What to Know About the Alex Pretti Shooting (with civil rights lawyer Patrick Jaicomo)

They are willing to throw out your rights, whether they're Second Amendment rights, First Amendment rights, Fourth Amendment rights, at a moment's hesitation if they think it stands between them, uh, being able to do something or them being wrong.

By now, we've all seen video clips showing the Alex Pretty incident from multiple angles. And we've also seen clips showing federal officials just clamoring to convince the public that what they've seen was completely justified, even prior to any actual investigation occurring. We see both sides pushing politics and sowing division rather than looking objectively at the facts to figure out what happened and then fairly applying the law.

So, I'll walk you through what we actually know happened based on the currently available video footage, and then let one of the best civil rights lawyers in the country, Patrick Jaicomo, with the Institute for Justice, who is literally at the forefront of the efforts at holding federal officials accountable for civil rights violations, cut through all the BS, all the propaganda, and give you actual information that you need to know right now. And there's a lot of it that you are not hearing anywhere else.

People are watching the same video and, at least on my observation, seeing very different things. All these prohibitions in the Constitution, they're not—this is not negotiable. This is the absolute bottom line. You cannot cross this line if you work for the government.

Federal agents claimed that Alex Pretty, a 37-year-old intensive care nurse, "violently resisted them" and that the officers then fired "defensive shots, killing him." But is that what really happened? Bystander footage appears to tell a different story. One resulting in what appears to be an unarmed man being shot.

There was a really good frame-by-frame review of this in the Wall Street Journal today, which I will link below, that sticks entirely to what can be seen on these bystander videos. So, this is what we know for sure that can be seen. And by the way, we would have much more information if these masked officers were wearing body cams. Yet, they have chosen not to. So, we have what we have.

The issue here is, was this use of force justified or was it not justified? It's not about whether Alex Pretty should have been arrested and charged with obstructing or impeding federal officers. It's not about immigration policy or even immigration enforcement policy. It's about whether the decision to pull the trigger and shoot him multiple times, ending his life, was reasonable under the circumstances as the law requires, no matter the political atmosphere surrounding it.

So, what does the video show? On Nicollet Avenue around 9:00 a.m. local time on Saturday. Locals blew warning whistles and filmed masked federal agents walking through Minneapolis's Whittier neighborhood. Bystander footage shows Pretty standing in the street where he appears to film with his cell phone while other people approach the agents, shouting, "Hey," and continuing to film. As Pretty and the two other civilians walk away, one of the agents follows them. That agent then shoved somebody who appeared to be with Pretty. Pretty immediately puts himself between the fallen person and the officer, who appears to spray a non-lethal chemical agent on all three of them. As a struggle ensues, agents pull Pretty from the others. At least five masked DHS agents surround him and force him to the ground.

Bystander footage shows one agent drawing his firearm and pointing it at Pretty. Around the same time, a different video verified by the Wall Street Journal shows Pretty pinned to the ground and agents appear to discover a firearm on him. In a statement, DHS said the officers attempted to disarm the suspect, but the armed suspect violently resisted. Less than a second later, one of the agents fires his weapon towards Pretty, the first of at least 10 shots within 5 seconds. As shots are fired, bystander footage shows another officer raising his firearm.

A preliminary analysis of the video's audio by the Wall Street Journal suggested that a total of 10 shots were fired from a single semi-automatic firearm, according to Robert Maher, a forensic audio analyst at Montana State University. About a minute after the shooting, bystander footage shows officers shouting, "Where is the gun?" as they attempt to apply first aid to Pretty.

At 9:04 a.m., a Minneapolis Fire Department rescue unit was dispatched to 26th Street and Nicollet Avenue for a possible ICE-involved shooting, according to fire department scanner traffic. And within minutes, rescue workers performed CPR on Pretty, who officials said died at the scene. At about 10:30 a.m., as the crowd grew, rescue workers were called to help someone who had difficulty breathing. It was related to chemical irritants used by ICE agents, according to Minneapolis Fire Dispatch audio.

Hours later, Border Patrol commander Gregory Boino told assembled reporters that Pretty had approached the agents with a handgun, intending to "mock law enforcement." A reporter then asked when exactly the gun came out. "This situation is evolving," Boino said. "This is under investigation. Those facts will come to light."

Patrick Jaicomo, senior attorney with the Institute for Justice, is the primary person I wanted to hear from about this incident. He is the lawyer who just recently successfully took on the FBI when they raided the wrong home in Georgia, terrorizing an innocent family. He appeared before the U.S. Supreme Court on basically the same issues of federal officer accountability that we have here now. I knew that Patrick would be able to explain this much better than I could and in a way that stands on principles of freedom rather than one that is influenced by politics and political bias. In fact, this was such a great conversation that I just couldn't cut any of it out. And I think that you need to hear the whole thing and also share it with your friends and family. So, let's get into it.

