For months, one postal worker had been doing all she could to protect herself from COVID-19. She wore a mask long before it was required at her plant in St. Paul, Minnesota. She avoided the lunch room, where she saw little social distancing, and ate in her car.
The stakes felt especially high. Her husband, a postal worker in the same facility, was at high risk because his immune system is compromised by a condition unrelated to the coronavirus. And the 20-year veteran of the U.S. Postal Service knew that her job, operating a machine that sorts mail by ZIP code, would be vital to processing the flood of mail-in ballots expected this fall.
By mid-August, more than 20 workers in her building had tested positive for the coronavirus. Then, in a list of talking points on her supervisor’s desk, she spotted a reference to a new positive case at the plant. She had heard that someone she’d worked with closely a few days earlier was out sick, but no one at USPS had told her to quarantine, and no contact tracer had reached out to her. Although USPS’ protocol is to tell workers when they’ve been exposed to COVID-19, that didn’t happen, she and another postal worker familiar with the case said.
Asking around, she learned that a colleague she’d partnered with to load mail into the sorting machine had been infected. She phoned her doctor, who advised her to quarantine and get tested. Later that week, she tested positive and began suffering body aches, a sore throat and fatigue.
“They should’ve told anybody who worked with him, ‘You need to go home.’ What is it going to take, somebody to die in the building before they take it seriously?” said the worker, who requested anonymity for fear of retaliation.
In recent weeks, furors over Postmaster General Louis DeJoy’s cost-cutting initiatives, and over President Donald Trump’s unsubstantiated warnings of voter fraud, have overshadowed a significant threat to the Postal Service’s ability to handle the expected tens of millions of mail-in ballots this fall: a rapid rise in the number of workers sidelined by COVID-19.
The total number of postal workers testing positive has more than tripled from about 3,100 cases in June to 9,600 in September, and at least 83 postal workers have died from complications of COVID-19, according to USPS. Moreover, internal USPS data shows that about 52,700 of the agency’s 630,000 employees, or more than 8%, have taken time off at some point during the pandemic because they were sick, or had to quarantine or care for family members.
High rates of absence could slow ballot delivery in key states, especially if there’s a second wave of the coronavirus, as some epidemiologists predict. Twenty-eight states, including Pennsylvania, Wisconsin and Florida, require mail-in ballots to arrive by Election Day to be counted.
Even in a normal year, absentee levels of this magnitude “would have a dramatic effect on the mission of the postal service,” said Alan Kessler, an attorney who served on the Postal Service’s Board of Governors during the Clinton and George W. Bush administrations, including as chairman from 2008 to 2011. “When people ask me about November, my biggest concern right now is exactly that — the on-time delivery of mail.” Kessler is a former finance vice chair of the Democratic National Committee.
What vacant positions have been filled at USPS have been filled by less experienced temporary workers. Restrictions on overtime pay under DeJoy may have prevented full-time workers at some facilities from adding hours to pick up some of the slack. While USPS has nearly $14 billion in cash, it reserves some of that funding to pre-pay employee pensions, and it is projected to run out of money next spring. On Thursday, a federal judge in Washington state temporarily halted operational changes that have slowed mail delivery, finding that “at the heart of DeJoy’s and the Postal Service’s actions is voter disenfranchisement.”
As the St. Paul worker’s case illustrates, the Postal Service’s half-hearted precautions against COVID-19 have contributed to the problem. Its efforts to limit the virus’s spread in the workplace fall short of recommendations by the Centers for Disease Control and Prevention. Unlike Amazon, which relies on USPS to help deliver its packages, the Postal Service doesn’t test workers or check their temperatures, depending instead on self-reporting. When employees get sick, USPS sometimes neglects to tell co-workers, and its efforts at contact tracing have been inconsistent and understaffed.
Reflecting these shortcomings, the U.S. Occupational Safety and Health Administration has received more than 250 coronavirus-related complaints against the Postal Service since March, more than twice the number filed against private employers in the same industry like Amazon, FedEx and the UPS. Amazon, which has almost 250,000 more workers than the postal service, had 117 complaints. The complaints against USPS paint a worrisome picture. They typically allege failures to maintain social distancing, enforce mask wearing or inform workers when colleagues have the virus.
The tally doesn’t include open complaints yet to be made public, including one by another worker in the same St. Paul building. That July complaint, obtained by ProPublica, accused USPS of “not communicating and informing employees that may have potentially been exposed to positive COVID-19 employees,” as well as inadequate ventilation and six other hazards. The Postal Service responded to OSHA that it traces contacts of all employees who test positive and encourages ailing employees to stay home. Nevertheless, OSHA told the complainant that it will inspect the facility as soon as possible.
The Postal Service has been adamant that it can handle a nationwide increase in voting by mail in the general election. Even a mass shift to mail-in ballots would represent a small portion of its overall volume.
Still, DeJoy, a major donor to President Donald Trump and the Republican Party, acknowledged in congressional testimony last month that COVID-19-related absences had upended mail service. “Across the country, our employee availability is down 3 to 4% on average,” DeJoy said. “But the issue is in some of the hot spots in the country, areas like Philadelphia and Detroit — there’s probably 20 [other areas] the averages cover — they could be down 20%. And that is contributing to the delivery problem that we’re having.”
The Postal Service referred us to an April 30 statement on its website. Its COVID-19 leadership team “is focusing on employee and customer safety in conjunction with operational and business continuity during this unprecedented epidemic,” according to the statement. “We continue to follow the strategies and measures recommended by the Centers for Disease Control and Prevention and public health departments.”
Among its initiatives, the statement said, the Postal Service is supplying its more than 30,000 locations with masks, gloves and cleaning supplies. Employees who can’t maintain social distance must wear masks. The service has reduced employee contact with the public by eliminating a rule that customers must sign mobile devices for deliveries, and it has updated its leave policy to allow workers to take extra time off for illness and child care.
Postal workers who test positive are supposed to tell their supervisor, who should alert a nurse responsible for contact tracing. But communication is sometimes lacking. “They have the occupational nurse doing the contact tracing, but sometimes there’s no contact with the worker. And some managers don’t report [the case] to the tracking. Some managers tell people, ‘You don’t sound sick, come to work,’” said Omar Gonzalez, western regional coordinator at the American Postal Worker Union. “So we don’t really know what to rely on.”
One reason that the system breaks down is a shortage of contact tracers. USPS, which does not provide medical care to workers, employs about 160 nurses. Alongside other administrative duties, they are supposed to register COVID-19 cases and interview workers when they get sick. In the New York district, one nurse has been responsible for contact tracing for about 8,200 employees; in Detroit, the ratio is two nurses per 11,600 workers; and in Atlanta, one for 12,500. Facilities in all three districts have seen coronavirus outbreaks. USPS has reemployed 10 former agency nurses to assist with contact tracing, according to a spokesperson.
“To use the word contact tracing is a joke,” said Jonathan Smith, president of the New York metro area’s postal worker union.
Coronavirus outbreaks in several areas have correlated with slower delivery times. First-class delivery has slowed since March, with notable lags in New York, New Jersey, Philadelphia, Detroit, Chicago, Houston and Southern California, according to data from GrayHair Software, which tracks postal analytics.
COVID-19 has “caused severe disruptions to on-time delivery in many parts of the country,” the U.S. Senate Committee on Homeland Security and Governmental Affairs reported this week. In late March and early April, it found a spike in cases in Michigan, “especially in the Detroit area,” led to a “notable drop in on-time delivery.”
In Philadelphia, where more than 235 postal workers have tested positive, local media outlets reported unsorted mail piling up in postal facilities and carriers unable to complete routes even after working extra hours. Some residents said they went two to three weeks without receiving mail. In April, COVID-19-related delays in Detroit facilities slowed delivery of primary ballots for parts of northwest Ohio, prompting Ohio’s secretary of state to call for in-state processing of all ballots. In Michigan’s August primary election, more than 6,400 residents’ votes weren’t counted because they arrived after the deadline, though it’s not clear whether COVID-19 was a major factor.
Internal USPS data from its southern region in mid-August shows the impact of the coronavirus on workers. In Atlanta, more than 900 postal workers had been infected with COVID-19 or had to quarantine. More than 550 workers were affected in Houston and an additional 485 in South Florida.
COVID-19 outbreaks have strained postal offices that had inadequate staffing even before the pandemic, said Michael Caref, national business agent of the Illinois chapter of the National Association of Letter Carriers. “Now you’re seeing crisis levels in some areas.”
In March, the Postal Service donated 500,000 N95 masks “in excess of our needs” for distribution to hospitals and other critical workers, according to a draft letter from the Board of Governors to members of Congress that was made public by American Oversight. However, the service doesn’t provide N95 masks, which are considered especially effective at filtering out virus particles, to most of its own employees. A Postal Service spokesperson said USPS supplies N95 masks to employees who require them. Other workers receive surgical masks.
The CDC and OSHA have both released guidance on how employers should protect workers, though it does not carry the power of law. According to the CDC, “businesses and employers can prevent and slow the spread of COVID-19 within the workplace.”
The CDC advises employers to “consider conducting daily in-person or virtual health checks (e.g., symptom and/or temperature screening) of employees before they enter the facility.” The Postal Service doesn’t conduct those checks. The onus falls on workers to stay home if they notice symptoms, get tested, report back on results and recall whom they were in contact with.
At Amazon, which has also been criticized for failing to protect its employees during the pandemic, precautions are more stringent. According to an Amazon spokesperson, the company does daily temperature checks and has installed thermal cameras at some of its sites. When an employee is exposed, the company “immediately kicks-off contact tracing to determine if anyone was exposed to that individual, and we inform those employees right away and ask them to quarantine for 14 days with pay,” the spokesperson said.
FedEx’s protections also appear more robust than the Postal Service’s. FedEx checks temperatures of employees at some of its sites, and it has expanded testing to 43 locations since July, according to a company spokesperson.
The CDC advises employers to collaborate with local and state health departments on contact tracing. According to its guidance, employees who are asymptomatic but have been within about 6 feet of a person with COVID-19 for a prolonged period of time should self-isolate and quarantine for 14 days. Often, contact tracing is needed to identify those employees.
But even when USPS employees report positive tests, supervisors don’t always follow through. In August, an asymptomatic employee in Flint, Michigan, tested positive for COVID-19 and told a supervisor as well as a few co-workers. The worker stopped coming in, but the supervisor didn’t inform USPS’ medical unit until four days later — after the exposed workers had told their union, which in turn reported the case to management. Michael Mize, the local postal union president, said he pushed the supervisor to report it. A USPS nurse started contact tracing on the fifth day.
“That’s way too slow,” said George Rutherford, a professor of epidemiology and biostatistics at the University of California at San Francisco School of Medicine.
Because most people infected with COVID-19 often begin shedding large amounts of virus four or five days after they’re exposed, even if they’re asymptomatic, co-workers in Flint might have transmitted the disease before the nurse contacted them, Rutherford said. “That’s why you gotta get on this stuff quickly.” According to CDC guidance, exposed co-workers should be contacted and tested within 24 hours.
USPS and union officials had a Zoom call to discuss what went wrong in Flint, Mize said. “Luckily we don’t have any major outbreaks because of any failures that happened,” he said. “If things aren’t handled appropriately, you’re relying on good fortune.”
Roscoe Woods, a Detroit-area postal union president, said that USPS sometimes lacks up-to-date contact information, complicating the task of contact tracers. In addition, employees often don’t know the surnames of exposed co-workers. “You’re trying to trace down eight people and all their contact information is bad,” said Woods, who has stepped in to help with contact tracing in the past.
When employees are sidelined because of the coronavirus, USPS can fill in some of the gaps by hiring employees who aren’t in the union. But the Postal Service has long had trouble hiring and retaining temporary or non-career employees, and union representatives say the Postal Service has been slow to fill these roles during the pandemic.
In February, the Postal Service’s Office of Inspector General faulted the agency for failing to recruit and retain nonunion workers. In 2019, the annual turnover rate for non-career employees, who constitute 21% of the workforce, was 38.5%; the average tenure for workers who left their jobs was just 81 days. One of the top reasons for leaving: Workers said that supervisors didn’t treat them with respect. The jobs filled by these workers are physically strenuous, pay about $17 an hour, lack benefits and often require an inconsistent work schedule. It can take weeks to hire and train them.
“The hiring process is really slow,” Caref said. “And if you have a person that says they want to work, the person is not prepared for a month after they’ve been hired. They really need to figure that out.”
Virus-related OSHA complaints from around the country reflect some of the dangers and frustrations postal workers have faced throughout the pandemic.
“The station and the vehicles have not been cleaned and sanitized. Bleach spray bottles were provided at one time but the employees were not provided material to wipe down surfaces and the bottles have since broken,” reads a complaint filed from Houston on June 18. “Employees in the vehicles do not have hand sanitizer or another method to cleanse hands while away from the station.”
In a postal facility in Smithtown, New York, “the air conditioning has not been working properly for the last 3-4 weeks (blowing 81 degrees at the vent) which has made working in the building uncomfortable and may be contributing to employees not wanting to [wear] their masks,” a complaint stated in mid-July. It’s unclear what action, if any, OSHA took on the Houston and Smithtown complaints, which are now closed.
Since the worker in St. Paul began quarantining in mid-August, there have been at least 11 COVID-19 cases at her workplace, according to Postal Service emails obtained by ProPublica. Overall, at least 33 out of more than 1,000 workers have tested positive at the building since the start of the pandemic.
In USPS’ Northland District, which covers Minnesota — including the St. Paul plant — and western Wisconsin, at least 148 workers have tested positive. “We had a record breaking day with COVID-19 positive cases today. 18 employees must be quarantined. This is not a good record,” reads an Aug. 25 email from USPS management to unions regarding the Northland District.
“We had 4 new COVID-19 cases reported today. Things aren’t getting any better,” management said in an email two days later.
No one replaced the St. Paul postal worker while she was out. She returned to the job this month, even though she was still recovering and low on energy, because she needed the money. After two weeks of sick leave, her days off were unpaid, and her husband hasn’t worked for four months because of an unrelated health condition. Plus, the situation at the plant has improved somewhat: Social distancing has become mandatory in the break rooms, and employees were warned that not wearing masks could jeopardize their jobs.
She also felt a civic obligation, because she’ll be responsible for processing thousands of ballots in the upcoming election.
“That’s another reason why I want to go back to work,” she said. “I want to make sure the ballots get run.”
In May 2019, workers in California’s Central Valley struggled to seal a broken oil well. It was one of thousands of aging wells that crowd the dusty foothills three hours from the coast, where Chevron and other companies inject steam at high pressure to loosen up heavy crude. Suddenly, oil shot out of the bare ground nearby.
