Legal Analysis of Minnesota Shooting of Alex Pretti by Civil Rights Law Firm
0January 26, 2026 by Tom Roberts, Esq.
Justice and Civil Rights, It's In Our Blood
Note: This article addresses civil liability rather than criminal liability.
Is the United States a government of laws or of men?
UNCERTAINTY - GOLDEY v FIELDS (2025)
“Bivens” claims that ask the courts to hold federal employees liable for violating the constitutional rights of citizens, was a cause of action recognized by the 1971 court in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971). However, in 2025 the US Supreme Court in Goldey v Fields, stated “The Court subsequently recognized two additional contexts where implied Bivens causes of action were permitted, neither of which was an Eighth Amendment excessive-force claim. After 1980, we have declined more than 10 times to extend Bivens to cover other constitutional violations. Those many post-1980 Bivens “cases have made clear that, in all but the most unusual circumstances, prescribing a cause of action is a job for Congress, not the courts.”
Concerns
The ability to enforce the rights under the U.S. Constitution should not be dependent upon Congress. Marbury v. Madison was quoted by the Bivens court recognizing the right to sue for redress for violation of a vested legal right —- “The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.” Bivens at 397 citing Marbury v Madison.
The notion that the court should defer to Congress to create such a right is a danger to the foundation of the freedoms guaranteed under the United States Constitution.
As Chief Justice Marshall stated in Marbury v Madison, 5 U.S. 137 (1803), relying upon Blackstone, “The Government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation if the laws furnish no remedy for the violation of a vested legal right”
As stated, in 1971, the U.S. Supreme Court recognized a cause of action against “Six unknown named Agents” for unreasonable search and seizure in violation of the Fourth Amendment to the United States Constitution. Bivens v Six Unknown Named Agents, 403 U.S. 388 (1971) However, this federal action (called a “Bivens” action) has only been extended or recognized by the U.S. Supreme Court for (1) inadequate medical care (deliberate indifference to serious medical needs) in violation of the Eighth Amendment, Carlson v. Green, 446 U.S. 14 (1980) and (2) gender discrimination in violation of the Fifth Amendment, Davis v. Passman, 442 U.S. 228 (1979).
Despite the language of Bivens, the U.S. Supreme Court is reluctant to extend the “Bivens” claims calling on Congress to do so.
This reluctance undermines the bedrock of freedom — As Chief Justice Marshall observed in Marbury v. Madison, 5 U.S. 137 (1803), relying upon Blackstone, “The Government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation if the laws furnish no remedy for the violation of a vested legal right.”
This reluctance undermines the decision of the Bivens court and opinion written by Justice Brennan, where the court stated, In Bell v. Hood, 327 U.S. 678 (1946), we reserved the question whether violation of that command by a federal agent acting under color of his authority gives rise to a cause of action for damages consequent upon his unconstitutional conduct. Today we hold that it does.
Bivens at 389
The Bivens court said that it was not sufficient to limit persons to state tort claims for wrongful actions of federal agents that violated the United States Constitution. It reasoned, “In this scheme the Fourth Amendment would serve merely to limit the extent to which the agents could defend the state law tort suit by asserting that their actions were a valid exercise of federal power: if the agents were shown to have violated the Fourth Amendment, such a defense would be lost to them and they would stand before the state law merely as private individuals.” Id. 390-391 The court recognized that it was inappropriate to treat the federal actors merely as a private citizen, stating “An agent acting — albeit unconstitutionally — in the name of the United States possesses a far greater capacity for harm than an individual trespasser exercising no authority other than his own.” Id. 392 The Supreme Court stated “Accordingly, as our cases make clear, the Fourth Amendment operates as a limitation upon the exercise of federal power regardless of whether the State in whose jurisdiction that power is exercised would prohibit or penalize the identical act if engaged in by a private citizen. It guarantees to citizens of the United States the absolute right to be free from unreasonable searches and seizures carried out by virtue of federal authority. And “where federally protected rights have been invaded, it has been the rule from the beginning that courts will be alert to adjust their remedies so as to grant the necessary relief.”” Id. 392
The Bivens court concluded “”The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.” Marbury v. Madison, 1 Cranch 137, 163 (1803). Having concluded that petitioner’s complaint states a cause of action under the Fourth Amendment, supra, at 390-395, we hold that petitioner is entitled to recover money damages for any injuries he has suffered as a result of the agents’ violation of the Amendment. Id.397
Assuming the Law Provides a Remedy…
42 U.S.C § 1983 applies to state actors — NOT against federal employees or agents. Therefore, a federal action based upon a violation of the 4th Amendment would have to proceed in the same way that Bivens proceeded—but as explained above, the US Supreme Court has called into question whether such an action or “extension” of Bivens will be permitted. So, we will have to wait to see whether the United States ceases to be a government of laws and or of men. Is the US Constitution toothless against the very entity it was established to restrain – the federal government!