Are you able to give me, like, a synopsis or a good summary of what—what is the legal standard here regarding whether or not this use of force was justified?

Yeah. I mean, so if you look at the, the basic standard under the Fourth Amendment, we're talking about reasonableness. And the way that that's been interpreted is that before you're able to use deadly force, which, of course, you know, killing someone in the street is, you have to be in reasonable fear for your life or the lives of others. And there are some other exceptions for fleeing felons when you've witnessed a felony that aren't going to be applicable here. And so when we're talking about this particular killing, um, in Minneapolis, the officers have to show that their actions were reasonable. And the reasonableness is going to be based on a reasonable fear that without shooting here, there was someone who would otherwise be losing their life or being seriously injured, um, that would justify the, the killing of, of someone.

I didn't hear you say that there—that any part of that standard is whether or not the subject they're interacting with is armed in some way.

That's right. I mean, so, so the, the beauty and the frustration with the Fourth Amendment standard of reasonableness is that it's a flexible standard, of course. So someone having a gun is not a justification for a government official to kill them. Someone having a gun and pointing it at a government official is. And so there's a lot of gray area between those things. And the same can be true for any number of things. Of course, we've been talking about, you know, potentially using vehicles as weapons as the government would characterize it, or people driving past government officials as other people might characterize it. And, you know, everything in one of these scenarios is very hard to put into a nice legal box, which I think is for the best because reasonableness does need to be a flexible standard. But also is very frustrating for people because certainly in this polarized time, people are watching the same video and, at least on my observation, seeing very different things. Um, and so you have situations where I think people who are acting in good faith, and of course, there are plenty of bad faith actors, too, are watching a video of, you know, what happened with Rittenhouse or, or what happened with Alex Pretty. And two people see the same exact video. Now, I'm not talking about different angles or, you know, AI enhancement or whatever nonsense is going on. And people will look at the same thing and say, "Oh, nope. I'm looking for a reason to justify this," or "I'm looking for a reason to find that it was actually a murder instead of an illegal shooting." Um, and that's, I think, where a lot of the division lies right now.

Well, fortunately, there are multiple angles of the shooting that occurred. Based on your observation, on what you see in those videos, what is your conclusion as far as what happened?

Yeah. So, I mean, I just, to lay my bias on the table, of course, you know, I'm a civil rights attorney, so I'm looking at these things with an eye toward, um, government overreach, government abuse. And, of course, you know, in a situation where someone's been killed, it's easy to find that as a default. Um, I'm still waiting to see what else we learn. And, and I kind of rolled my eyes at that in this particular instance when the first videos came out because if you watch the video, at least from the perspective that I have, just seeing someone shot, I don't know, nine or 10 times, especially six of which while he's laying prone on the sidewalk, um, it's hard to justify. And, and, and my overall view of the situation, as we understand it today, is that this was not justified. This was, um, an unconstitutional killing. And it certainly would be a crime under several different statutes. And we can get into the legality of holding accountable federal officials. But here, um, there's no evidence that this, this man was trying to draw his weapon at the time he was killed. And I think actually the best potential defense, um, of the government's actions here is that when one officer removed, um, the gun that I believe Mr. uh, Pretty was, uh, legally carrying, he appears to have discharged it, or at least there's a question about whether he discharged it. And then the other officer who actually, um, killed Mr. Pretty was responding to that gunshot and thinking, for some reason, that maybe Mr. Pretty was shooting. Um, I think that's still hard to justify given the circumstances, given the number of agents that were around, given the fact that it appears on the video, at least the videos that I've seen, that the agent who shoots, uh, Mr. Pretty actually sees his colleague remove the gun and walk away from, from the scene with it. Um, and so it's very hard, at least at this preliminary stage, for me to watch what happened in that video and not think that there was a constitutional violation because this shooting was not justified. But again, we may find out more. And if the gun was discharged, the comp—the, the scenario gets more complicated in terms of what that officer might have reasonably believed in terms of whether there was a risk of, of death or great bodily harm.

Yeah. I mean, it's kind of concerning that the federal government comes out immediately after this occurred and accuses the, the guy who was shot here of basically attacking federal officers with a firearm, when the video, every angle that I've seen it, does not show that Mr. Petty, or, or however you pronounce his name, ever used a firearm during his interaction with the officers.