Chevron corralled the oil in a dry streambed, and within days the flow petered out. But it resumed with a vengeance a month later. By July, a sticky, shimmering stream of crude and brine oozed through the steep ravine.
Workers and wildlife rescuers couldn’t immediately approach the site — it was 400 degrees underground, and if the earth exploded or gave way, they might be scalded or drown in boiling fluids. Dizzying, potentially toxic fumes filled the scorching summer air. Lights strobed through the night and propane cannons fired to ward off rare burrowing owls, tiny San Joaquin kit foxes, antelope squirrels and other wildlife.
An aerial view of the Chevron spill in the Cymric field on July 13, 2019. Obtained by ProPublica and The Desert Sun via a Public Records Act request
Over four months, more than 1.2 million gallons of oil and wastewater ran down the gully.
California had declared these dangerous inland spills illegal that spring. They are known as “surface expressions,” and the Cymric field was a hot spot. Half a dozen spills and a massive well blowout had occurred there since 1999. This time, faced with news headlines and a visit by Gov. Gavin Newsom to the site, officials with the California Geologic Energy Management Division, or CalGEM — the main state agency overseeing the petroleum industry — ordered Chevron to stop the flow. Regulators later levied a $2.7 million fine on the company.
Instead, Chevron profited.
Amid the noise and heat, trucks arrived daily to vacuum out the oil from a safe distance. It was refined, sold and shipped to corner gas stations, bringing the company $399,000, according to state records. Chevron appealed the fine, saying while “we fully accept — and take responsibility for — our actions,” it does not believe the spill, known as Cymric 1Y, posed a threat to human health. The company has yet to pay, and CalGEM has not moved forward with an appeal hearing.
Along with being a global leader on addressing climate change, California is the seventh-largest producer of oil in the nation. And across some of its largest oil fields, companies have for decades turned spills into profits, garnering millions of dollars from surface expressions that can foul sensitive habitats and endanger workers, an investigation by The Desert Sun and ProPublica has found.
California Oil Spills Earn Companies Millions
For years, companies have corralled spilling oil in four large fields and sold it.
Shoshana Gordon/ProPublica. Source: California Department of Conservation
Since the new regulations outlawed surface expressions last year, more than two dozen have occurred in Kern County, the heart of the state’s oil industry. In the Cymric field, three spills are still running, state officials say, including one that’s spilled nearly twice as much as the one for which Chevron was fined.
Dozens of older spills have also flowed for years, the investigation found. The largest, just around the bend from Cymric 1Y, started in 2003. The site, also operated by Chevron and dubbed GS-5, has since produced more than 16.8 million gallons of oil and about 70 million gallons of wastewater, a company spokeswoman said. That tops the amount of oil spilled by the Exxon Valdez, the infamous tanker that ran aground in Alaska in 1989. In the last three years alone, the crude collected from GS-5 has generated an estimated $11.6 million, according to an analysis of production data provided by the state.
Chevron and state regulators say they’re trying to shut down GS-5 and they have reduced the flow by 90%. It was spilling approximately 15,000 to 23,000 gallons of fluid a day in early February, the latest date for which the state provided detailed data. Ten to 15% of that was oil, officials said.
“We take our responsibility to operate safely and in a manner that protects public health, the communities where we operate and the environment very seriously,” company spokeswoman Veronica Flores-Paniagua said. “We remain committed to stopping and preventing seeps consistent with the updated state regulations.”
But a close review of the state’s new rules shows they contain several large loopholes that keep oil from surface expressions flowing — the result of years of lobbying and pushback by the energy industry.
Vacuum trucks suck thousands of gallons of oil and wastewater a day out of the GS-5 spill, near McKittrick. GS-5 is one of the largest and longest-running surface expressions.
Jay Calderon/The Desert Sun
For example, over stiff opposition from environmentalists, state officials explicitly allowed high-pressure “steam fracking,” a controversial extraction technique that has been linked to surface expressions. And when spills break out, there is nothing stopping producers from turning them into moneymakers. In a practice known as “containment,” companies can corral the spills with dirt berms, netting, pipes or drains; vacuum out the crude; refine it and sell it. The 2019 regulations spell out steps companies must take to try to halt the spills — mainly temporarily ceasing steam injection — but there are no deadlines for stopping them and restoring the sites.
The new rules also largely exempt “low energy” surface expressions related to oil production. According to a review of state and local records, the exemption appears to cover more than 70 older spills that are still revenue generators.
A cache of internal documents, photos and video obtained by The Desert Sun and ProPublica shows that over the past quarter century, CalGEM has routinely allowed oil companies to contain and commercialize surface expressions, despite warnings by staffers about environmental and human harm. The agency acknowledges that more than 160 containment structures have been built to corral spills since the late 1990s.
The inland spills typically draw little attention, unlike major marine events that garner national headlines.
But hundreds of them have occurred, records show. Geysers of oil, rock and mud have shot skyward 100 feet, and slopes have collapsed under smoking waterfalls of crude and wastewater. In one case, a worker died; in another, an employee had to wrench his ankle away from a sudden sinkhole; and a third had to abandon his truck as a dark stain of oil mushroomed beneath it.
A Berry Petroleum Co. surface expression in the Midway-Sunset Oil Field in August 2011.
Obtained by ProPublica and The Desert Sun via a Public Records Act request
“Keep in mind that these eruptions are not at well sites,” wrote then-Oil and Gas Supervisor Elena Miller in a 2011 email to her boss. “These are locations where the earth opens up and spews fluids, solids and gases.”
Oil company representatives defend their practices, saying surface expressions mirror natural seeps of crude and come with harvesting a product that provides thousands of well-paying jobs and fuels car-centric California. Containing the spills, they added, also costs money. Chevron, for instance, told lawmakers this year that it had spent $9 million to try to halt spills in the Cymric field.
Environmentalists who fought for the regulations are furious about the loopholes and the continued spills.
“It’s completely obscene that oil companies can cause an oil spill and then profit off it,” said Hollin Kretzmann, an attorney with the Center for Biological Diversity, an environmental nonprofit organization.
CalGEM could not provide a full accounting of how much oil has spilled from surface expressions, even though the 2019 regulations explicitly require that oil companies report production numbers. The agency also declined to provide spill maps and plans mandated by the new rules, citing, in part, “multiple ongoing legal investigations,” including a departmental probe of the Cymric spills and ongoing litigation between Chevron and another company involving the field where the worker died.
“We are greatly reducing the problem. We continue to make progress, but more work is needed,” state Oil and Gas Supervisor Uduak-Joe Ntuk said in a statement. He noted that the practices had developed over decades, and that the new regulations were crafted under his predecessor and then-Gov. Jerry Brown.
“This Administration has made it clear that surface expressions are unacceptable and will not be tolerated as the cost of doing business,” he said.
After visiting Chevron’s Cymric 1Y spill site last year, Newsom pledged to “tighten things up.” In November, his administration placed a statewide moratorium on new permits for steam fracking, a suspected root cause of many surface expressions, and hired scientists with the Lawrence Livermore National Laboratory to study whether the method can be used safely.
Ntuk said that while that review is in progress, the agency is cracking down. He has the power to fine companies $25,000 a day for ongoing spills. But other than the one, unpaid fine against Chevron, he has not imposed any financial penalties for surface expressions, instead issuing “notices of violation” — citations that Ntuk has compared to “parking tickets.” He said that approach is working; many spills have stopped and some companies are working proactively to seal abandoned, often damaged wells to prevent future spills.
Companies with existing permits, however, are free to keep steam fracking — and to scoop up any oil that cracks the surface.
Some experts say the current reality is reminiscent of the 19th-century oil rush.
“It reminds me of the industry back when you’re watching ‘There Will Be Blood’ and they used to let this stuff explode out of the ground and collect it,” said Deborah Gordon, a Brown University senior fellow, who researched California’s Midway-Sunset field, where many surface spills occur. Her group concluded it emitted more greenhouse gases than any oil field in the nation. “This is not where this industry needs to be.”
After 150 Years, California’s Oil Gets Harder to Extract
Oil production in California began in the 1850s, just as its famous gold rush was petering out. Tantalized by visible natural “seeps,” companies large and small drilled wells across the state, hoping to hit paydirt. While profits could be big, so could the spills.
In 1910, a Kern County wellhead blew out. Oil skyrocketed from the ground. Over 18 months, the Lakeview Gusher spilled 395 million gallons, creating a pool so deep and wide that men rowed boats across it. It still holds the record for the largest oil spill in U.S. history, dwarfing BP’s Deepwater Horizon disaster, which leaked 210 million gallons into the Gulf of Mexico.
Top, the Lakeview Gusher in 1910. Above, men row on the lake of oil created by the spill.
San Joaquin Geological Society
The California Division of Oil and Gas — the precursor to today’s CalGEM — was formed in 1915. Until this year, the agency’s primary mission was clear: Maximize the production of petroleum and other energy resources. That included helping companies relocate water that interfered with oil, both freshwater supplies and the briny waste that gushes from wells along with crude.
After decades of extraction, pumping California’s increasingly tarry reserves became tougher. Much of it was locked underground in diatomites — tightly packed layers of ancient, tiny sea skeletons whose algal innards compressed over milleniums into gooey crude. (Cat litter is made of diatomaceous earth scraped off Kern County hillsides.) By the 1960s, researchers discovered that flooding the subterranean reservoirs with steam or injecting it in cycles, through a process known as “huff and puff,” worked well.
The huff phase involves injecting scalding steam down wellbores, then letting the heat melt the tar. The puff portion refers to softened crude, thin as heated maple syrup, rising up through production wells. When the flow slows, another steam cycle begins. The technique is called “cyclic steaming.”
By the late 1990s, companies were using a supercharged version of it: steam fracking. Producers injected steam down well bores at pressures high enough to crack brittle underground formations so oil could ooze upward. Nearly half of the oil in the state is produced from cyclic steaming, according to a University of California, Berkeley, report issued in April.
How Cyclic Steaming Can Create Pools of Boiling Oil
This example is modified from a model of a geographical cross section of the Midway-Sunset Oil Field by Ahinoam Pollack, Stanford University, published in a March 2020 study.
But blasting old, often damaged wells with steam had an unintended side effect: surface expressions. Like underground tea kettles blowing their tops, seeps of gas, mud, oil and rock erupted in a dozen oil fields. Five companies reported scores of spills over more than 20 years. Chevron alone logged 64 surface expressions between 1997 and 2010, according to a report it sent to CalGEM.
Typically, CalGEM has told oil field operators to “shut in” wells near a surface expression, meaning temporarily cease nearby steam injection or drilling. Usually, the spill would stop or slow within days. If it didn’t, the agency has ordered them to stop steaming in an ever-larger radius. But some spots sprang leaks again and again or spilled large amounts for years. With CalGEM’s approval, companies turned these into de facto — but permanent — production sites, even in creeks and ravines supposedly protected by environmental laws.
CalGEM got revenue too — the agency is completely funded by the industry it regulates, and this year will receive 67 cents for every barrel of oil produced.
“The Earth Had Literally Cracked Open”
U.S. House Minority Leader Kevin McCarthy, a Republican whose district includes Kern County oil fields, once called Sandy Creek a “ditch” and claimed it hadn’t rained there in 30 years. The creek, which in the 1800s ran miles from the Temblor Mountains to the then-vast Buena Vista Lake, is now dry most of the year.
But when winter rains fall, the creek flows. State biologists documented sections that are home to breeding western toads, cliff swallows, California quail, kildeer and other birds passing through on long migrations.
In 1998, near Sandy Creek’s headwaters, Aera Energy and two other companies began injecting steam into wells in the soft dirt. A web of surface expressions quickly developed, with continuous oil pools forming in the streambed. They’re still flowing 22 years later.
Rather than shutting down production, Aera reshaped the landscape. It installed a 400-foot-long metal pipe, diverting rainwater from its natural path so the crude could continue to flow into the creekbed. Although the spills were still running, they were considered contained; the oil was confined to open-air pools. Nets were slung over them to prevent birds from flying in.
Aera and TRC, another oil company that leased adjoining property, periodically pumped out the oil and sold it. State oil regulators later said in an internal report that Aera was producing about 3,000 gallons of crude and waste a day from Sandy Creek.
Under state laws, it’s illegal to discharge any hazardous substance into a creek or streambed, dry or not. The California Department of Fish and Wildlife, which enforces those laws, said it can issue temporary permits for cleanup activities, but not for permanent alterations of a streambed. “The Department sees oil spills as emergencies, and its role is to respond to minimize harm to wildlife and clean up ASAP,” a spokesman told The Desert Sun and ProPublica. The department did not respond to questions about whether it has ever cited or fined companies that have spilled oil and altered the streambed in Sandy Creek.
TRC did not respond to requests for comment. Aera, which has since sold its Sandy Creek leases, declined to comment on past surface expressions there, but it said in a statement that the company “uses a combination of innovation, engineering, and technology to ensure that we are producing California’s energy under the most environmentally responsible and safe conditions in the world.”
The containment approach wasn’t foolproof.
In fall 2010, heavy rains sparked flash floods, dismembering the metal culvert. Days before Christmas, rains fell again. The creek reclaimed its natural channel, shoving crude and wastewater 10 miles downstream, through the town of Taft and out the other end.
The aftermath of flash floods in Sandy Creek, where Aera had installed a metal culvert to divert rainwater from its natural path.
Obtained by ProPublica and The Desert Sun via a Public Records Act request
Bruce Joab, a California Fish and Wildlife senior scientist who assesses the environmental damage wreaked by oil spills, still recalls Sandy Creek after the storms.
“I was actually shocked at how torn up that upper end of the watershed was,” Joab said. Rusted pipes, steam manifolds and other heavy debris littered the bed. “It was hard to distinguish where the creek began and the oil operation began.”
Field warden colleagues who’d seen many surface expressions warned him to watch his step.
“There were places where the earth had literally cracked open and oil was spilling out,” he recalled.
When spills occur, CalGEM employees work side by side with oil companies to investigate the causes. Chevron officials, for instance, were part of the team that responded to and probed the causes of last summer’s Cymric 1Y spill. Ntuk said that approach is required by state law.
In Sandy Creek, a CalGEM staffer documented the flood damage and spills with dozens of photographs and said in a lengthy report to supervisors that the surface expressions there were caused by steam operations. CalGEM, however, did not include Sandy Creek in a tally of surface expressions it provided to The Desert Sun and ProPublica, saying the situation is “still under evaluation and has not yet been categorized.” CalGEM provided no evidence it has ever cited or fined companies for damage after the 2010 floods or after more oily floods in 2016.
Sandy Creek is just one place where companies have constructed elaborate containment structures.
They can carry a heavy cost.
