Confusion and questions: Where investigations stand in the killing of Alex Pretti

By Holmes Lybrand, CNN

(CNN) — Two days after Department of Homeland Security officers shot and killed Alex Pretti, a confused investigation is unfurling. The Justice Department has not opened a civil rights investigation, a crisis coordination center was erected in Minneapolis to investigate protesters and senior administration officials won’t definitively say whether Pretti had been disarmed before the shooting.

The Department of Homeland Security’s investigation agency (HSI) is leading the federal investigation into the shooting, officials say, with the FBI acting in a supportive role – including by processing physical evidence.

“We’re in possession of the firearm,” FBI Director Kash Patel said Sunday of Pretti’s gun, adding that the FBI would analyze it at their own laboratory.

Although HSI hasn’t historically conducted criminal investigations into use of force incidents by federal authorities, HSI has assisted, coordinated with and supported such investigations when appropriate, according to former DHS officials. It is unusual for them to co-lead with FBI.

The investigation, one of several being conducted into the shooting, was preempted by public officials in the hours after the shooting airing competing narratives and firm conclusions in the absence of evidence — raising the likelihood that any conclusion it reaches will be scrutinized by a skeptical public.

As of Monday afternoon, a small group of investigators were reviewing public footage of the incident and video taken from as many as 30 body worn cameras that officers —– including several involved in the incident —– were wearing that day.

In the moments before his death, Pretti can be seen in video from the scene moving between a DHS agent and a woman the agent pushed to the ground. The agent sprays Pretti with a chemical irritant and drags him to his knees before several others quickly move on top of Pretti with officers standing over him and pushing him to the ground as he appears to resist.

A CNN video analysis appears to show a federal immigration officer removing a gun from Alex Pretti just prior to officers fatally shooting him.

In the confusion and struggle with Pretti, one of the agents, who was part of the melee, can be heard asking “who had a gun” after shots were fired, according to a source familiar. Videos collected from the scene are under review internally.

Investigators have also conducted interviews with the officers and are still in the very early stages of the investigation.

Other investigations into the shooting

Under previous Democratic and Republican administrations, the Justice Department has investigated whether law enforcement officials used excessive force in officer-involved shootings.

In those instances, local law enforcement requests the assistance of the FBI and their expansive investigative resources, and the two work together to meticulously gather evidence, conduct interviews and share information.

Federal officials keep their investigative eye towards violations of civil rights laws, while local law enforcement focus on potential murder or assault charges.

The Justice Department has not launched a civil rights investigation, a department official told CNN, but said it will “if the evidence presents itself.”

The information sharing practice was not followed in the wake of Rene Good’s shooting by an ICE official just a few weeks ago — the FBI quickly cut out local Minnesota investigators, essentially ending their investigation. And the FBI then shifted the focus of its probe to whether Good and those around her committed a crime against the officer, as opposed to his conduct in the shooting, CNN has reported.

The FBI can also immediately begin their own independent investigation if there is a continuing concern for public safety, or wait for a referral from the agency whose officer was involved in the shooting.

Four days after the killing of George Floyd by Minneapolis Police Officer Derek Chauvin in May of 2020, Donald Trump’s attorney general at the time, Bill Barr, announced a federal civil rights investigation into Floyd’s death.

The Customs and Border Protection’s Office of Professional Responsibility — which investigates potential criminal conduct by CBP officers — is running its own internal investigation into Pretti’s death. A preliminary review of the incident is being drafted by that office and officials are required to officially notify Congress and the public about the status of the investigation, one source familiar with the process told CNN.

The expected initial report could include a basic summary of what took place, such as how many people fired a weapon and how many shots were fired as well as details around body worn cameras filming the incident.

In cases involving use of force, Gil Kerlikowske, a former CBP commissioner who served under President Barack Obama, told CNN that CBP’s Office of Professional Responsibility — which he helped to establish — would investigate whether that force was justified under the agency’s guidelines.

The primary purpose of that office is not to bring or refer criminal charges, though findings of criminal wrongdoing can be referred to the Justice Department.