Right. Yeah. I mean, I, I think there's no way to describe what many of our high-level federal officials did in the immediate, and I mean, within minutes or hours aftermath of the shooting, as anything other than despicable, because it's very clear that people like Secretary Mayorkas and, uh, and Greg Boino came out and said things that are utterly false. And Stephen Miller, of course, called this man an assassin. JD Vance retweeted that. All of these things are being done with very clear political purpose that has apparently no connection to reality, because whatever you can see in the videos, it's none of those things. I have not seen any angle in which, um, Mr. Pretty reaches for his gun. Certainly never has his gun. For much of the video, he's holding in his hand a phone that he's recording people with. Um, you're getting a lot of sort of, um, online commentary from the right about how he was interfering, obstructing. If you watch the video, I mean, the problem with interfering and obstructing is that the statutes are written so broadly that the government can do just about anything. If you kind of step between them and what they're trying to do. I think there's still, and this goes to the further need for additional factual development, we need to know why, for instance, that CBP agent was shoving the woman down. That seems gratuitous to me, and I'm not sure of a good justification for why. That's when Mr. Pretty gets involved in the first place, and he gets maced. He's obviously not trying to strike the officers. He's trying to de-escalate the situation. He's then thrown to the ground, and all the rest of it. And at no point during any of that did he try to reach for the gun. Did he have the gun in his hand? Did he shoot the gun? Um, and so for the federal government at the highest levels to come out immediately and just say things that are blatantly untrue and had no basis in reality at all, um, is very frustrating. And I think it just plays into the problem that we have in the sort of social media age where everybody watches these videos the second they come out, and they're always, you know, cell phone videos from a distance. And first, and there will be many, many more, and tries to form a belief. And the beliefs often are sort of calcified around their priors. And so, like I said, at the very beginning, as someone who's looking for government abuse, I can find it in that video. As someone who's looking for a justification because they like what the government is doing here, they can find something to talk about. That doesn't mean that either side is right or wrong at that point. But the frustrating thing is for the definitive statements of people that are supposed to be in positions of authority, positions that are that are given, in my mind, completely incorrectly, deference to come out and say these sorts of definitive things that we find out are completely untrue is really something that we should be more concerned about than we seem to be.

Yeah. I mean, the scenario where somebody actually brandishes a gun or pulls out a gun, threatens to shoot or does shoot at police officers is very different than if somebody is just filming and shouting at police officers and just happens to be armed with a gun that was never taken out of the holster.

Right. And, and I think another frustrating thing about, you know, this, this is an example of something we've been seeing with this muscular federal presence in the immigration space is, is that you will have the, we'll see these conversations about what happened. And if, if, if the person who's justifying the shooting is pressed and they have to give up ground, they just keep retreating, retreating, retreating and never admitting that, okay, maybe you have a good point. Maybe there's something here and we should give this more considered, uh, considered idea than just saying, nope, it's definitely justified. And let me come up with six reasons. And I think another example of how far gone that is is in the hours after this shooting, you went from seeing these federal officials come out and say things that are completely untrue about this man being an assassin or some sort of Marxist hitman or whatever it is. Um, and then once all of that was slowly but surely disproven and the question of what happened became much more one of, well, maybe they just screwed up and there's some sort of explanation of, well, it was a huge mistake. They say instead, they make these pronouncements like the, that U.S. Attorney from California of, oh, actually, you should never bring a gun to a protest. So it's really your fault if you have a gun anywhere within eyesight of a government official. It's your fault if they kill you. Um, and not only does that sort of show their inflexibility in being willing to admit that a mistake may have occurred or that this was an unjustified killing, but it goes to show you that they are willing to throw out your rights, whether they're Second Amendment rights, First Amendment rights, Fourth Amendment rights, at a moment's hesitation if they think it stands between them, uh, being able to do something or them being wrong.

Yeah. I mean, how many opinions would be different here if instead of an ICE agent, it were an ATF agent at a Second Amendment march or protest where a Second Amendment supporter who's armed but not otherwise threatening the officer with a firearm, just holding a cell phone, even shouting at the officer, even blowing a whistle. Under the same circumstances, how many people who support this past shooting would not support the same exact factual scenario, just with an ATF officer and then a victim they sympathize with as opposed to one they do not sympathize with?

Yeah. And, and that's the greatest frustration for, for me or anyone who sort of takes a principled approach to the Constitution. You could, there are people I think who are, are strong Second Amendment supporters who themselves do not like guns or want guns or own guns. And, you know, we need to look to those people in, in these times. And, and the same can be true about the First Amendment. There are going to be, you know, atheists, of course, who will support, um, the, the, the right for people to worship and things like that. And, and those are the folks that tend to sort of hold the torch in these, in these dark times because I've been saying this since before this happened. In the waning days of the Biden administration, the ATF changed some of its regulations on firearm owner and firearm sales and transfers. And based on those changed regulations, then executed an early morning raid at the house of a man named Brian Malinowski, who was the, uh, director of the Little Rock airport. And those agents shot and killed Mr. Malinowski in his house because he thought that he was being robbed or otherwise attacked by unknown people in the dark. And that was because he had been in, um, had been exercising his Second Amendment right by keeping arms. And the government decided that it wanted to make some strange example out of him because of this changed regulation. And they went in his house and they killed him. And this was a huge cause for the right. Uh, people like Tom Cotton and Josh Hawley and Jim Jordan were up in arms, rightly so, about this. Um, and it was very frustrating to watch because there was a hearing that was held by Congress and it was opposed by a bunch of Democrats at the time. And Stacy Plaskett, I think, was chairing it from the Democrats. And she was shouting about how, um, outrageous it was that this hearing would be held the week after Police Week because it belittled the actions of our brave men and women in, in law enforcement. And it was kind of in that moment, before seeing what we've seen now, the sort of bizarre world experience as someone who deals with, you know, government abuse and police issues in particular, to watch Democrats use the same lines, um, that Republicans, you know, would, would normally use if you want to look at this through that partisan lens. But it was, it was a real learning experience. And now we're seeing, you know, the roles reverse again. And so when you say, it, how can people think this way? Because imagine the ATF. So, yeah, of course that's wrong and it's ridiculous, but they don't even have to imagine it. I can send you a news article about Brian Malinowski being shot in his house by the ATF. And I don't understand either why people can't so easily see that what they're doing here is building weapons that their enemies will use against them.

