At the time that ICE agents killed Alex Pretti in a hail of 10 bullets last Saturday, Pretti was exercising rights granted him by the Bill of Rights — recording the actions of ICE agents, joining a loose assembly of anti-ICE protesters and carrying a gun — rights protected by the First and Second amendments.
The Justice Department has long-established procedures for investigating law enforcement officers who violate citizens’ rights by abusing deadly force — a Justice Department criminal civil rights investigation coordinated with a state criminal investigation.
But instead of putting those time-tested procedures into place, Trump officials have acted to block both federal and state criminal investigations. Instead, the head of Homeland Security, Kristi Noem adopted a blame the victim strategy by calling Pretti a “domestic terrorist” just as she had accused Renee Good of an act of “domestic terrorism” when an ICE agent shot and killed her earlier in the month.
Residents of Minneapolis and other cities where police violence has occurred — including Ferguson, Mo. — know from experience that the Trump administration is ignoring procedures long in force during both Democratic and Republican administrations. Minneapolis police were convicted of both state murder and federal civil rights charges for the murder of George Floyd in 2020. And intensive criminal investigations by both state and federal prosecutors preceded the decisions not to prosecute Officer Darren Wilson for the killing of Michael Brown in Ferguson in 2014.
Instead of starting a criminal Justice Department investigation of the ICE officers, the department launched an investigation into Good ‘s widow. In the days after the Good killing, the U.S. Attorney’s office took steps to investigate the use of force by moving to obtain a warrant to inspect Good’s car. But Justice Department leaders stopped them and insisted they instead investigate Good’s partner, Becca Good.
That was a final straw for six career federal prosecutors in Minneapolis who resigned because of the handling of the Good investigation.
Joseph H. Thompson, who was acting U.S. attorney last year and oversaw a major fraud investigation in the state, quit after Justice Department officials pressed for a criminal investigation into the actions of Good’s widow. He was reported to object to the Justice Department’s refusal to include state officials in investigating whether the Good shooting was lawful.
David A. Harris, Sally Ann Semenko endowed chair at the Pitt Law School and an expert on police investigations, wrote in an email to GJR that the handling of the two killings smacks of a “cover-up conducted in plain sight”.
He wrote: “Both state and the Feds would have jurisdiction for criminal investigations and potentially charging when there had been a killing by law enforcement. In any given case, one or the other might take the lead. Feds are supposed to be there to backstop in case the state can’t or won’t do the job. But sometimes the Feds go first.
“The George Floyd case is a good example; the state prosecution went ahead and convicted (Derek) Chauvin first. Fed charges followed and Chauvin pled to them.
“The feds announced (in Minneapolis) that they would NOT share info with the state, giving some phony reason about concern with leaks. Depriving a co-jurisdictional agency of evidence in an investigation of their own (federal) officer, has every appearance of a cover up conducted in plain sight. It has damaged the credibility of the federal government’s position in the case from the beginning. It cannot be trusted.”
Gregory P. Magarian, the Thomas and Karole Green Professor of law at Washington University School of Law in St. Louis, agreed. “What the government is doing is very unusual. I can’t think of a case in which the federal government failed to conduct a meaningfully independent investigation into a claim of unlawful force by a federal agent.”
Julia Gegenheimer, a former prosecutor in the criminal section of the Justice Department’s Civil Rights Division, wrote recently that the Trump Justice Department was violating long-established policy in the Good case. “The Justice Department has refused to open a criminal investigation into the shooting, hastily declaring it an act of self-defense that does not warrant a criminal inquiry,” she wrote. “But despite statements by administration officials to the contrary, there is more than enough for DOJ to investigate here. I know from experience.”
President Trump, reacting Wednesday to mounting criticism, said, “I want to see the investigation. I’m going to be watching over it, and I want a very honorable and honest investigation. I have to see it myself.” But he gave no indication that the traditional Justice Department criminal investigation would be conducted or that his administration would stop impeding a state criminal investigation. DHS has been conducting an internal investigation, but that is not a criminal investigation. Asked Wednesday about the aerosol assault on Rep. Ilhan Omar, Trump told ABC she “probably had herself sprayed, knowing her” — a claim for which there is no support.
Justice Department critics also accused Attorney General Pam Bondi of “blackmail” in a letter blaming state and local officials for the unrest in Minneapolis and advising them to “restore the rule of law” by complying with a list of Justice Department demands that included turning over the state’s voter registration records – a dispute that has no direct relation to the ICE enforcement actions.
