentivizes and facilitates the unrestrained collection and constant sale of Americans’ personal data.”

Aciman of Google said that the mobile advertising ID was created to give users control and privacy, and that Google does not allow the sale of user data.

“The advertising ID was created to give users more control and provide developers with a more private way to effectively monetize their app,” he said. “Additionally, Google Play has policies in place that prohibit using this data for purposes other than advertising and user analytics. Any claims that advertising ID was created to facilitate data sales are simply false.”

Bidstream Data Under Scrutiny

At the heart of both the senators’ concerns and the Adalytics report is the data collected on global internet users that gets passed between companies as part of the digital ad buying process. This treasure trove of information can include a person’s unique mobile ID, IP address, location information and browsing habits. When passed between companies to facilitate ad buying, the trove is called bidstream data. And it’s essential to the roughly half a trillion dollar digital ad industry that is dominated by Google.

Many digital ads are placed as a result of a real-time auction in which the seller of ad space, such as a website, is connected with potential buyers, like brands and agencies. An auction starts when a user visits a website or app. Within milliseconds, data collected about this user is shared with potential ad buyers to help them decide whether to bid to show an ad to the user. Regardless of whether they bid or not, ad buying platforms like RuTarget receive and store this bidstream data, helping them automate the amassing of rich repositories of data over time.

The auction process is run by ad exchanges. They connect buyers and sellers and facilitate the sharing of bidstream data between them in conjunction with a process called cookie syncing. Google operates the world’s largest ad exchange, and RuTarget is one of many companies it shares bidstream data with. The more RuTarget connects with ad exchanges like Google, the more information it can gather and combine with data collected from other online and offline sources.

Justin Sherman, a fellow at Duke’s Sanford School of Public Policy who runs a project focused on data brokers, said bidstream data is largely unregulated and can be highly sensitive, even if it does not include personal information such as names or emails.

“There’s growing attention to the ways in which our data ecosystem and our ecosystem of data brokers and advertisers gives away or sends or sells highly sensitive information on Americans to foreign entities,” he said. “There is also concern about foreign entities illicitly accessing that information.”

Google Failed to Disclose Bidstream Data Partners

Fears over the ill-usage of the information led Warner, Wyden and four colleagues to ask Google and six other ad exchanges in April 2021 to list the domestic and foreign partners they shared bidstream data with in the past three years. They warned that this data could have serious implications for U.S. national security.

“Few Americans realize that some auction participants are siphoning off and storing ‘bidstream’ data to compile exhaustive dossiers about them. In turn, these dossiers are being openly sold to anyone with a credit card, including to hedge funds, political campaigns, and even to governments,” they wrote in letters to AT&T, Index Exchange, Google, Magnite, OpenX, PubMatic, Twitter and Verizon.

Google responded a few weeks later but refused to list the companies it shares bidstream data with, citing “non-disclosure obligations.”

Franaszek’s research reveals concerns about the accuracy of Google’s response. He identified eight pages on Google’s support website that list hundreds of foreign and domestic companies that are eligible to receive bidstream data from it. One list contains over 300 companies, of which 19 are Chinese owned or headquartered and 16 are based in Russia, including RuTarget.

Franaszek also found that some of these companies publicly disclosed their relationship with Google. And, as reported by Vice, some of Google’s competitors disclosed to the senators the foreign partners they share data with.

This raises questions as to what Google was referring to when it said nondisclosure obligations prevent it from naming its partners, according to Franaszek.

“Google was publicizing, on its own website, lists of foreign [partners] months before they told the senators that,” he said.

Google’s Aciman said the lists on Google’s website do not disclose the nature of its relationship with the companies, and he reiterated that it has nondisclosure obligations with companies who act as bidders.

One of the lists on Google’s site (“Ad Manager Certified External Vendors”) includes a column that describes what each Google vendor does. At least 13 of the companies are publicly identified as “RTB bidders,” meaning they act as bidders in Google’s real-time ad auction process.

Publishers Sharing Data With RuTarget

The user data shared by Google with RuTarget and other potential bidders is drawn from millions of websites and apps that rely on the Silicon Valley giant to help them earn money from ads. And many would likely be surprised to learn that a sanctioned Russian ad company was until two weeks ago able to harvest information about their visitors.

Because of its relationship with Google, RuTarget is publicly listed as a recipient of user data by major publishers including Reuters and ESPN. This means RuTarget can receive data from these companies about the millions of people who visit their online properties each month. Like other publishers, ESPN and Reuters list RuTarget as a recipient of user data in cookie consent popups shown to users browsing their sites from the EU and other jurisdictions with data privacy laws requiring such disclosures.

A spokesperson for Reuters said the companies shown in its consent popup, including RuTarget, come from a list of vendors provided by Google.

“This list of vendors is managed by Google, and Reuters uses Google’s list of vendors on our website. We understand that Google suspended buyers and bidders based in Russia, and we have no record of any transactions with RuTarget since April 6,” Heather Carpenter of Reuters said.

ESPN did not respond to a request for comment. As a Google partner, it’s possible that data about users browsing ProPublica’s website has at some point been shared with RuTarget. The opaque and technical nature of digital advertising makes it difficult to know for sure.

Jason Kint, head of the digital publisher trade group Digital Content Next, said Google’s market power leaves publishers with little choice except to work with the company.

“Premium publishers have to trust Google for a significant number of services that they depend on,” he said. “This is another example of misplaced trust. I’m just incredibly disappointed in Google.”

RuTarget’s website also lists an impressive group of global brands among its clients, including Procter & Gamble, Levi’s, Mazda, MasterCard, Hyundai, PayPal and Pfizer. This suggests the companies have worked with RuTarget to purchase ads, likely in an effort to target Russian-speaking audiences.

A spokesperson for Pfizer said the company is not currently working with RuTarget. “Following investigation with colleagues we have established we do not have any current working relationship with the organisation you mention, and have no recent record of any relationship,” Andrew Widger, the Pfizer spokesperson, said in an email.

The remaining companies did not respond to a request for comment.

Sherman of Duke said RuTarget’s connections to Google and so many other entities shows how the “ecosystem of digital advertising and of data collection and data brokers is a mess and a really thorny web to untangle.”

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Correction

July 1, 2022: This story originally misspelled the first name of the Federal Trade Commission chair. She is Lina Khan, not Linda.

by Charles Ornstein

This column was originally published in Not Shutting Up, a newsletter about the issues facing journalism and democracy. Sign up for it here.

The city of Uvalde, Texas, the scene of the horrific shooting in an elementary school last month, has been forceful in its unwillingness to release public records related to the tragedy that took the lives of 19 children and two adults.

The city’s blanket denial took me back 25 years to my own battle for records with another Texas town coping with a tragedy.

In May 1997, two hours into Splash Day, the opening day for pools in the city of Garland, Texas, a 15-year-old boy drowned. A group of teens told me that they had sought help from lifeguards when they saw the boy wasn’t moving at the bottom of the pool. According to the teens, the staff said the boy was probably swimming, I reported in The Dallas Morning News.

A few days later, I interviewed a 16-year-old who said the lifeguards entered the pool only after a girl cried that she had swum above the boy’s limp body. “At least two people went up to the lifeguards and told them that someone was drowning,” she told me. “But they thought they were lying. They told the two girls, ‘Don’t play like that.’”