A Tragedy at Well 20
Well 20 in the Midway-Sunset field was drilled in 1927 and abandoned by Chevron in the 1980s. The company tried and failed to plug it three times. By 2011, surface expressions had broken out there regularly, and CalGEM had cited the company twice for oil field waste, though it wasn’t fined.
Chevron installed a large, underground containment system — a channel with perforated drains at either end — and added devices called tilt meters to record any sudden shifts in formations beneath the surface to give warning above. The tools typically monitor volcanoes and dams for seismic activity.
On the morning of June 21, 2011, Robert “Dave” Taylor and two Chevron colleagues went to the freshly graded site in response to a report of steam coming from the ground.
Taylor had worked in the Kern County oil fields for 33 years, starting as a low-paid “roustabout” and working his way up to construction representative. In Taft, where he grew up and raised his family, he was a soft-spoken but beloved coach of high school and community sports teams. Years later, people in town still called him “Coach.”
Robert “Dave” Taylor.
That June morning, the field at Well 20 looked smooth, per oil and gas agency rules. But underneath, pressure was building. Tilt meters had shown sharp shifts in ground movement, though no one seemed to notice.
As the three men walked across the site, a sinkhole of hot oil and hydrogen sulfide opened beneath Taylor’s feet and swallowed him. One of the other men reached into the hole and tried to grab his arm, with no luck. He then tried to use a pipe, but Taylor was gone.
Taylor’s family drove north from their home in Taft, thinking there might be a chance he’d survived. They were greeted by a geyser of steam as tall as a telephone pole shooting out of the hole. It took workers until shortly before dawn the next day to retrieve Taylor’s body. He was 54.
Chevron spokeswoman Flores-Paniagua called Taylor’s death “a tragic and isolated incident.”
The oil and gas agency ordered Chevron and TRC to stop nearby steam injection in an ever-widening radius. It did little good. The spill swelled. Top officials began probing more deeply and told staffers to compile a “spill binder” of fields around Bakersfield, the seat of Kern County. According to the binder, which was obtained by The Desert Sun and ProPublica, they logged 19 more surface expressions in five months.
Shortly after Taylor’s death, the ground shook a few miles north and a 60-foot geyser blew skyward. A Berry Petroleum Co. worker fled as a fast-moving surface expression mushroomed under his truck, internal CalGEM documents show.
”In this week’s event, a field worker narrowly escaped injury or death by running away from the site on foot,” wrote Miller, then the oil and gas supervisor, in an email to her boss, obtained through a public records request. “He abandoned his truck which was still parked at the site two days later as it was too dangerous to re-enter.”
By autumn, a slope above the site where Taylor died had collapsed into a bubbling cauldron of oil and toxic gases.
Inside Chevron, Taylor’s death was taken seriously, said Lucinda Jackson, who headed the company’s global safety, health and environment division until she retired in 2016.
She said company geologists had told her as long as they steamed in diatomite in California, Indonesia and elsewhere, surface expressions would occur. Several studies support this conclusion, which is an active area of research.
Taylor’s death was “horrible,” she said. Her division doubled down on monitoring and detection efforts. Daily small plane flights using remote sensors were instituted. When she retired, there was a continuous, remote monitoring station in Bakersfield, 40 minutes away, tracking the company’s Kern County fields. Dozens of screens recorded underground formations for any sudden shifts.
“Nobody likes these surface expressions,” she added. “They disrupt production and they’re bad for human health and the environment. But it’s just going to be an issue as long as we’re going to keep producing, if the world is still thirsty for oil.”
Taylor’s family was barred from suing Chevron because of his employment contract but reached a settlement with the company that had done the grading work over the spill containment site. California’s workplace safety agency, Cal-OSHA, cleared Chevron in its investigation of Taylor’s death, but it later fined the company $350, the maximum allowed by law, for not informing workers in writing of the “necessary safeguards” for working near Well 20.
Although CalGEM says Chevron has now successfully plugged and abandoned Well 20, the company told the agency it was still producing oil from a nearby surface expression. In the past month, it has pumped an average of nearly 1,400 gallons of oil and brine a day out of a cistern it installed there.
The Fight for Regulation
In Sacramento, Elena Miller, the oil and gas supervisor, and her deputies had started drafting surface expression regulations along with other reforms. But oil companies pushed back, complaining that she was causing unnecessary permitting delays. Then-Gov. Jerry Brown fired Miller in the fall of 2011 as he sought to revive California’s sluggish economy. New permits were quickly approved.
Meanwhile, the U.S. Environmental Protection Agency, worried about enforcement of groundwater laws in California oil fields, had been conducting a probe of how CalGEM regulated underground injection. Among its top concerns: oil producers and the agency were not properly testing or tracking injection pressures, which if too high could fracture underground formations. A top EPA official told CalGEM that federal and state laws barred pressure that could crack formations.
Oil and steam pipelines crisscross the oil fields in Kern County, California.
Jay Calderon/The Desert Sun
CalGEM officials said they’d revamp their regulations, but the effort took years.
Ntuk, the current oil and gas supervisor, said that prior to 2019, state regulations did not explicitly limit steam injection. Kretzmann, an environmental attorney who’s tracked the agency and injection laws for years, said Ntuk’s position was “absurd.”
As the spills continued, agency leaders in 2015 realized there was another long-standing issue: no formal training for the geologists, engineers and supervisors involved in permitting and oversight.
“The training that is provided is informal and ‘passed down’ from other regulatory staff, sometimes even new staff train newer staff, and provide ‘best practice’ training,” officials wrote in a request to lawmakers, asking for funding to implement a comprehensive training program. “This method of training is not standardized, it is not measurable, and it is extremely challenging to establish accountability for errors in the field.”
Since then, CalGEM has received funding for additional engineers and geologists and instituted a training program, although turnover at the agency is high.
As Taylor’s death showed, surface expressions can be dangerous. Experts say oil constantly spilling to the surface also releases fresh volatile organic compounds that are building blocks for smog and other dangerous pollution linked to heart disease, asthma and other health problems. Two new studies of pregnant women living close to California oil fields show far higher rates of premature births and low-birth-weight babies.
“Every time you push oil through an open pathway to the surface, it’s like opening a bottle of soda,” said Donald Blake, a University of California, Irvine, atmospheric chemist who has tracked air pollutants around the world, including in Kern County.
Studies of oil spill cleanup workers and nearby residents in six countries all showed they experienced higher rates of illness, ranging from sore throats to respiratory disease and cancer.
There are more immediate risks for workers too.
Workers clean up a surface expression in October 2011 in a Kern County oil field, where Berry Petroleum operated. Oil spills can pose long- and short-term health risks for workers.
Obtained by ProPublica and The Desert Sun via a Public Records Act request
According to internal documents, CalGEM inspectors in 2014 mapped a 1¼-mile-long zone in the Midway-Sunset field, then co-owned by Chevron and Aera Energy. Vents in the rocks and ground were releasing more than 500 parts per million of hydrogen sulfide — levels that could cause humans to stagger and collapse within five minutes. Failed wellbores there were emitting up to 7,000 parts per million, more than three times the threshold for immediate death, according to guidelines of the federal Occupational Safety and Health Administration. An internal CalGEM memo stated the area was “permanently secured.” Neither the agency nor Aera responded to requests for comment about the zone’s current status.
Chevron’s spokeswoman said in an email that the company “took several steps to secure the property” and mitigate the risk of hydrogen sulfide. Chevron sold the property in March, she said.
CalGEM staff in the Bakersfield office conducted many in-depth inspections of spill sites and wrote reports documenting them for superiors. A 2015 PowerPoint presentation they prepared, obtained by The Desert Sun and ProPublica, stated that some of the diatomite formations might have been permanently altered by steam fracking, meaning spills there might never stop. But, the presentation concluded, there was little impetus for oil companies to change their ways: “The economic benefit of increased oil … production from steam injection into shallow diatomite … has been, and will continue to be motivation for operators.”
Employees familiar with the spills pushed for stricter regulation. Without it, they said, “surface expressions will remain a potential threat.”
“We Didn’t Know What to Do”
To the west, Santa Barbara County officials had already grappled with the consequences of surface expressions. Known for its scenic beaches, the area is also home to nearly a dozen oil fields.
In 2007, Breitburn Energy began injecting steam into the diatomite-rich Orcutt field, half an hour inland from Pismo Beach. Oil cracked the surface and the company contained it and harvested more than 4.8 million gallons of oil from “cyclic steam energized seeps,” according to CalGEM’s 2008 and 2009 annual reports. Using federal prices for California oil for those years, that would mean they earned an estimated $7.3 million. Breitburn later went bankrupt.
Pacific Coast Energy Corp. took over the Orcutt field in 2009 and sharply increased cyclic steaming. The number of new spills spiked.
“We had spill after spill after spill after spill,” said Errin Briggs, of the Planning and Development Department in Santa Barbara County, which, like Long Beach, Los Angeles and Kern County, works with the state to oversee oil operators. County officials were stumped, and they reached out to CalGEM. According to Briggs, engineers at the oil agency said that the steam being injected into the diatomite was causing it to swell like a balloon, placing pressure on the formation above, which sprang myriad leaks.
Short cisterns, like this one pictured on a Berry Petroleum lease in the Midway-Sunset field, are used to contain oil spills.
Obtained by ProPublica and The Desert Sun via a Public Records Act request
In 2011, CalGEM ordered Pacific Coast Energy to lower the amount of steam it was injecting, Briggs said. The number of new spills was halved over the next few years, he said. Neither a company executive nor CalGEM responded to requests for comment on those measures.
To contain the spills, Pacific Coast Energy installed wide, short cisterns, or “cans,” stuck into the earth like straws, from which frothy water and oil can be vacuumed. Unlike many Kern County containment devices, these are sealed with large, garbage can-style tops with handles that can be hoisted open by pump trucks.
County officials signed off on the construction after the fact. “Nobody in Santa Barbara had ever seen anything like this before,” Briggs said. “We didn’t know what to do.”
There are currently 58 ongoing contained spills in the Orcutt field, Briggs said. CalGEM did not respond to requests for information on the Orcutt spills for months, then said there are even more — 65 “low energy surface expressions.”
Environmentalists were stunned that companies were allowed to profit off the contained spills.
“Wow. Wow! Wow! And we didn’t even know it. That’s just crazy,” said Katie Davis, chair of the Sierra Club Los Padres Chapter covering Santa Barbara and Ventura counties. “If they’re tapping them for oil, and they’re not even legitimate wells, it’s really going around the law.”
A CalGEM spokesman said in an email that under the new regulations, “for low-energy expressions, containment … is permissible.”
A dead Western harvest mouse found by the GS-5 surface expression near McKittrick.
Pacific Wildlife Center staff. Obtained by ProPublica and The Desert Sun via a Public Records Act request
Because the spills were considered emergencies, there was no requirement to do environmental reviews before installing the cisterns, Briggs said. That means large coast live oak, rare flowering bushes and other plants could be ripped out when necessary. Remains of Chumash tribal life could also be moved. The company did have to pay to plant restoration trees and vegetation elsewhere on the oil field.
State wildlife officials have long been concerned about the impact of surface expressions on an array of endangered animals and plants. California Fish and Wildlife records obtained through a public records request show dozens of dead and decaying birds and small mammals around spill sites.
In places like Sandy Creek, the nets oil companies place over spills to protect wildlife often get tangled or torn, said Julie Vance, Fish and Wildlife’s District 4 director in Fresno, who oversaw response to inland spills for years. Many burrow-dwelling creatures are “entombed” by fast-rising crude from underground, making it impossible to ever document their loss, she said.
Netting covers a surface expression near Sandy Creek to protect wildlife.
Obtained by ProPublica and The Desert Sun via a Public Records Act request
For years, Fish and Wildlife deferred to CalGEM, but the wildlife agency has increasingly played a role in spill response since 2014, after policymakers expanded its mandate to include inland as well as marine spills, and as the oil agency came under growing scrutiny.
In the fall of 2015, the California Department of Conservation announced a “renewal” plan to overhaul the state’s oil agency.
Among its priorities: writing new rules for cyclic steaming. In the four years since Taylor’s death, 63 surface expressions had broken out in the Kern County oil fields, according to state records. The department pledged to finalize the regulations in a little more than a year.
But the deadline came and went as special interests on various sides lobbied to influence the regulations. Environmentalists won language banning surface expressions. Several oil companies and trade groups pushed back, asking for a narrow definition of what constituted a spill.
In response, CalGEM exempted from the ban what it called “low energy seeps,” defined, in part, as slower spills that are not hot and are permanently contained. What qualifies as such a seep is left up to the oil and gas supervisor. The carveout appears to preserve a lucrative form of spill.
A recent thesis by a Stanford University master’s student identified 19 such “low energy” sites in the Midway-Sunset field, where spills were contained with cisterns. An analysis of production records by The Desert Sun and ProPublica found that over the past 20 years, 14 of those sites have spilled a combined 20 million gallons of oil, worth more than $19 million.
“I sure would call that a loophole in the law,” said Rosanna Esparza, a retired gerontologist who did health assessments of residents near Kern County oil operations and who is fighting to cease oil production statewide.
The Western States Petroleum Association, the industry trade group representing major companies like Chevron, pressed to nix the spill prohibition altogether and just preserve the longtime practice of containment.
“There is an inherent conflict created by prohibiting surface expressions yet allowing for management methods,” WSPA wrote in a letter to CalGEM. “The strict prohibition should be dropped in favor of language that provides for prudent management when events occur.”
In response, CalGEM staff defended the proposed ban on surface expressions “because they are inherently unsafe.” But they also provided an opening for containment. “Even when a violation has been committed,” the agency replied, “there are still protocols to safely handle that violation.”
The regulations took effect in April 2019.
Within months, more than a dozen surface expressions occurred, including Chevron’s latest Cymric spills. In short order, the Newsom administration announced the moratorium on new steam fracking permits and moved to bolster CalGEM. The governor’s January budget proposed 128 new positions for the agency, in part to better oversee surface expressions. Under state law, which requires potential polluters to fund oversight, the oil industry would have to pay $24 million over three years for the positions.
The Tug of War Continues
Oil infrastructure in the Kern River oil field near Bakersfield, California.
Jay Calderon/The Desert Sun
The permitting pause sent shocks through the oil industry, and Kern County responded with a full-throated roar.
Hundreds packed the county supervisors’ chambers in Bakersfield in January for a meeting that lasted nearly seven hours. Oil workers and executives testified about the jobs that supported their families, and they lambasted “environmental extremists” and state officials.
Union officials, real estate agents, Chamber of Commerce members, the county sheriff, the district attorney and even the county school superintendent spoke about how vital oil revenues are to the area.
County supervisors led the charge.
