The use-of-force policy by CBP is based on constitutional standards set by federal courts, emphasizing that any use of force must be “objectively reasonable” at the moment it is applied. This assessment is not influenced by later public opinion, political commentary, or detailed video analyses, but rather on the agent’s knowledge and perception at the time of the incident.
In addition to FBI investigations into agent-related shootings, Border Patrol’s actions will face administrative evaluations based on stringent legal standards. Agents participate in extensive training on use-of-force policies at the U.S. Border Patrol Academy, both at the start of their careers and throughout their service.
According to the policy, deadly force can be justified when an agent reasonably believes someone poses an imminent danger of death or serious injury to themselves or others. In the case of the shooting involving 37-year-old Alex Preti, it is confirmed that he was armed during the altercation leading up to the incident.
Video evidence shows at least one agent shouting “guns!” multiple times before the first gunfire. The 1989 Supreme Court ruling in Graham v. Connor permits officers to rely on information from fellow officers to establish reasonableness, regardless of whether they have directly observed a weapon.
The agent involved in the recent shooting is noted to be an experienced eight-year veteran and a firearms instructor, tasked with teaching accurate shooting as well as appropriate shooting scenarios. This level of expertise suggests he understood the risks presented by Preti and the relevant policies regarding a rational response.
A widely-shared video captures an armed individual, thought to be Preti, moving away from a group of agents engaged in a struggle just before shots were fired. Additional social media posts featuring enhanced video stills indicate a possible weapon being concealed by an unidentified agent a moment earlier, leading to speculation that the gun was discharged inadvertently, prompting the belief that Preti may have fired it.
While these interpretations, if validated, could influence the outcome of any criminal inquiry, the key focus remains on the agent’s perspective at the moment he made the decision to shoot Preti. The CBP use-of-force policy reinforces that “reasonableness” should be judged from the viewpoint of a reasonable officer on the scene, rather than from hindsight.
The policy also recognizes the high-stress situations law enforcement officers encounter, stating that the assessment of reasonableness must consider that these officers often have to make rapid decisions about the required level of force during chaotic and evolving circumstances.
Videos circulating online portray the disorder caused by crowds of agitators who were not protesting but actively obstructing. The loud whistles aimed at agents raise the stakes during enforcement operations, as agents face potentially armed and dangerous suspects.
In relation to the recent shooting of Preti, the pressure during the attempted arrest was exacerbated by his possible non-disclosure of carrying a weapon and his reluctance to be taken into custody. Additionally, the absence of local law enforcement could have prevented such disruptions of Border Patrol agents fulfilling their duties.
Video evidence from the incident suggests that Preti, now confirmed to be armed, appeared to be attempting to film other agitators who were intervening with agents amidst their operations.
As for the potential criminal prosecution of agents, the Department of Justice has set clear standards about prosecuting federal officers involved in significant shootings. In April 2021, the DOJ closed an investigation into Capitol Police Lt. Michael Byrd in relation to the shooting death of unarmed Ashli Babbitt, concluding there was insufficient evidence to support an indictment.
They noted that at the moment Byrd fired, there was no evidence he believed he was not acting to protect himself and others. Applied to the shooting on Saturday, it’s likely the DOJ will find it challenging to demonstrate that the agent did not feel his life was threatened moments before shooting Preti, particularly given the potential consequences of hesitation in such situations.
This sentiment is perhaps underscored by another incident where two National Guard members were shot near the White House. In that case, the rapidity of the attack left little time for the soldiers to react appropriately.
In Minneapolis, any hesitation from the Border Patrol agent could have posed life-threatening risks, especially if Preti was perceived to be engaging with a firearm during a close confrontation.
Randy Clark is a retired U.S. Border Patrol veteran with 32 years of service, formerly serving as Division Chief of Law Enforcement Operations in the Del Rio, Texas area.
