AUSTIN (KXAN) — Garrett Foster was seen carrying an AK-47 rifle at a Black Lives Matter protest this weekend. The same night, he was shot.
Austin police confirmed the 28-year-old died at the hospital, after being shot several times during a confrontation between a motorist and protesters.
An independent journalist filming the protest and dash camera footage from another driver both captured the moment a car turned into a crowd of protesters on Congress.
Seconds later, there was a volley of gunfire.
“Gunshots were fired from inside the vehicle at Mr. Foster,” Austin Police Chief Brian Manley said. “During the initial investigation of this incident, it appears Mr. Foster may have pointed his rifle at the driver of this vehicle prior to being shot.”
Manley said another individual also drew their concealed handgun and fired multiple shots at the car as it drove away.
Both the driver of the vehicle who fired at Foster and the individual who fired at the car later on have been released “pending further investigation,” and no charges have been filed.
Manley noted that both people have concealed handgun licenses.
Texas law allows for the open carry of long guns, like rifles. To openly carry a handgun, someone must also carry a valid handgun license. Texas does not require a person to have a valid license in order to carry a loaded handgun in a motor vehicle, if the vehicle is owned by the person or under the person’s control. However, Texas generally prohibits intentionally, knowingly, or recklessly carrying a handgun in plain view in a motor vehicle, except in a shoulder or belt holster.
Texas Gun Sense Board President Ed Scruggs called this shooting a “perfect storm of weak Texas gun laws coming together at that intersection.”
He argues that at three separate moments in this situation, the presence or use of a gun escalated the situation.
“This doesn’t involve the motives of the people involved in this incident,” he said. “It’s really a case of the atmosphere we are in, promoted by our lax gun laws that make violence more possible.”
His group is calling for changes like requiring permits for the open carry of long guns, adding more restrictions to the use of guns in automobiles, and requiring more training on the ‘rules of engagement,’ to prevent someone from firing at at a fleeing target.
The founder of Open Carry Texas, CJ Grisham, agreed that training was key, but disagreed about how it should be implemented.
“If you are going to carry a gun, you need to understand what the use of force continuum is. You need to be able to assess a situation,” he said. “I don’t mean training by the government. The government doesn’t give this kind of training. I mean going to the range, people taking classes, people watching self defense videos.”
He told KXAN that he feels Foster’s death was a tragedy, but thinks Foster may have instigated the situation when he approached the oncoming car.
“This isn’t just an issue of open carry. If Garrett was just walking down the road, this wouldn’t have been an issue,” Grisham argued. “A smart, trained gun owner… would have known, you don’t take a gun into a situation like that.”
He added, “If your life is not in danger, you have no reason for having that gun in your hand, whatsoever. The sole purpose of a gun is self-defense and prevention of crime.”
Criminal defense attorney Steve Toland said Texas is a “stand your ground” state, but justifying self-defense can still be complicated.
“Stand your ground” laws in Texas allow individuals to use force to defend themselves, without first attempting to retreat from the danger.
“You can’t be the instigator,” Toland explained, also noting someone can only justifiably respond with the same amount of force that’s being used against them.
“Words alone can never be justification for using deadly force against somebody,” Toland said. “But if you point a deadly weapon at somebody, that’s a second degree felony.”
He added that a car can be used as a deadly weapon.
“Someone accelerating with force… they are going through a crowd,” Toland described. “That’s a very different situation where someone might be justified at pointing a firearm at a moving car.”
Toland said the unique facts of each case matter, when it comes to the decision to press charges — like whether the road was open and the light was green.
Just weeks ago, a protester in Seattle was killed when a man who drove his car onto a closed freeway and into a crowd protesting police brutality.
In Austin, a man brandished a gun while driving through a crowd of protesters in June. Police officers took him into custody, but he wasn’t arrested.
According to APD, the driver was “traveling legally in a moving lane of traffic on 8th Street,” when he was approached by “an aggressive crowd who surrounded the vehicle and started banging on the windows.”
APD’s statement went on to say, “Fearing for his life, the driver brandished a legally-carried weapon.”
Toland said self-defense cases can be difficult because of lack of clarity in many incidents.
“You have to remember the burden is on the person who used force, or deadly force. You have a burden of proof, you have to justify why you did that,” he said.