The boy’s death was the second in three years at a public pool in Garland. City officials defended the actions of the lifeguards.

Though I had less than a year’s experience as a full-time reporter, I wanted to know more about what happened. Public records are one of the basic ways journalists can try to reconstruct events when people give conflicting or unclear accounts of what happened. Within days, I had filed requests under the Texas Public Information Act for any 911 calls related to the boy’s drowning, any incident reports prepared, copies of the CPR certificates for the lifeguards at the town’s pools and any guidelines that had been established for lifeguards.

Texas has pretty strong public records laws — they may not be as good as Florida’s, which are seen by some as a gold standard, but they’re far better than those in, for example, New York.

Garland, a large Dallas suburb, said it wanted to reject my requests because it anticipated that the boy’s mother would sue the city. (She had said on TV that she wanted the pool closed and that she wanted “to take them for everything they’ve got.”) Lawyers also cited other lawsuits the city faced related to incidents at its pools.

The resulting fight showed me how guarded city officials can be and how sometimes when a reporter is fighting for information in the public interest, there’s more at stake than what’s in any given document.

In Texas, unlike in many other states, when a jurisdiction wants to withhold records, it has to explain its rationale to the state attorney general’s office, which can agree or disagree with the reasoning. In my case, the attorney general’s office determined that Garland did not have sufficient grounds to withhold the 911 recording or the incident report. But instead of providing the documents, the city sued the attorney general’s office, seeking to block their release. (By law, the suit would stop the release of the records until a district court judge made a decision.) The Dallas Morning News intervened in the case.

While our case was pending, the teen’s mother and another relative filed a formal claim with the city seeking damages. A judge ruled against us, accepting the city’s reasoning.

We appealed the judge’s ruling and lost. The purpose of the litigation exception, the appeals court explained, “is to enable governmental bodies to protect their position in litigation by requiring parties seeking relevant information to obtain it, if at all, through ‘discovery’ processes,” which are governed by rules and overseen by the court.

We never did receive the records we sought.

But that wasn’t the end of the story. Our attorneys and other First Amendment advocates in the state successfully pressed the Legislature to change the law, saying that government agencies should only be entitled to claim a litigation exemption from public records requests if they have a valid reason at the time of the request. They shouldn’t be able to cite a lawsuit or claim filed much later as proof that their denial was proper.

One of the News’ lawyers in the case, Paul Watler, told me in an email recently that he could not find any examples in which the change in the law caused records to be released that otherwise would not have been. But, he wrote, “it is certainly my belief that the amendment put a stop to the practice of governmental bodies using the exception to withhold public information when the body lacked a reasonable anticipation of litigation, which is what had occurred in the Garland case.”

That brings me back to the Uvalde records being withheld. All told, as of June 15, we and our partners at the Texas Tribune had filed about 70 records requests related to the shooting and hadn’t gotten any records back; we’ve gotten a few things since then. We weren’t just denied by the city, but also by Gov. Greg Abbott’s office, the Texas Department of Public Safety and the U.S. Marshals Service. My colleague Lexi Churchill has written about our fight to obtain the records, which is ongoing.

Media lawyers are worried the city might try to cite what has been referred to as the “dead suspect loophole,” which prevents the release of public records related to crimes in which no one was convicted or given deferred adjudication. The gunman in Uvalde died and so will never face a court ruling, which gives officials a reason to withhold records forever.

While the media may not win this records fight either, the attention could ultimately change the law.

A range of figures in Texas, from media advocates to the speaker of the House, have called for the loophole to be closed. “The ‘dead suspect loophole’ allows law enforcement agencies to withhold details about cases that end w/o a conviction, including when a suspect dies in custody. The statute was originally intended to protect the wrongfully accused, but it hasn’t really worked that way in practice,” House Speaker Dade Phelan tweeted. “It’s time we pass legislation to end the dead suspect loophole for good in 2023.”

A Texas state senator who represents Uvalde has gone so far as to sue the state Department of Public Safety for its failure to release public records.

Watler, one of the lawyers in my Dallas Morning News case, said the dead suspect loophole has inhibited the release of information following other mass shootings, including the 2016 killing of five Dallas police officers. Police killed the suspect the following day.

Out of the profound grief of Uvalde, the Texas Legislature might improve transparency and close the dead suspect loophole. Though it may not bring clarity to what happened to the children in Robb Elementary School, it could make records more accessible in the future.

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by Mike Hixenbaugh, NBC News, and Perla Trevizo, ProPublica and The Texas Tribune

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This article is co-published with The Texas Tribune, a nonprofit, nonpartisan local newsroom that informs and engages with Texans. Sign up for The Brief weekly to get up to speed on their essential coverage of Texas issues.

The story was also produced in partnership with NBC News.

A congressional committee is investigating whether portable generator manufacturers have done enough to protect the public from deadly levels of carbon monoxide emitted by their products.

Rep. Carolyn B. Maloney, D-N.Y., who leads the House Committee on Oversight and Reform, sent letters to top executives at four major generator companies on Tuesday requesting copies of records documenting why they have not implemented potentially lifesaving safety upgrades in many generator models for sale. Maloney also asked for messages sent or received by officials at the companies — Generac Power Systems, DuroMax Power Equipment, Firman Power Equipment and Champion Power Equipment — related to any injuries or deaths connected to their products.

The committee investigation comes more than two decades after U.S. regulators identified the deadly risks posed by portable generators and six months after an investigation by NBC News, ProPublica and The Texas Tribune found that federal efforts to make portable generators safer have been stymied by a statutory process that empowers manufacturers to regulate themselves. That system has resulted in limited safety upgrades and continued deaths. Maloney repeatedly cited the news outlets’ findings in her letters to company executives.

Portable generators, often used to power critical medical equipment and appliances such as refrigerators and air conditioners during electrical outages, emit enough carbon monoxide to kill within minutes when operated in enclosed spaces or too close to exterior openings. Carbon monoxide deaths caused by generators predictably follow nearly every major power outage caused by extreme weather, which scientists say is becoming more common with climate change. Generators played a role in at least 10 deaths in Texas during the February 2021 winter storm and electric grid failure.

“As families prepare for potential extreme weather during the 2022 hurricane season, they shouldn’t have to worry about whether the products they buy to keep themselves safe are dangerous and potentially life-threatening,” Maloney said in a statement. “Unfortunately, with tragedy after tragedy, we’ve seen that portable generators have become one of the deadliest consumer products on the market.”

Portable generators kill an average of 80 people in the U.S. annually. After years of studying the problem, the Consumer Product Safety Commission concluded that warning labels and manuals instructing users to only operate generators outdoors were not enough to prevent accidental deaths. In 2016, the agency determined that manufacturers could save lives by making machines that emit significantly less carbon monoxide.

Instead, under industry-friendly federal laws, generator makers were allowed in 2018 to propose their own less expensive and voluntary solution: sensors that automatically turn the machines off when carbon monoxide builds up to an unsafe level.

But in the years since, some manufacturers have not added the safety switches or reduced carbon monoxide emissions in many generators for sale, especially in low-budget models, leaving consumers in many instances to choose between cost and safety, the ProPublica, Texas Tribune and NBC News investigation found.