“Rather than the governor giving us credit for our monumental achievements … he insists on punishing us by attempting to deny our right to use the God-given natural resources in our county to support our families,” said Supervisor Zack Scrivner, whose sprawling district includes Taft and several oil fields.
Scrivner showed photos of oil spills in Brazilian rainforests and a river in Colombia. This is a river full of oil, and I would offer that this is worse than a surface expression that the governor came down here to visit recently,” he said. “Why would this administration … send our jobs and our treasure to these countries with terrible human rights records, and with little to no environmental controls?”
No photos of the Sandy Creek spills or the Cymric ravine flooded with oil were shown.
Anthony Williams, Newsom’s legislative affairs secretary at the time, sought to reassure the crowd, saying he had grown up in Bakersfield. “I talk to the governor every single day,” he said, “and so when my voice rings in his ear, your voice rings in his ear.”
Elsewhere, in the agricultural communities around Bakersfield, farmers and environmental justice groups worried.
Some, who have long lived near oil operations in the Central Valley, disagreed with the industry and its supporters. The spills not only threatened the surface, they argued, but the water table — and the people and crops that rely on it.
Tom Frantz, a fourth-generation farmer and activist from Shafter, began monitoring the Cymric surface expressions himself a year ago, sending a drone into the air for timely updates. He watched oil spill into the ravine there, month after month, before CalGEM issued the fine against Chevron. Since that one was stopped, he’s been tracking the company’s even bigger spills that are still running.
Last November, after Chevron mopped up the Cymric 1Y flow, another cluster of surface expressions sprouted nearby. Dubbed 36W, it has since gushed more than 2.1 million gallons of oil and wastewater, according to Chevron reports filed to the state, and is being piped into large concrete culverts.
Chevron’s spokeswoman said in an email that it’s part of an older spill, even though state photos and reports show them as separate events. Since late March, an analysis by The Desert Sun and ProPublica found, the 36W cluster has garnered the company an estimated $245,000.
“They’re a huge source of air pollution, a huge potential source of water pollution,” Frantz said of the spills. “When I see Chevron directly violating the law for months on end, it bothers me greatly that the state is unable to effectively regulate this industry.”
Fourth-generation farmer Tom Frantz says oil waste has stunted a neighbor’s almond trees.
Jay Calderon/The Desert Sun
Chevron denies its surface expressions have had any effect on groundwater.
In the end, Newsom and lawmakers approved 25 new positions, a fifth of the agency’s original request. “Rest assured that CalGEM continues to ensure full regulatory oversight,” Natural Resources Agency Secretary Wade Crowfoot told reporters this year.
State and regional water officials are also stepping in, increasingly trying to stanch surface expressions. Clayton Rodgers, assistant executive officer for Central California’s water board, said his agency had for years let CalGEM take the lead. “Based on the resources we had and the belief that (CalGEM) was doing the work to address the concerns, we did not get involved,” he said.
Last year, he and his deputy toured Chevron’s spill in the Cymric field. But he said he was unaware of the massive GS-5 spill located 1,000 feet away until a Desert Sun reporter asked him about it. One of his inspectors visited the site the next day and opened an investigation into potential violations of water laws.
A truck vacuums up oil from a surface expression in the Cymric field.
Obtained by ProPublica and The Desert Sun
The regional water board is also monitoring Sandy Creek, the site of the streambed disaster. Berry Petroleum gained ownership of Aera’s stretch in 2017, and water board inspectors have cited the company for violating water contamination laws. Berry first told the inspectors the spills were natural seeps, but it has since voluntarily removed major rusted pipes and other debris, and has plugged and abandoned 10 nearby wells.
Berry injects no steam there, but two companies nearby still do, and the spills continue to flow. Berry has a proposal: It wants to build a channel to carry seasonal rains over the oil pools — just like Aera did 20 years ago. The efforts “are driven by our commitment to operate responsibly and protect our natural resources,” said Todd Crabtree, Berry’s manager of investor relations and administration. “Berry strives to abide by all existing California regulations regarding oil and gas production,” including the new regulations.
Overall, the rate of new inland spills has slowed, possibly due to lower production, said Gordon, the Brown University expert. But if steam fracking picks up, so could the surface expressions, she said.
Cathy Reheis-Boyd, president of WSPA, said she and other oil executives speak regularly with Newsom and CalGEM. She said the industry supports Newsom’s “pragmatic” approach to surface expressions, which includes the ongoing study of steam fracking.
“Let’s be clear,” she said. “The best way to get oil to market is not through surface expressions.”
The governor’s office declined to comment. Asked if it was considering changes to the regulations, CalGEM said “it is premature to say what new rules, if any, will result from current surface expressions or the scientific review.”
The spills have been completely halted elsewhere. After reports about “flow to surface” spills from heavy tar sands in Alberta, Canada, regulators there determined that excessive steaming volumes in the Primrose field — combined with open conduits from below ground, such as wellbores, natural faults and induced fractures — were to blame.
In 2016, the Canadian officials banned steam fracking within 1,000 meters —- or about 3,300 feet — of where the spills had occurred. That’s five times the maximum radius California spells out in its regulations, though CalGEM can impose larger ones if a surface expression continues.
Alberta also instituted strict protocols for nearby steaming.
There hasn’t been a surface expression there since.
Janet Wilson is the senior environment reporter at The Desert Sun. Previously, she was a staff writer at the Los Angeles Times, where she wrote about everything from desert wind power battles to the sale of national forest lands and poor neighborhoods grappling with deadly soot. Email Wilson at firstname.lastname@example.org and follow her on Twitter at @janetwilson66.
Mobilizing the National Guard Doesn’t Mean Your State Is Under Martial Law. Usually.
I’ve been curious about the National Guard for months. It started in March, after a video that appeared to show a train loaded with military vehicles headed toward the Chicago area went viral. The video fueled a rumor that the Illinois National Guard was being sent to the city to put it on “lockdown.” This was shortly after Gov. J.B. Pritzker declared a state of emergency because of rising COVID-19 cases. Truth is: There was a train, but it was not coming to Chicago to put the city on lockdown. It was part of a routine military equipment delivery.
An excerpt of a Facebook post from the Illinois National Guard dispelling rumors about putting Chicago on lockdown.
The Illinois National Guard later made news for its efforts with COVID-19 relief and at protests against police violence. The more I read about it, the more I realized I did not understand what the National Guard does. Maybe you don’t either.
So I called Brad Leighton, a lieutenant colonel and public affairs director of the Illinois guard, to get some clarity. We spoke about rumors vs. reality, fear and what “calling in the National Guard” means both in practice and in perception. In our interview, Leighton said each state has its own National Guard force made up of mostly part-time troops, though the guard can also be mobilized by the federal government during national emergencies. The interview below has been edited for clarity.
We hear a lot about “calling in the National Guard.” Can you describe what that means and how it works?
The Illinois National Guard falls under the command and control of the governor of Illinois. So, when the governor calls in the National Guard, it means that the state pays for the soldiers and the use of the equipment. Sometimes there are other states that will need assistance. That’s done through agreements between the states.
Now, for example, during our COVID-19 response and the civil law enforcement support mission we did up in Chicago, that’s a case where the mayor of Chicago asked the governor for our assistance, and then the governor agreed to send us. Now, when we get on the ground, we’re still under the command and control of the governor and the adjutant general, the top military officer of the Illinois National Guard, but we’re generally placed under a civilian authority at the emergency.
For example, when we went to Chicago [to assist the Police Department with protests after the killing of George Floyd by Minneapolis police], we fell under an incident commander with the Chicago Police Department. When we went to other places in the state [to assist with protests], we actually fell under the Illinois State Police as the incident commanders. If we went to a big fire, it could be the fire marshal. For elections, maybe the Board of Elections. But ultimately, we’re responding to the orders of the adjutant general and the governor of Illinois.
Does the National Guard absorb some of the powers of whatever entity it’s called in to assist? For example, can the National Guard make arrests if an incident commander is with the Chicago Police Department?
No. We’re not civilian law enforcement. And so we can’t really be used as an auxiliary police force. And we legally cannot make arrests. We can hold somebody for a bit until a fully licensed civilian police officer can come in and arrest that person. But if we’re detaining someone, that should be for a very short period of time. We’re not trained to investigate crimes. We’re really not trained in community policing.
So when the governor calls in the National Guard, perhaps on behalf of a mayor to respond to a particular situation, you’re there to fulfill the vision of that municipality dealing with whatever emergency effort it is.
Yeah. We communicate what we can do and what we can’t do. I would say that with civil disturbance type operations, we’re reluctant because there are many things that can go wrong. And again, we’re operating on limited legal authority. We can be eyes and ears for law enforcement and communicate back to them, but we’re not civilian law enforcement. We’re military.
When you say that you’re reluctant when the National Guard is called in for a civil unrest situation, what do you mean?
When I say we’re reluctant, it’s not that we don’t want to help maintain order. That’s what we’re there for. But the National Guard should be the last call. The National Guard is designed to come in when all other resources are exhausted. We’re the first military responders, but we’re the last one when the civilian capacity has been exhausted completely.
Which I know can be scary for civilians — the idea that their police or health department needs military backup. Is that fear warranted?
Well, I think when you call in the National Guard, it generally means that things are very, very serious. Honestly, if you’re pulling people out of their civilian lives and they’re putting on their uniform and they’re responding to something, whether that’s a flood or for law enforcement support or COVID-19, it’s an emergency.
But it’s all determined by the legal status we’re in. And the fact is that we are subordinate to civil authorities, not coming in and operating independently of those civil authorities. It’s a structure. And you don’t see that underlying structure when you see soldiers out on the street.
There seems to be a perception that the presence of the National Guard means that we’re one step closer to martial law. Is that actually the case?
Martial law would be a case where the military is in control. Martial law could be a scenario [in which we operate], but martial law is used very, very rarely. [Note: An Aug. 20 report from the Brennan Center for Justice documents 68 incidents throughout U.S. history in which martial law was declared.]
But that perception seems to influence policy. I’m thinking of what recently happened in Chicago: the City Council did not approve a proposal that would have allowed the Illinois National Guard to be stationed in Chicago for four months. The Chicago Sun-Times reported: “It was the stigma of a ‘military occupation’ of Chicago neighborhoods” that led to aldermen voting down the proposal.
We were concerned about that perception as well. When you have armed soldiers on the streets, I think, as a public affairs officer, that’s a perception problem in and of itself.
How do you address that?
We try to educate and explain to people why we’re there and what our role is, and try to communicate that with the understanding that having a soldier who is armed and has body armor on can be intimidating.
A lot of our soldiers come out of [local] communities. A lot of our soldiers certainly have ties to those communities [where we may be called]. But we’re a very small portion of the population. And the National Guard is even smaller because we’re just a fraction of the military. So people don’t have a lot of exposure to military people. There’s a disconnect with the civilian world. But with the National Guard, we can do a lot to bridge that disconnect because we are part of the community.
Bridging that gap plays out online, too, right? I’m thinking about that Chicago train rumor that spread through Facebook in the spring. You wrote some pretty direct Facebook posts through the Illinois National Guard page to address those.
I think this year has been unprecedented in a lot of ways, and when things are very different than what they have been, people are fearful. And I think in our reaction to, for example, the train that happened to go through the Chicago area, I think that you have to understand that people were seeing that from a completely different lens than me as a military person. Again, people don’t necessarily know how the military operates.
A tweet from the Illinois National Guard.
Screenshots of Facebook posts by the Illinois National Guard.
I definitely think of [fighting online rumors and disinformation] as a military mission, especially for military public affairs officers. One of the tenets of that is to address disinformation or bad information with facts and what’s actually going on. It’s taught for wartime situations.
So that’s what we’re trying to do by addressing [online rumors]. I think we’ve been effective at tamping down rumors and a lot is the tone. You have to strike a balance where you’re not telling people that what they’re saying is irrational, silly, crazy. You have to respect that they are genuinely afraid.
ICE Deported a Woman Who Accused Guards of Sexual Assault While the Feds Were Still Investigating the Incident
The U.S. government late Monday deported a crucial witness in an ongoing investigation into allegations of sexual assault and harassment at an El Paso, Texas, immigrant detention center, the witness’s lawyers said.
The 35-year-old woman has been held in the facility, which is overseen by Immigration and Customs Enforcement, for about a year and told lawyers about a “pattern and practice” of abuse there, including that guards systematically assaulted her and other detainees in areas that were not visible to security cameras.
Several guards “forcibly” kissed her, and at least one touched her intimate parts, often as she was walking back from the medical unit to her barrack, according to her complaint filed with law enforcement agencies.
“If she behaved,” she said one guard told her, “he would help her be released.”
The inspector general requested that ICE not deport the woman and the FBI interviewed the woman extensively, according to her lawyers. Her attorneys also sent a complaint to the U.S. Attorney’s Office for the Western District of Texas and the El Paso County District Attorney’s Office, warning of a potential criminal investigation.
Those government agencies did not immediately respond to requests for comment.
Jeanette Harper, a spokeswoman for the FBI’s El Paso office, said the agency’s policy prevents it from commenting on an ongoing investigation. She said the lead agency into the woman’s allegations is now the Justice Department’s Inspector General, which oversees accusations of civil rights abuses. That office did not immediately return a call seeking comment.
Last Friday, lawyers filed a habeas petition in federal court asking that the woman be freed on supervised release and held in an immigrant shelter in El Paso.
They said in an interview that guards and inmates had been making intimidating comments to her following her accusations and that she felt unsafe.
She gave investigators a tour of the facility, showing where the assaults occurred in security camera blind spots, her lawyers said. Shortly after she quoted one guard telling her: “You need to watch out for yourself.”
“Everybody knows, and it just made things very difficult for her,” said her lawyer, Linda Corchado.
Three days after her habeas was filed, DHS’ inspector general reversed its earlier position and told ICE that the agency could deport the woman and investigators would further interview her by telephone from Mexico if necessary, her lawyers said.
Within hours, she had been sent back even though she says she fears persecution from drug cartels there. A high-ranking cartel member sexually assaulted her and threatened her after she reported the attack to police, according to statements she gave the U.S. government.
The government “allowed their most powerful witness to be deported,” Corchado said. “How can we possibly take this investigation seriously now or ever pretend that it ever was from the outset?”
Ranjana Natarajan, who directs the Civil Rights Clinic at the University of Texas at Austin’s School of Law and who filed the woman’s habeas petition, wrote in an email that the government’s decision was “extremely disappointing.”
The woman had waived her right to appeal her deportation in July, long before the allegations became public. She told ProPublica in a telephone interview last month that she worried about being targeted in the detention center for speaking up about the abuse.
In August, her lawyers filed an application with ICE requesting the agency not remove her and that it release her until the investigation is complete. She could also qualify for a legal status known as a U visa, which is intended for immigrant victims of crime.
