State of Texas: Guns and self defense at issue in deadly shooting at protest

State of Texas

AUSTIN (Nexstar) – Garrett Foster was seen carrying an AK-47 rifle at a Black Lives Matter protest on July 25. The same night, he was shot.

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.”

The driver who says he shot and killed Foster revealed his identity late Thursday night in an email from his attorney to news media. The email identified the shooter as Daniel Perry, an active-duty soldier with the 1st Cavalry Division at Fort Hood.

The statement says Perry was driving for a rideshare company when he dropped a client off near Congress Avenue. He was looking for another request for pickup or food delivery when he turned right onto Congress Avenue from Fourth Street.

That’s when he encountered the group of protesters.

“Prior to arriving at the corner of Fourth Street and Congress Avenue, Sgt. Perry did not know that a demonstration was taking place,” the statement says.

“When Sgt. Perry turned on the Congress Avenue, several people started beating on his
vehicle. An individual carrying an assault rifle, now known to be Garrett Foster, quickly approached the car and then motioned with the assault rifle for Mr. Perry to lower his window,” which the attorney says Perry did, thinking the gunman was a police officer.

The attorney says Foster then began to raise his weapon, and Perry shot and fired. Perry drove a short distance away to safety while another protester shot at him. He then called police.

The attorney’s statement says Perry “deeply sympathizes” with the Foster family but then concluded with a plea to the public:

“We simply ask that anybody who might want to criticize Sgt. Perry’s actions, picture themselves trapped in a car as a masked stranger raises an assault rifle in their direction and reflect upon what they might have done if faced with the split second decision faced by Sgt. Perry that evening.”

MORE: Austin Police identifies man killed in shooting during downtown protest Saturday

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 said 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.

Video of deadly police shooting released to public

On Monday, the Austin Police Department released new videos of the fatal Mike Ramos shooting in April, after months of increased push for their availability.

Austin police release new videos showing shooting of Mike Ramos 

The 16-minute video shows the moments before 42-year-old Ramos was fatally shot by APD Officer Christopher Taylor during an incident in southeast Austin. The shooting occurred after police responded to a report that a man in a car was waving a gun in the air.

The video’s release comes amid a nationwide wave of demands for police reform and increased accountability during deadly law enforcement events, including the global impact of the George Floyd arrest video. More regionally, the shootings of Ramos and the in-custody death of Javier Ambler have remained subjects of protests and calls for justice.How the ‘dead suspect loophole’ kept information about Javier Ambler’s death in the dark 

But how does the release of videos, such as the Ramos footage, impact transparency in law enforcement overall?

University of Texas School of Law Professor Jennifer Laurin says this kind of footage can foster community trust, but it can also bring a new level of scrutiny.

“I think it’s certainly right that in an atmosphere of mistrust and an atmosphere of increased tendency to sort of take police accounts of their own activities with a grain of salt. That there’s going to be predictably less trust, less willingness to take police at their word,” says Laurin. “I do think it’s important to say there are some legitimate privacy interests that any governmental organization has to account for when they release public information. There absolutely are — at least in theory and the law — legitimate reasons to redact video or other documents relating to a particular incident.”

Travis County DA to delay bringing Javier Ambler, Michael Ramos cases to grand jury 

Statewide, Laurin says efforts to increase transparency may already have been in the works before the Ramos footage. She says the possible proposed legislation will be “very interesting” to see, in addition to how it will be received in the “current political winds.”

The Freedom of Information Foundation of Texas has already been working with state lawmakers on legislation surrounding transparency with law enforcement.

  • KXAN’s Investigative series “Denied,” works to shed light on need for police accountability and transparency — find the full series here.

The delicate balance of policing protests

Following a protest where a demonstrator was shot and killed, Austin Police Chief Brian Manley said protesters had been trying to create distance between themselves and officers.

Manley said one of the challenges for officers was that protesters would drive vehicles behind marchers “to keep officers further back or to interfere with officers that may be trying to reach the crowd.”

