Daniel Perry Files Motion for New Trial As Pardon Process Starts
I don’t like this result, even if it holds up to legal scrutiny, but the only out appears to be political.
On April 7, 2023, Daniel Perry was convicted in the shooting death of Garrett Foster during a July 2020 BLM street protest in Austin, TX.
Garrett was carrying a an AK-47. Perry drove towards the crowd of protesters, and shot Foster out of “panic” (his own words to police) fearing that Foster would point his weapon at Perry. Per Perry’s statement to police, the weapon never actually was pointed at him, but he didn’t want to wait for that. Perry’s car had protesters around it, but it was not completely surrounded.
Based on social media reports, I had assumed the car was surrounded and Perry was trapped with people trying to break in, but that’s not what the videos show. What we can’t see in the videos is what happened on the driver side.
The verdict was controversial. Andrew Branca’s detailed analysis has caused a stir, but as always, he (and we) stick to the evidence and the law whether we like the result or not. We did that in the Trayvon Martin, Michael Brown, Kyle Rittenhouse, and other cases we have covered in detail. You can read Andrew’s post, Daniel Perry’s Murder Conviction Was Legally Sound.
I don’t like this result, even if it holds up to legal scrutiny, but there may be no legal out, as Andrew demonstrated. The only out appears to be political.
Gov. Greg Abbott said he wants to pardon Perry. Under Texas law, he can do that only if the pardon board recommends a pardon, so Abbott has requested expedited review. That process is starting:
… the Texas Board of Pardons and Paroles is looking into possibly recommending a pardon for Daniel Perry per a request made by Governor Greg Abbott.
The Texas Board of Pardons and Paroles sent FOX 7 Austin this statement:
“Chairman Gutierrez, the Presiding Officer of the Texas Board of Pardons and Paroles has received a request from Governor Abbott asking for an expedited investigation, along with a recommendation as to a pardon for U.S. Army Sergeant Daniel Perry. The board will be commencing that investigation immediately. Upon completion, the board will report to the governor on the investigation and make recommendations to the governor. The Board has no further comment.”
“There is no question that Governor Abbott’s actions have weakened the rule of law here in the state of Texas, and they have weakened our public safety here in Travis County,” said Travis County District Attorney Jose Garza in an interview with FOX 7 Austin Monday.
On April 11, DA Garza requested to meet with the board personally, so he could present evidence considered by the jury in this case. In a letter sent to the board, he asked them to review the trial transcript, evidence from trial officials, and request input from Garrett Foster’s family before making a final recommendation to the governor.
“My thoughts are with the Foster family. I know that they are heartbroken right now. I know that justice feels incredibly elusive for them,” said DA Garza.
At the same time, Perry has filed a Motion for a New Trial.
The Austin American-Statesman summarizes the motion:
The lawyers for Daniel Perry, who was found guilty of the murder of armed Austin protester Garrett Foster, have filed a motion for a new trial saying evidence was excluded from the trial that could have proved he did not instigate the shooting.
Foster and other protesters routinely harassed vehicles that attempted to interfere with their efforts to “take the streets,” according to the motion filed Tuesday. It also says the jury was subject to illegal outside influences, including an alternate juror who did not speak during deliberations but snorted, huffed and gasped “expressing her displeasure with juror comments that were inconsistent with finding Mr. Perry guilty.” ….
The evidence that was excluded from the trial included a video recording of Foster “in which he admitted that he carried his assault rifle as a means to intimidate (those) who did not share his beliefs,” the motion says.
It said the evidence that was not allowed to be admitted would have shown that Foster scared other drivers during previous protest marches. On July 4, 2020, Foster blocked a driver named Joe Sanchez by standing in front of Sanchez’s car and then protesters swarmed the car, Perry’s lawyer said.
On June 27, 2020, a Door Dash driver was driving past Austin police headquarters downtown when Foster tried to block the street by using his partner’s wheelchair and protesters surrounded the driver’s car, the motion says. It says the driver pulled a handgun and protesters backed away from his car.
Perry also was not allowed to introduce a video that showed another protester attacking the grill of a truck with a flagpole after the truck tried to turn onto a street near police headquarters on June 27, 2020. The same protester kicked Perry’s car after Perry turned into the crowd of marchers on the night of the fatal shooting, Perry’s lawyers said.
