UHND.com - Notre Dame Football, Basketball, & Recruiting

Came across my Facebook feed:

Here's my 24-hour-later analysis. I've listened to ,the arguments. I've watched as much video as I can. I've reread case law.

I believe the shooting was technically justified legally (like 50.5%, just over 50-50), but barely, and there is enough there to rule it as such. But it's a very close call, and I see why people are upset about it. I don't like this shooting. This is a preliminary analysis.

It's an ugly, messy shooting. Anyone pretending that this is a clean, clear-cut and obviously justified shooting - including the Trump administration - is being extremely disingenuous, if not outright spinning you. The people on the other side, who claim this is a clear-cut execution, implying ill-intent, are also being very disingenuous, if not outright spinning you. This one falls somewhere in the middle, and the answer likely lies within the fog of war and inside a scrum that we can't all completely see.

I also stipulate that we don't know everything the system does; we don't even know what the officer's statement says. I reserve the right to change my opinion based on new information. Some (such as Minnesota Gun Owners Law Center president Rob Doar) argue Pretti’s gun may have accidentally discharged when the agent in the gray jacket took it. This is unproven. If ever proven true, that would make it clear-cut justified force. But that’s not proven.

The analysis

Let's start with the law. “The 'reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. ... The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation."

— Graham v. Connor

Officers have a right to use deadly force if they reasonably believe they or another person is in imminent danger of great bodily harm or death. That's the standard. They don't have to be right; just reasonable (and that will be very important here.)

Start there. This officer did not have the benefit of analyzing every single angle in slow-motion. What we are seeing now is NOT what he saw. He had a split-second to react. That's important. We also can't see exactly what he saw, which is also important. We aren't seeing his POV. The people recording videos weren't. We are seeing the struggle from the side; he had a different view. And that matters, because it's what he saw - or thought he saw -- that is determinative here. That's the big black hole in all of these analyses. We haven't yet heard from him.

How it unfolded

Pretti was armed. That's not illegal. He had a permit, and he had a right to have the gun. The Trump administration's comments on the firearm, that possessing the handgun indicates Pretti was a threat to "massacre" people or whatever, etc., are extremely inappropriate. I am sick and tired of the Trump administration giving out information that doesn't quite match the truth. I think it is hurting their cause. Their over-the-top rhetoric implies this is obvious justified force. That's bulls*t, sorry.

They've done this too much. I get why. They are living in an exceptionally compressed news cycle. The "other side" (Walz, Frey, etc.) are just as quick to release insane and reckless statements in the other direction and have. They are dealing with a media that is predisposed against them and law enforcement. They are fighting for the narrative. They are trying to go very hard at the false narratives on the front end before they set. I get this, but I think they are rhetorically taking it too far.

I personally wouldn't bring a firearm to an agitated and tense scene, but I know others who would for that very reason (self-protection). Thus, so far, Pretti has done nothing wrong in this sequence of events.

I don't agree with WHY he was protesting. I personally wouldn't protest law enforcement agents who were trying to arrest an illegal immigrant wanted for assault (as they were that day). But I stipulate he had a right to protest. Let's not sanitize what they are protesting, though.

He started out peacefully. He was recording the agents with his cell phone. He had a right to do that. It's a free country.

Alex Pretti's poor decisions

Pretti's first poor decision, though, came when he entered the street as two women were trying to record an agent near his car. This behavior has been happening all over Minneapolis, and it's now led to two deaths. The Minneapolis police have failed to secure the streets and to protect the agents as they attempt to conduct law enforcement operations. He should have stayed on the sidewalk and out of their way. The women should have, also. He took a step here that helped escalate the situation. You don't have a right to "protest" in the middle of the street.

Totality of the circumstances

The Supreme Court ruled UNANIMOUSLY in May that the totality of circumstances must be considered. The case is Barnes v. Felix, and I believe it's important here.

"An excessive force claim under the Fourth Amendment must be evaluated based on the totality of the circumstances, not solely the moment an officer perceives a threat. Justice Elena Kagan authored the unanimous opinion of the Court, which vacated and remanded the Fifth Circuit’s ruling that had applied a narrower 'moment-of-threat' analysis."

"The Fourth Amendment’s objective reasonableness standard requires a fact-specific, contextual examination of all relevant circumstances leading up to a law enforcement officer’s use of force. While the moment the officer fires a weapon may often carry significant weight, events occurring before that instant, such as the initiation of a stop or earlier conduct by the parties, may affect how a reasonable officer would have perceived the situation. Prior actions by either the officer or suspect may clarify ambiguous behaviors or shift how threatening a situation reasonably appeared, making a strict focus on only the climactic moment inconsistent with established Fourth Amendment jurisprudence."

This decision helps the firing agent, in my opinion, and it's a key reason that I tilt (barely) toward justified force. There are elements that go against it; in the totality of the circumstances, up to this point, Alex Pretti was just recording (which was his right), he wasn't threatening anyone with the firearm (or even wielding it), and he didn't "attack" officers.

However, federal agents (and these were Border Patrol, not ICE) have been harassed, threatened, harangued, and attacked as a group day in and day out for weeks now. One was attacked by a shovel and broom.