Manley added this didn’t create a major delay in APD’s response, but the details of what led up to the city’s first protest-related death are still murky.

Calls for reform amid a wave of unrest protesting racism and police tactics have affected the way some departments monitor and control protests.

In Austin, police can no longer use tear gas or less-than lethal rounds on protesters.

But keeping demonstrators safe while not escalating the situation is a ‘delicate balance’ for officers, said Bob Harrison, a researcher with the think tank RAND Corporation.

Harrison is a former police chief in California. He says policing a protest can be challenging, especially if protesters are on the move.

He said the most important factor for keeping everyone safe is the preparation that comes beforehand.

“I think the obligation of the police is to make every effort to reach out to protest organizers, to negotiate the space,” said Harrison.

He said police can prepare for where protesters may encounter drivers, yet give crowds adequate space.

“The better you can visually manage, the more effectively I think you can remain at a distance,” he said.

Need for healing on anniversary of El Paso mass shooting

As a somber milestone approaches since the deadly attack at an El Paso Walmart that killed 23 people and left nearly two dozen others hurt, some in El Paso are healing and some are angry.

“Needless to say, it’s a sad time for us,” State Sen. José Rodríguez, D-El Paso.

A makeshift memorial outside an El Paso Walmart paid tribute to the 23 people killed and nearly two dozen injured by a gunman on Aug. 3, 2019. (Nexstar Photo/Wes Rapaport)

“There is still a lot of, I think, open wounds,” Rodríguez, the most senior member of the El Paso delegation, said.

“As we’ve been saying ‘El Paso Strong,’ we are going to get over this, and people are more united and working together than ever before,” he said.

In the aftermath of the shooting, growing calls to address white supremacy and gun violence filled the conversation.

Hours after the attack, Gov. Greg Abbott, a Republican, called the shooting “disgusting” and “intolerable.”

“We have to be very, very, clear that conduct like this, thoughts like this, actions like this, crimes like this are not who or what Texas is and will not be accepted here,” Abbott said on Aug. 3.

In the weeks that followed, he created a Texas Safety Commission and a Domestic Terrorism Task Force to discuss steps to address background checks on gun sales, prosecution of hate crimes, and identifying suspicious activity.

“There is sometimes a lag of the time period from when the person is convicted of the crime to when the information is reported, to the time that it would get to whoever is in charge of the background check,” Abbott told reporters after the first Texas Safety Commission meeting.

State leaders formed legislative committees to meet across the state and hold hearings on specific issues ranging from red flag laws to the role of social media in mass violence.

“We talked about different kinds of measures that would hopefully make our streets and home safer from these particularly the mass shootings,” Rodríguez said.

“What we heard in the committee hearings were very passionate statements on both sides, on the side of people who feel that we ought to have common sense gun reform in the state, and then on the other side, people concerned about their second amendment rights, and fearing that their guns are going to be taken away,” Rodríguez explained.

“I think we’ve all made very clear those of us who are proponents of common sense gun safety legislation, that we’re not interested in taking people’s guns away, that we’re interested in just simply promoting a safer environment because of the extensive proliferation of guns that come to the hands of criminals,” he continued.

Days after Abbott’s new panels met for the first time, eight people died and 25 were hurt in a shooting spree in the West Texas cities of Midland and Odessa.

“The events of August 31, 2019 are never far from the thoughts of anybody in our community here in Odessa,” State Rep. Brooks Landgraf, R-Odessa, said this week.

“I continue to meet on a regular basis with family members of the victims of that terrible shooting and also with some of the survivors,” Landgraf said.

The state-formed committees have not met during the pandemic, causing delays in some of the discussions ahead of the next legislative session.

“When the legislature reconvenes in January of 2021, I believe that we will be able to take some of the lessons that we have learned in so many of the testimonials that we have heard from these hearings across the state of Texas and find a way to help address these concerns so that another community doesn’t have to go through it with Odessa and El Paso have gone through so recently,” Landgraf said.