Defense lawyers also said in the motion that they were not allowed to show a video recording of Foster conducted by Hiram Garcia, a prosecution witness, on the same day that Foster was killed. Garcia, who described himself in the trial as an independent videographer documenting the protests, asked Foster in the video why he was carrying an AK-47 that night. “They don’t let us march in the streets anymore, so I gotta practice … some of our rights,” Foster said in the video.
There are more alleged trial errors detailed in the motion,which also alleges jury misconduct. From the motion:
III. The Jury Was Subject to “Outside Influence”
B. Discussion
Attached hereto as Attachment D is an affidavit from Juror [Name Redacted] (“Juror Aff.”).10 In that affidavit, [Name Redacted] recounts as follows:
During the trial, another Juror, [Name Redacted] , arrived in the jury room and stated words to the effect of “You know guys, I like to research things.” [Name Redacted]further informedme and other jurors that he printed out a document from the internet that he claimed was taken from the “Texas Penal Code.” [Name Redacted] then went on to tell me and other jurors that, based on this document he printed from the internet, the “defendant has to prove or show” he acted in self-defense.
Juror Aff. at ¶ 4.
Clearly, a juror doing outside research on the Texas Penal Code and sharing that research with one or more jurors constitutes an “outside influence” as that term has been interpreted by the Court of Criminal Appeals in McQuarrie….
The motion also challenges the presence of an alternate juror during deliberations, what the motion says is an unclear area of law. The motion does not say that the alternatve juror deliberated, but did make strange noises:
In her affidavit, [Name Redacted] also recounts:
Alternate Juror [Name Redacted] participated in deliberations to the extent that I knew she was adamant that Daniel Perry was guilty. She was very vocal about her feelings. While she did not actually talk during deliberations, she did snort, huff, gasp and make other noises expressing her displeasure with juror comments that were inconsistent with finding Mr. Perry guilty. For example, when I suggested that Mr. Perry’s social media postings were taken out of context, she gasped to indicate to me and other jurors that she did not possibly understand how I or anybody else could possibly believe that….
I think the end result here is that Perry walks free, having been pardoned by the Governor.
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Comments
The witnesses were all Antifa
Bring a AR-15 to a car and point it at so
Someone, expect to be shot
It doesn’t matter if the car “was surrounded or “just” on the drivers side, what do you expect the driver to do”? Get whiplash before he pulls the trigger?
We all know what these thugs have done pulling peole out of cars and trucks,… killing them
It’s a shame most judges are political, corrupt hypocrites and cowards, because if it were otherwise, so many of these cases could be dispensed with quickly and justly with a bench trial. Even in cases with a hostile and poisoned jury pool, it is assumed that the judge will be even worse. It makes me sick.
“most judges are political, corrupt hypocrites and cowards”
What a brilliant, insightful observation.
I’d say it bears out in this case.
I’m surprised that they didn’t file a change of venue motion and didn’t include it’s denial in the appeal motion.
IF true that a juror did their own ‘research’, then its absolutely grounds for a mistrial. PARTICULARLY if, as claimed, the research is utterly incorrect.
On the other hand the whole ‘oh well the alternate juror was nonverbally snorting’ smacks of desperation.
All the stuff about Foster, while interesting to us, was very rightly excluded from trial because unless the defense could prove that Perry had seen the videos beforehand, it is irrelevant to a claim of self-defense because Perry didn’t know it when he shot him.
Disagree strongly with your assessment. Foster was not some mild-mannered innocent out for a night on the town with nothing on his mind who happened to be at the wrong place at the wrong time. He was part of a violent terrorist group that operates with the approval and support of elected Democrat politicians across the nation – including Austin. Anyone who had a TV during the last few years saw horrific images of brutal beatings by BLM/Antifa terrorists, the cold-blooded killings, the billions lost through arson, and the sickening rationalization of the terror by Khmer Rouge wannabes in the Democrat Party. There is no rule of law when terrorists – openly aided by elected leaders – run the streets.
The night Foster got shot he had been harassing other motorists while carrying a firearm. This was done with open support and encouragement of local and national Democrats. The police could not or would not stop it. Knowing all that, can you blame Perry for not wanting to become another notch of BLM/Antifa’s gunbelt? Does anyone seriously believe that if the situation were reversed that the DA would vigorously prosecute Foster for killing Perry? Puleeze!