The safety commission echoed those findings in a report issued this year. The 104-page report said automatic shut-off sensors alone, even if manufacturers installed them in every model, could not prevent all carbon monoxide poisonings caused by generators. The best solution, according to the commission’s findings, was to both reduce generator carbon monoxide emissions and add automatic shut-off switches — a comprehensive approach that only a few manufacturers have implemented.

Based on those findings, the commission said its staff would urge the agency’s five commissioners to move forward with a federal rule requiring generator makers to cut carbon monoxide emissions and add safety switches in the next fiscal year, which begins in October.

Maloney cited the safety commission report in her letters Tuesday to the chief executive officers of the four companies. Maloney told each of the CEOs she was concerned that the companies had “failed to adequately implement voluntary standards to reduce the risk of death from CO poisoning,” based on the commission’s report.

The letters said that the four companies had failed to add any safety upgrades to many or most of the generators they listed for sale in the fall of 2021.

“The Committee is seeking to understand why your company has failed to adequately adopt industry-led standards, how your company plans to prevent putting your customers at risk in the future, and whether legislative reform is necessary to protect consumers,” she wrote to each company executive.

Maloney gave the companies until July 12 to turn over information related to the safety of their products, details about the amount of money they have saved by declining to implement changes and their communication with federal regulators. If the companies fail to voluntarily comply, the committee’s chair has the power to issue subpoenas.

Tami Kou, a Generac spokesperson, said that company officials were in the process of reviewing the letter and that they would respond to lawmakers. In an earlier statement to reporters, Kou defended the company’s efforts to protect consumers. Kou told the news organizations that by 2023, all portable generators sold by the company would be equipped with shut-off sensors.

Dennis Trine, CEO of Champion, said in a statement that the company prioritizes the safety and quality of its products and that officials had started compiling the information requested and will provide it to the committee.

“Temporary, emergency power saves lives for people storing hundreds of dollars of Insulin in their refrigerators and people using breathing machines to sleep at night. The list goes on regarding the critical benefits of portable generators,” Trine wrote in an email.

Trine also said portable generators “never” kill users when they are “used correctly as depicted on the product, packaging and owners manual.”

But safety advocates say those instructions aren’t always easy to follow, because the machines usually can’t be operated in rain or snow. And a review of user manuals by the news organizations, which didn’t include Champion’s products, found that they can provide conflicting messages. Some instruction booklets suggest keeping generators a shorter distance from windows or doors than the 20-foot minimum recommended by the safety commission, while others provide more general guidance such as keeping the machines “far away” from homes.

The other two companies did not immediately respond to requests for comment.

Susan Orenga, executive director of the Portable Generator Manufacturers’ Association, the trade group that developed the voluntary shut-off switches standard, told federal regulators that generator makers have been affected by supply chain problems caused by the pandemic, according to the safety commission’s February report.

“It has been difficult to obtain parts, including CO sensors, to move forward any quicker,” Orenga told the agency.

But Marietta Robinson, a commissioner with the Consumer Product Safety Commission from 2013 to 2018, said portable generator manufacturers could have taken such steps years ago. She welcomed the House committee investigation.

“Most portable generator manufacturers have not invested in making their products safer,” Robinson said. “Instead, they have invested heavily in fighting both this technological change and regulations that would require it.”

The Consumer Product Safety Commission previously estimated that reducing generators’ carbon monoxide emissions would add about $115 to the manufacturing cost of most units, which typically sell for $500 to $1,500.

Robinson noted that generator manufacturers have “made many millions of dollars” off of people’s need for their products in the wake of increasingly frequent severe weather events.

“The least they can do is invest the modestly additional amount in making these products safer by significantly reducing their emissions of CO and saving the lives of those using this product,” Robinson said.

by Daniel Golden and Kirsten Berg

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

This article was co-published with The Chronicle of Higher Education.

In August 2020, Boise State University chose a doctoral student in public policy, Melanie Fillmore, to deliver what is called a “land acknowledgment” speech at a convocation for incoming freshmen. Fillmore, who is part Indigenous, would recognize the tribes that lived in the Boise Valley before they were banished to reservations to make way for white settlers.

Fillmore considered it an honor. She was devoted to Boise State, where she had earned her bachelor’s and master’s degrees, taught undergraduate courses and served on job search committees. She also admired Marlene Tromp, a feminist literary scholar who came from the University of California, Santa Cruz, in 2019 to become Boise State’s first female president. Tromp had been hired with a mandate to promote diversity, and including an Indigenous speaker in the ceremony marking the start of students’ higher education would advance that agenda.

The convocation was to be virtual, because of the pandemic. Fillmore put on beaded Native American jewelry and recorded an eight-minute video on her phone. She began by naming the “rightful owners of this land,” the Boise Valley Indigenous tribes, and then described her own “complicated” background. Her father was Hunkpapa Lakota, her mother white. “I can trace eight generations of my Lakota ancestors being removed from the land of their lifeblood to the reservation, just as I can trace seven generations of Norwegian and English ancestors taking that land,” she said.

Melanie Fillmore (Angie Smith, special to ProPublica)

Fillmore urged viewers to “find a way to share your story here at Boise State” and to learn the history of Indigenous people. “When we acknowledge the Boise Valley ancestors and their land, we make room for that story of removal that was genocidal in purpose,” she said. “When we tell those stories honestly and fully, we heal, and our ancestors heal with us.”

She submitted her speech to the university, but the students never heard it. Boise State higher-ups thought that it was too long and too provocative to roll out in a politically precarious climate, one former official said. They consulted another administrator about whether to drop the speech. “I communicated that pulling it was a bad idea and incredibly wrong,” said this person, who has also left the university. “I don’t believe in de-platforming Indigenous voices.”

The advice was disregarded. Two days before the convocation, the vice president for student affairs told Fillmore that her appearance was canceled, explaining that her safety might be at risk or that she might be trolled or doxxed online.

Fillmore was devastated. She had encouraged the students to tell their stories, and now hers was being erased. She wondered if administrators were worried about the timing. The Idaho Legislature — which normally meets from January to March, when it decides how much money to give to public education, including Boise State — would hold a special session three days after the convocation to consider COVID-19 measures. Conservative legislators, who ever since Tromp’s arrival had been attacking Boise State’s diversity initiatives, might hear about Fillmore’s talk and seize on it to bash the university.

“I didn’t say anything that I haven’t already been sharing with my research and work,” she wrote to a faculty mentor, political scientist Stephen Utych, in an email the next day.

“I was incredibly frustrated for Melanie, but also that the university caved on something so relatively benign, because there’s so much pressure coming externally,” Utych said in an interview. He added that concerns about the Legislature’s impact on Boise State were one reason he quit his tenured professorship this year to work in market research.

When the university’s convocation committee, which organized the event, was informed of the decision, Amy Vecchione expressed misgivings. “I remember saying, ‘Typically, what we do is allow speech to take place, regardless of the content,’” said Vecchione, assistant director of the university’s center for developing online courses, who was the faculty senate liaison to the committee. “‘We process reactions if there are any. That’s part of academic freedom.’”