Armchair quarterbacks have NO IDEA the extreme level of abuse these officers are facing all day every day. I am not saying that justifies lethal force in and of itself; I'm told that all cops know to guard against any such instinct.

However, it's relevant to the totality of the circumstances. The media are all painting Alex Pretti as a lovely man who worked as a kindly nurse and loved his dog; fine. But the officers didn't have any way to know that on the scene, and, at this point, they have to perceive that everyone could be a potential threat when it comes to these agitated scenes. I also think they are just done with people impeding their operations, getting in the middle of the street and blowing whistles in their faces, while they try to arrest illegal immigrant child molesters (and, in this case, one with an assault history). That leads me to the next actions.

Escalation by the agents

An agent did escalate things by pushing a woman back off the side of the street, and then when Pretti intervened, pepper-spraying and pushing him. I question whether the pushing was necessary, but I do judge it based on the above totality of the circumstances. I think that agent was trying to get them out of the street. But I think that was an escalating action that could have been avoided. That being said, pepper-spraying someone doesn't give them a right to struggle with cops; it's a de-escalation technique that is far down on the use-of-force continuum.

You have to consider that the agents were involved in other tense and agitated situations a short time before ON THE SAME DAY down the street and had already detained another person. They were trying to clear the street and push the protesters back and out of it before things got more chaotic and out of control. It's street control and crowd control basically. It looks ugly on video.

None of this would have happened if the Minneapolis police were protecting the agents and securing the streets when they do operations, as noted. That they have not done so is unconscionable. And it's leading to deaths. Both deaths have occurred when protesters essentially got in the way of law enforcement operations, leading to agitated and gray-area encounters. This is on Frey, O'Hara and Walz. Walz should have activated the National Guard much sooner.

These agents are left to fend for themselves against hostile crowds who are trying to impede their actions every step of the way. I think the push back and the pepper spray were an attempt to keep control of the scene before it spun out of control. It seems like a bit of a premature overreaction, though, as they weren't surrounded by hundreds of encroaching people or something. But you have to understand that instinct within the context of the abuse these officers have been taking, and the other scenes they've been in that have spun very quickly out of control, imperiling their safety.

Officers and citizens fighting in the streets - in the words of Frey - whatever could go wrong? Lots.

For people to say Pretti had a right to struggle with agents because he was pepper sprayed is an insane take. Pepper spray means back off.

If officers tell you to back off, back off.

But he didn't.

Was he "helping a woman"?

Pretti inserted himself into a situation where he didn't belong, helping escalate it. He should have stayed on the sidewalk, and there wouldn't have been a problem. To pretend these are just protests is ridiculous. Some people are peacefully protesting, but when you impede law enforcement, struggle with them, or generally commit crimes, you are, minimally, an agitator, not a protester.

Pretti then went over to the woman who fell, and there was another chaotic moment. The left is trying, as always, to read this moment as negatively for the agents as possible. They say Pretti was "trying to help the woman." Was he? Maybe.

But it's hard to tell what he was doing from the video. Some people think he was trying to get her water bottle due to the pepper spraying. On video, it looks like the beginning of a chaotic scrum. Whatever he was doing, he went physically hands-on the woman. And the agent, distracted by the need to control the rest of the scene, sees them on the ground chaotically struggling or rolling around. He sees Pretti making physical contact with her. He wasn't calmly helping her. They were stumbling or rolling around.

Pretti should have backed off. At this point, the agents appear to be pulling Pretti off the woman. They drag him away from her. I don't find this to be inappropriate behavior. They probably thought they were protecting the woman or, alternatively, just trying to restore order in the streets. You can't have people rolling around the streets. Remember again that they were there to arrest an illegal immigrant with an assaultive history. Every second people are rolling around with them in the streets, that person could be getting away.

The main struggle

That's when the struggle started. It's possible Pretti didn't have a chance to extricate himself from the struggle. I get that. But he also appears to have engaged in it. He is now struggling with agents while armed. This is an exceptionally dangerous decision.

More than an intentionally reckless choice, it appears to be the predictable result of a cascading scene of chaos that just kept getting more chaotic. And this all happened in seconds.

But he is struggling with the agents while armed.

Now comes the critical juncture. He had his cell phone in one hand. It doesn't appear he withdrew his gun. That hurts the agent's case.

Disarming Pretti

The officer in the gray jacket appears to have disarmed Pretti. He comes into the scrum and removes the g*n from Pretti's waistband. I think that's clear. So, yes, Pretti was unarmed when the officer fired. That hurts the agent's case. That makes this ugly and messy.

The agents seemed surprised. They were looking for the gun later. But that helps his case, because other agents weren't aware that gray jacket man got it either, apparently. Another agent also drew his firearm, indicating more than one perceived a threat.

The critical moment

At the critical moment, you can see the firing agent pause and then fire. That motion indicates he saw something, paused to make sure what he was seeing, and then was concerned enough to fire. What did he see? The gray jacket man had the gun.

That's unclear. We don't know HIS version of events. Always remember that the system has evidence and information (and possibly more video) that we haven't seen. That can change things.