What about the fact that people say, "Yeah, but this is different because these people are going out and they're actively trying to obstruct federal officers. I mean, they're not just protesting. They're physically obstructing federal officers and they're doing that armed, and that's different." I mean, what's your response to that?

Yeah. So, I mean, obviously the law is the law in terms of obstruction and interference with law enforcement, whether it's state or federal, and you definitely don't have any sort of right to use a gun to interfere or obstruct. Um, that being said, having a gun while you're out in public, while you're out protesting, is itself not anything inherently wrong and, and is is something that's protected by our Second Amendment. And of course, it has to be. Um, and so I think when you hear these sorts of statements, there's not, it's not, and this is true with many of these things. There's not, there's, there's something to it from a legal perspective, but people are throwing these things around because they see them as an easy way out of addressing a harder problem, which is, of course, if someone comes out on the street and points a gun at a CBP agent and gets shot, he's not had his Second Amendment rights violated. But when someone comes out and, like you said, shouts at or films a CBP agent, which of course are things both protected by the First Amendment as well, and then they're killed, and the after-act justification is, oh, well, while we were doing this, we found a gun, and that justified to some degree or another our decision to kill this person, then that implicates the Second Amendment, too. And so to the point you made, we would not have seen this sort of, at least from the partisan battle lines that we see today, this sort of argumentation being made when, for instance, you know, people with AR-15s were standing out in front of the Michigan State Capitol when Gretchen Whitmer was imposing, you know, very questionable COVID restrictions. That is protected by the Second Amendment. So would this be protected by the Second Amendment. It's, we've seen several videos now of people in Minneapolis simply standing outside open carrying firearms, and people on the right highlighting that as some sort of horrible, egregious, illegal thing when, to your point, if they had been protesting something else, the same people would be staunchly defending their right to do so, and correctly.

To me, the scariest part of this whole thing is the fact that these are federal officers wearing masks. We don't know who they are. Their employer clearly doesn't care to actually investigate things that they do to people. So, what else can be done? These are federal officers. And as we've discussed before, it's pretty much impossible to sue them. Even if we, we find a new video that shows undisputedly that it was an unjustified shooting, the family still likely could not successfully sue the shooter or shooters because they're acting on behalf of the federal government. Um, could you go into that some, and, and the fact that they're operating with a total—I mean, it's one thing to say, all right, they're enforcing the law. We don't armchair quarterback, um, decisions by law enforcement officers that have to be made very, very quickly, split-second decisions, and all that. Um, we can't always judge them in 2020 hindsight. I mean, it's one thing to acknowledge that, but it's another thing to say we're not going to judge them in any way at all. If, if the feds don't want to do anything internally to their own employees, sorry, there's nothing that can be done at all. You cannot sue these people, and the state and local authorities cannot even prosecute those people criminally. I mean, there's, there's zero accountability for whatever these guys do. And it seems like they know that.