Instead, the government deported her.
“We hope that the government does not abandon its investigation of disturbing and egregious allegations of sexual misconduct at the El Paso detention center,” Natarajan said.
ProPublica and the Tribune are not identifying the deported woman because she said she is a victim of sexual assault. She repeatedly told reporters, lawyers and investigators the same account, identifying the officers who abused her and other detainees.
When she complained to a captain, she said he dismissed her. One officer who had assaulted her briefly disappeared from her area of the detention center only to later return, becoming “increasingly aggressive and intimidating.” She told lawyers that the same officer was still working in her area of the facility last week.
“She has lived in constant panic that he may do something against her again,” according to her complaint.
The allegations detailed by her and two other detainees in that filing also involved a lieutenant who detainees said was promoted even after women complained. At least one other woman was deported after a guard assaulted her, detainees told lawyers.
A spokesperson for ICE has said that those allegations would be investigated, including by its Office of Professional Responsibility. The agency has “zero tolerance” for abuse, she wrote in an email last month. “When substantiated, appropriate action is taken.”
A spokesperson for Global Precision Systems, a subsidiary of Bering Straits Native Corporation, which contracts with ICE to run the El Paso facility, has said that she could not comment on pending legal matters.
The El Paso allegations are the latest instance of sexual abuse complaints related to detention centers run by ICE, which imprisoned an average of 50,000 immigrants daily across the country in 2019. Most are operated by contractors at taxpayer expense.
Another woman also said she was repeatedly harassed while in the El Paso detention center and that guards continued to reach out to her even after she was released.
She told ProPublica and the Tribune in a telephone interview that officers encouraged detainees to sign up for anti-anxiety pills because they oversee the dispensing of medication at night and have access to an enclosed off-camera area.
“Most women who are still there are scared of saying anything,” she said. “You don’t know what they can do.”
For more coverage, read ProPublica’s previous reporting on immigration.
What Can Mayors Do When the Police Stop Doing Their Jobs?
This article was co-published with The Atlantic and is not subject to our Creative Commons license.
Across the United States, cities are experiencing turbulence and a rise in gun violence following the protests of abusive policing sparked by the May 25 death of George Floyd in Minneapolis. More than 110 people were shot in that city in the month following Floyd’s death, eight fatally. In Atlanta, 106 people were shot over a 28-day period ending July 11, up from 40 over the same period last year.
This isn’t the first time in recent years that America has seen such protests followed by a spike in violence. In the spring of 2015, the death of Freddie Gray, 25, from injuries sustained in police custody brought demonstrators into the streets of Baltimore. The protests flared into rioting and looting. Soon afterward, the city’s chief prosecutor announced criminal charges against the officers involved in the arrest. The officers’ colleagues responded by pulling back on the job, doing only the bare minimum in the following weeks. In the resulting void, crews seized new drug corners and settled old scores. Homicides surged to record levels and case-closure rates plunged. “The police stopped doing their jobs, and let people fuck up other people,” Carl Stokes, a former Democratic city councilor in Baltimore, told me last year. “Period. End of story.”
The protests of recent months, which reignited again in August following the shooting of a man by police in Kenosha, Wisconsin, as he leaned into his vehicle, have created real momentum for efforts to reform police departments. In many cities, though, rank-and-file police officers are greeting these efforts with an apparent pullback. They say they are aggrieved by the charges against their fellow officers, public criticism of their department as a whole or growing calls to greatly reduce their powers and resources. In several cities, rising violence is already undermining support for shifting resources out of police departments, including among many Black residents and elected leaders. If reformers hope to succeed in curbing overpolicing, they will first have to overcome the challenge of underpolicing, which has often allowed officers to exercise an effective veto on reform.
Michael McGinn dealt with a police pullback when he was mayor of Seattle in 2012. And, he told me, the problem has a straightforward solution: A mayor facing a police pullback has to make it plain that officers are accountable to the elected government they serve. That starts, he said, with relatively small steps, such as demanding that officers uncover their badge numbers. And if officers refuse? “Anyone who doesn’t follow an order gets sent home. That’s what you do with someone who doesn’t follow orders in a semi-military organization. You fire them.”
In Minneapolis, where the City Council approved legislation that would put up for referendum the wholesale replacement of the Police Department, residents have reported a notable decrease in police presence. “All you see now is them with their windows up,” one told The Washington Post. In Atlanta, many officers started calling in sick in reaction to the 11 charges, including felony murder, filed against Garrett Rolfe on June 17. The former Atlanta police officer shot and killed Rayshard Brooks, who had been found asleep in his car in a drive-thru, following a tussle with Rolfe and his partner after he failed a sobriety test. Brooks ran from Rolfe and his partner and fired a Taser that he had wrestled from the partner.
The interim police chief, Rodney Bryant, was left to plead with the officers on his force to do their job. “I implore you to channel your concerns for your fellow officers by having their back. At this moment, I implore you to remember why you became a police officer. We did not choose this line of work because it was easy,” he said. “We became officers because we wanted to help people in distress, make a difference in our communities and simply serve and protect.
Bryant’s appeal echoed the plea made to Baltimore officers in the spring of 2015 by Anthony Batts, then the city’s police commissioner, as homicides soared following Gray’s death. “I talked to them again about character and what character means,” Batts told me and other reporters. “I’m sharing with them what it is to put that holster on every day, to put that badge on every day, to put that uniform on every day: the character that it takes, the responsibility that comes with that, and our responsibility to this community and to the 9-year-old little boys who are playing in the middle of the street that get shot. (Batts was replaced as commissioner a few weeks later.)
It is too early to say whether the Atlanta and Minneapolis officers’ pullback will result in a continuing surge of violent crime. In the case of Baltimore, as a ProPublica investigation explored in detail last year, a police pullback appeared to be an instigating element that combined with other problems to create a breakdown of civil order in the city. The rise of violence there has yet to abate, five years later, and has resulted in more than 500 deaths over and above the average homicide toll of the decade prior to 2015.
Rises and falls in crime rates are notoriously hard to explain definitively. Scholars still don’t agree on the causes of a decadeslong nationwide decline in crime. Still, some academics who have studied the phenomenon in recent years see evidence that rising rates of violence in cities that have experienced high-profile incidents of police brutality are driven by police pullbacks. Many criminologists also cite the general deterioration of trust between the community and police, which leaves residents less likely to report crimes, call in tips or testify in court. Added to that are the dynamics that are now likely also driving a rise in violent crime, even in cities that have not witnessed recent high-profile deaths at police hands: the economic and social stresses of the pandemic lockdowns, including disruptions to illegal drug markets, and the usual seasonal rise in violence during summer.
Lawrence Grandpre, the research director with Leaders of a Beautiful Struggle, a Baltimore activist organization, cautions against overstating the role of underpolicing in the rise in violence. He argues that some of the cities where police are coming under scrutiny are also ones where Black residents have been struggling the most with long-standing inequities that could fuel disorder in this time of protest and pandemic-induced stress. “The dynamics that drive violent crime are intra-community dynamics,” he told me. “It’s the accumulation of historical trauma in communities. Look to the social and economic disruption of COVID and the sense of hopelessness and desperation that falls on these communities that feel that nothing is working. … When you’re under stress and feel hopeless, it’s more likely that these conflicts spiral into violence.”
Alongside such local dynamics, though, the shared recent experience of cities such as Baltimore, Atlanta, and Minneapolis points to one of the biggest challenges facing municipal leaders who are trying to hold police officers accountable for possible abuses of power and reform their police departments as a whole: the prospect that officers will pull back, staging a silent strike that, at best, leaves the city unable to contend with a spike in violence or, at worst, helps give rise to one.
The problem is not new, but the politics surrounding it have suddenly changed. For decades, it was political death to run afoul of the police and their powerful unions. Now the electorates of many cities have shifted further left and grown more vociferous about demanding police reform and even defunding departments, which puts more pressure on elected leaders to take a tougher stand against their departments than they might have in years past.
Atlanta Mayor Keisha Lance Bottoms announcing a curfew on May 30 as protests continued over the death of George Floyd.
Ben Gray/Atlanta Journal-Constitution via AP
That means big-city mayors including Atlanta’s Keisha Lance Bottoms, New York’s Bill de Blasio and Chicago’s Lori Lightfoot face a daunting challenge. They have to navigate two problems at the same time: reining in overpolicing while also preventing underpolicing, the consequences of which are every bit as dire. And a great many lives are riding on how well they pull that off.
“The real issue,” McGinn told me, “is what actions will mayors take to reassert control over the police department? Can a mayor admit they don’t have control and take more firm action to gain control? That’s a big bridge for a mayor to cross. But if you don’t cross that bridge, then you have the situation we have across America.
In Atlanta, the police union has responded to the pressure for accountability and reform by blaming its critics. “Officers are fed up. They’ve been treated like crap both by their fellow citizens and their own legislators,” said Vince Champion, the southeast regional director for the International Brotherhood of Police Officers, which represents most Atlanta officers. “You can’t have it both ways — call us and we come to do our job, but then if our job gets ugly, we’re the bad guys.”
Some of the activists seeking to defund or limit policing might welcome this line of argument — see how you like life without us. But many other activists battling against abuses say they recognize the need for policing, done properly, and they worry about what will happen if police respond to calls for reform by pulling back. “A lot of the onus for the violence falls right at the feet of law enforcement,” Gerald Griggs, the first vice president of the NAACP’s Atlanta branch, told the Post. “There are certain elements in our community that don’t take a break when the police take a break. You’re sworn to protect and defend, but when there are a few rogue [police] being held accountable you decide to shirk your responsibility?”
As mayor of Seattle, McGinn inherited policing trouble: He was tasked with negotiating a consent decree in 2012 with the U.S. Department of Justice to overhaul the city’s Police Department following several incidents of police force against minority residents, including the fatal shooting of a Native woodcarver and an officer punching a 17-year-old Black girl in the face. The federal government has imposed more than 40 such decrees or other forms of settlement, and conducted about 30 investigations that did not result in decrees, since Congress gave it the authority to do so in 1994, after the police beating of Rodney King in Los Angeles. And many of the decrees have been met with what experts call “de-policing” by officers upset about the scrutiny or worried about running afoul of new limits.
McGinn, a garrulous Democrat who was the Washington State chairman of the Sierra Club before running for office, said in an interview that he was getting reports at the time that officers were taking less initiative to act on possible offenses they witnessed on their rounds and settling more often for responding to calls that came in. But it was a subtle enough shift to escape much notice. “There were still police doing police things,” he said.
A former Seattle police officer who was on the force during the consent-decree period explained how this dynamic often played out. (Like the other officers quoted in this story, he spoke on the condition of anonymity because his current position does not authorize him to speak with the media.) Among the elements of the city’s consent decree was a broadened definition of “use of force,” which required reporting even an arrestee’s complaint that handcuffs had caused physical pain. The decree also put in place an early warning system for officers racking up use-of-force incidents at a high rate. Many officers concluded it wasn’t worth the hassle to arrest someone for relatively minor offenses, such as public disturbance or loitering, the former officer said.
“I made two arrests two days in a row one week, and both turned into paperwork clusterfucks,” the former officer said. “When you’ve accumulated two or three use-of-force complaints in a week, you’ll say: ‘I just need to stop. I need to stop doing this.’” Among the sort of policing that fell away, the former officer said, was officers’ routine sweeps of areas where drug users congregated, to check their names for outstanding warrants, which would often net suspects in local burglaries. Meanwhile, he said, several dozen of the department’s more proactive-minded officers responded to the new rules and paperwork by simply deciding to “lateral out” to a job in another police department.
And police officers opposed to the consent decree that McGinn negotiated didn’t just engage in underpolicing — they found an even more effective way to protest it: The union endorsed his opponent in the 2013 election, Ed Murray, and made a $15,000 campaign expenditure on his behalf. After Murray narrowly defeated McGinn, the new interim police chief he installed dismissed claims of misconduct against a group of officers. (Murray later resigned amid allegations of child sexual abuse. He denied the charges and was not prosecuted, though the city did settle at least one civil case filed by a man accusing Murray of abuse.)
In Seattle, the pullback correlated with a rise in street crimes and disorder. The city has relatively high rates of property crime, and it has become so well known for highly visible homelessness and drug use that a local TV station owned by the conservative Sinclair Broadcast Group aired an hourlong documentary last year called “Seattle Is Dying.”
But the post-consent-decree pullback did not result in a rise in violent crime in the city, whose homicide rate remained very low compared with other large cities. In this, the city is representative of a broader trend, according to two recent de-policing studies. Richard Rosenfeld, a criminologist at the University of Missouri at St. Louis, and Joel Wallman, the director of research for the Harry Frank Guggenheim Foundation, examined the impact of arrest rates in 53 large cities on homicide rates from 2010 to 2015. They found that arrests, especially for less serious crimes such as loitering, public intoxication, drug possession and vagrancy, had already been dropping over that period, even prior to the rise of the Black Lives Matter movement in 2014. And they found that in nearly all of those cities, the declining arrest rates did not result in higher rates of violence. To put it another way: Over the first half of the past decade, many cities shifted away from the “broken windows” style of policing popularized in New York under former Mayor Rudy Giuliani, but even as they did so, violent crime continued to decline in most places, as it has since the early 1990s.
Similarly, a June working paper by Roland Fryer, a research associate at the National Bureau of Economic Research, and Tanaya Devi found that in most cities where police have been under federal investigations in recent decades, a step that often leads to consent decrees, rates of violent crime have not increased — just as they didn’t in Seattle.
There was one set of exceptions in the latter study, though. Federal investigations and de-policing did correlate with a sharp rise in violent crime in cities that had experienced what the study referred to as “viral” incidents: a high-profile, highly controversial instance of police using deadly force against a civilian — precisely what several cities are contending with today.
In Baltimore in 2015, the underpolicing was so conspicuous that even some community activists who had long pushed for more restrained policing were left desperate as violence rose in their neighborhoods. “We saw a pullback in this community for over a month where it was up to the community to police the community. And quite frankly, we were outgunned,” the West Baltimore community organizer Ray Kelly told me in 2018. In fact, the violence got so out of hand — a 62% increase in homicides over the year before — that even some street-level drug dealers were pleading for greater police presence: One police commander, Melvin Russell, told New York magazine in 2015 that he’d been approached by a drug dealer in the same area where Gray had been arrested, who asked him to send a message back to the police commissioner. “We know they still mad at us,” the dealer said. “We pissed at them. But we need our police.”
One veteran Baltimore police officer said that the 2015 pullback was the result of almost instantaneous demoralization that spread across the department. Officers resented the lack of official direction and protective equipment during the riots, he said, and the charges against the six officers involved in Gray’s arrest, which the Baltimore state’s attorney, Marilyn Mosby, had delivered in a ringing tone from the steps of the city’s War Memorial Building. The resentment was exacerbated by the fact that Mosby’s own office had recently requested heightened enforcement in exactly the area where Gray was arrested.