Despite some pressure from Democrats to call a special session for lawmakers to formally consider new legislation to tackle some of these issues, Abbott did not call a special session, opting to wait until lawmakers reconvene in 2021.

“The governor had indicated that he was interested in in passing some legislation this coming session,” he stated. “Because we have not taken up the issue again, I’m concerned that this issue will be relegated to the background as the state faces the the enormous task of having to balance the budget due to the pandemic.”

Texas’ senior Senator on Capitol Hill, Republican John Cornyn, aimed to improve the background check system for gun sales nationwide after the deadly church shooting in Sutherland Springs in 2017. His legislation required additional data be uploaded into the federal background check system. It became law in 2018.

“I believe strongly and in the rights of law abiding citizens to keep and bear arms, “Cornyn said this week. “But I think most Texans certainly would agree with me that when it comes to getting guns out of the hands of convicted felons and people who are mentally unstable, that this is something we should do.

Central Texas Republican Congressman Michael McCaul, helped Cornyn push the Fix NICS Act through Congress. But in the wake of the shooting in El Paso, he said last year “the American people want us to do something more.”

Rodríguez, who is retiring after more than 40 years in the public arena including almost a decade in the state house, says there’s plenty more work to do to protect Texans.

“There’s no question that we can’t let the pandemic stand in the way of making some progress on this very important issue,” Rodríguez said Thursday.

El Paso Congresswoman Veronica Escobar, a Democrat, introduced legislation Friday to designate the El Paso Healing Garden as a national memorial.

“My community continues to confront hate with love and to honor the victims and survivors,” Escobar said on the House floor.

She said the attack “wasn’t only another tragic outcome of America’s gun violence epidemic but also a result of America’s hate epidemic, fueled by racism and xenophobia as well as rhetoric coming from the most powerful leaders in the land.”

“One year later, we still don’t have laws that make us safer from gun violence, and we still face a reckoning on hate,” Escobar said.

The gunman accused in the El Paso massacre, who police say confessed to the killings and who posted racist writings online targeting Hispanics according to prosecutors, pleaded not guilty on state and federal charges. His lawyers said he has diagnosed “lifelong neurological and mental disabilities” for prosecutors considering whether to seek the death penalty.

‘Sincere convictions’ led man to protest before deadly shooting

A Libertarian group is grieving the loss of one its own after the downtown Austin shooting that killed 28-year-old Garrett Foster on July 25.

Protesters tell KXAN Foster and his fiancée were regulars, marching most nights this summer. On July 25, protesters say they saw Foster marching with an AK-47 rifle.

David Gay, co-founder of Liberty Memes, an online Libertarian group where thousands of people share posts promoting a hands-off government and raise money for people in need, says Foster’s political views didn’t necessarily align with the majority of those he was protesting alongside.

“It’s confusing, because in this country we have a tendency to divide each other up into political affiliations straight down a left and right spectrum, so it’s confusing to say, ‘Here’s an open carry activist,’ when some of those people at those rallies don’t believe anyone should ever carry,” Gay said. “He’s at Black Lives Matter rallies teaching the right to self-defense to people who are concerned about police abuse. It just doesn’t fit the narrative at all.”

Gay says Foster was philanthropic, helping people through fundraisers the Liberty Memes group would set up. He says Foster was known to help those who needed it.

“All I can say is this is a person who had sincere convictions that people have the right to defend themselves, sincere convictions that people should care for each other, and he was out there doing that,” Gay said. “He died how he lived.”

Foster leaves behind his fiancée, Whitney Mitchell.

A statement was sent Monday on behalf of Patricia Kirven, Mitchell’s mother.

Whitney and our entire family are profoundly saddened by the loss of Garrett, who has been a loving, devoted member of our family for many years. Our family is unable to conduct any interviews at this time. We ask that you please respect our privacy as we deal with this loss.

-PATRICIA KIRVEN
A photo of Garrett Foster and his fiancée from the GoFundMe page launched to pay for his funeral expenses.

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