Officials say Alex Pretti ‘brandished’ a weapon, but have offered no evidence. Why that term matters

(CNN) — Federal officials have claimed Alex Pretti, who was fatally shot by at least one Border Patrol agent in Minneapolis Saturday, “brandished” a firearm to officers.

“This individual went and impeded their law enforcement operations, attacked those officers, had a weapon on him and multiple dozens of rounds of ammunition, wishing to inflict harm on these officers, coming, brandishing like that,” Department of Homeland Security Secretary Kristi Noem said Saturday.

In addition to the common meaning of the phrase, brandishing a weapon is also a criminal charge with a legal definition. A person can meet the definition of brandishing without even showing the gun, but given how quickly officials made that claim, it’s “implausible” DHS had time to do an investigation that would be thorough enough to support that claim, a policing expert said.

Noem did not provide detail about when, exactly, she alleges the “brandishing” happened. “Brandishing” has a specific legal meaning, according to Title 18 of the United States Code pertaining to Crimes and Criminal Procedure. Its defines the term, as it relates to firearms, this way: “to display all or part of the firearm, or otherwise make the presence of the firearm known to another person, in order to intimidate that person, regardless of whether the firearm is directly visible to that person.”

It is possible to “brandish” a weapon without holding it, according to Seth Stoughton, policing expert and law professor at the University of South Carolina, who responded to CNN’s questions over email. “Think of a bank robber who gestures to a concealed or partially concealed weapon to draw attention to the fact that they are armed as part of the robbery.”

“However, merely possessing a gun or even drawing attention to it (for example, the way a motorist during a traffic stop might tell officers that there is a gun in the glovebox) does not constitute brandishing,” Stoughton added.

When CNN’s Dana Bash asked Border Patrol Commander-at-Large Gregory Bovino Sunday if officials have evidence to support their claim Pretti was “brandishing” his weapon, Bovino said Pretti’s firearm, at some point, became visible to officers.

”He brought a semi-automatic weapon to a riot, assaulted federal officers, and at some point, they saw that weapon,” Bovino said. “So, I do believe (Noem) is 100% spot-on in what she said.”

CNN analyzed footage from the shooting that appeared to a show an officer removing a gun from Pretti just prior to officers shooting him. DHS says Pretti “approached” officers while they were “conducting a targeted operation” against an undocumented immigrant.

Bystander video shows one agent reaching into the scrum of other officers seeking to restrain Pretti and retrieving a weapon that appears to match the firearm DHS says Pretti possessed.

At least one agent can be heard shouting “he’s got a gun” when the unidentified officer reaches into Pretti’s waistband as the pile of officers try to subdue him. Just over one second after the officer emerges holding the weapon, a shot rings out, followed by at least 9 more, according to videos.

Stoughton said he has seen no evidence to support Noem’s description that Pretti was “brandishing” the firearm and notes Noem did not provide any.

“Given the rapidity with which the statement was made, it seems highly implausible that DHS could have conducted the type of thorough investigation that would be necessary for a responsible police leader to characterize Pretti’s actions as ‘brandishing,’” Stoughton said.

CNN does not currently have video or audio that shows what Pretti may have said in his final moments.

Bovino added Sunday the shooting is under investigation and questions will be answered “soon enough.”

“OK, but the Homeland Security Secretary is not waiting for that investigation to take place before saying that Alex Pretti was quote, ‘brandishing a weapon,’” Bash responded.

CNN’s Thomas Bordeaux, Yahya Abou-Ghazala and Casey Tolan contributed to this report.

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