Yeah. So, I mean, there's several things I want to start with before we get into that. And now we're kind of zooming out to the bigger problem, I think. And so to start with, I, I think you're right. I mean, the government's not, the federal government is not going to hold them accountable. And I think the statements that we've seen from people like Greg Boino and, and Kirstjen Nielsen show that this is behavior that they want to encourage. Um, I don't see any other way to interpret the fact that every time something at least questionable has happened, the immediate response before any evidence has actually been sussed out is for the government to come out immediately and full-throatedly supporting their officers and completely and totally treating as villains, ta—calling terrorists or agitators or whatever the people who have been killed. And so I think the, the incentive structure is pretty clear for federal agents. And of course, the, the bigger problem is the lack of accountability. And I'd also say that as someone who grew up in a conservative Republican household and came to sort of the lowercase L libertarian position that he's at today from that perspective, it is very shocking to see, um, people from that milieu now saying, cheering the idea of groups of masked, armed federal agents patrolling the United States for any reason. This was historically a boogeyman of the right, and, and correctly so, because you had instances like, uh, like Ruby Ridge and, and Waco, and you had rightful concerns about the things that those bands of federal agents might be doing. This is something that violates concepts of federalism. And it, of course, is something that could lead to the violation of Americans' rights. And now, unfortunately, because the armed federal agents are roaming around doing something that people on the right may or may not like to one degree or another, there's a lot more excuse-making for something that on principle should simply be rejected as, um, something that would be anathema to our founding fathers. Um, in terms of holding them accountable, yes, this is really where I think the rubber meets the road. And so a few years ago, in a case that we litigated at the Institute for Justice called *Burd v. Lamb*, you had a conservative judge, Don Willett, in the Fifth Circuit, a conservative circuit, lamenting the fact that federal officers act in what he referred to as a "constitution-free zone" because there's nothing that can really be done to hold them accountable when they violate the Constitution. And you touched on several of those reasons. Um, but I want to go through them to show, uh, to people just how completely insulated federal officers are. Um, and one is, okay, well, maybe we can hold them accountable by charging them with crimes when they really act badly. So, let's take this scenario and change it to be one where this officer is on video saying, "Hey, I'm going to go over there and murder this man," and then goes over and murders the man. So, it's just as clean as it could be. There's no, you know, disputes about what happened. Even under those circumstances, you're now left with a situation where state prosecutors, like you said, uh, generally have a very hard time suing federal officers if their actions are taken pursuant to their federal duties. Um, this stems from a case from the Supreme Court in the 1800s called *In re Neagle*, where a U.S. Marshal killed a man who was trying to assassinate one of the justices of the Supreme Court, who recused from the decision in the case. Um, and the Supreme Court basically said, uh, the Supremacy Clause means that at least under some circumstances, state prosecutors cannot charge federal agents with crimes for conducting actions that are "necessary and proper" um, to their federal duties. And of course, there is some logic to this. We don't want to essentially allow states to make federal operations de facto illegal by simply arresting every federal officer who tries to engage in what is otherwise lawful behavior. I think that the *Neagle* decision has been read very lazily over the past century by the lower courts, and the Supreme Court has done very little to sort of rein it in. Um, and so you see essentially the rule being applied is that if someone's a federal officer, they can't be charged with a state crime. That's not actually true. I don't think that's true under *Neagle*. I think there are also exceptions, um, that need to be made for *Neagle*, and, and, and one of them would be if an officer is violating the Constitution, the Supremacy Clause shouldn't protect him. Um, but as, as the law stands today, it's extremely difficult, bordering on impossible, for state prosecutors to charge federal officers with crimes when the crime is committed pursuant to actions taken in the line of their federal duties. Um, that leaves us with federal prosecutors, um, who can, of course, prosecute federal agents. There's a statute, 18 U.S.C. § 242, that actually makes it a crime, and the crime is capital if the victim dies, um, for a federal agent to violate someone's constitutional rights willfully. And the willfulness standard is basically the clearly established standard from qualified immunity. Um, and you, this is a statute that has been in place longer than the Department of Justice has existed. This is a Reconstruction statute alongside Section 1983. Um, but the glaring conflict of interest, which of course is federal officials charging other federal officials with crimes, um, means that the statute is almost never used against federal officers. It's rarely even used against state and local officers. Um, and so the, the big takeaway in terms of the one large way we could see accountability, which is prosecutions, is that prosecutor—prosecutors either cannot or will not prosecute federal officers when they break the law or when they violate your constitutional rights. And then that leaves it to us, the American people, to enforce our own rights. And I think that that is a good system if it had the appropriate tools. But, um, over the past few decades, the American people's arms have been tied when it comes to doing this because, um, while you used to be able to broadly sue federal officers when they violated the Constitution under what's called a Bivens cause of action, a few years ago, in a case called *Egbert v. Boule*, the Supreme Court took that away from us. And certainly whatever's left, it does not cover immigration officers because the *Egbert* case was a Border Patrol, uh, case, and the court explained that one of the reasons why you couldn't bring a Bivens cause of action was because of that context. Um, and so then that leaves us just with these sort of oblique, uh, more novel ways of trying to get at constitutional accountability indirectly. And so the main one is, is a statute called the Federal Tort Claims Act, which had kind of been pretty derelict in terms of, um, doing what we now need to do with it, which is hold accountable federal law enforcement officers. Um, and that act allows you to bring claims for torts—for non-lawyer listeners, are kind of the legal ease word for harms—and you bring the claims against the United States itself instead of against the individual officers. Um, and so this is a very oblique way of getting at constitutional violations when you're someone like, um, the family of Mr. Pretty, who's now probably going to have to bring a Federal Tort Claims Act case where they say, you know, you committed assault and battery, etc., instead of, you committed a Fourth Amendment violation. And then at the end of that process, you know, if, if successful, you will, um, get damages from the United States for those harms and not for constitutional violations. Um, the, another thing about the Federal Tort Claims Act, uh, that I know all too well is that it's absolutely larded up with special requirements and pitfalls and exceptions and defenses, and it really is a minefield because it was never designed for this purpose. And now we're left with that being the main, and, and kind of almost as, as it sits today, tool for federal accountability. There are other novel arguments that we're advancing at the Institute for Justice, but none of these has caught on yet. And so we're kind of scrambling to figure out what, if anything, can be done when federal officers violate individual rights. And to the point that we, you know, started off on, that means, like Judge Willett said, that these officers effectively are operating in a constitution-free zone, and their employers are cheering them on. And that means that they're going to behave poorly because that's what happens when someone has power that's completely unchecked. And the decision about whether someone who annoys you lives or dies is just completely up to you and your discretion. Um, and so something should be done about this. Congress should do something about this. For instance, by amending Section 1983 to allow constitutional claims against federal officers. And people on the right should want that because, like you said, and we've talked about, it's so incredibly easy to imagine this being done, uh, from the left to the right. And my fear is that in this current, you know, polarized political environment that we are in, this sort of ugly race to the bottom, tit-for-tat, where whoever wins the next election, if they have a D next to their name, they will figure out how to wring as much vitriol and violence as possible out of the government to punish their critics. And we need to do something to stop that. And I think the something is to fix the law so that it applies equally to everyone, regardless of whether they're a Republican or a Democrat or on one side of the aisle or another, and regardless of what type of federal agent is violating what type of constitutional right. All of them are constitutional rights that are protected, and all of them should be enforceable.