Here's where the legal analysis comes in. The agent doesn't have to be right under the law. He just needs to be reasonable, as assessed by what other officers would perceive as reasonable, juxtaposed against the totality of the circumstances. It's worth repeating that here.

If he thought Pretti had a gun or was drawing a gun, that makes this a likely justified shooting. Because we can't see what he saw, there is no way to know that for sure. But screenshots make it look like Pretti either had something in his hand or something fell nearby (maybe a magazine, gear from an agent?) Some people online believe he was reaching for his holster, but others don't. People see what they want to see in the videos, but all that matters is what the officer saw, and he was at a different angle. I think it's likely that he thought Pretti had a gun or was reaching for a gun. I think it's likely that he believed that, if he waited, Pretti might use that gun on his partners.

I think this belief was wrong. But the law doesn't mandate that it be correct, just reasonable.

To me this is a very close call, but what gets me over the edge to the side of the agent is the totality of the circumstances of what they're dealing with overall and also one key piece of evidence. According to even CNN, an agent shouted, "he's got a gun" right before the agent fired. I suspect that this utterance combined by some movement by Pretti in the scrum led the officer to believe his partners were in imminent danger. It’s important to hear the agent’s side. It could change my stance, which is preliminary.

If you watch the video closely, I doubt that the agent knew that the gray jacket man had already disarmed Pretti. The disarming and firing happened very close together (we're talking a second), and the agent was not looking in that direction and appeared focused on drawing his own gun, tunnel vision, etc. I also think it's possible that PRETTI didn't realize that he had been disarmed. Did the officer think his cell phone was the gun? Did he see the gun being pulled from his waistband by the gray jacket officer and mistakenly think Pretti had drawn it? Did Pretti make a motion. This was a CHAOTIC scrum, and it happened in seconds. The number of shots is usually not legally relevant when they are so tightly bunched together due to adrenaline and muscle memory.

I am unclear what fell in the video.

That's fog of war stuff, and the law accounts for it, but it is NEVER pretty. Years ago, in Milwaukee, an officer shot a man who was holding a small black cassette tape. He mistakenly thought it was a gun. He was exonerated.

I don't like it, though. I question why he couldn't just grab Pretti from behind and pull him away. I question why that many officers couldn't get control of one struggling guy without taking his life. Alex Pretti doesn't get his life back. That is a really big deal.

I think this shooting is dicier than the Good case (she hit the officer with her car). I am concerned that the agents have taken so much abuse that they are now too quick to react or to escalate things themselves. They have been placed in an impossible situation, and, again, that is the fault of the Democratic and police leadership in Minneapolis, which is not protecting them or controlling the streets during their operations.

I think a truly independent investigation may be warranted.

It's a mess. Let's not pretend it isn't one.

When there's a tie in these cases, I give it to the person who was there to uphold the laws during endless scenes of agitation and lawbreaking.

These officers don't wake up in the morning wanting to take a life. That matters. They want to go home at night. They are working under incredible, almost combat-like circumstances, completely abandoned by the leadership and Police Department of the city they're operating in.

This officer didn't intend to "murder" Alex Pretti, and any rhetoric to that regard is extremely unfair and agitating. Politicians, including the Wisconsin gubernatorial Democratic candidates and the mayor of Milwaukee, have released inciting, unhelpful statements, rather than responsible analyses. Writing things like he was killed on his knees, he was "murdered," etc., is not a helpful response from leaders.

The law requires an assessment of the totality of the circumstances, and that is what I have tried to do here. These situations are ALL case specific.

Final conclusion

I don't like this shooting. I wish this had not happened. I think the officers escalated the situation in some ways. I think Alex Pretti made some bad decisions. I think Democratic and police leadership are not protecting officers OR protestors/agitators. I think this is a close call. I think it's a messy, ugly, gray-area, fog-of-war, shooting.

But that's where I come down. I lean toward there being enough there to not justify sending this officer to prison, basically. But it's a slim margin.

I am writing all of this because you won't get this take in many other places, and someone needs to say it. I recognize some reasonable people will come down on the other side, and I get how they get there. I just don't respect the people whose argumentation revolves around sending me death threats (we have gotten multiple), calling people N*zis, arguing that immigration laws should not be enforced even against criminals ("get out of Minnesota"), or smearing all law enforcement. Fundamentally, I believe what is happening in Minnesota is about preserving and upholding the rule of law, but these situations are not helping. And I am fairly shocked an officer would be this quick to shoot, knowing what would result. No officer wants to be in this position. Frankly, this situation is every officer's worst nightmare.

The way forward

I have also proposed a solution in a previous post, so I will end on that. I think BOTH sides should stop the incendiary rhetoric and sit down at a table. They should agree (Trump, Noem, Bovino, Walz, Ellison, and Frey) on a joint plan to focus on the illegal immigrants who committed crimes (felonies, misdemeanors and OWIS).

The state should agree to honor all detainers in jails and to allow ICE in courthouses and to help them identify such. Those are safer environments. For the operations on the street, the Minneapolis police and/or National Guard should protect the agents and control the streets. Worry about the rest later. Both sides should agree to stop the incendiary rhetoric.