“You were responding to calls — if an old lady was being robbed, you were going to stop them. But as far as being very aggressive and doing proactive patrolling of the sort that Mosby had demanded, that was over,” the officer said. “We did exactly what you wanted! And a horrible accident occurred.
A mural of Freddie Gray near where he lived in Baltimore.
Marvin Joseph/The Washington Post via Getty Images
The pullback carried local resonance: Baltimore had been the site of the nation’s last major police strike, in 1974, when nearly half of the department’s 2,800 officers joined a strike by sanitation workers, jail guards, highway repairers, and park and zoo maintenance workers over wage increases deemed inadequate amid rising inflation. “I’m a cop/my life is on the line/but not for 5.5%” and “I will not die for 5 1/2%,” read signs on the picket line. After a spike in looting and arson, the governor sent in state police as reinforcements. The strike ended after four days. The city delivered a larger wage increase the next year, but the police commissioner fired more than 80 officers for organizing the strike and revoked the union’s collective-bargaining rights, which were not restored until 1982.
In the spring of 2015, a formal strike was out of the question. The local chapter of the Fraternal Order of Police sent no signals about a pullback, the veteran officer said. There was no need to — the cues coming from other officers, particularly from more veteran ones toward more junior ones, were enough. “They were very careful about not saying anything official or unofficial that you should lay down and not do your job. But the writing was on the wall,” the officer said. “It was the sense that you need to look out for yourselves and not put yourself in harm’s way or put yourself at any [legal] risk, because you aren’t going to have the support of the department.”
The role of underpolicing amid the rising tide of violence was evident even to the staunchest advocates for reining in the police. “Police ‘not doing their job,’ I don’t think can be the sole explanation,” Grandpre, the local activist, told me in 2019. “I do think, however, there is a perception among people in street organizations that the police are not doing their job. And that perception creates the feeling that they could get away with it now, when there was a feeling they could not get away with it four or five or six years ago.”
Baltimore became the classic example of the exception observed by the Fryer and Devi study: a city in which a “viral” incident brings about a federal investigation into policing practices correlated with a notable increase in violent crime. The other five exceptions cited in Fryer and Devi’s paper were Chicago; Cincinnati; Riverside, California; and Ferguson, Missouri, where the fatal 2014 shooting of Michael Brown led Sam Dotson, then the St. Louis police chief, to coin the phrase “Ferguson effect” to describe rising violence in his own, larger city following protests.
In their paper, Fryer and Devi note that spikes in violence were not observed in cities that had a viral incident but no ensuing federal investigation, such as North Charleston, South Carolina, following the 2015 police shooting of Walter Scott as he ran from an officer. In those cases, Fryer said in an interview, police seem able to compartmentalize the criticism of the incident, rather than see it as an indictment of the entire force. “If the police feel like the management has their back, which is what they tend to feel if there’s a viral incident and no investigation, then they continue on,” Fryer said.
Fryer said he was also struck to find that investigations not sparked by viral incidents also did not produce spikes in violent crime. But something about the combination of the two — a viral incident leading to an investigation — seemed to lead to police pullbacks and higher rates of violence. “What I’ve heard [officers] say is: ‘I don’t want to be the next YouTube sensation. All I want is my pension. I’ve got a family to worry about.’ They’re putting their life on the line to do this work, and if it’s not going to be appreciated then they’re pulling back,” he said. “It’s incredible the amount of media intensity that happens when there’s a viral incident. It’s not that investigations are different, they’re the same, but it’s the view that, If I make a mistake under these circumstances, it’s going to be career altering.”
Rosenfeld, the co-author of the study showing how little impact de-policing has had on violent crime in most cities in recent years, told me that Fryer and Devi’s study was “complementary” to his own in identifying an exception to the overall trend in a handful of cities. “Those are cities where the community’s relationship with police is enormously fraught, and in those situations, people tend to withdraw from the police and take matters into their own hands,” he said. “It’s not just what police are or aren’t doing that could be provoking more incidents. It’s also the community reacting to police brutality.”
In Baltimore, the pullback has persisted five years later, in an evolved form. The resentment that police harbored over the charges against the six officers has dissipated; none of the cases ended with a conviction. Now, the veteran officer said, the continued decline in arrest rates and proactive-policing levels are driven more by uncertainty over what is allowed under the city’s new consent decree, even after multiple training sessions. Some of the sessions have been useful, the officer said — for instance, on the rules around searches and seizures. But officers are still uncertain about the expanded use-of-force definitions, he said, which include forcible handcuffing, as in Seattle, and about when and how they are allowed to clear crowds from major drug corners, so they often choose to simply drive by them. “The officers are confused. I have no idea what I can do and what I can’t do, and I’ve been an officer for 20 years,” he said. “The good members of the community want us to do our job. But the small number of noisy people who are getting in trouble over and over are out there dictating policy to the detriment of the city.”
Meanwhile, the 2015 surge in violence has yet to ebb five years later. The department’s efforts to win back the trust of the community have been hugely undermined by a police-corruption scandal that resulted in guilty pleas and convictions for a dozen officers, with charges outstanding against several more, the subject of a newly released book by two local journalists. The city finished last year with 348 homicides, even more than in 2015, and is on pace for nearly that many this year.
The hope remains that, over time, the consent-decree reforms will curb abuses and help rebuild community trust in the department, which in turn will make it easier to solve and prevent violent crimes. Departments — notably, Los Angeles’ — have managed to climb back from riots and scandal with the help of a consent decree while presiding over a reduction in violence.
But that hope is qualified for some reformers by local nuances. For one thing, Baltimore’s consent decree requires that the city hire more police officers, in contravention of activist calls to greatly reduce spending on policing. For another thing, Grandpre notes that the consent decree has made it harder for his organization and others to demand specific state-level reforms, such as increasing funding for witness protection in Baltimore. When they went to Annapolis to testify for that, the response was essentially that this was the purview of the federal government, given the consent decree. “It’s a barrier to offer[ing] more targeted forms of police-community reform,” Grandpre said. “They focus on abstract professional notions in ways that deter the more substantive reforms on the ground.”
The nationwide protests that erupted after Minneapolis police killed George Floyd suggest that his death may have given rise to something relatively new, the equivalent of a viral incident in each individual American city. And in some cities where municipal leaders have supplied the other ingredient researchers identified — signaling their support for broad reforms — police pullbacks appear well under way.
During the protests that followed Floyd’s death, Seattle police withdrew from their precinct house in the Capitol Hill neighborhood, allowing the area to become an “autonomous” zone. In the following days, they were slow to respond to several emergency calls in or near the zone, including a shooting inside the area that left a 19-year-old dead and another injured. (The police attributed their slow response to having been impeded by the zone’s occupiers.) Many officers have also refused to uncover their badge numbers, deterring identification.
McGinn has been observing from the sidelines as the city, now under the leadership of Mayor Jenny Durkan, appears to be experiencing its own version of a silent strike protesting the activists and Durkan, who initially said the autonomous zone had a “block-party atmosphere. There s a lot of evidence that the police today are not fully under control of the mayor. No mayor can admit that, but all evidence seems to suggest that,” McGinn said in July, just before police finally moved to clear the autonomous zone. “They’re engaging in their own version of civil disobedience — showing that they’re the thin blue line and that without them there will be chaos. That’s what they believe and they want to go out there and prove it.”
In New York, the 205 shootings in June were the most for that month in the city since 1996, and shootings are up 72% over the first seven months of the year compared with last year. Police Commissioner Dermot Shea has said that his officers are feeling constrained by a new bill passed by the City Council that makes it a crime to put their knee into someone’s back and are feeling demoralized by a general lack of public support. Regardless of motivations, what is beyond dispute is that arrest rates have fallen sharply in the city since May, while violence has been rising, In the week of May 24, according to The New York Times, there were 113 gun arrests citywide; by early June, the weekly tally was down to 71, and by late June, it was at 22.
“There’s a slowdown without a doubt, and NYPD is allowing it,” the chairman of the City Council’s public safety committee, Donovan Richards, told the Times. “We’ve seen what the NYPD will do when they want to keep record low shootings over the course of the last few years. Every year, we’re breaking this record, we’re breaking this record. There’s not an effort being made at this point.”
New York City police officers at a crime scene in Queens on July 6.
Meanwhile, in Portland, Oregon, where protests over Floyd’s death have lingered longer than in most other cities, 15 people fell victim to homicide in July, the city’s deadliest monthly toll in decades, while police have been fuming over the newly elected district attorney’s decision to dismiss many of the cases against protesters, which has in turn led to reports of disengagement by officers. All told, homicides in the 50 largest cities are up by nearly a quarter over the first half of the year, according to a Wall Street Journal analysis, while many other crimes, including robberies and burglaries, are generally down.
The former Seattle officer predicted that any pullbacks would follow the same template they had in his city. Officers with less than 10 years of experience who still want to engage in proactive policing might move to other departments. “They’re going to leave, because they received the message politically that it’s not being supported,” he said. Officers who have 10 or years or less until retirement will likely stay. Also sticking around will be officers with lengthy records of complaints — “‘internal affairs’ jackets that are too ugly” — because it’s hard for them to get hired elsewhere. Something of the sort appears to be under way in Minneapolis, where 65 officers have already left the department this year, well above the usual attrition rate of about 45 a year, according to the Times, and dozens of other officers on the force of about 850 have taken temporary leave since Floyd’s death and the ensuing protests.
The Seattle officer also predicted that officers who remain will scale back by, for instance, taking longer than necessary to handle a 911 call, just to fill their shift. A Washington, D.C., police officer told me he was already seeing signs of such easing back in his department, which has avoided a viral incident on par with the Floyd and Brooks deaths but has faced criticism for its aggressive response to the recent protests. “I haven’t seen anyone say we’re not going out because of this, but I have seen people take more time,” the D.C. police officer said.
The D.C. officer, like those from Seattle and Baltimore, was quick to underscore how appalled officers were by the video of the death of George Floyd under the knee of the Minneapolis officer Derek Chauvin. “All of my colleagues had a feeling of broken hearts,” he said. “It was a sadness.” What has driven the widespread demoralization among officers, the officers said, was not the public condemnation of Chauvin, but the protests’ focus on police in general as the overwhelming target of their ire.
As many police see it, government and society have failed Black citizens and their neighborhoods on countless levels, and they have left it to the police to reckon with the consequences and then to bear the blame. The blame is especially hard to take, the officers say, when it comes from well-to-do white liberals who have moved to segregated suburbs or kept their kids in heavily white schools, yet are quick to accuse officers of racism. “It’s systemic. But wealthy whites in Northwest [D.C.] see a cop on Fox 5 do something that’s awful and they want to blame the cop and keep it moving and not accept the responsibility that we all have,” the D.C. officer said. “It’s great to Zoom into a City Council hearing and repeat what you heard at your Georgetown class.
Fueling the resentment of such criticism is the perception that some well-off critics are untouched by the high levels of violence in the neighborhoods that the officers spend a lot of their time patrolling. The officers also note that — as James Forman Jr. wrote about in his 2017 book, “Locking Up Our Own: Crime and Punishment in Black America” — many residents of these neighborhoods see more of a need for a greater police presence than some activist rhetoric reflects. “They don’t have a stake in the game,” said the Baltimore officer of the police’s more privileged critics. “Where was the outrage of these people the weekend that 11 people were murdered [in Baltimore]? Instead, people were rioting over the murderous act by this ridiculous asshole,” Chauvin.
The Baltimore officer was among those detailed for the protests over George Floyd, which ended up being far more contained than the Freddie Gray protests five years ago, as well as the recent protests in other cities. Still, he said, it was hard to stand there and absorb the anger and scorn. “It’s demoralizing. After 20 years, it’s soul-crushing. I know I do good in the community. That’s what I do, at great sacrifice to my family and my health. The collateral damage of dealing with horrible, depressing stuff day after day, it adds up,” he said. “People are just so angered, and their anger is directed at us, because we are part of the machine and the system that has oppressed them. To have them screaming ‘All cops are bad; you’re a murderer’ is soul-crushing. I know better, but it just is.”
There is, in fact, a city that seemed to make it through a recent police pullback and the spike of violent crime that followed, and that can provide a model for mayors who want to pursue policing reforms. Fryer and Devi’s research paper cites Chicago’s 2016 homicide surge, alongside Baltimore’s, as an instance in which a police pullback accompanied a sharp rise in violent crime. In Chicago’s case, the pullback followed charges against the officers involved in the killing of Laquan McDonald. The 17-year-old was shot 16 times by police in 2014, but the video of the shooting wasn’t released until a year later. Chicago saw its homicide tally spike from 478 in 2015 to 756 in 2016, an increase nearly as large as that suffered by Baltimore from 2014 to 2015.
But unlike Baltimore, Chicago saw its homicide tally retreat after the spike, with three straight years of declines, down to 482 last year — still one of the highest rates in the country, but 35% lower than in 2016. And the declines were happening as the city was entering into its own federal consent decree stemming from McDonald’s killing.
The city’s current deputy mayor for public safety, Susan Lee, says the improved trajectory could be attributed partly to Eddie Johnson, the police superintendent installed by then-Mayor Rahm Emanuel in April 2016. Johnson grew up in one of the city’s most notorious housing projects and had sufficient credibility with many officers to rally them back to the job at hand. (He was fired late last year after officers found him sleeping in his car after drinking.)
Additionally, a coalition of several dozen local organizations and foundations made a unified investment in violence reduction. “The horrendous spike in murders brought a citywide response that was about embracing [the Police Department] but also about the community stepping up and saying, ‘We need to do more,’” Lee told me.
This success story had a disheartening coda, though. Amid this year’s nationwide rise in violence, Chicago is now experiencing one of the worst increases of all, putting it on pace to near its 2016 total, alongside several high-profile episodes of looting downtown, most recently again on Aug. 10.
Lee cautioned against seeing all apparent police withdrawals through the lens of rank-and-file resentment. In some cases, she said, officers are still operating under the limits imposed by COVID-19 concerns, or are simply weary from protest details, which, along with coronavirus quarantines, have been pulling many of them from their beat. “We’ve had a transition from the closures to reopening ramping up, and there’s a level of uncertainty from that. They’re working 12-hour days for multiple days. There’s a sheer exhaustion factor. All of that would translate into folks saying, ‘Officers are not working as hard.’” The key to making sure that officers were not edging into a more deliberate withdrawal, Lee said, lay with command staff. “It all goes back to supervision and whether those frontline supervisors are holding people accountable for their work product.”
