Fight Over Evidence From Minneapolis Shooting Kicks Off in Federal Court

Inside a federal courtroom in St. Paul on Monday, there was one question on everyone’s mind: What could Minnesota do to prevent the federal government from withholding or destroying evidence from the fatal shooting of Alex Pretti by federal agents?

The answer, at this point, appears to be nothing. And it threatens to only further inflame tensions in the Twin Cities, whose residents have taken to the icy streets to express a deep dread that federal agents will engage in a cover-up of the fatal shooting.

U.S. Judge Eric C. Tostrud moved quickly Saturday night to issue an extraordinary order forbidding the federal government from “destroying or altering evidence” related to Pretti’s slaying. He scheduled a hearing first thing Monday to sort it out before it was too late.

But by the time federal, state and county attorneys showed up in court midday Monday, so much had gone wrong the judge couldn’t help but rub his face in frustration that “what’s past has passed.”

Federal agents had blocked investigators from the Minnesota Bureau of Criminal Apprehension, the state’s crime-scene lab, from immediately reaching the site — even though the “force investigations unit” had a search warrant that had been promptly signed by a local judge. Peace officers couldn’t even collect statements from witnesses.

Federal security forces had also manipulated the firearm Pretti had tucked away in his waistband — and didn’t appear to be reaching for — when agents killed him. They cocked back the slide and ejected the magazine to snap a photo that was promptly posted by the Department of Homeland Security with the false claim that “the officers attempted to disarm the suspect but the armed suspect violently resisted.”

A photo of 37-year-old Alex Pretti, who was fatally shot by a U.S. Border Patrol officer over the weekend, is displayed at the scene in Minneapolis. (AP Photo/Adam Gray)

Customs and Border Protection had removed the half-dozen or so agents who took part in the fatal shooting and put them right back in rotation outside of Minneapolis, according to Border Patrol chief Gregory Bovino.

All three developments caused great concern for the criminal forensic experts at the state’s BCA, which regularly works side by side with the FBI — except for the two recent federal agent killings of Minneapolis residents Renee Good, a 37-year-old mother, and Pretti, 37.

“Blocking the BCA from the scene was a dramatic departure from law-enforcement norms, and we believe it was an egregious violation of Minnesota’s sovereign right to investigate this shooting,” assistant attorney general Peter Farrell told the judge.

“We do think there is evidence of potential spoliation here,” he added, pointing to investigators’ “very serious concerns” about the way Pretti’s pistol was handled by federal agents. “That gives them serious pause about the integrity of the scene in general.”

But legal challenges operate within the narrow bounds of case law, and the judge remained laser focused on one question: whether or not he had the authority to keep his strict order in place.

The Trump administration’s Justice Department told him there was no need — and no choice.

“It is a federal matter at this point,” assistant U.S. attorney Friedrich Siekert said, promising that the government had no intention to trash any evidence — and would even keep body-camera footage taken by agents for 75 years, as per an internal policy he cited.

Protesters chant and bang on trash cans as they stand behind a makeshift barricade during a protest in response to the death of 37-year-old Alex Pretti. (AP Photo/Adam Gray)

However, the federal prosecutor also hinted at what could be a long road ahead for Minnesota investigators and the American public to get any degree of closure, mentioning the Freedom of Information Act as a possible vehicle for transparency — even though the government notoriously violates that law and is rarely held accountable for it. Siekert referenced a vague “personnel” matter and said CBP would first have to sort that out before turning to any potential criminal investigation.

“The intention of the federal government is to preserve all this evidence until the conclusion of all federal matters, and at some point in time, when those are done, however they do it in the ordinary course, that evidence would be available to the state and to the public through FOIA and what have you,” Siekert said.

The federal prosecutor also seemed to imply that this jurisdictional battle would never have happened if Democratic and Republican politicians got along better.

Siekert mentioned the dispute over “sanctuary cities” that protect their immigrant populations, before commenting that “had that not occurred, this might have been a joint operation where there was federal, state and local people.”

“Those political fights, they’re not for today and not for this litigation. But for that, we might not be here today,” Siekert told the judge.

However, state and local officials simply don’t trust the Trump administration to conduct a fair investigation now. Farrell referenced several official statements from top federal officials. Bovino called his agents “victims” and falsely claimed Pretti — who was attempting to protect a woman being pepper sprayed by federal agents — “wanted to do maximum damage and massacre law enforcement.” White House deputy chief of staff Stephen Miller and Homeland Security Secretary Kristi Noem both called him a “domestic terrorist.”

“I do not think you can turn a blind eye to the rush to judgment,” Farrell told the judge. “The BCA would never … put public statements out into the world like that. Because those statements are coming from the very top of the federal government, the BCA has serious concerns that it will not be able to discharge its duty to conduct a thorough, transparent and fair investigation.”

Still, Judge Tostrud said he was inclined to drop his evidence preservation order, given the likelihood that the 8th Circuit Court of Appeals would step in and overturn it. The judge said he would rule on the matter soon.

Clare Diegel, a former American Civil Liberties Union lawyer now at the Hennepin County attorney’s office, expressed a worry that federal agencies would quietly conclude an internal investigation and destroy the evidence, then claim they were free to do so because any official use was over.

“Nothing about what is going on here is normal. Nothing,” she said.