The government’s motion asserted that such claims were “legally invalid.”
‘Apparently unarmed’
The new order, only the most recent in a tumultuous series of developments in the Trump administration’s first “antifa” prosecution, came after one defendant alleged that Gross pointed a pistol at a fleeing protester before he was shot.
Pittman’s written order was not immediately available, but his decision from the bench was reported by the defendants’ support committee, which is closely monitoring the trial.
Patrick McLain, an attorney for defendant Zachary Evetts, wrote in a filing on Monday that testimony by Gross and other government witnesses indicates “evidence of self-defense and defense of another.
“Lt. Gross noticed someone running away from him, dressed in black and apparently unarmed,” McLain wrote.
Some testimony has raised questions about whether the protester was armed.
McLain continued: “In that instant, Lt. Gross thought the person running away from him may have had something to do with the words spray-painted on an unoccupied guard shack he had also seen at that moment. Lt. Gross testified he pointed his pistol, loaded with a round in the chamber, at the back of the fleeing person.”
But on Tuesday, setting aside McLain’s argument that Gross’s actions were not a reasonable use of force, Pittman sided with the government’s position that the defendants are precluded from asserting that Song acted in defense of another because they cannot claim they were without fault in the events that led to the shooting.
In remarks from the bench, Pittman echoed the government’s citation of a legal precedent set in the prosecution of members of the Branch Davidian sect during the deadly 1993 siege by the FBI at Waco, Texas, according to the support committee.
The government motion cited a 1996 decision by a panel of judges in the Fifth Circuit finding that a Branch Davidian sect member could not claim self-defense when officers of the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) came to the group’s compound to serve arrest warrants for stockpiling weapons.
“A member of a conspiracy to murder federal agents, who dresses for combat, retrieves an assault rifle, and proceeds to the front door to confront government agents executing a lawful warrant, is not entitled to claim the benefit of self-defense when the hoped-for confrontation with the agents occurs,” the judges wrote.
Xavier de Janon, the director of mass defense at the National Lawyers Guild, said the new order could weaken the rights of people attempting to protect themselves against law enforcement aggression.
“I am concerned that the ability to defend oneself against law enforcement when they draw their weapon at you has been placed in danger,” de Janon told Raw Story.
“And some people would say you should not have the ability to self-defend against law enforcement. But there is case law that says people have the right to resist unlawful arrest and unlawful law enforcement conduct.”
De Janon represents Elizabeth Soto, one of the federal defendants, in a separate state prosecution.
The FBI siege at Waco is widely considered to have been a galvanizing event for the U.S far-right, feeding a narrative of government overreach that would inspire conspiracy theorist Alex Jones, the Oath Keepers and the Three Percenters, all of whom were involved in the 2021 attack on the U.S. Capitol.
President Donald Trump, on whose behalf the Capitol attack was staged, held his first rally of the 2024 presidential campaign in Waco.
Now, with Trump making “antifa” the focal point of his effort to criminalize political opposition through a national security memorandum that broadly condemns views counter to his agenda, DOJ prosecutors are arguing that Song’s actions are analogous to those of the Branch Davidians.
Four ATF agents were among the 86 people killed at Waco. Most sect members died in a massive fire after federal agents attacked.
Outside the Texas ICE facility last July 4, Lt. Gross was reportedly shot in the neck, with the bullet exiting through his back. He was treated at a local hospital and released after four hours.
‘Get to the rifles’
In its motion, the DOJ cited testimony by two corrections officers “that after the defendants were told to leave and that the police had been called, Song remained in place armed with an AR-15 near the roadway from which any law enforcement response would arrive.”
Citing evidence from police body-worn camera footage that Song shouted “get to the rifles” and almost immediately opened fire on Gross, the government argued he could not claim self-defense, while directly quoting the Fifth Circuit ruling on the Branch Davidians.
De Janon said Judge Pittman’s order shouldn’t affect the other defendants. With or without self-defense, there are numerous ways to challenge the government’s accusation, he said.
And while the order hurts Song’s defense, the government still has a burden to overcome to prove its case.
“This is an attempted murder charge,” de Janon said. “They will have to prove malice aforethought. They will have to prove premeditation. Not all is lost. They will have to prove every single element of attempted murder. It’s everything — identity of the shooter, that an intent was formed not just to hurt, but to kill.
“The sequence of events could still weaken the state’s theory given the fact it was Gross who drew his firearm first.”
The government argued that allowing defendants to claim self-defense “can only serve as a thinly veiled attempt to encourage the jury to nullify any verdict in this case.”
The judge’s order to bar evidence of self-defense comes only a week after he declared a mistrial after interrupting a defense attorney questioning prospective jurors about whether they believed it was appropriate to bring guns to a protest.
Prospective jurors had spoken against ICE operations and expressed broad disapproval of the Trump administration.