After the convocation, Tromp commiserated with Fillmore over Zoom. “She told me it was a sad outcome,” Fillmore said. Tromp did not respond to questions about the incident. Alicia Estey, chief of staff and vice president for university affairs, said in an email that “safety was a concern.”

Almost two years later, Fillmore still broods about how she was treated. Although she loves teaching, she’s rethinking her aspirations for an academic career. “I really lost a lot of faith in Boise State,” she said. “It was more important for the university to cope with whatever the Legislature wanted than to advocate for students. I feel more like a liability than a part of the community.”

Across the country, elected officials in red states are seeking to impose their political views on public universities. Even as they decry liberal cancel culture, they’re leveraging the threat of budget cuts to scale back diversity initiatives, sanitize the teaching of American history and interfere with university policies and appointments.

In Georgia, the governor’s appointees have made it easier to fire tenured professors. Florida passed a law requiring public universities to survey faculty and students annually about “the extent to which competing ideas and perspectives are presented,” and allowing students to record professors’ lectures as evidence of possible bias. In North Carolina, the Republican-dominated legislature, through its control over key positions, is “inappropriately seeking to expand [its] purview into the day-to-day operations” of state campuses, the American Association of University Professors reported in April. In Texas, the lieutenant governor and conservative donors worked with the state university’s flagship Austin campus to start an institute “dedicated to the study and teaching of individual liberty, limited government, private enterprise and free markets,” according to The Texas Tribune.

Perhaps reflecting such tensions, the average tenure of public university presidents has declined from nine years to seven over the past two decades, and they are increasingly being fired or forced to resign, according to data prepared for this article by Sondra Barringer and Michael Harris, professors of higher education at Southern Methodist University. Between 2014 and 2020, 29% of departures by presidents of NCAA Division 1 public universities were involuntary, up from 19% between 2007 and 2013, and 10% between 2000 and 2006. Moreover, based on media reports and other sources, micromanaging or hyperpartisan boards were responsible for 24% of involuntary turnover at such universities in red states from 2014 to 2020, a rate more than four times higher than in blue states, Barringer and Harris found.

“One way to weaken these institutions is to weaken the leadership of these institutions,” Harris said. “Higher education is under attack in a way that it has never quite been before. These are direct assaults on the core tenets of the institutions. ... Boards are running leaders out of town. It’s scary stuff.”

The pressure has been intense in Idaho — and especially at its largest university, Boise State. Egged on by the Idaho Freedom Foundation, a nonprofit group dedicated to “exposing, defeating, and replacing the state’s socialist public policies,” conservative legislators have pushed to prevent an overwhelmingly white institution from considering diversity in its policies and programs.

In 2020, Idaho banned affirmative action at public universities. Last year, the state trimmed $1.5 million from Boise State’s budget, targeting diversity, equity and inclusion programs, along with a total of $1 million from the other two state universities. Idaho also became the first of seven states to adopt laws aimed at restricting colleges’ teaching or training related to critical race theory, which examines how racism is ingrained in America’s laws and power structure. The lieutenant governor convened a task force to “protect our young people from the scourge of critical race theory, socialism, communism and Marxism” in higher education. This year, the Legislature adopted a nonbinding resolution condemning critical race theory and The New York Times’s 1619 Project for “divisive content” that “seeks to disregard the history of the United States and the nation’s journey to becoming a pillar of freedom in the world.”

Boise State is a revealing prism through which to examine how public universities, meant to be bastions of academic freedom, are responding to red-state pressures. The school would seem to be in a strong position to resist them. It receives a relatively modest 18% of its budget from the state, with the balance from tuition, student fees, federal student financial aid, research grants and donors. Buoyed by its nationally known football team, which plays on a blue field that has come to rival the potato as Idaho’s most recognizable symbol, and located in one of the nation’s fastest-growing metropolitan areas, Boise State has seen its academic stature and private fundraising rise. It received $41.8 million in donations in fiscal 2021, up from $34.2 million in 2020, although one prominent donor vowed to reduce his giving, complaining that the university was trending leftward.

But for all its seeming clout and independence, Boise State has yielded again and again. It has canceled events, like Fillmore’s speech, that might alienate conservatives; avoided using the terms “diversity” and “inclusion”; and suspended a course on ethics and diversity with 1,300 students over a legislator’s unfounded allegation of misconduct by a teacher.

University administrators “seem to want to placate the conservatives,” said sociology lecturer Michael Kreiter, who was an instructor in the suspended course and teaches classes on racism. “Their goal, in my view, is just to stay out of sight, hoping that all of this backlash won’t get focused on them.”

Idaho’s anti-critical race theory law “has chilled some Boise State educators and shut down their teaching and speech about race and gender in the classroom,” said Aadika Singh, legal director at the ACLU of Idaho, which investigated potentially unconstitutional enforcement of the law. “But it is also clear that some courageous educators have doubled down and reacted to the legislature’s attacks on education by teaching more controversial topics. The university administration has not been courageous; they haven’t had their faculty’s backs.” While the investigation remains open, Singh said, the ACLU of Idaho shifted its focus to educating faculty members on their academic freedom and free-speech rights in the classroom.

From left, Idaho Gov. Brad Little; Kevin Satterlee, president of Idaho State University; Marlene Tromp, president of Boise State University; C. Scott Green, president of the University of Idaho; and Jim Everett, co-president of the College of Idaho, at Boise Entrepreneur Week in 2019. (Photo by Angie Smith)

Boise State spokesperson Mike Sharp said that the 18% slice of its budget doesn’t convey the full scope of the state’s support for the university. Its land is titled in the name of the state Board of Education, and its buildings are all state buildings, he said. If Boise State had to cut programs to meet payroll, he added, enrollment would decline, and its credit rating might be downgraded. Without state support, “Boise State as it exists today would disappear,” Sharp said.

In an email to ProPublica, Tromp explained her strategy. “My aim is to support our faculty, students and staff and to open lines of dialogue with those in our community who are certain universities don’t see or hear them,” she wrote. “The work we are doing has the potential to be truly transformative — not just here but more broadly.” She declined to comment further, saying it is “a delicate moment, in which it continues to be easy to harm the best efforts in almost any direction.”

Some professors worry that the unanswered attacks are hurting Boise State’s credibility. When faculty members and community organizations recently sponsored a symposium on how to adjust property taxes to help homeowners affected by Boise’s soaring housing values, they held it off campus and didn’t list the university as a sponsor, in contrast to a similar symposium that the university conducted on campus 15 years ago.

“I am saddened by what’s happened in the last couple of years,” said Boise State political scientist Stephanie Witt, who helped organize the discussion. “There’s the perception that working with us is somehow connected to this taint on all higher education. We can’t be trusted.”

As it searched for a president in 2019, Boise State was increasingly gaining national recognition — and not just for athletics. Founded as a junior college by the Episcopal church in 1932, it entered the state system in 1969 and became a university in 1974. For years thereafter it was largely a commuter school for working adults. But now enrollment was steadily growing, especially from out of state; 17% of its undergraduates come from California. Its status had recently been upgraded to “high research activity” under the Carnegie system for classifying universities, and U.S. News & World Report had named it one of the country’s 50 most innovative universities.