If the courts allow a “Bivens” claim for alleged violations of the 4th Amendment’s prohibition against unreasonably excessive use of force, then the courts would borrow the analysis used in 42 USC § 1983— but it would not be a § 1983 claim.
IS THERE FEDERAL CIVIL RIGHTS LIABILITY FOR FEDERAL OFFICERS USE OF EXCESSIVE FORCE IN VIOLATION OF THE FOURTH AMENDMENT?
What is the liability of a law enforcement officer for shooting an unarmed person when another person yells “gun” in circumstances that are tense, uncertain, and rapidly evolving forcing the officer to make a split-second judgment?
Did the shooting of Pretti violate the 4th Amendment – was it objectively “unreasonable”?
“split-second” or “moment-of-threat rule” versus “totality of circumstances” analysis
This question will be at the heart of the analysis of the Minneapolis shooting of 37-year old Alex Jeffrey Pretti, an intensive care unit nurse on January 24, 2026 by an eight-year Border Control veteran wearing a black beanie, or will it be?
Tom Roberts, Esq.
1st Jury Verdict In Excess of $1 Million – History of Henrico County. Virginia Civil Rights Litigator since 1986.
2025 U.S. Supreme Court rejected “split-second” analysis
2025 US Supreme Court ruling in Barnes v. Felix will be crucial in the legal analysis of the 4th Amendment claims in the matter of the death of Pretti on January 24, 2026.
Before the 2025 US Supreme Court ruling in Barnes v. Felix, courts would have looked at this case using a “split-second” or “moment-of-threat rule” analysis. However, the Supreme Court rejected this approach, directing lower courts to instead look at the “totality of the circumstances,” which includes actions taken by police leading up to the use of force. The court stated “To assess whether an officer acted reasonably in using force, a court must consider all the relevant circumstances, including facts and events leading up to the climactic moment.” Use of force must be evaluated under an “objective reasonableness” standard from the perspective of a reasonable officer on the scene rather than through hindsight taking due account of both the individual interests and the governmental interests at stake. This is done using the “Graham” factors. In Barnes v Felix, the court stated “For example, the “severity of the crime” prompting the stop can carry weight in the analysis. See ibid.; Garner, 471 U. S., at 11. So too can actions the officer took during the stop, such as giving warnings or otherwise trying to control the encounter. See id., at 12; Kingsley v. Hendrickson, 576 U. S. 389, 397 (2015). And the stopped person’s conduct is always relevant because it indicates the nature and level of the threat he poses, either to the officer or to others. See ibid.; Graham, 490 U. S., at 396.”
The Supreme Court continued “Most notable here, the “totality of the circumstances” inquiry into a use of force has no time limit. Of course, the situation at the precise time of the shooting will often be what matters most; it is, after all, the officer’s choice in that moment that is under review. But earlier facts and circumstances may [bare] on how a reasonable officer would have understood and responded to later ones.” The court stated “But no rule that precludes consideration of prior events in assessing a police shooting is reconcilable with the fact-dependent and context-sensitive approach we have prescribed. A court deciding a use-of force case cannot review the totality of the circumstances if it has put on chronological blinders.” The Supreme Court did not address “whether or how an officer’s own “creation of a dangerous situation” factors into the reasonableness analysis.” (Quoting from the opinion “We do not address here the different question Felix raises
about use-of-force cases: whether or how an officer’s own “creation of a dangerous situation” factors into the reasonableness analysis.” )
The Tragedy
What the videos appear to show:
With the expanded totality of circumstances, the problem begins. From the videos currently available, it appears that an officer wearing a beige beanie had been in a confrontation with two women, one with a red backpack, on the opposite side of the road, while Pretti films the confrontation with his cell phone standing in the middle of the street, signaling traffic to continue. Shortly thereafter, the officer in a beige beanie can be seen approaching Pretti, confronting and pushing Pretti who continued to film. The officer wearing the beige beanie then walked over to the woman with a red backpack who had moved from the other side of the street and was standing in front of what appears to be a parked white vehicle, and violently shoved the woman from the street into the snow off the road. 
As Pretti reached to aid the woman up from the ground, all the while filming, the officer pepper sprayed Pretti, the woman and the other woman. 
Then the agent, joined by 5 or 6 others, attempted to drag Pretti from aiding the woman and forcing him down onto the road. Pretti struggled against these efforts.
An agent with the beige beanie delivered three swinging blows to Pretti, while another agent wearing a grey coat entered the struggle, reached in and appeared to pull Pretti’s firearm from his waist. Some viewing the videos suggest that this firearm went off in the hands of this officer as he left the pile-on. Whether the officers had a clear line of sight to his hands will certainly be a focus of the inquiry. In the fray, somebody yells “he’s got a gun” after the weapon was taken from Pretti. A “split-second reaction” by another ICE agent wearing a black beanie appears to put away his pepper spray, pull his firearm and fire into the back of Pretti, followed by 3 shots from another ICE agent, and then another shot was fired with 5 more from agents, as agents scattered. When the agents returned, “Where’s the gun?” could be heard as officers realized the tragedy that had just unfolded. Pretti is dead.