What happened in Austin was an example of what happens when the rule of law vanishes and violent mobs rule. Democrats made sure of that. It is absurd for these little monsters to suddenly start screaming about “MUH CONSTITUTIONAL RIGHTS!” when the tables get turned, and the terrorizers find themselves terrorized. There is such a thing as reaping what you sow.
This is also the main disagreement with Andrew Branca’s analysis. His analysis is valid ONLY IF there is the rule of law. But what happened in Austin and elsewhere where BLM/Antifa terrorists operate is Mogadishu and not America – a situation deliberately created by Democrats who seek to kill or enslave anyone who gets in their way. There in no rule of law where politicians and terrorists unite against the rest of us, and I refuse to help them pretend it still exists.
None of that is in any way relevant, because Perry did not know any of it to be true at the time. He didn’t know anything at all about Foster, except what he could see with his own eyes. No honest judge would ever allow the jury to hear evidence about Foster’s prior activities of which Perry was unaware at the time.
Look at the judge’s last name. Enough said. A scummy Democrat.
Brilliant analysis.
Huh?! He is a Democrat, but how do you derive that, or any other information, from such a common name? I’d call your comment racist, but I don’t see how you could derive his race from his name either. He happens to be black, but most people with his name are not.
On the other hand the whole ‘oh well the alternate juror was nonverbally snorting’ smacks of desperation.
_____________________________________________________________________________
disagree–if true, and apparently there is at least one affidavit to the effect, “snorting, gesturing, non-verbally demonstrating contempt ” is a clear effort to intimidate or at least sway other jury members–and this from an “alternate”?–why wasn’t the bailiff/judge informed immediately and this “alternate” removed from deliberations?–this sort of behaviour would not be tolerated for an instant in an operating theatre where a person’s life could be literally at risk–why is it to be tolerated in a jury room where a person’s freedom is at risk?
kudos to abbot–he has the stones to try–hope he is successful
From the website of a self-defense attorney in Texas:
Under Texas law, a person can use deadly force in very limited circumstances. The use of deadly force in self-defense is justified based on specific factors, including the following:
You had a reasonable belief that deadly force was necessary to protect yourself against the use or attempted use of deadly force.
You had the legal right to be on the property in question.
You did not provoke the person whom you used deadly force upon.
You were not engaged in a criminal pursuit when you used deadly force.
Which one of those points did not apply to Sgt. Perry?
Reference “You had the legal right to be on the property in question.”
One thing I don’t see mentioned in comments is that he’s an active-duty Soldier under control of UCMJ. At the time, Austin, TX was off-limits to Soldiers assigned to Fort Hood.
So, under state law he was legally there, but under the UCMJ he was not (he was in violation of a lawful order).
I wonder if that was something the jury considered in their deliberations.
They shouldn’t consider it. And Fort Hood’s orders does not make his presence unlawful under state or federal law.
In a statement made after the trial Weasel Garza claims Perry provoked Foster’s actions because he instigated it somehow. I’m guessing by driving a vehicle on the roadway meant for vehicle traffic?
As Andrew Branca showed at great length, the evidence does not show that Perry had a reasonable belief that deadly force was necessary to protect himself against the use or attempted use of deadly force. The jury had adequate reason to conclude that he had no such reasonable belief. Whether he had an unreasonable belief is irrelevant.
Branca did not declare this ruling just, as you are implying. In fact Branca thinks the ruling is wrong. What Branca said is that a reasonable jury can arrive at a guilty verdict in this case, not that the jury got it right. But if the accusations against the juror doing outside research are true it is not a reasonable jury. It is a biased, and disqualified jury.
But in Texas the burden of proof is entirely on the prosecution. Perry doesn’t have to show anything, at least in theory that is.
““There is no question that Governor Abbott’s actions have weakened the rule of law here in the state of Texas, and they have weakened our public safety here in Travis County,” said Travis County District Attorney Jose Garza in an interview with FOX 7 Austin Monday.”
A Soros prosecutor whines that somebody ELSE is unfairly releasing “criminals” back onto the streets.
Garza deserves to be popped in the nose, and often, and by someone who knows how.
I read your last sentence in Rhett Butler’s voice.
This. Even if there’s some justice in Garza’s statement (and I don’t think there is), he has no business making it.
