Prosecutors can’t seek the death penalty for Tyler Robinson, his defense team argues in a new court filing, because they failed to show he knew he would put others in danger when he allegedly shot Charlie Kirk — a key element needed to charge him with aggravated murder.

The defense attorneys say that the Utah County Attorney’s Office “wholly fail[ed] to carry its burden of proof” during a weeklong July preliminary hearing, where they presented evidence that they say tied Robinson to the crime.

In a brief filed Tuesday night, Robinson’s attorneys argued prosecutors presented no evidence that he knew his alleged actions would create “a great risk of death” to anyone besides Kirk. That allegation is what prosecutors are relying on to make the case eligible for the death penalty.

Not every homicide in Utah is a capital crime. Prosecutors must show the killing was especially egregious, and prove what’s called an “aggravating factor.”

In Kirk’s killing, prosecutors have argued the aggravating factor was that Robinson put others at risk of death when he allegedly used his grandfather’s rifle to fire a single shot from atop a Utah Valley University building on Sept. 10 toward a crowd of thousands gathered for Kirk’s Turning Point USA event. The bullet struck Kirk in the neck.

Robinson’s defense team wrote that prosecutors need to show more than a “possibility” that someone else could have been hurt that day, arguing they must instead show there was a “high probability” of that and the defendant knew it. They’re asking 4th District Judge Tony Graf to strike the aggravating factor — which would make Robinson ineligible to face the death penalty, if he is convicted.

Video played to the judge in July showed the moments before the shooting, when a man was asking Kirk a question from the crowd. The questioner was not in the line of fire, the defense attorneys wrote, and there was no one immediately behind the pop-up tent that Kirk had been sitting in. And given that Kirk was seated on an elevated platform and struck in the neck, the bullet traveled above the crowd, they argued, not through it.

“The bullet that struck and killed Mr. Kirk was not fired in an enclosed bedroom or space but rather, an open-air arena with what the State’s witnesses termed, ‘a clear line of sight,’” the brief reads. “There were no threats to others in the course of conduct. There was no one ‘directly’ next to Mr. Kirk when he was shot, and there was no one under the tent on the side that Mr. Kirk was struck or behind him in the breezeway.”

“Multiple shots were not fired,” they added. “There were no ricocheting bullets.”

Prosecutors have previously argued that evidence showed Robinson was ready to keep firing, because he had three more bullets loaded in the rifle. Utah County Attorney Jeff Gray wrote in an earlier filing that Robinson disassembled the rifle in order to hide it in his pants as he walked through campus. That action could have affected his firing accuracy — a factor Gray argued Robinson likely knew — because reassembling it would have risked any previous setup he did to calibrate the rifle and scope.

The county attorney argued this shows Robinson knew he put others in the crowd at risk.

Targeted for representing a ‘political movement’

When prosecutors filed aggravated murder and other charges last September, they also filed a victim-targeting “enhancement,” which could increase the penalties for Robinson if he’s convicted. They’ve argued that Robinson targeted Kirk because the man represented a “political movement” opposed to gay marriage and transgender rights.

They argue those beliefs stood in “stark contrast” to Tyler Robinson’s personal life, where he was in a romantic relationship with his roommate, Lance Twiggs, who at the time was exploring whether to transition genders.

Robinson’s attorneys attacked this assertion in their latest filing, saying that the only piece of evidence that may show Robinson’s motivation was a text to Twiggs where he wrote about Kirk after the shooting that “I had enough of his hatred.”

But the defense team argued that prosecutors didn’t show that his relationship or his partner’s potential transition motivated the killing.

“In the face of the absence of evidence,” they wrote, “the State focuses on Mr. Robinson’s sexuality and Mr. Twiggs’ gender identity, if only because those are two topics on which Mr. Kirk was, in fact, widely viewed as expressing hatred and intolerance.”

‘Ask for a lawyer and stay silent’

Robinson’s defense has also asked Graf to dismiss several charges, saying prosecutors didn’t prove that there was evidence for those allegations to move toward trial.

They say that he shouldn’t face a witness tampering charge for allegedly texting Twiggs to “ask for a lawyer and stay silent” if the police ask questions.

Robinson’s lawyers say the text messages show he was trying to protect Twiggs from any fallout — not attempting to thwart an investigation.

They point to other messages where Robinson wrote, “You are all I worry about love,” and “Don’t talk to any media please. don’t take interviews or make comments.”

“make sure the police follow the right procedures,” another text reads. “proper warrants and stuff, be polite and respectful of course.”

Robinson’s attorneys also argued that he should not face a charge alleging that he knew that a child under the age of 14 would be present and witness Kirk’s death.

They argue that while video surveillance allegedly showed Robinson on campus earlier that day, there is no evidence that indicates he was near the crowd that had gathered before the event or knew that families with children were there.

The count of violent offense committed in the presence of a child is a class A misdemeanor, and if he were convicted, could be used to enhance his sentence.

These arguments come as Graf is weighing whether prosecutors have shown that there’s enough evidence for the case to move forward. The attorneys will argue in court on Sept. 1, then Graf will likely issue a written ruling later.