18 USC 111 – Obstruction
Was Pretti really obstructing or impeding in violation of 18 U.S. Code § 111?
The government may argue that Pretti was in the thick of not simply a protest, but in an obstruction in violation of 18 U.S. Code § 111 which makes it a crime to “forcibly assaults, resists, opposes, impedes, intimidates, or interferes with …[any officer or employee of the United States or of any agency in any branch of the United States Government (including any member of the uniformed services)]… while engaged in or on account of the performance of official duties” as he walked over to an attempt to pick up a woman who had been pushed out of the street and down into the snow by an ICE agent, all the while filming with his phone. As officers attempted to remove Pretti from lifting the woman, he was sprayed with pepper spray. He persists, dragging the woman back into the street as officers attempt to separate Pretti from the woman and possibly detaining Pretti.
Jonathan Arthur, Esq.
Experience: Multiple Jury Trials, litigation, Appeals, settlements and Settlement in Excess of $1 Million
Complex Litigation
A Higher Standard – Properly Trained Officers
Properly Trained Officers Held To A Higher Standard
Notwithstanding the reasonable frustration of ICE officers in Minnesota dealing with individuals not merely protesting but actively impeding, intimidating and interfering with their duties apprehending illegal aliens, the officers may not sink to violating the 4th Amendment of the Constitution by inflicting excessive force against obnoxious individuals interfering with their duties. The officers are as former U.S. Supreme Court Justice Powell stated in a concurring opinion in Chaplinsky v. New Hampshire, 315 U. S. 568 (1942), and cited by the court in City of Houston v. Hill, 482 U.S. 451 (1987) “a properly trained officer may reasonably be expected to ‘exercise a higher degree of restraint’ than the average citizen, and thus be less likely to respond belligerently to ‘fighting words.'”
Andrew Bodoh, Esq.
Experience: Multiple Jury Trials; Appeals; Settlements including Settlement in Excess of $1 Million
Complex Litigation
Analysis: Application of the proper standard to this case
Applying the legal standard to what appear to be the facts in this case
In what appears to be excessive force is the response to what may very well have been deemed obnoxious interference by the two women – but shoving the woman with such force off of her feet into the snow seems excessive. Pretti’s assistance lifting the woman from the ground should not have been met with more force and pepper spray. Dragging him to the ground seems excessive. However, carrying a gun into what has become an extremely volatile environment was simply very unwise. It is a tragedy. While the court no longer has blinders and must look at the totality of circumstances, the Barnes v. Felix court stated – “Of course, the situation at the precise time of the shooting will often be what matters most; it is, after all, the officer’s choice in that moment that is under review. But earlier facts and circumstances may b[are] on how a reasonable officer would have understood and responded to later ones.” Here, the shout that “he’s got a gun” in the middle of a pile-on may very well have caused a reasonable officer to objectively believe that Pretti posed a deadly threat to himself and to others. The excited exclamation “Where’s the gun?” suggests two things – (1) that contrary to the government’s contention that Pretti was armed and fired first, that there was not a gun when he was shot, but also (2) that officers honestly believed there was a gun and thus the surprised exclamation “Where’s the gun?” The analysis will not be viewed on whether the shooter subjectively believed he was posing an immediate threat to the life or great bodily harm to himself or others — but upon an objective reasonable officer standard taking into account all facts known or reasonably knowable to the officer. In short, the shooter may be protected by qualified immunity in a civil case. (Criminal liability is analyzed under a whole different set of laws starting with Minn Code § 609.19) Since the Supreme Court left unanswered the needless escalation factor, this case may be the case the court will address “whether or how an officer’s own “creation of a dangerous situation” factors into the reasonableness analysis.”
Why Character Assassination Is Not Helpful
The internet is filled with hateful posts portraying Pretti as a sexual deviant or recently terminated from a healthcare facility for predatory behavior, not wholly unlike the character assassination of Charlie Kirk — THIS IS NOT HELPFUL and is not part of a proper examination to this tragic loss of life. As set out above this should not minimize the value of human life and is not relevant to the legal standard and facts for examining the conduct of both Pretti and the officers in this matter.
“An eye for an eye leaves the world blind” The US citizens must stop the cycles of violence. “Cancelling” people that disagree with you leaves you in an echo chamber where you convince yourself every lame opinion you hold is strong because there is nobody left to test it.
2nd Amendment Note:
As a side note these tragic circumstances should not result in a call to chip away at the Second Amendment by calling for laws to prevent individuals from possessing firearms at protests which would simply illustrate “bad facts make bad laws.” Just because you have a right to do something does not mean you should do something. This firm encourages individuals to live to fight another day – if an officer is violating your rights, do not give them an excuse to bury you and the evidence, do not escalate, submit without waiver and let us or another law firm take up the fight in a courtroom!
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Commentary
The First Amendment must be protected that permits people to protest — but it does not license protesters to violate the laws. When protesters and law enforcement cease to engage in civil discourse tragedy is bound to follow – Be Responsible.
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