Back in Baltimore, the next person to face the threat of police pulling back from the job they are paid to do is likely going to be Brandon Scott, the 36-year-old City Council president who narrowly won the recent Democratic mayoral primary and is thus nearly guaranteed to win the November general election. Scott, who grew up in one of the city’s most homicide-plagued neighborhoods, watched from his perch as chairman of the council’s public safety committee as the recent pullback occurred and violence filled the void. He told me that he was confident that he would be able to address the threat of withdrawal, should it arise again, partly because of the personal ties he’s built over the years with many in the department. “Leaders lead,” he said. “You have to have leaders that are able to communicate to multiple groups of people, who have relationships with different groups of people. It doesn’t mean they’ll always be happy with everything you do, but they’ll appreciate that you did it in a thoughtful way.”
And what if officers in Baltimore, or elsewhere, still hold back? “Most of these places have failure-to-obey-lawful-duty provisions, and they should follow them,” Scott said. “You signed up to protect people.”
What the Post Office Needs to Survive a Pandemic Election
Fueled by the president’s unfounded claims about rampant mail-in voter fraud, and reports of sorting equipment being removed, the plight of the United States Postal Service has captured America’s attention. Will it collapse? Here’s what you need to know.
For Election Administrators, Death Threats Have Become Part of the Job
In a polarized society, the bureaucrats who operate the machinery of democracy are taking flak from all sides. More than 20 have resigned or retired since March 1, thinning their ranks at a time when they are most needed. Read the story.
What’s Happening with USPS?
After coming under fire for reported mail delays and the removal of mail-sorting machines, Postmaster General Louis DeJoy suspended operational changes at USPS until after the election. Over the weekend, protestors gathered in front of his D.C. and North Carolina homes. (NBC News, DCist, CBS 17)
DeJoy is slated to testify before Congress on Friday after House Speaker Nancy Pelosi called the House back into session to address the USPS crisis. A bipartisan group of secretaries of state are also demanding to meet with DeJoy. (USA Today, Politico, The Hill)
On Wednesday, Pelosi met with DeJoy and released a statement saying that the postmaster general did not intend to reverse changes that already took place, like replacing machines and other infrastructure. “All of these changes directly jeopardize the election and disproportionately threaten to disenfranchise voters in communities of color,” Pelosi said. (Speaker.gov)
Around 90 House Democrats called on the USPS Board of Governors to remove DeJoy as postal worker representatives reported “little to no change” since DeJoy said he’d suspend the agency overhaul. (The Washington Post)
House Democrats introduced legislation that would provide $25 billion to USPS and would mandate same-day processing for mail ballots, though the bill is unlikely to pass the Senate. (Reuters)
A coalition of voting rights groups sued the postmaster general. Washington’s attorney general filed a lawsuit against the USPS along with a dozen other states. Pennsylvania will also file a suit with five other states. (League of Women Voters, AP)
An internal USPS watchdog is investigating DeJoy’s potential conflicts of interest. (CNN)
The Postal Service sent letters to 46 states and the District of Columbia warning that, because of problematic state absentee ballot deadlines, it couldn’t guarantee delivery for all mail ballots in time to be counted in November. (Washington Post)
UPS and FedEx publicly warned that they cannot deliver ballots. (Reuters)
Out of 13 postal districts in Pennsylvania, Michigan, Florida, Wisconsin and North Carolina, four failed to meet on-time service goals for first-class mail between April 1 and June 30, and six districts managed only one. (Wisconsin Watch/APM Reports)
USPS woes are driving some election officials to look for alternatives to sending ballots in the mail, including more dropboxes, drive-thru options, and more in-person voting. (The New York Times, The Washington Post)
In a new rule, the USPS has prohibited employees from signing absentee ballots as witnesses while on duty, which could affect voters in states with witness requirements, particularly in rural areas. (Anchorage Daily News)
A former USPS official told lawmakers that he raised concerns about DeJoy’s hiring and accused the treasury secretary of politicizing the Postal Service. (The New York Times)
Trump’s Latest Takes on Voting
President Donald Trump voted by mail in Florida’s primary on Tuesday, in spite of his constant attacks on mail voting. (Palm Beach Post)
On Monday, Trump raised unfounded concerns about mail ballot drop boxes. (Bloomberg)
On Wednesday, Trump tweeted: “IF YOU CAN PROTEST IN PERSON, YOU CAN VOTE IN PERSON!” The statement used similar language to an August 16 tweet from a far-right activist whom Trump has previously retweeted. (Twitter)
The GOP is promoting mail voting around the country, in spite of Trump’s attacks. Some North Carolina voters have received absentee ballot request forms with Trump’s face on them. Ohio Republicans also sent out a similar mailer with a quote from Trump praising absentee voting. (Politico, WRAL, Henry Gomez)
Facebook’s initiative to register voters got off to a slow and bumpy start after the Trump campaign falsely claimed it was intended to help Joe Biden. (Tech Transparency Project)
Mail Voting News
One of the most common problems that disqualifies mail ballots is the lack of a postmark, and states are trying to clarify their rules before November. (NPR)
California, Massachusetts and New Mexico are setting up new methods to let voters track their mail ballots. (ABC 7, MassLive, AP)
North Carolina Democrats have requested more than triple the number of absentee ballots as Republicans, per the latest data. (Michael McDonald)
Michigan’s secretary of state will send postcards encouraging voters to request absentee ballots online. (MLive)
Connecticut’s secretary of state encouraged voters to put their completed absentee ballots in drop boxes rather than the mail, since the boxes will be available in every town. (Hartford Courant)
Some officials in Maryland and Virginia are expanding the number of mail ballot drop boxes given the USPS crisis. (Washington Post)
In response to a lawsuit, Maine will provide an accessible way for visually impaired voters to cast an absentee ballot. (Bangor Daily News)
Michael Cornfield, associate professor of political management at George Washington University, on mail voting: “There’s a surge coming. It’s like a hurricane, and it’s time to lay the sandbags. The next few weeks are the time that can really make a difference between massive multistate problems and manageable problems.” (Denver Post)
Voting in a Pandemic
The House Subcommittee on the Coronavirus Crisis sent letters to election administrators in Florida, Georgia, Texas and Wisconsin asking about plans for in-person voting, recruiting poll workers and expanding mail voting. (USA Today)
Ahead of Tuesday’s primary, Alaska’s division of elections shut down polling places in six small towns due to a poll worker shortage. (Alaska Public Media)
In Illinois, the Cook County clerk’s office closed twice in one week after two employees tested positive for COVID-19, and in Greene County, the clerk sent the whole staff home after an employee tested positive. In Ohio, the Miami County Board of Elections office closed temporarily after an employee became ill with coronavirus; it has now reopened. (Chicago Tribune, KMOV, Dayton Daily News)
Ohio’s secretary of state said that while the state’s mask mandate includes polling places, the mandate won’t be enforced, concerning some poll workers. (WTRF)
Alabama’s secretary of state said polling places are exempt from the state’s mask mandate, and that no voter would be turned away for not wearing a mask. (Al.com)
Ahead of the presidential election, Nevada’s Clark County plans to reduce the number of polling places from 159 to 125 as officials struggle to find poll workers. Meanwhile, advocates warn that the state’s Native American voters may not be able to access mail voting. (Las Vegas Review Journal, Nevada Current)
Between 30 and 40 million American households may face eviction this year, causing concerns about those voters’ access to the ballot. About a third of renters protected by the federal moratorium on evictions could face homelessness by the end of this month. (VOA News, The Fulcrum)
Voting in Florida
Ex-felons in Florida are still facing a lot of confusion over their eligibility to vote, given ongoing litigation and barriers to paying off fines. (News Service of Florida)
A woman wearing a Black Lives Matter shirt tried to vote at Florida International University in Miami, and a poll worker refused to let her vote unless she changed or turned the shirt inside out. She opted for the latter. (Miami New Times)
In Leon County, a storm set off sprinklers and a fire alarm at a voting site, while a naked mask-wearing man visited another polling site to greet voters. (Tallahassee Democrat)
The Latest on Voting Laws
Indiana: The state’s election commission voted against a proposal to allow no-excuse absentee voting in the fall. (Indianapolis Star)
Kentucky: Voters worried about getting sick will be able to vote absentee in the presidential election, per a plan unveiled by the governor and secretary of state. (Courier Journal)
Louisiana: A House committee approved the secretary of state’s plan for the presidential election that will only allow one group to qualify to vote absentee if they don’t meet the regular requirements: those who have tested positive for COVID-19. The rule could exclude thousands of potential mail voters, and the governor opposes the plan. (WBRZ, The Advocate, The Guardian)
Michigan: The secretary of state urged legislators to change the deadline to allow absentee ballots to be counted. (Michigan Radio)
Nebraska: The secretary of state will send an absentee ballot application to all registered voters. (Siouxland News)
New Jersey: The governor signed an executive order to send absentee ballots to registered voters in the fall. (NJ.com)
New York: The governor signed legislation to expand absentee voting in the fall. (The New York Times)
Ohio: Federal lawmakers sent a letter to the secretary of state to ask him to reverse his decision on limiting ballot drop boxes. The secretary of state will ask the Ohio Controlling Board permission to spend $3 million on return postage for absentee ballots. (Fox8, Columbus Dispatch)
South Carolina: The Senate leader called a special session during which legislators are likely to pass legislation authorizing no-excuse absentee voting for the general election. (The State)
Utah: Legislators are considering a bill that would expand outdoor and drive-thru voting and additional drop boxes for absentee ballots. (Fox13)
National: A group of House Democrats introduced a bill to protect youth voting rights. Two New York legislators unveiled legislation to provide more funding for election security resources. (CNN, The Hill)
Any newsroom can apply to be part of Electionland. We’re looking for newsrooms — especially local newsrooms — that will be dedicating resources to covering voting problems during the 2020 election. Radio, TV, online and print reporters are all encouraged to apply. Sign up here.
Clarification, Aug. 21, 2020: This article was updated to clarify that the Miami County Board of Elections office, which closed temporarily after an employee became ill with coronavirus, has now reopened.
New Engineering Report Finds Privately Built Border Wall Will Fail
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.
It’s not a matter of if a privately built border fence along the shores of the Rio Grande will fail, it’s a matter of when, according to a new engineering report on the troubled project.
The report is one of two new studies set to be filed in federal court this week that found numerous deficiencies in the 3-mile border fence, built this year by North Dakota-based Fisher Sand and Gravel. The reports confirm earlier reporting from ProPublica and The Texas Tribune, which found that segments of the structure were in danger of overturning due to extensive erosion if not fixed and properly maintained. Fisher dismissed the concerns as normal post-construction issues.
Donations that paid for part of the border fence are at the heart of an indictment against members of the We Build the Wall nonprofit, which raised more than $25 million to help President Donald Trump build a border wall.
Former Trump chief strategist Steve Bannon, We Build the Wall founder Brian Kolfage and two others connected to the organization are accused of siphoning donor money to pay off personal debt and fund lavish lifestyles. All four, who face up to 20 years in prison on each of the two counts they face, have pleaded not guilty, and Bannon has called the charges a plot to stop border wall construction.
We Build the Wall, whose executive board is made up of influential immigration hard-liners like Bannon, Kris Kobach and Tom Tancredo, contributed $1.5 million of the cost of the $42 million private border fence project south of Mission, Texas.
Last year, the nonprofit also hired Fisher to build a half-mile fence segment in Sunland Park, New Mexico, outside El Paso.
Company president Tommy Fisher, a frequent guest on Fox News, had called the Rio Grande fence the “Lamborghini” of border walls and bragged that his company’s methods could help Trump reach his Election Day goal of about 500 new miles of barriers along the southern border.
Instead, one engineer who reviewed the two reports on behalf of ProPublica and The Texas Tribune likened Fisher’s fence to a used Toyota Yaris.
“It seems like they are cutting corners everywhere,” said Alex Mayer, a professor of civil engineering at the University of Texas at El Paso. “It’s not a Lamborghini, it’s a $500 used car.”
Since Fisher’s companies embarked on construction of the Rio Grande fence, the Trump administration has awarded about $2 billion in federal contracts to the firms to build segments of the border wall in other locations.
Fisher agreed to the inspection as part of ongoing lawsuits against Fisher Sand and Gravel filed last year by the National Butterfly Center and the International Boundary and Water Commission. They unsuccessfully sought to convince a federal judge to stop the construction of the project until the potential impacts of the wall on the Rio Grande could be determined.
Mark Tompkins, an environmental engineer hired by the wildlife refuge, noted in his report that widespread erosion and scouring occurred after heavy rain events such as Hurricane Hanna in July, but that the fence has yet to experience a flood of the Rio Grande.
“Fisher Industries’ private bollard fence will fail during extreme high flow events,” concluded Tompkins, who specializes in river management.
Fisher Industries has installed a 10-foot-wide road made with rocks to help address erosion issues while allowing access by Border Patrol agents.
Courtesy of Fisher Industries
“When extreme flow events, laden with sediment and debris, completely undermine the foundation of the fence and create a flow path under the fence or cause a segment of the fence to topple into the river, unpredictable and damaging hydraulics will occur,” he added in an affidavit to be filed in court.
Experts have said the fence will face a never-ending battle with erosion given its proximity to the water and the sandy, silty material of the banks. In the Rio Grande Valley, the federal government usually builds sections of the wall miles inland on top of existing levees, partly due to erosion concerns.
A second report, based on a geotechnical and structural inspection by the Millennium Engineers Group of Pharr, Texas, also hired by the National Butterfly Center, found that the fence was stable for now, but that it faces a host of issues. They include soil erosion on the river side — in some areas gaps up to three feet wide and waist deep, concrete cracking, construction flaws and what the firm concluded was likely substandard construction material below the fence’s foundation.
The Millennium engineers called for a clay covering to protect the embankment from erosion, as well as closely monitoring the project.
Its conclusion: “The geography at the wall’s construction location in comparison to the river bend is not at a favorable location for long-term performance.”
According to a copy of an operation and maintenance plan, Fisher Sand and Gravel plans quarterly inspections of the fence as well as extra checkups after large storms. The company had also said it would plant grasses that better hold in place the sandy riverbank and add a layer of rocks to lessen erosion. New soil will also be “treated and seeded” to help fill ground cover.
Tompkins called the maintenance plan “completely inadequate” and a “haphazard and unprofessional approach to long-term maintenance.”
Tommy Fisher said Tuesday that he couldn’t comment on the reports because he hadn’t reviewed them. But he added that his company has fixed all of the erosion, in part by adding a 10-foot-wide road made out of rocks for the Border Patrol to drive over that his crew considered big enough so it wouldn’t be as easily displaced. He estimates it will cost up to $150,000.
“Bottom line, if you want border security on the border you have to think outside the box,” he said. “I feel very comfortable with what we’ve done.”
