ANOTHER SHOOTING IN MINNEAPOLIS—THE FIRST AND SECOND AMENDMENTS ARE AT THE FOREFRONT
INTRODUCTION AND LEGAL BACKGROUND
I write this as a former Captain in the Norfolk Sheriff’s Office and trained and certified in the law and use of deadly force. I wrote the Use of Force policy for our department, which is in line with the requirements of law as well as the policies of most certified agencies in Virginia and other agencies nationally. Law enforcement officers are trained in a continuum of force. From the use of a command voice to the taser or spray, baton, and as a last resort, deadly force, whether by firearm or other means, the circumstances dictate the response if any force is indicated. Escalation into different stages of this continuum depends on the circumstances confronting the officer. The circumstances of any encounter are viewed through the eyes of the “reasonable” officer at that time and place. According to the Supreme Court, however, “reasonableness” necessarily involves an overall objective inquiry based upon all the circumstances. The officer’s statements alone as to what he believed are not conclusive. Both the criminal law and the civil law require more. The Supreme Court in Graham v. Connor, 490 U.S. 386 (1989), framed the legal standard to be applied in any use of force scenario:
The “reasonableness” inquiry in an excessive force case is an objective one: the question is whether the officers’ actions are “objectively reasonable” in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” See Scott v. United States, 436 U. S. 128, 137-139 (1978); (in analyzing the reasonableness of a particular search or seizure, “it is imperative that the facts be judged against an objective standard”). An officer’s evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force; nor will an officer’s good intentions make an objectively unreasonable use of force constitutional., citing United States v. Robinson, 414 U. S. 218 (1973). Likewise, it is well settled that use of deadly force to prevent the escape of all felony suspects is constitutionally unreasonable. Tennessee v. Garner, 471 U.S. 1, 11, 105 S.Ct. 1694, 1701, 85 L.Ed.2d 1 (1985). When the suspect poses no immediate threat to the officer or others, “the harm resulting from failing to apprehend him does not justify the use of deadly force.” Police officers are authorized to use deadly force only to protect police or another from apparent death or great bodily harm. Deadly force is also justified to arrest a person a police officer reasonably believes has committed or is about to commit a felony involving the use of deadly force.
All these constitutional and common law-based principles are incorporated in the Customs and Border Patrol Policies and Procedures applicable to the ICE and CBP agents in Minneapolis.
“Chapter 2: Use of Deadly Force
- A. General Guidelines and Responsibilities
- 1. Deadly force is force likely to cause serious bodily injury or death of a person.
- 2. Authorized Officers/Agents may use deadly force only when necessary; that is, when the officer/agent has a reasonable belief that the subject of such force poses an imminent danger of serious bodily injury or death to the officer/agent or to another person.Serious Bodily Injury—Physical injury that involves protracted and obvious disfigurement; protracted loss or impairment of the function of a bodily member, organ, or mental faculty; or a substantial risk of death.
- 3. Discharging a firearm at a person shall be done only with the intent of stopping that person from continuing the threatening behavior that justifies the use of deadly force.”
The deceased, Alex Pretti was, according to Minneapolis Police, lawfully permitted to carry the Sig Sauer P320 firearm and magazines. He was permitted to carry it only for lawful purposes. The Second Amendment does not look to the politics of the citizen, and barring any disqualifying factors such as a criminal record or age, a citizen has the right to bear arms. We do not know what his intentions were, and we will never know unless other evidence establishes it. He was lawfully permitted to film and protest pursuant to the First Amendment. He was not lawfully permitted to obstruct or interfere with federal agents performing lawful functions. I question the wisdom of carrying a loaded (condition one—round in the chamber) firearm into such a situation wherein federal agents, on edge and under threat daily, are on heightened alert and you are predisposed to confront them as he was. This is not dispositive of the issue, however.
THERE ARE SERIOUS QUESTIONS REGARDING THIS USE OF DEADLY FORCE THAT REQUIRE A FULL INVESTIGATION
We again have a backdrop of what has become routine—federal agents are faced with a phalanx of protestors who use various methods to obstruct and interfere with lawful operations. It appears from the videos that the deceased was carrying a firearm lawfully while involved in conduct that walks the tightrope between protest and active unlawful obstruction. He had apparently received a permit to carry concealed. He carried, as many of us do, extra magazines. I certainly question such an action if you are planning to confront federal agents; however, his mere carrying of a weapon and magazines in and of itself does not establish any specific intention or plan to use them against federal agents.