I agree with Andrew Branca that on the evidence available the verdict was sound. If Abbott had the power to pardon him and had done so immediately I would be against that. But there is nothing even slightly improper about Abbott merely asking the Pardons Board to look into the matter and make a recommendation. Doing so is effectively the same as appealing the conviction to a higher court, which Perry is doing; regardless of the appeal’s merits, surely nobody could claim it’s improper to even make the attempt! No matter how sound a verdict is, it is never improper to ask for it to be reviewed; at worst that request will be denied but you can’t be blamed for asking.
The investigating officers determined it was self defense and did not recommend prosecution.
Worse, the lead investigating officer has signed an affidavit stating that the DA prevented him from presenting exculpatory evidence to the grand jury. Says about 2/3 of what he had intended to present was excluded, illegally, by the DA.
Investigating officers don’t get to make that call; the DA does.
And as Esq Branca mentioned in his analysis (and many, many times since), a DA is under no legal obligation to present exculpatory evidence to a grand jury. Withholding exculpatory evidence from the defense, yes … that’s a violation. From the grand jury?
Perfectly legal (if not slimy as hell).
Its very relevant ti a Gov or parole board debating a pardon.
As for exculpatory evidence being required to be presented – that varies considerably State by State. And again, even though its not illegal for a DA to openly threaten, in writing, an officer to pressure them to not speak candidly to a grand jury, the issue at hand is whether pr not, as Governor, such corruption should result in a pardon.
That is a lie. There was nothing even slightly illegal, or even unethical about it. The DA decides what evidence the grand jury should hear.
That statement came directly from one of Perry’s attorneys. Take from it what you will.
I posted this comment. In the wrong thread of discussion. It applies further down to Milhouse’s assertion of a lie in regard to Foster’s motioning with his rifle.
I quoted the investigators actual affidavit, and you call me a liar?
How are you not banned from posting in this comments section?
The grand jury is free to ask questions that the DA doesn’t approve of and ask questions. I assume that’s the same everywhere. A grand jury is allowed to use outside evidence and review things. When my son was a grand juror that particular grand jury turned down several indictments- a few because one of more grand jurors knew the cop giving evidence was a dirtbag and communicated that to the other jurors. OTOH, the DA had a higher conviction rate then he had with other grand juries…
A grand jury that sits there and rubberstamps the DA is full of sheep, not citizens.
I never thought this could occur in Texas, and, in a way, it didn’t. It happened in Austin. The fact that the jury got to hear about Perry’s social media posts in helping them decide but not Foster’s posts is all you need to know to realize he’s been railroaded. This is what REAL gun control looks like now. Use your weapon for self defense – go to jail. I know I’ll never set foot in TX again until common sense returns to that state. I never knew TX allowed people to legally riot with weapons drawn and at the ready!
Clearly Austin is populated with too many Democrats, thus this current DA and others who are like him. As American Balkanizes between Blue and Red, these oddities will become more apparent. Eventually as Balkanization deepens, the misplaced Blues may find it necessary to leave or even flee.
There is a reason we have called that city Moscow on the Colorado. Houston, Dallas, San Antonio are barely better in many ways, but this one’s the worst, in part because UT’s profs and student body constitutes a significant portion of the voting population.
No, they didn’t get to hear about Perry’s posts. Those posts were released today, and are being widely portrayed as racist. I disagree with that portrayal, but it’s likely that had the jurors seen them they would also have thought them racist, and would have been unfairly biased against Perry. That may explain why Perry chose not to testify; had he testified all of that would have been admitted, and properly so.
Foster’s posts were also properly excluded; they could only have been admitted if Perry had known about them, and known that Foster had written them.
I learned something this morning. My wife was watching a stream of a nightline episode that was covering this story. I sat down and watched a few minutes of it with her.
What I learned is that if you stand in the middle of the street blocking traffic, someone honks at you and you attack them, it’s their fault because they “provoked” you.
Good to know.
No, that is not true at all.
What? What do you mean? It’s got to be true, I heard it from a highly respected source of unbiased, ruthlessly researched and vetted, always factual, never opinionated, news: ABC.
It’s still not true, and this verdict does not rest on any such assertion.
Lighten up Francis.
I have no problem that Perry shot the thug and dearly hope he is pardoned.
Yeah, this is the opposite of what happened to Kyle Rittenhouse. The guy Perry shot is who Kyle Rittenhouse would have been if Kyle Rittenhouse had been shot dead that night.