The Justice Department has sued 24 states for failing to turn over voting registration records and also this week sent FBI agents into Georgia to investigate Trump’s debunked claims that the 2020 election was stolen there.
Law enforcement chaos
The events in Minneapolis are occurring during Operation Metro Surge, a large occupation of ICE and Border Patrol agents enforcing Trump’s mass deportation campaign. Nearly 3,000 ICE and Border Patrol agents are operating in a city of 400,000 residents, where the city’s police force is much smaller — only 600 strong.
This week Chief U.S. District Judge Patrick J. Schiltz said “ICE is not a law unto itself.” In a strongly worded order the judge cited 96 orders that ICE has ignored in more than 70 cases. “This list should give pause to anyone — no matter his or her political beliefs — who cares about the rule of law,” wrote the judge. “ICE has likely violated more court orders in January 2026 than some federal agencies have violated in their entire existence.”
Meanwhile another federal judge ordered the Trump administration to stop removing people legally in the United States seeking refugee status. So far at least 100 people had been swept up in the operation, even though there was no evidence in those cases that the people had any criminal record.
Judge John R. Tunheim, a federal district court judge in Minnesota wrote, “Refugees have a legal right to be in the United States, a right to work, a right to live peacefully — and importantly, a right not to be subjected to the terror of being arrested and detained without warrants or cause in their homes or on their way to religious services or to buy groceries.”
The Trump administration announced earlier this month that it was reviewing thousands of refugee cases in Minnesota subjecting immigrants who had already been approved for refugee status to new interviews and background checks. The government focused on 5,600 refugees in the state who did not yet have green cards. The administration claimed the refugees could be connected to a separate, fraud investigation underway in the state.
On Wednesday Bondi was in Minnesota to file charges against 16 protesters for allegedly interfering with federal agents.
A third federal judge, Dulce J. Foster, said she was “deeply disturbed” by Bondi posting the photos, noting that the protesters were innocent until proven guilty. “This conduct is not something that the court condones,” she said.
Meanwhile, the Guardian reported that an analysis of government data showed that 32 people had died in ICE custody in 2025, the biggest number of deaths in two decades.
ICE and the First Amendment
Magarian, the Washington University expert on the First Amendment, wrote in an email that Pretti clearly was exercising his constitutional rights in the seconds leading up to his killing. He wrote in an email to GJR:
“The 1A protects the right to observe and record law enforcement operations, with the general caveat that people can’t physically interfere with law enforcement operations. How the situation in Minneapolis breaks down between free speech and the right to assembly is interesting and tricky, but I think a lot of even informal and loosely aggregated protest activity counts as both… Pretti did indeed have a 2A right to carry a gun — well, more saliently, he had (if I understand correctly) a right to do so under state law, so he wouldn’t even need to raise a 2A claim.”
Magarian, who thinks the Supreme Court has interpreted Second Amendment rights too broadly, hastens to add, “It would be better for society if the law did not allow people to publicly carry guns, and — in general — public political assemblies are a context in which the presence of guns is more than ordinarily likely to cause harm. I have argued, law enforcement officers should have discretion to restrict armed persons from settings, such as political protests, where the presence of guns presents an unusual danger of intimidation and/or violence. But in no way do I think Alex Pretti’s carrying a gun contributed to his death, at least not in any sense that’s his fault. However, I don’t think his having a gun did him or anyone else any good.”
Magarian wrote that he agreed with critics that “The Trump Administration here is behaving exactly like federal and Ohio officials behaved after Kent State. In both Kent State and Minneapolis, yes, government officials lied about the shootings, scurrilously attacked the character of the people the government murdered, and effectively engaged in massive coverups. Thank goodness, in this case, for smartphones.” In 1971 Ohio national guard troops fired on a crowd of war protesters at Kent State and killed four students — setting off massive spring demonstrations against the Vietnam War and its expansion into Cambodia.
Magarian also criticized FBI director Kash Patel’s statement on a right-wing podcast that the FBI would investigate activists’ use of social media to share information about the location of ICE agents.
Patel said Monday in an interview with conservative podcast Benny Johnson that he had opened an investigation into the Signal group text chats that Minnesota residents are using to share information about federal immigration agents’ movements. Patel said he was investigating whether protesters were putting federal agents “in harm’s way” by sharing license plate numbers or locations.