One shortcoming stood in the way of its aspirations: a lack of diversity. Its faculty is 83% white, 5% Latino, 5% Asian and 1% Black. Even though 43% of degree-seeking undergraduates come from outside predominantly white Idaho, fewer than 2% are Black. Latinos make up 14%. The services needed to attract faculty and students of color, as well as low-income and LGBTQ students, and make them feel at home were scanty compared with many universities.

“We are a modern day Cinderella story,” a university commission concluded in 2017. “Unfortunately ... it is not clear that everyone is being invited nor supported to participate in the ball.” It called for creating “an infrastructure with executive leadership, and with the appropriate resources.”

During the presidential search, faculty, staff and students emphasized the importance of diversity. But some candidates were wary of Idaho politics. One finalist, Andrew Marcus, former dean of arts and sciences at the University of Oregon, cited “limited state funding and a climate of growing national concern about universities” as challenges in his job application. A Boise State staffer warned Marcus that Idaho was a one-party state in which Republicans were split into three factions: Mormons, who supported state funding for higher education; and libertarians and Trump acolytes, who didn’t.

Another hopeful bowed out after researching state politics. “I felt my values may not be shared by the governance structures in Idaho,” she said. “I didn’t want to have those fights.”

Tromp was the clear choice for the job. Born in 1966, she was raised a two-hour drive from the Idaho border, in Green River, Wyoming. Her father was a mechanic in a trona mine, a mineral processed into baking soda, and her mother was a telephone operator. Her high school guidance counselor applied to colleges for her, because she couldn’t afford the application fees. When an East Coast university offered her a full scholarship, her father said, “Honey, what would happen if you got all the way across the country and this turned out not to be real?” She enrolled at Creighton University in Nebraska, where she was smitten by Victorian poetry.

After earning her doctorate at the University of Florida, she spent 14 years at Denison University, a liberal arts college in Ohio. An English professor and director of women’s studies, she earned teaching awards and churned out books and articles. She advocated for nontraditional departments such as queer studies, said Toni King, a professor of Black studies and women’s and gender studies at Denison. “She cares very deeply about individual people, she pulls talent together, she innovates beyond,” King said. “She was always, ‘We can get there quicker, sooner, bigger.’”

The Boise State campus (Angie Smith, special to ProPublica)

Tromp immersed herself in campus life, speaking at “Take Back the Night” marches to raise awareness of violence against women. She was married on the steps of Denison’s library in 2007. Music department faculty played in the reception band. When she left for Arizona State, King thought, “There goes a college president.”

At Arizona State, Tromp served as dean of a college that offered interdisciplinary programs across the sciences, social sciences and humanities. At UC Santa Cruz, which she joined in 2017 as executive vice chancellor, she launched a mentoring program for faculty from underrepresented groups. She also proposed a new strategic plan too quickly, without enough familiarity with campus culture, according to Ronnie Lipschutz, an emeritus professor of politics.

“Marlene swept in and wanted to make an impact,” said Lipschutz, who is the author of an institutional history of UC Santa Cruz that examines why numerous strategic plans there have failed. “She didn’t talk to many people about how the place operated.” Tromp did not respond to questions about the strategic plan and her experience at Santa Cruz.

The battle over her plan was dragging on when Tromp left. She told the Santa Cruz academic senate that “incidents involving her personal and family’s safety” led her to accept the Boise State presidency, according to meeting minutes summarizing her talk. She also “expressed fear that there may be a lack of understanding of how easy it is to incite rage against the leaders in our community.” Santa Cruz colleagues said that she had been alarmed when people threatened and jeered her while she was jogging along a coastal road. They may have been unhoused students for whom dormitory space wasn’t available, and who had been denied permission to live in their cars and park in a campus lot, one friend said.

For a feminist university president, Idaho seemed unlikely to provide a safer, less volatile environment. “We were all surprised” at her departure, “especially since her project had not finished,” Lipschutz said. “The fact that she was going to Idaho was also a bit of a surprise. It was like, ‘Why on earth would you go to Idaho?’”

Tromp had no such doubts. “She was very enthusiastic and very much felt that she was coming home to the region that shaped her,” King said.

The Legislature wasn’t about to give her a honeymoon. In June 2019, Boise State’s interim president had highlighted the university’s diversity initiatives in a newsletter. They included graduation fetes for Black and LGBTQ students, six graduate fellowships for underrepresented minority students, recruiting a Black sorority or fraternity and implicit bias training for employees.

The next month, eight days after Tromp started, half of the 56 Republicans in Idaho’s House of Representatives wrote to her, assailing these programs as “divisive and exclusionary” and “antithetical to the purpose of a public university in Idaho.”

Through no fault of her own, Tromp was boxed in. She responded by calling for “meaningful dialogue,” thanking legislators for their “genuine engagement” and saying she looked forward to hearing their concerns.

In the midst of this firestorm, she met with three student activists. Ushered into her office, they noticed her treadmill desk and the bookshelves featuring her own works. When they told her about racism on campus, including swastikas painted on dormitory walls, Tromp started crying, according to two students, Ryann Banks and Abby Barzee.

“Didn’t you know about this before you took the job?” Banks asked her.

“I did not know,” Tromp said.

About 10 days after the legislators’ letter, cartoon postcards were mailed anonymously to state officials and lawmakers, depicting Tromp as a clown. Other attacks ensued. Although Tromp had spent only two years at UC Santa Cruz, the Idaho Freedom Foundation’s sister organization, Idaho Freedom Action, lampooned her as a “California liberal ... Turning Boise State Into a Taxpayer-Funded Marxist Indoctrination Center.” A scholar of xenophobia in Victorian England, Tromp was experiencing fear of outsiders firsthand.

After the foundation encouraged its supporters to troll her, Tromp received “hundreds and hundreds and hundreds of some of the most venomous hateful emails I could possibly imagine,” she said at a private 2021 meeting, according to a recording the Idaho Freedom Foundation obtained and posted. “Threats to drag me out in the street and sexually assault me and kill me. Messages of hatred. ... It’s a manifestation of the toxicity of the political climate across our country.”

Much as former President Barack Obama once courted congressional Republicans, Tromp sought to conciliate the conservative legislators. In one-on-one meetings, she assured them that she took the free-speech rights of a student wearing a Make America Great Again hat as seriously as anyone else’s. “All means all” became her mantra. Previously either a Democrat or undeclared, she registered to vote in Idaho as a Republican.

But she faced several disadvantages, starting with her gender. “These extremists think that it’s easier to pick off a woman than a man, and so they go after” her, said former Boise State President Bob Kustra.

Tromp’s striking appearance — she’s tall and slender, with close-cropped hair, glasses (often red) and multiple ear piercings — may have disconcerted some Idahoans. “I sometimes wonder if Dr. Tromp isn’t an easier target because she looks like a modern woman,” said Witt, the political scientist. “People say, ‘She’s got more than one hole in her ears, she’s got short hair.’”

As Idaho’s only urban university, Boise State attracts disproportionate media attention and conservative skepticism. It also has few of the natural allies on whom universities often lean politically: alumni in key government posts. Tromp reports to the state Board of Education, which has only one Boise State graduate among its eight members.

