The government argues that because any claim of self-defense or defense of others was “legally unsupportable,” introducing evidence or arguments that raise that defense would amount to “a thinly veiled attempt to encourage the jury to nullify any verdict in this case.”
Benjamin Song, the alleged shooter, and four other defendants could face life imprisonment if convicted of attempted murder of law enforcement officers.
The issue of self-defense in the actions of the nine defendants accused of carrying out a “coordinated attack” on the Prairieland ICE facility arises amid a lingering national outcry over the January killing of Alex Pretti, a 37-year-old protester, by two Border Patrol agents in Minneapolis.
When he was shot, Pretti was carrying a handgun in accordance with Minnesota law. He did not draw the weapon before being shot multiple times.
Claims by administration members including President Donald Trump himself that Pretti should not have brought his gun to a protest met with bipartisan scorn, including among hardline gun rights groups.
While polling shows that ICE’s actions are widely unpopular, the government could face an additional hurdle with jurors in the Prairieland case, given that Texas is a state with broad support for gun rights.
“Our law is that you can open carry,” Greg Abbott, the state’s conservative Republican governor who is in the middle of a reelection campaign, declared at a January event following Pretti’s death.
“There are protests and other activities that occur all the time when people are carrying guns and doing so lawfully.”
Protest or attack?
Federal prosecutors and investigators have strenuously objected to the defendants’ description of events at the Prairieland Detention Center outside Fort Worth on July 4, 2025 as a “protest,” insisting it was an “attack.”
The defendants said they shot off fireworks to cheer up immigrants inside the facility. Prosecutors argue they fired “explosives” and vandalized government vehicles and a guard shack, in a ploy to draw law enforcement into an ambush.
The original indictment in the case came only three weeks after President Trump issued an executive order designating “antifa” as a domestic terrorist organization while describing the amorphous left-wing movement as “a militarist, anarchist enterprise that explicitly calls for the overthrow of the United States government.”
When the government unveiled the final indictment last November, Robert Cerna, acting director for the ICE Dallas Field Office, described the July 4 incident as a “coordinated attack” carried out “to sow anarchy and to undermine the rule of law.”
A response filed on Monday by the lawyer for one defendant charged with attempted murder directly challenges the government’s theory of the case.
Patrick McLain, who represents Zachary Evetts, wrote that testimony by government witnesses indicates “evidence of self-defense and defense of another.”
Citing Gross’ testimony, McLain wrote that the officer emerged from his squad car “with pistol raised in one hand” after receiving a report of a lone person attempting to enter the ICE facility.
“Lt. Gross noticed someone running away from him, dressed in black and apparently unarmed,” McLain wrote.
“In that instant, Lieutenant 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 that he pointed his pistol, loaded with a round in the chamber, at the back of the fleeing person.”
Video presented in court last week showed that within six seconds of Gross’s arrival on the scene, Song fired a rifle at Gross, and Gross fired back, McLain wrote.
The lawyer went on to say testimony from another officer that a bullet struck the magazine of Song’s rifle suggests Gross pointed his pistol at Song.
The government argued in its motion that “any assertion of self-defense or defense of others is legally unsupportable,” in part because defendants cannot legally show that Gross’s “display of force in pointing his weapon at a non-compliant defendant” was unreasonable.
McLain countered that Gross’s actions were “objectively unreasonable,” citing a 1985 Supreme Court decision, Tennessee v. Garner, which ruled “that deadly force is only allowed to apprehend felons who the police officer has probable cause to believe pose a ‘significant threat of death or serious physical injury’ to them or to the public.”
In Garner, McLain wrote, the high court ruled that the officer “violated the Fourth Amendment by shooting a fleeing burglary suspect, who did not appear to be armed, in the back of the head.
“Here, Lt. Gross was presented with a situation that, in the moment, he had no reason to believe involved a felony at all, let alone one in which a personal already running away from him was likely to present a ‘significant threat of death or serious physical injury,’” McLain wrote in his stinging retort.
“Even if someone ‘trying to get in’ to PDC could have warranted Lt. Gross’s response, the individual at whom he took aim was running in the opposite direction. Lt. Gross’s act of aiming his firearm at the back of an unarmed fleeing person, a misdemeanant at best and nonviolent felon at worst, was objectively unreasonable under the Fourth Amendment.”
An email to the U.S. Attorney for the Northern District of Texas seeking comment went unreturned.
‘Yet another questionable move’
The defendants’ supporters flagged the motion to bar a self-defense claim as a sign of desperation on the government’s part.
“This is yet another questionable move by federal prosecutors in this unprecedented case, with the potential of seriously eroding the defendants’ ability to have a fair trial and adequate defense,” said Xavier T. de Janon, a lawyer representing a federal defendant in a parallel state criminal case.
“The government seeks to take away crucial, fact-based issues out of the hands of the jury, in the middle of the trial, after the evidence has already been introduced.”