Magarian said this was a prime example of chilling free speech. “It’s hard to imagine more innocuous clearly protected speech than saying things like, ‘I just saw and ICE agent driving an SUV down Hennepin street. There’s no real FBI investigation on this basis, it chills protected speech in violation of the First Amendment, and a court should enjoin him from making such statements.”
The Electronic Frontier Foundation reported this month that ICE has contracted to buy Predator spyware that can invisibly infiltrate phones to exfiltrate data including activating the camera and microphone, reading contacts and calendar appointments and reading all encrypted communication like Signal chats. It is also buying Cellebrite, which can be used to unlock phones, which often are seized from protesters. This software could circumvent a Supreme Court opinion requiring search warrants for cell phones in most cases.
Hard to bring accountability to federal agents
Even if state and federal criminal investigations go forward and find enough evidence to charge the ICE agents in the Good and Pretti cases, obtaining a conviction would be hard.
Police officers who abuse citizens usually escape punishment because of an array of legal doctrines that stack the law in an officer’s favor.
About 1,000 people die each year at the hands of police and other law enforcement agents, according to a Washington Post database. The 1,175 killed in 2024 was the highest in recent years.
Between 1990 and 2019, federal prosecutors filed criminal civil rights charges against an average of 41 officers a year — even though they get referrals 10 times greater, according to reports of the Transactional Records Access Clearinghouse at Syracuse University.
Federal prosecutions and convictions for violating a citizen’s civil rights also are rare and often unsuccessful because of a high burden of proof — “willful intent” to violate a citizen’s constitutional right.
The burden of proof for federal prosecutors is extremely high. They have to prove “willful intent.” To prove specific intent, prosecutors have to show the officer acted willfully, meaning with a bad purpose and with reckless disregard for the right. If an officer shows his/her actions were by mistake, due to fear, misperception, poor judgment, or ignorance of the law, they are not considered willful actions and thus not prosecutable under this statute. The willful intent standard is to prevent that law from becoming a ‘trap’ for law enforcement officers acting in good faith who make a mistake.
Because criminal prosecutions are so difficult and convictions rare, victims of police brutality often file civil lawsuits for damages under Section 1983, a post-Civil War civil rights law. Even those cases face a high hurdle of “objective reasonableness.”
Chief Justice William H. Rehnquist wrote in the 1989 Supreme Court case of Graham v. Connor that “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. … Not every push, even if it may later seem unnecessary in the peace of the judge’s chambers, violates the Fourth Amendment. “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…. An officer’s evil intentions will not make a Fourth Amendment violation of an objectively reasonable use of force.”
But Section 1983 suits for money damages usually are not available when federal law enforcement officials are involved. There is no federal law providing for civil lawsuits against federal agents, such as ICE agents. In the 1970s a more liberal Supreme Court recognized in the “Bivens” case an implied cause of action against federal agents, but the current Supreme Court had cut it back dramatically, pointing out Congress could create the action, so the courts shouldn’t do it for them. Democrats have introduced a bill that would do just that.
Gegenheimer, the former Civil Rights division lawyer who prosecuted criminal civil rights casses against police, emphasized the importance of careful investigations to determine whether the use of deadly force by an agent is justified. She doesn’t think she sees one in Minneapolis.
“In the wake of any homicide (which is indisputably what this is),” she wrote after the Pretti killing, investigators should immediately secure the crime scene and preserve the evidence in it. That entails painstakingly photographing and documenting every item of potential relevance — where it was located, how it was positioned, what was its condition. It involves constructing a precise chain of custody for all physical evidence, to counter any suggestion that items were tampered with or altered. And it involves preserving all forensic evidence, including DNA and fingerprints, for possible later testing. Witnesses are also identified and asked to provide voluntary statements. Overall, these careful steps help ensure that the conclusions of an investigation — either finding wrongdoing or that the shooting was justified — are not undermined by allegations that the investigation was either too careless or cursory to be reliable, or that it didn’t happen at all.”
Geggenheimer said it appeared the required careful investigation has not taken place. “…despite best practices, DHS reportedly tried to keep away from the area state and local law enforcement — officers presumably better experienced and equipped than federal immigration officials in how to safely and efficiently process a crime scene.”
William H. Freivogel is the publisher of GJR, the only journalism review left in the country that still produces a quarterly print magazine.