While its campus is a mile from the state Capitol building, Boise State’s presence there is sparse. About 10% of legislators are Boise State alumni, which may be partly attributable to its lack of a law school. Two Mormon institutions, Brigham Young University in Provo, Utah, and Brigham Young University-Idaho in Rexburg, together have about twice as many alumni in the Legislature as Boise State does. The University of Idaho has almost double Boise State’s representation. Gov. Brad Little is a University of Idaho graduate.

The disparity is even greater on the Joint Finance-Appropriations Committee, which sets the higher education budget. Six members of the Republican majority on JFAC graduated from the University of Idaho, including a co-chair, and none from Boise State.

As Idaho’s only land-grant university, with the state’s only public law school, the University of Idaho possesses in-state cachet and connections that Boise State is hard-pressed to match. Its diversity initiatives are comparable to Boise State’s. It has a chief diversity officer, as well as a director of diversity and inclusion for its engineering college. Boise State has neither position. Yet the Legislature appropriated 72% more per student to the University of Idaho in fiscal 2022 than to Boise State.

The University of Idaho’s president, C. Scott Green, called out the freedom foundation this past January, denouncing “a false narrative created by conflict entrepreneurs who make their living sowing fear and doubt with legislators and voters.”

Green avoided any pushback because “he has friends in key positions,” said Rep. Brent Crane, a committee chairman and former House assistant majority leader, who graduated from Boise State in 2005.

Brent Crane (Angie Smith, special to ProPublica)

Even though Crane is an alumnus, Boise State can’t count on his support. His father, a former state legislator and treasurer, is treasurer of the Idaho Freedom Foundation, with which Crane agrees 82% of the time, according to its rankings.

The 47-year-old Crane represents the Boise suburb of Nampa, where he was born and grew up, and where he’s vice president of his family’s security and fire alarm business. He and his brother also own a fire sprinkler company. At a nearby coffeehouse, he said that, when he was a political science major at Boise State, his teachers never revealed their opinions. “What I respected most about my professors was that I didn’t know if they were Democrats or Republicans,” he said. “Whatever the student thought, the professor took the opposite tack. In my perfect world, I’d like to see Boise State get back to where it was when I was there.”

Crane, who is white, said that he disagrees with critical race theory: “There’s no racism in my life.” In his boyhood, he said, “African Americans were revered and looked up to. They were the athletes who played on the football and basketball teams. They were the heroes.”

Under immediate pressure, Tromp began rethinking her agenda. “From day one, when she came in, and the letter from the legislators came in saying, ‘You’re under a microscope, you’d better start scrubbing your campus of these programs,’ that changed the operating environment from her perspective, and probably the perspective of everyone,” one insider said.

“There was a quiet reassessment of what can we reasonably accomplish and an ongoing conversation about how do we serve our students best without unnecessarily inflaming the rage and the accusations of these legislators?’”

Crane, the legislator and Boise State alumnus, had a role in one of the university’s early concessions. Boise State was advertising for a new position: vice provost for equity and inclusion. It would be the top diversity job at the university, implementing Tromp’s agenda. The vice provost would oversee recruiting and retaining faculty, building diversity into the curriculum and monitoring the campus climate.

The search produced two finalists. One of them, Brandy Bryson, looked into Idaho politics and withdrew her name from consideration. “There was no way the institution was going to survive the political strong-arming that was coming from the Legislature,” said Bryson, director of inclusive excellence at Appalachian State University in North Carolina. “Boise State’s desire to hire a vice provost for equity and inclusion was a clear commitment to academic excellence and the empirically proven benefits of diversity, which the Legislature didn’t seem to understand or value.”

The other finalist, John Miller Jr., then chair of social work at a liberal arts college in the South, noticed that someone from the Idaho Freedom Foundation was tracking him on social media. Nevertheless, he accepted an invitation to visit Boise State, where he met in March 2020 with Tromp and other leaders, and gave a presentation.

Some search committee members had reservations about Miller, who wasn’t a shoo-in, insiders said. Still, “the vibe I got, when I was dropped off at the airport, I fully expected an offer,” Miller said. “I was definitely under strong consideration.”

After the student newspaper reported on the opening, though, Boise State’s critics weighed in. Idaho Freedom Foundation President Wayne Hoffman wrote on the group’s website that “BSU didn’t get the message” from the “written rebuke” by the 28 legislators. Shortly after Miller returned to South Carolina, Crane denounced his alma mater for hiring a “vice president of diversity,” calling it “a direct affront” to the Legislature and “me personally.” Despite getting the job title wrong, Crane clearly meant the vice provost position.

Crane also conveyed his concerns privately to Tromp. He regarded the new position as part of “the woke agenda sweeping the country: I don’t want to see Boise State caught up in that,” he told ProPublica. The House had already killed the higher education budget twice. If Tromp had forged ahead, other Boise State priorities might not have been funded, Crane said.

“She and I disagree on the vice provost of diversity,” he told ProPublica. “That’s not a hill she wants to die on. She chose to pay deference.” A week later, Boise State notified Miller that it had halted the search. It never filled the position.

Crane continued to lambaste Boise State. During an April 2021 debate on the higher education budget, Crane read aloud what he said was an email from an unnamed Boise State music student complaining that a professor had asked a class to discuss how Black composers are superior to white composers. The student protested that skin color has nothing to do with the quality of music but was purportedly told to be quiet. (The incident could not be confirmed.)

“I’m disgusted. I’m embarrassed and I’m ashamed,” Crane told the legislature. “There has been a direct shift in the ideology that’s being taught at Boise State University. ... Our tax dollars” do not “need to be spent silencing kids’ voices on our college campuses.”

One way that Boise State sought to reduce legislative pushback was by adjusting its language. For example, Tromp asked a university planning committee to avoid the words “diversity” and “inclusion,” which legislators would be searching for, said Angel Cantu, a former student government president on the committee. Boise State’s 2022-26 strategic plan doesn’t mention “diversity” or “inclusion,” while the phrase “equity gaps” appears four times. By contrast, the University of Idaho’s plan calls for building an “inclusive, diverse community” and creating an “inclusive learning environment.”

Boise State administrators discussed the importance of terminology at several meetings, a former official recalled. The message was that “you can use different words to have the same meaning. Equity and words like that are less incendiary.”

The university tweaked job titles similarly. In August 2020, Francisco Salinas, then the university’s top diversity officer, moved from “director of student diversity and inclusion” to “assistant to the vice president for equity initiatives.”

Although his responsibilities did change, Salinas said, the new description wasn’t his choice, and he disagreed with scrubbing words like diversity. “The tactics being used” against Boise State, he said, “were bullying tactics. It’s the same thing you learn as a kid. If a bully is successful at taking your lunch money, they’re going to keep going. You have to stand up and let them know they can’t do that to you.”

Discouraged, Salinas left Boise State in April to become dean of equity, diversity and inclusion at Spokane Falls Community College in Washington. He said other diversity officials have fled. “I know what Dr. Tromp’s heart is,” he said. “I was very pleased she was hired. I thought she’d be able to make progress along this axis. But the environment did not afford that.”