Timelines for the completion of these internal probes could vary widely, Kerlikowske said. He added that as Trump has exerted unprecedented control over the DOJ and the FBI, skepticism about the completeness or independence of any federal criminal probe is warranted.

After local officials said Minnesota’s Bureau of Criminal Apprehension (BCA) was prevented from accessing the scene of Pretti’s shooting to collect evidence in its own investigation, Gov. Tim Walz wrote in a statement Monday that Trump had agreed to allow the state’s investigation to continue.

“The President agreed that he would talk to his Department of Homeland Security about ensuring the Minnesota Bureau of Criminal Apprehension is able to conduct an independent investigation, as would ordinarily be the case,” Walz said in his statement following a call with Trump.

The BCA sued the Trump administration over the weekend and was granted an order from a federal judge prohibiting DHS from destroying or altering any evidence gathered around the shooting.

In court filings, DHS said no evidence has been destroyed.

Minnesota officials have said in court filings they weren’t sure if the federal law enforcement were handling evidence properly — including a gun used in the shooting.

“I have also seen images circulating on social media of the alleged gun that it was used in today’s shooting. It does not appear that the gun was protected according to normal law enforcement processes, and I am concerned about other evidence not being protected,” Drew Evans, the Superintendent of Minnesota’s investigative bureau, wrote to a judge this weekend.

The BCA has also said it was unable to fully process the scene of the shooting after FBI officials left the area on Saturday because it was quickly overrun by protesters who local police were not able to keep back.

BCA agents were on site Sunday, collecting evidence and canvassing neighborhoods as part of the agency’s investigation.

According to court proceedings, HSI also has possession of Pretti’s phone.

Administration officials quickly accused Pretti of breaking the law

Despite continued calls from officials to wait for investigations to conclude before public judgement of the shooting, DHS Secretary Kristi Noem, Patel and others have made false claims around the shooting and accused Pretti of breaking the law.

White House deputy chief of staff Stephen Miller referred to Pretti as “an assassin” who “tried to murder federal agents” and Noem claimed Saturday that Pretti wished “to inflict harm on these officers” and brandished his firearm.

Top Border Patrol official Gregory Bovino — who has had a very public presence while on the ground in Minnesota — initially claimed Pretti intended to “massacre” federal agents.

Officials have not provided any evidence supporting these claims, and there is currently no evidence suggesting Pretti wielded his firearm during the incident.

“I don’t have any evidence that I’ve seen that suggests that the weapon was brandished,” Minneapolis Police Chief Brian O’Hara said in a Sunday interview on CBS.

Bovino is now expected to leave the state as Trump announced he was dispatching White House border czar Tom Homan to Minneapolis in the wake of Saturday’s fatal shooting.

Administration officials were left deeply frustrated this weekend over how Bovino and Noem handled the fallout from Pretti’s fatal shooting, sources said. According to one official, Trump spent several hours on Sunday and Monday watching the coverage and was personally unhappy by how his administration was coming across.

Bovino, specifically, only made the deteriorating situation in Minnesota worse with his comment that Pretti intended to “massacre,” officials felt, including some inside the CBP, who believe his presence in the state has contributed to the growing anger from protestors on the ground.

Patel, whose agency is assisting in HSI’s investigation, claimed falsely during a Sunday interview on Fox News that “you cannot bring a firearm loaded with multiple magazines to any sort of protest that you want. It’s that simple.”

Pretti, according to officials, had a legal permit to carry his firearm.

“You don’t have that right to break the law and incite violence,” Patel added.

When pressed by Fox anchor Maria Bartiromo on how Pretti was threatening Border Patrol officers, Patel punted, saying that the Department of Homeland Security was leading the investigation.

“That’s something that I want DHS and the prosecutors — because they are the ones investigating that case,” Patel said.

CNN’s Katelyn Polantz, Priscilla Alvarez, Evan Perez, Kaitlin Collins, Shimon Prokupecz, Michael Williams and Kristen Holmes contributed to this report.

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