Agents had at one point apparently forcibly moved another protestor while at the same time Pretti was being backed to the curb by another officer. The video seems to establish that Pretti attempted to interfere with the arrest or detention of the other protestor, and a melee ensued. There is no question that Pretti interfered and forcibly resisted. This does not justify deadly force at this juncture. At one point spray was used on him and the other protestor—a permissible use of a lesser form of force on the continuum of force to gain compliance. He continued to resist, and at one point he either alerted agents that he had a gun, or one was seen in his waistband. One of the agents shouted, “he has a gun,” and it appears that another agent attempted to remove the gun, or Pretti went for it or appeared to. I believe that it is unlikely that he reached for the weapon, but the video and testimony of witnesses will be critical. If he was subdued and not in a position to use the weapon against officers, the justification for the use of deadly force is less. It seems that the weapon discharged while being removed either by some action of the agent in handling it or some action of the deceased—it is not clear. If, indeed, it was from the actions of the agent in mishandling a condition one firearm—a round in the chamber—the odds of a deadly unintended consequence increase exponentially. Hearing the discharge, the agent or agents fired several rounds into Pretti killing him. The events are troubling and tragic. If Pretti was disarmed, subdued, and posed no real reasonable threat, criminal liability on the part of the agent or agents is highly likely. The confusion and mayhem caused by Pretti’s resistance added to the urgency. Still troublesome. A Minnesota indictment will be removed to federal court, but the facts do not change in any analysis of whether the agent’s actions establish that they are entitled to immunity. A federal judge will decide. See my earlier blog post on the Good case and the likely procedural path if a state indictment issues. It will.
PRETTI’S SIG SAUER P320 FIREARM HAS BEEN BLAMED—UTTER HOGWASH
The New York Post and other outlets have cited “controversy” regarding allegations that the Sig Sauer P320 AXG Combat at issue has been the subject of scores of complaints that it will discharge on an “uncommanded” basis. That is from dropping or just firing without pulling the trigger. The United States Army had chosen the firearm as its new issued sidearm a few years back, using the designation M-17 or M-18 in both compact and full-size models. It underwent extensive testing prior to being chosen. Sig Sauer had responded to complaints about unintended discharge with a voluntary recall, but testing of its products, well documented on its website, establishes that these claims are baseless. Extensive testing by several agencies has found that the “uncommanded discharge” phenomenon is not supported by the engineering. The photo at the head of this post is my personal P320 XFive Legion in 9mm, one of several P320s I have owned. I have thousands of rounds through all of them and have carried them in holsters without any suggestion of unintended discharge. If the subject weapon discharged, and it will be seized and preserved as evidence, it was likely due to mishandling in the heat of the engagement. It will be tested and retested. It is highly likely that this firearm will be found to be functioning normally.
THE MERE CARRYING OR CONCEALING OF A FIREARM UNDER CIRCUMSTANCES WHERE THERE IS A POLICE-CITIZEN ENCOUNTER WILL NORMALLY NEVER JUSTIFY DEADLY FORCE
California United States Attorney Bill Essalyi has been forced to walk back remarks that allegedly suggested that a citizen carrying a firearm will create a situation wherein police will likely be justified in using force in an encounter. He has since narrowed the statement to “If you value your life, do not aggressively approach law enforcement while armed.” This is certainly true. However, there are many situations wherein a citizen may have an encounter with law enforcement while lawfully carrying a firearm. A responsible citizen will not make any moves that may signal harmful intent. Whether Pretti made any aggressive movements toward his concealed firearm while allegedly fighting with agents is subject to a full investigation. Second Amendment advocates have condemned any suggestion that lawful carry of a firearm to a protest is in and of itself indicative of unlawful intent. They are right. Pretti’s actions in resisting were aggressive, but it remains to be seen whether his resistance was such that deadly force was required to prevent serious bodily harm to other agents or the public.
CONCLUSION
This case may well create another public political divide with the Administration. Elements of the gun-advocating public, normally supporters of this Administration, are upset with statements made in the wake of this event by Homeland Security and DOJ officials. Carrying a firearm for lawful purposes is a fundamental right subject to reasonable and narrow restrictions viewed under a strict scrutiny standard—the highest and most rigid standard of review designed to protect this right from infringement. Attending a protest while lawfully armed is not cause to be the subject of deadly force by law enforcement unless the citizen acts in a way that justifies such a response. Many conservative gun advocates are upset with both FBI Director Kash Patel and Border Patrol Chief Bovino for implying that the mere carrying of a firearm and magazines to a protest is either justification for deadly force or evidence of unlawful intent. This Administration is succeeding in alienating two sides of the political spectrum with ill-conceived public statements. Legally invalid and flatly wrong pronouncements of the law are becoming far too common in this Department of Justice. They fail to have even a basic understanding of the First and Second Amendments. It is time for a training reboot and a clear-headed and fair investigation into what happened and why. In the meantime, Minnesota officials need to stop inciting violence and condoning it and order the local and state police to declare unlawful assemblies and clear zones so removal operations can lawfully continue. Federalism and comity demand no less.
Mike Imprevento
January 26th, 2026