The legislative barrage also affected recruitment. “I’ve been on hiring committees and I see who applies for jobs here,” said Utych, the former political science professor. “They are a lot whiter than they are at other universities. Part of that is the location, but part of that is also the Legislature attacking diversity and inclusion.”

Tromp “described being very, very disheartened that the best thing to do might be to pull back because of the resistance,” her friend King recalled. “There was concern, with all the information she had before her, how could she move forward? She had to think about the university as a whole.”

The Rainbow Graduation in April (Angie Smith, special to ProPublica)

When the university did move forward with a lightning-rod event, it took precautions to avoid a backlash. Republican legislators had attacked the “Rainbow Graduation,” which honors LGBTQ students, in their letter to Tromp, and the Idaho Freedom Foundation had accused Boise State of holding “segregationist” commencements. At this spring’s Rainbow Graduation, Boise State’s dean of students pointedly reminded the 30 or so seniors that “this is not a commencement ceremony.” Since they were aware that they would actually graduate nine days later, the disclaimer appeared to be intended for critics outside the university.

Some faculty were undaunted. The sociology department has doubled the number of its courses focusing on race and racism from two to four, and it opened an Anti-Racism Collective that brings in speakers. “This is a great opportunity in some sense,” said sociology department chairman Arthur Scarritt. Added Kreiter, who doesn’t have tenure: “I feel I don’t have a lot of longevity here. I’m just going to teach this as fiery as I can.”

Several professors and administrators urged Tromp to fight back. “There were a lot of people on campus, even in senior leadership, who said, ‘You can’t get out of this by taking the high road,’” one recalled. “I would have preferred a more direct approach.”

Tromp drew the line at cultivating the Idaho Freedom Foundation. Hoffman said he has asked to meet with her on multiple occasions and has been refused. “Nothing has changed at Boise State,” he said in an email. “It’s just handled more carefully.”

There is some evidence for the contention by Crane and other critics that conservative students at Boise State tend to feel squelched in class. A state Board of Education survey completed last November found that 36% of Boise State students who self-identified as right of center felt pressured often or very frequently to accept beliefs they found offensive, as opposed to 12% of students in the center and 6% on the left. Conservative students were more apt to feel this pressure from professors; liberals, from classmates.

Still, the faculty encompasses a range of views. Anne Walker, chair of the economics department, holds a fellowship in free enterprise capitalism. One member of the lieutenant governor’s task force on communism in higher education was Scott Yenor, a Boise State political scientist and occasional Tucker Carlson guest. In December 2020, Yenor and an Idaho Freedom Foundation analyst co-authored a report urging the Legislature to “direct the university to eliminate courses that are infused with social justice ideology.” In a speech last fall, Yenor mocked feminists as “medicated, meddlesome and quarrelsome” and universities as “the citadels of our gynecocracy.”

Boise State’s donors also span the political spectrum. Timber and cattle ranching magnate Larry Williams served for 20 years on the Boise State Foundation board and has donated millions of dollars for athletics and business programs. He has also given six figures to the Idaho Freedom Foundation. In this year’s Republican primary campaign, he gave about $125,000 to more than 30 conservative candidates, including $1,000 to Crane.

Larry and Marianne Williams are pictured on a display at a Boise State sports training facility named after them. (Angie Smith, special to ProPublica)

Throughout 2020, Williams pressed Boise State to scuttle the programs identified by the 28 Republican legislators, to no avail. Although he found Tromp to be open and engaging, he told legislators in February 2021 that he would no longer donate to Boise State, with the exception of its football program, “until this is turned around.”

“It appears BSU no longer shares our Idaho values,” Williams wrote. “Students are taught ... that our honest, hardworking rural farmers, ranchers, miners and loggers are ‘white privileged’ with ‘implicit bias’ toward minorities and Native Americans.”

The Idaho Freedom Foundation’s Hoffman acknowledged that Boise State has fewer diversity initiatives than some big universities in other states. “We recognize that it’s a small but growing dedication of resources to this enterprise,” he said. “I don’t care how big it is. I care if any taxpayer dollars are wasted on these efforts. We want to catch it now before it becomes an even bigger problem.”

Like white students from rural Idaho who are exposed for the first time to concepts like white privilege and systemic racism, some students of color, especially from other states, endure culture shock on campus. After Kennyetta Coulter, a biology major from Long Beach, California, arrived at Boise State last year, accompanied by her mother, they hardly saw another Black person for two weeks. “If you don’t like Boise, don’t be afraid to tell me,” her mother said on leaving.

Kennyetta Coulter (Angie Smith, special to ProPublica)

In a “Difficult Conversations” class, Coulter, who describes herself as a political moderate, found that she was the only student in her discussion group who favored background checks for gun buyers or was open to letting transgender athletes participate in sports based on their gender identity. Her three roommates, all of whom had blue eyes and blond hair, were nice to her. But sometimes she felt peer pressure to suppress her views. At Boise State football games, she squirmed in the student section while “big, buff white boys with cowboy boots” chanted, “Fuck Joe Biden.”

Coulter became so depressed that she sought counseling. “Sometimes I just feel I’m all alone,” she said, “and I’m the only one who understands what I’m going through.” She didn’t have the energy to go to class and stayed in bed and watched television.

The administration’s reluctance to challenge legislators dispirited her. “Why isn’t the university saying anything?” Coulter wondered.

In some red states, public universities have fought back. The University of Nebraska has been especially effective in warding off political pressure. It’s the only public university in Nebraska, and about half of the state’s legislators earned degrees from institutions within the University of Nebraska system. So did all eight regents. And as a retired vice admiral and former superintendent of the U.S. Naval Academy, Nebraska president Ted Carter has the kind of military credentials that make it hard to call him a communist.

University regent Jim Pillen, a veterinarian and former Nebraska football star who is running for governor, proposed a resolution last year that critical race theory “seeks to silence opposing views and disparage important American ideals” and should not be “imposed in curriculum, training and programming.”

Aided by the ACLU of Nebraska and other advocacy groups, the university’s administration, faculty and student government mobilized against the resolution. At a hearing last August before the regents, almost 40 people testified against it, while only a handful supported it. Defenders of critical race theory noted that the Declaration of Independence refers to “merciless Indian Savages.” A retired English professor pleaded with the board: “If you pass this, you repudiate my whole career.”

The four nonvoting student regents also voiced their opposition, including Batool Ibrahim, the first Black student government president of Nebraska’s flagship Lincoln campus. Ibrahim considers herself a native Nebraskan, although technically she isn’t. Her Sudanese parents were flying to the U.S. in 1999, hoping she would be born on American soil so she could become president someday, when her mother went into labor on the plane. The pilot hurriedly landed in Dubai, where Ibrahim was born. The family soon moved to Lincoln, where she grew up.

Critical race theory “is the history of people of color in this nation,” Ibrahim said. “It is my history. So when we talk about whether critical race theory should be taught or it should not be taught, you’re telling me that my history does not belong in the classroom.”

Pillen defended his resolution, saying that it did not violate academic freedom and that “Nebraskans deserve the confidence of knowing their hard-earned tax dollars cannot be used to force critical race theory on anyone.”

The board upheld teaching critical race theory by a 5-3 vote. But the battle was just starting. One regent in the majority warned that 400 of 550 constituents who contacted him supported the resolution — a promising sign for Pillen, who would go on to win the Republican gubernatorial nomination.