Are you guys at the Institute for Justice, um, interested in representing the Pretty family? Should they reach out to you in filing a lawsuit here potentially, um, under the Tort Claims Act or whatever other cause of action is available?

So, we can't, we can't openly offer representation because we have a review process that has to be approved by, you know, several different internal checks. But I can say for sure that I would be very interested in speaking with the family about what happened. Um, and, and, and we can talk about it from there. The same goes for anyone who's a victim of arguable federal abuse or state or local abuse. We want to hear about these issues because through our project on immunity and accountability, we're focused on tearing down the obstacles between Americans' rights and remedies for those rights when they're violated. And so if you find yourself in a situation where you think that that's happened, please reach out. You can go on IJ.org and you can contact us by, uh, submitting a statement, um, through the website. You can find me on social media. You can find my email if you Google me. Um, we, we're, we're a relatively small organization. Uh, we have a little over a hundred active cases right now across the United States. So, you know, some people are frustrated that we can't fix every problem. And, you know, I'm frustrated, too. But, at the end of the day, we can only do as much as we can do. And when you're dealing with, um, doing strategic public interest litigation, you have to pick and choose your cases. I would certainly like to speak with the Pretty family. I would like to speak to, um, other people who've been affected by, um, these sort of very muscular actions of federal law enforcement officers across the United States that we're seeing. And unfortunately, I think we're going to continue seeing them until there is something, um, that happens. And what I'm hoping happens is that the federal courts step in and put a stop to this by ensuring that there is some way to hold accountable federal officials because what I don't want to happen, and what I'm genuinely afraid will happen, is that this will devolve into, you know, the sort of leviathan of people shooting it out in the street. And, you know, one of the reasons why we have a legal justice system is because people need to feel that there is some fairness in the system sufficient to stop them from taking justice into their own hands. And in a country with the Second Amendment as a sort of, uh, as something hanging over us all for the purpose of keeping everyone polite, I think we need to focus all of our energy on solving this in a way that does not resolve to violence and instead resolves to the cases being, um, adjudicated by a, a neutral, uh, judge and someone who can simply weigh the facts and decide whether what happened was justified or prohibited by our Constitution.

Speaking of judges, I also wanted to get your take on this argument that I've seen online about administrative warrant entries by ICE as opposed to actually having a judicial warrant to enter a home in America.