In July, Fisher appeared on a podcast hosted by Bannon, who called Fisher “kind of a mentor” who “taught me really about how you actually have to build a wall.”
Asked about the engineering concerns, which Bannon said were part of a “hit piece,” Fisher called them “absolutely nonsense.”
“I would invite any of these engineers that so-called said this was gonna fall over, I’ll meet ‘em there next week. … If you don’t know what you’re talking about, you probably shouldn’t start talking,” he said. “It’s working unbelievably well. There’s a little erosion maintenance we have to maintain.”
But to experts, Fisher’s planned fixes are inadequate.
“To me, it’s almost like putting a Band-Aid on a gaping wound,” said Adriana E. Martinez, a Southern Illinois University Edwardsville professor and geomorphologist who reviewed the reports on behalf of ProPublica and The Texas Tribune.
Officials with the International Boundary Commission have said that they too have found “significant erosion,” but spokeswoman Sally Spener said she couldn’t elaborate on that or on mitigation plans due to pending litigation. The binational body regulates building in the floodplain between the U.S. and Mexico because structures can worsen flooding and alter the course of the river, potentially violating international water treaties.
The Mexican section of the commission has said it worries the wall could obstruct the river’s flow or be knocked down by the force of the water, according to Spener.
Trump tried to distance himself from the private fence after the ProPublica/Tribune stories, saying that he had never agreed with it and that it had been done to make him look bad. He again distanced himself from the project and We Build the Wall after the charges against Bannon and the others.
“When I read about it, I didn’t like it,” he said. “It was showboating and maybe looking for funds. But you’ll have to see what happens.”
Last November, We Build the Wall representatives met with Customs and Border Protection officials about donating the group’s first border wall project — a half-mile fence in Sunland Park, New Mexico, just outside El Paso. According to a memo obtained by The Nation, CBP called it an “overall positive meet and greet.”
But the federal agency identified several areas of concern with the Sunland Park project, including the possibility that it would require an environmental assessment, but also the fact that Fisher Industries had inflated the speed with which it could complete the project.
“Their performance on this small project shows that some claims may have been inflated due to lack of experience with this type of work,” the memo states.
Fisher has said he wants to donate the Rio Grande fence to the federal government as well, although it’s unclear whether the government will take it. The fence likely will come with a hefty tax bill if not donated, after Hidalgo County recently appraised the land’s value at more than $20 million, which Fisher said his company will fight.
The next court hearing regarding the pending federal lawsuits is scheduled for Sept. 10.
Trump Administration Is Predicting a Drastic Drop in Demand for U.S. Visas for Years to Come
The Trump administration is predicting years of dramatically reduced international demand for U.S. visas, and planning for drastic budget cuts to visa services worldwide as a result, according to an internal memo seen by ProPublica.
The projections made by the U.S. State Department in a memo signed by Secretary of State Mike Pompeo on Monday contrast with the rosier outlook expressed repeatedly by President Donald Trump. As recently as Aug. 5, Trump predicted that the coronavirus “will go away” and that a vaccine will be available before the end of the year. But internally, the memo shows, the government is planning for the pandemic to drastically reduce international travel to the U.S. through at least 2022.
The memo projects steep reductions, in particular, to non-immigrant visas. Trump has issued restrictions on some categories of non-immigrant visas, citing the economic impacts of the pandemic, but the majority of non-immigrant visas processed by the State Department are temporary visas for business travel and tourism.
The memo outlines several ways the agency is cutting costs, including expanding a hiring freeze, which it acknowledges will affect consulates’ ability to process visa applications.
A State Department spokesman, Noel Clay, declined to comment on internal communications.
Fees collected to process visa applications from people hoping to visit or move to the United States, as well as passport application fees paid by U.S. citizens, bring in around $3.5 billion a year to the State Department. Those fees pay for U.S. consular operations worldwide. The near-total halt to visa and passport services will drive that down by $1.4 billion this year, senior State Department official Ian Brownlee told a congressional committee last month.
International travel collapsed this spring as the coronavirus spread. The number of people going through security checkpoints run by the Transportation Security Administration fell by 95% on some days in April, compared with the prior year, according to TSA data. Many consulates around the world were shut down entirely for much of the spring and summer, or closed for all but emergency appointments. Between the operations shutdown and the collapse in demand, visa approvals plummeted from over 670,000 in January to around 45,000 in April (with similar numbers in May and June, the last month for which the State Department has statistics available).
At the same time, vast differences between Democrats, Republicans and the White House over the scale and scope of new coronavirus relief funding have dimmed hopes for any additional aid to make up for the massive disruptions caused by the coronavirus. That affects both the State Department’s projections of future demand and its prospects for direct aid from Congress to make up the shortfall.
“International travel has become a shadow of what it was even a few short months ago,” said the State Department memo, also known as a cable. “We anticipate having to make very difficult trade-offs in the face of reduced revenue.”
State Department officials predict an 82% drop in visa applications in 2021 compared with 2018, according to data provided in the cable. Even into 2022, the administration is preparing for 2.6 million applications, around 22% of the over 12 million applications made two years ago.
The administration is responding in part by freezing the consular hiring of diplomats’ family members, the memo said, in addition to a freeze on the hiring of local staff, which it implemented in March. Family-member employment by embassies and consulates is a popular program that often provides the only available work options for the spouses of diplomats, depending on the country they are assigned to.
“If you’re telling officers, your spouse no longer has a job opportunity, I think it really just hurts morale,” said Chris Richardson, a former U.S. consular officer who is now an immigration lawyer.
The cable asked consulates to find cost savings at their posts, and it said the State Department is cutting back on greeters, reducing call center hours and closing sites in Mexico, Brazil and Colombia that collect biometric data from applicants.
The State Department memo acknowledges that the family-member hiring freeze “will likely have an impact on posts’ processing capacity.”
A similar crisis is affecting U.S. Citizenship and Immigration Services, under the Department of Homeland Security, where three-quarters of the workforce face a furlough if Congress cannot make up a $1.2 billion shortfall by the end of August.
“Across the immigration system, cuts are a pressing problem,” said Sarah Pierce, a policy analyst at the nonpartisan Migration Policy Institute. “At some future date when demand for immigration increases, our system will be woefully inadequate to meet it. This was already true for refugee resettlement and USCIS, and now the State Department.”
At both USCIS and the State Department, fee revenues are down due to a combination of Trump administration restrictions on immigration and travel, and the drop in demand caused by the pandemic. It is unclear what assumptions the State Department is making in its estimates, however — and it’s possible that lifting or reversing restrictive Trump policies could result in higher application levels and higher revenues.
Even before the pandemic hit, the number of applications for non-immigrant visas fell nearly 4% between 2018 and 2019, according to figures provided in the cable.
“To me it feels very much like a continuation of the current atmosphere, where they anticipate there will be bans,” Richardson said. “They anticipate all of Trump’s immigration regulations to remain in effect.”
The existing U.S. visa system is antiquated, slow and shuts out thousands of tourists, workers and students each year, argued Bethany Milton, a former U.S. foreign service officer, in a recent opinion piece. She called for the successor to the Trump administration to take advantage of the pause in international travel to create a “modernized and equitable visa process.”
The drastic decline the State Department is projecting is only possible if demand for international business travel and tourism to the U.S. remains severely depressed for the next two years, above and beyond any restrictions imposed by the administration.
An executive proclamation signed by Trump in late May barred people from coming to the U.S. on certain temporary work visas through the end of 2020. The categories of visas most affected made up around 10% of all visa approvals under pre-pandemic conditions, according to a ProPublica analysis of State Department data. Tourist visas, for personal travel, business travel or both, make up over 60%.
Those visas aren’t directly affected by presidential policies. But demand for them will likely remain low as long as the U.S. fails to contain the coronavirus. Many countries require people to self-quarantine upon return from the U.S.
In March, Congress gave the State Department an extra $588 million ($264 million in an initial emergency spending package and $324 million in the CARES Act) to pay for coronavirus-related “diplomatic programs” expenses, including maintaining consular operations. But that is far too little to make up for the near-shutdown in visa applications. The extra money was also supposed to pay for evacuations and emergency preparedness.
In fact, the cable obtained by ProPublica explicitly warns employees not to dip into the “diplomatic programs” fund in order to cover shortfalls in the Consular and Border Security Programs account where they anticipate the shortfall to be greatest.
A Senate Democratic aide said on condition of anonymity that congressional officials for months had raised concerns with State Department leadership about the impending budget crunch. Until recently, the agency’s top officials were “oblivious or not caring.” Legislators hoped to include provisions in the next stimulus bill to address and alleviate the shortfalls, the aide said.
But negotiations over a new round of stimulus have fallen apart in recent weeks, and the prospects for any further relief look dim.
“I’m not sure anyone should go to the bank right now on anything that might happen soon from the Hill,” the aide said.
There’s at least one task, though, that the memo’s authors don’t want consulates to cut back on entirely. The memo instructs consulates to continue travel to investigate “urgent cases” of potential immigration fraud.
Guards in an immigrant detention center in El Paso sexually assaulted and harassed inmates in a “pattern and practice” of abuse, according to a complaint filed by a Texas advocacy group urging the local district attorney and federal prosecutors to conduct a criminal investigation.
The allegations, detailed in a filing first obtained by ProPublica and The Texas Tribune, maintain that guards systematically assaulted at least three people in a facility overseen by Immigration and Customs Enforcement — often in areas of the detention center not visible to security cameras. The guards told victims that no one would believe them because footage did not exist and the harassment involved officers as high-ranking as a lieutenant.
According to the complaint filed with the Department of Homeland Security’s Office of Inspector General and shared with prosecutors, several guards “forcibly” kissed and touched the intimate parts of at least one woman. She faces deportation next week — meaning investigators could lose a key witness. Her attorneys have requested that immigration officials pause her deportation pending a review of the matter.
The woman said in a telephone interview that she would rather return to Mexico, even though she is in danger there. She said she worried about being targeted in the detention center for speaking up about the abuse.
“It’s going to get worse now,” she said. “I can’t handle this anymore.”
Since the complaint was filed Wednesday, two more women, including one who is currently detained in the El Paso facility and one who was previously held there, have come forward with abuse allegations. At least one other woman was deported after a guard assaulted her, detainees told lawyers.
An El Paso County District Attorney’s Office spokesperson said that the agency had forwarded “potentially criminal allegations” to the DHS’ Office of Inspector General, which did not respond to emails seeking comment. A spokesperson for the U.S. Attorney’s Office for the Western District of Texas said that it had received the complaint and takes allegations of “misconduct by public officials extremely seriously.”
A spokesperson for ICE wrote in an email that the agency was aware of the accusations and that they would be investigated, including by its Office of Professional Responsibility. A 2003 law intended to protect against such abuses sets stringent standards for detention facilities.
ICE has “zero tolerance for any form of sexual abuse or assault against individuals in the agency’s custody and takes very seriously all allegations of employee misconduct,” the spokesperson wrote. “When substantiated, appropriate action is taken.”
A spokesperson for Global Precision Systems, a subsidiary of Bering Straits Native Corporation, which contracts with ICE to run the El Paso facility, wrote in an email that she could not comment on pending legal matters.
The El Paso allegations are the latest instance of sexual abuse complaints related to detention centers run by ICE, which imprisons about 50,000 immigrants across the country each year — mostly through contractors at a taxpayer expense of almost $2.7 billion.
About 14,700 complaints alleging sexual and physical abuse were lodged against ICE between 2010 and 2016, according to federal data obtained by the advocacy group Freedom for Immigrants. The group found that only a small fraction were investigated by the Office of Inspector General.
In 2018, the most updated statistics available online, ICE reported 374 formal accusations of sexual assault, of which 48 were substantiated by the agency and 29 remained pending an investigation as of that year.
Most recently, in a May federal court filing in Houston, a Mexican woman said that she was in an ICE facility there in 2018 when she and two female detainees were moved to an isolated cell. Around midnight, three men wearing facial coverings entered the cell. They raped and beat them, according to the complaint. The immigrants were bused to Mexico hours later, where the woman eventually discovered she was pregnant from the assault.
A spokesperson for the company overseeing that detention center, CoreCivic, denied the allegations, calling them “slanderous.” The woman’s attorney, Michelle Simpson Tuegel, said the pregnancy aligns with the woman’s stay in ICE detention. The civil lawsuit is ongoing.
The El Paso accusations that are the subject of this latest complaint to authorities came to light when one of the women, a 32-year-old Salvadoran, was released because of a medical condition and told an attorney that she feared for the detainees still there.
“She was that disturbed by what was happening,” said Linda Corchado, director of legal services for Las Americas Immigrant Advocacy Center, who filed the complaint. “It’s awful to think how disposable these women are.”
She said they are especially vulnerable because many will probably be deported, making it more unlikely that their abusers face consequences.
The Salvadoran woman told Corchado that she was detained in the El Paso facility for about three months where she was repeatedly harassed. A guard said that if she would “fool around” with him he would give her clean uniforms and soap. He told her that he would pay her “a lot of money” to meet him for sex in a spot not visible to cameras.
Two other officers also repeatedly targeted her, according to the complaint. One sent her messages through other women even after she was released.
She said in a telephone interview that guards encouraged women to sign up for anti-anxiety medication and antidepressants because they oversee the dispensing of medication at night and have access to an enclosed off-camera area.
“Most women who are still there are scared of saying anything,” she said. “You don’t know what they can do.”
A male detainee, a legal permanent resident convicted of money laundering, said that an officer in the detention center stared at him while rubbing his genitals as he showered in July, according to the complaint. After he reported the incident to a captain, the detainee was placed in solitary confinement. He began a hunger strike and was transferred to another ICE facility. Lawyers said that he speaks English and is better able to advocate for himself than most of the female victims, who speak only Spanish.
The woman who remains in the El Paso detention center and is set to be deported is a 35-year-old mother from Mexico who was charged with a drug-related crime and illegally entering the country.
During her 11 months in the ICE facility, she told lawyers that two guards assaulted her. In November, an officer touched her private areas and kissed her while she was in an area not visible to cameras. The assault happened as she was walking back from the medical unit to her barrack.
Days later, the guard did so again.
“If she behaved,” he told her, according to the filing, “he would help her be released.”
He stared at her through a window while she used the bathroom.
When she complained to a captain, she said he dismissed her. She said she did not see that officer for several months but that he later returned, becoming “increasingly aggressive and intimidating.”
“She has lived in constant panic that he may do something against her again,” according to the document.
The woman said another officer also assaulted her at least twice in a camera “blind spot,” touching and kissing her. These attacks also happened when she was returning from the medical unit to her cell.
A lieutenant passed messages through her to other detained women.
If she reported them, an officer warned, “No one would believe her.”