In November 2021, the chancellor of the University of Nebraska’s Lincoln campus, saying he had been “shaken” by the Minneapolis police killing of George Floyd, announced a plan to “recruit, retain and support the success of students, faculty and staff who are people of color.” Nebraska Gov. Pete Ricketts, who can’t seek reelection because of term limits and has endorsed Pillen, called the plan “ideological indoctrination” that would “inject critical race theory into every corner of campus.”

Then a Nebraska legislator proposed withholding funds from colleges or public schools that engaged in “race or sex scapegoating.” In a rerun of the regents’ hearing, 40 people testified against the bill in February, while three supported it. Speaking for the university, Richard Moberly, dean of the law school, warned that the bill could be interpreted to prohibit legitimate discussion of systemic racism and unconscious bias. It died in committee.

Pillen isn’t giving up. “As governor, I’ll fight CRT and other un-American, far-left ideologies in our classrooms,” he told ProPublica.

Despite Tromp’s conciliatory approach, a controversy in October 2020 further roiled the university’s critics. It pitted a popular downtown establishment, Big City Coffee, which had just opened a branch in Boise State’s library, against student activists galvanized by Floyd’s killing five months before.

Big City Coffee’s name appears to be ironic. Agricultural signs hang from the walls and rafters: “Duroc Hog,” “Strawberries for Sale,” “Cattle Crossing.” But it was another aspect of the downtown location’s decor that prompted student complaints, even though it wasn’t replicated in the library shop: a “thin blue line” flag. The students argued that such flags can signify support for white supremacists and hostility to the Black Lives Matter movement, and that a business with those sentiments should not have a campus outlet.

The coffee shop owner, who describes herself as a political moderate, explained that she was engaged to a former police officer who had been shot and disabled in the line of duty, and that she only meant to support law enforcement. Student government President Angel Cantu agreed that the shop should not be kicked off campus simply for being sympathetic to first responders.

The protesters weren’t mollified. They were already upset with Cantu because they wanted the university to cancel its security contract with Boise police. He felt Boise State shouldn’t do so without first knowing how to replace the department’s services.

The wrangle escalated as Big City Coffee shut down the campus branch, and other student government leaders impeached Cantu. The coffee shop owner sued Boise State, Tromp and three other university officials, accusing them of forcing her off campus. Charges against the university and Tromp were dismissed, while the case is proceeding against the other defendants, who have denied wrongdoing.

The branch’s demise and Cantu’s impeachment galvanized conservative students. Jacinta Rigi, a sophomore who had opposed the impeachment, posted a video accusing the student government of ignoring her and others on campus. “Freedom of speech is being abused and stolen from many students at the university and our voices are being silenced,” she said. The video drew almost 8,300 views, and Rigi ran for student government president in 2021.

Although Rigi lost — she now works at Fox News in New York while completing her Boise State degree online — the political momentum on campus had shifted. This past March, Adam Jones, a former intern in the Republican Party’s Boise office who urged Boise State to reconcile with the Legislature, was elected student government president. “Too often it is looked at that the state is being the bad guy,” Jones told ProPublica.

Adam Jones (Angie Smith, special to ProPublica)

Jones is a Boise native. His father, a lawyer, and his mother, a banker, both graduated from Boise State. He campaigned in a 1993 white Ford pickup truck he rebuilt himself, with “Blue Lives Matter” and “God Bless America” stickers on its rear windshield, a mounted American flag and a “USA4EVA” license plate. Asked about public safety at a candidates’ debate, he said, “Every time I see a Boise police officer go by, I feel safe.”

In March 2021, about 1,300 Boise State students were taking University Foundations 200, “Foundations of Ethics and Diversity.” The course, which predated Tromp, was split into more than 50 sections. Each tackled the topic through a different lens, from the “Star Wars” saga to how lack of access to technology affects rural Americans and other groups.

Sociology professor Dora Ramírez was teaching a section on censorship. She was about to start a unit about a bill, under consideration in the Idaho Legislature, attacking critical race theory. Then, Ramírez said, she and the other UF 200 instructors got a lesson in censorship from their own university.

Boise State had received a complaint from a legislator, who has never been publicly identified. The legislator said he had seen a video of a UF 200 class in which an instructor had demeaned a female student’s intelligence and forced her to apologize in front of the class for being white. She was supposedly taunted by other students and left the class in tears.

Dora Ramírez (Angie Smith, special to ProPublica)

Without seeing the video, Tromp suspended all UF 200 sections for a week and hired a law firm to investigate. “Isn’t it ironic?” to suspend a censorship class, Ramírez recalled thinking. “What a way to undermine the authority of all those instructors. You work so hard to build a rapport with all those students. Then they’re thinking, ‘What did she do wrong?’”

Some faculty members were appalled. “A lot of us were quickly pointing out, ‘We have students of color made to feel bad every day of the week,’” said sociologist Martin Orr, a former president of the faculty senate. “One white student feels bad, all hell breaks loose.”

When the course resumed, Kreiter used the suspension as fodder for his UF 200 section on inequality in higher education. “The university is robbing you of your education because of politics,” he told students. “You’re still out the same tuition bill, but you’re getting less education.”

The law firm’s report, which came out in May, concluded that no student was mistreated and no instructor acted improperly. The complaint apparently mischaracterized a class discussion about universal health care in which a student had called an instructor’s logic “stupid” — not the other way around. “There were no reports of anyone being forced to apologize for being white.” The legislator told investigators that he didn’t have the video, which has never surfaced publicly.

Tromp told the Inlander, a community newspaper in Spokane, Washington, that since she hadn’t known in which class section the alleged incident took place, she had been forced to suspend the entire course. Other university presidents whom she consulted agreed with her decision, she said. “It’s a little bit like being told there’s a gas leak in the building, but you don’t know where it is,” Tromp said. “It always feels dramatic to clear the building to find the gas leak.”

For one UF 200 instructor, who was teaching a section on misinformation, the incident was “very much” what his class was about. Legislators were “trying to craft a completely unwarranted narrative for political reasons in order to shut something down.”

Nevertheless, Tromp redoubled catering to them. She established an “Institute for Advancing American Values” to inspire “us to talk and listen to each other respectfully.” Its first speaker was conservative pundit Jason Riley.

Boise State also scaled back an annual tradition, “Day at the Capitol.” In the past, a dozen student government members would set up a booth in the Capitol rotunda and chat with legislators. Other students were invited to watch from the gallery.

Mostly, Democratic lawmakers dropped by. Republicans sent aides to say they were busy. “We got used to being avoided by them,” Cantu said. “We still went out of our way to invite them.”

This year, there was no booth. “The university’s concern was that the students would protest or do something inappropriate,” Jones said. Two student leaders met briefly with the governor as he declared it “Boise State University Day.” Three other students delivered gifts — 105 jars of honey, courtesy of Boise State’s beekeeping team — to the offices of each of the 70 representatives and 35 senators.

While reining in students, Boise State invited Crane, the alumnus who had opposed hiring a vice provost for equity and inclusion, to introduce its leadership team on that special day to the House chambers. Crane was delighted to help.

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