Yeah. No, I think, I think that's a perfect segue because that's another problem that is just absolutely jaw-dropping for someone again who is not just a civil libertarian but came from the conservative right. Because using the same example that we just talked about, if they can come into your house without a judicial warrant to search for an illegal immigrant, they can come into your house without a judicial warrant to search for a gun that they want or a bump stock or a high-capacity magazine or whatever it may be. And you can find other examples that aren't just guns versus immigrants. You know, you can pick the sort of, uh, you know, the game of Clue here of like Mr. Mustard with the, with Colonel Mustard with the candlestick. Um, but the principles are the same. And it is absolutely shocking to see the Department of Justice come out with this secret memo being leaked saying actually no ICE agents can search houses without warrants. And to back this up a little bit, this is not anything that's actually new and it shows how pretextual the legal arguments are, and we can get into those in just a second. But when the President was trying to invoke the Alien Enemies Act earlier this year, there was another memo that leaked from Pam Bondi herself that effectively said the same thing. It's just that instead of talking about, um, capturing illegal immigrants, it was capturing people who were subject to the Alien Enemies Act order. And it was the same scenario where they said, "Okay, well, you can have these administrative warrants." Here's an example of the warrant. And for those who aren't familiar, uh, we're going to call these things administrative warrants. These are not warrants. I refuse to call them warrants. They're not the warrants that are, uh, considered in the Fourth Amendment. These are pieces of paper that are signed by one ICE agent to give another ICE agent approval to go into someone's house. And so in the same way that I could write on a piece of paper, "John's allowed to go into a third party's house," these warrants have no actual merit to them. Um, and they are called warrants because they're the government is trying to make us believe that they're doing something they're not, which is following the Constitution. These are warrant-shaped objects. And the importance of warrants, as the Supreme Court has repeatedly said and is just simply common sense for anyone, is that you need a neutral person, a neutral judge, to weigh the evidence and decide whether it's appropriate for you, an executive branch officer, to do the thing. That's why warrants are required in the first place. Historically, we have a Fourth Amendment because in a case called *Entick v. Carrington* that it was decided by the King's Bench before the founding, um, the King's men were just going under general warrants into people's houses and searching their papers and houses and effects and all the things that are listed in our Fourth Amendment. And we didn't like that. Even by the time of the founding, the British courts didn't like that. And so now for us to be devolving to that essentially where they can just say, "Well, I think there might be an illegal alien in there, so I'm just going to come in and toss the place." Um, that should be horrifying to all of us. Even if we think every single illegal alien or every single immigrant should be excluded from the United States, and I certainly don't think the second one, it's crazy because the mistake level, given the volume of what's going on here, is going to be high. And there's very little to protect you as you're sitting in your house from someone outside just deciding by accident or malice that there might be an illegal alien in your house. And so they get to come in and smash the place and take you out in your underwear like the American citizen in Minneapolis who ICE or CBP, I can't remember which it was, um, mistakenly, uh, searched. And then after the fact, just the same scenario, had these high-level officials come out and make up a bunch of lies about how he was living with child molesters and it just wasn't true. There's no evidence that any of the people they were looking for had ever been there. The people were decades younger than him, didn't look anything like him. And nevertheless, um, it happened to him. And now the question will be, what can he do about it? And this takes us right back to that same point, which is we should be very scared because we deserve to be secure in our houses. That's a right that we all have naturally that the government is not allowed to violate because the Fourth Amendment says to the government, it cannot do that. So we should be afraid of the idea that ICE officers can write themselves warrants to come into our houses. Um, and we should also be afraid that they might do that because they know that if they do, there's nothing we can do to hold them accountable, or at least the road to accountability is extremely narrow and extremely winding. And there are very few lawyers who are going to be able to navigate it. Um, and so, you know, if you are the victim of one of these wrong house raids based on an administrative "quote unquote" warrant, again, similarly to what we said earlier, please reach out to the Institute for Justice. Please reach out to me because I want to talk about this. We have been working on administrative warrant issues in the context of rental inspections for years and years and years, and those, um, those things are bad too. But this seems like a whole different level where you have the federal, uh, agents coming in and dragging people actually out of their houses.

What about all these federal former federal prosecutors you see online who are lecturing people on administrative warrants and that that's sufficient to come in, particularly in the Eighth Circuit? They think they're citing this, uh, *Abel* case.

Yeah. *Abel*'s a Supreme Court case. They're, they're citing a case called *Lucas*, and, and the confusion is because the government has tried to shroud this all in secrecy. This was a secret memo that itself provided no legal authority. And so once it came to light, everyone was left to sort of guess what the government thought it was going to hinge its arguments on. And I think to begin with, that shows the government knows it's doing something bad. Uh, I don't have any secret legal memos. When I file my legal briefs, they are pretty straightforward and they're meant to explain to someone why I should win my case or why I'm right about the law. And so the fact that the government has been hiding this and is now still really not really explained it much. Um, you had people like Orin Kerr, professor at Stanford Law, who's a Fourth Amendment expert. He was sort of guessing at what he thought the government was getting at. And *Abel* was one of the things because *Abel*'s a case that involves administrative warrants. Um, but as it turns out, because people like Chad Meisler, who's at DHS, I think he's some chief counsel or whatever, came out and referred to this *Lucas* case from the Eighth Circuit. And the case is just such a weak basis to do this stuff. The *Lucas* case, first of all, the government's position is supported only by a plurality of the court. So there's not even a court precedent that supports the position. And the case is about an administrative warrant where they were hunting down an escaped fugitive who they knew was in the house at the time. And so there's all these sort of intertwining different things that are weighed in terms of whether it's reasonable and the fact that this person may or may not have had, have a reasonable expectation of privacy. But in the main, the people online who are defending this or defending administrative warrants seem to mostly be blowing smoke because they realize that people don't understand what administrative warrants are. Um, and the, the real frustration is these administrative warrants. Again, an administrative warrant. If someone says that to you, just imagine they aren't saying warrant at all. But the warrants here are particularly weak because the other basis the government cites for them is that they're, they're based on an immigration judge's deportation order, at least to some attenuated basis. Well, a deportation judge, as they call it now, is not even a judge. In the same way that an administrative warrant is not a warrant, these deportation immigration judges are actually executive branch officials. And so again, it's me and my partner in the squad car handing each other a piece of paper saying, "Well, I'm the, I'm going to decide there's an order here, and I give..."

"Okay, based on this order, I will issue a warrant back to you." And now you can kick in the door of this house um just because you think that there might be someone inside it. This is not any sort of protection.

Getting a warrant is not difficult. That's the other piece of this. The warrants now, there's research on this showing Utah has a bunch of digital warrants that there's a bunch of scholarship that has analyzed this. The average warrant today is is being is being approved in a matter of minutes. So, in most cases, the need to get a warrant is not like it's some it's not some difficult task. It can be done electronically. It can be done over the phone even before we had smartphones. And so the fact that the government is not even bothering to do that is another indication of how flimsy its behavior is.

If you can't take a few minutes to make a phone call to a magistrate judge um and explain why you need to go into a house, then you probably shouldn't be going to that house outside of genuinely emergency circumstances that already fall within other warrant exceptions. Um and so there's just so much of this that's just sort of nonsense on stilts, different ridiculous assertions built on different ridiculous assertions. And I think everyone fundamentally knows, everyone who's read the Fourth Amendment and thought about this stuff knows that this kind of thing is exactly what the founding fathers were trying to prohibit, regardless of whether there's good outcomes because of it.

That's true in the criminal context. There are lots of ways that police would be able to far it out more crime if you had no rights and they can just come search through your stuff and throw a bunch of people up against the wall and put them in handcuffs and decide who the bad guy is after the fact. But we decided as a nation because we have natural rights and we think they're important that the costs for doing that outweigh the benefits. And so we don't allow the government to do those things.

And the other thing to keep in mind is all these prohibitions in the Constitution, they're not this is not negotiable. This is the absolute bottom line. You cannot cross this line if you work for the government or at least you're not supposed to be able to. And the fact that we have such limited remedies when it happens goes to show you how precarious the situation has become because the government on one hand is pressing further and further into invading our rights as Americans in our own homes now. And the courts on the other hand are pushing us further and further away from being able to do anything about it.

And going back to the point, I really want to stress to people the importance of finding a route through this that does not involve people invoking the Second Amendment and exercising those rights. They can exercise the rights. I don't want to see any violence. And to stop violence, we need to see solutions in court, in law, and in restraint. And I think all of the people involved here have some responsibility. You see this too getting thrown around, which is, you know, the federal government's blaming the state and local officials. They're blaming the federal government. They're blaming protesters. Everyone has some responsibility. But we need to have a system that's able to check things sufficiently that you don't have uh common circumstances where there are, you know, armed federal agents wearing masks, battling it out with often armed people wearing masks in the streets because that's just not a good way for society to function.

Yeah, I agree. People need to fight this out in court and that's what you guys do. And so if people want to help fund that fight, what can they do?

Yeah. So the Institute for Justice is a charity. We're a 501c3 nonprofit. So we're funded completely by private donations. We don't take any money from the government despite what online conspiracists will accuse me of every time I post about something. Um so to help us in our fight, you can go to ig.org and donate. Um we have more than 12,000 individual donors. Uh we aren't sort of beholden to any group. We have our missions posted clearly on the website. You can see the work that we do. Uh we have a a four-star rating on Charity Navigator. Um every dollar that donors give to the Institute for Justice is something that's going to be used to try to vindicate the constitutional rights of everyday Americans across a variety of issues. I mean, we're talking today about um issues involving policing, but I's pillars um are are educational choice, property rights, economic liberty, and free speech. Uh we work on all of those issues. We have sub issues like the project on immunity and accountability and the project on the fourth amendment. Uh we deal with civil asset forfeite. Uh we're dealing with all of these um automated plate readers in our plate privacy project. And so we work on a number of issues. All of them are funded by donations. And so if you would like to join us in the fight, uh go to ig.org and donate now. You can set up recurring donations, whatever works for you. A dollar, $10,000, $10 million. We welcome it all because every single penny of it is going to go to figuring out ways to make sure um that the government cannot uh abuse you or violate your rights.

Awesome. Well, I appreciate it, Patrick. Um I'll let you get back to suing the government.

All right. Good to see you, John.