I’m okay with the governor pardoning Perry though.
Are you saying Kyle would have been a Left wing thug had he been shot? Maybe a bit oversimplified?
No, Kyle would have been exactly who he is… but dead. Kyle acted in self-defense; Perry did not. Perry was like the protestors who tried to harm Kyle.
Look at the city this took place in, ALL liberal communist. This case should have NEVER gone to trail. Texas is a self defense state
“All liberal communist.”
What does this even mean?
All states are self-defense states. But whether it was self-defense is up to the jury. In all states, including Texas.
I still stand by the fact that Garrett Foster is dead. One less Antifa/BLM hoodlum out of the mix. Antifa and BLM have proven that their ends justify their means.
Play stupid games, win stupid prizes.
Perry did Texas and the nation a favor.
I will let him get through his legal issues, which to me is a miscarriage of Justice.
At what point does the Constitution permit thugs to take to the streets, harass drivers while carrying firearms, and for the most part hold people hostage to a threatening mob?
Until we make it crystal clear that we as a nation will not tolerate this type of intimidation and violence (and YES, in this case I agree with you that SILENCE IS VIOLENCE), we will forever be held hostage to fear and intimidation by mobs controlling our streets.
If we don’t get a handle on it now, the end result will be vigilante Justice that will get out of control.
No Justice no peace. Not Just Us or no peace.
Is there any question that the guy outside the car was “brandishing” his AK? Did the jury think it was a gun or just harmless jewelry? What kind of lawyer defended this case?
I remember reading long ago (in a news article) that Foster motioned for Perry to roll down his window with the rifle , that has colored my perception of the events since reading that reporting. Someone reposted that article yesterday and refreshed my memory of that statement. I am not sure if that detail was something repeated in any interview or at court.
If Perry is retried, I hope his counsel is able to fight for it being streamed and I hope they can sequester the jury. There isn’t any way to avoid information in the normal day to day of most people’s lives today. You are inundated with it.
Yes, there is. There is no evidence that he was doing so. He was carrying it, as he had every right to do. That fact did not give Perry any justification for having a reasonable fear that he was imminently going to shoot him.
That is clearly untrue. If he had done so he would of necessity have had to point the rifle at Perry, and even Perry didn’t claim that.
I think you are wrong on this point. The photos I have seen show the rifle pointed downward at about 30 to 45 degrees. As far as I know, this is called a ‘ready’ position. When simply carrying a rifle, it is slung on the shoulder vertically, pointing either up or down. But I am not a firearms expert nor do I have military experience.
Political prosecutions require political solutions. Austin authorities allowed their streets to be taken over by a mob, which created an unsafe environment. Video shows Foster’s weapon at the ready, but I suppose Perry should’ve waited until he was staring down the barrel. Like that would’ve made a difference for the communist prosecutor anyway.
Perry took out the trash. Good riddance to Garrett Foster.
At this point, I believe Perry made one fatal error.
Perry should have shot Foster, AND Every Single Damned Asshole who surrounded his car.
If I have to go to jail for defending myself, I plan on taking as many of them with me that I can. If that means I am dead, then all the better for it.
That would be my contribution to ridding the world of these scum who prey on the weak, aged, or preying on those who don’t travel in armed packs.
My hope would be that my sacrifice would make Antifa and BLM bastards think twice about blocking the streets.
His rifle was at more than the ready. His elbow was pointed outside, and that indicates he was bringing the rifle barrel up and the stock down to his shoulder. There is no other reason his elbow would have been like that. The barrel wasn’t pointed straight down, but was pointed more at the bottom of the car, just as it would be if it were being brought up. I’m 100% sure he was bringing the gun up at the moment that one still shot in Brnaca’s article was taken.
Stand 10 feet away from someone, feet shoulder width apart, with your hands up around your chest, palms facing outward.
Ask that person how they feel about that.
Now, changing nothing except clenching your fists, ask the person if they feel differently.
Even small changes in body posture (clenched fists vs. open palms), trigger a much different threat response.
Now, again, 10 feet away, sling an AR, keep your shoulders squared towards your partner, put your hand on the grip with finger indexed along the side, and hold the muzzle of the weapon to the low left.
Ask the person how they feel about that.
Now, changing nothing else, except putting one foot forward to blade towards your partner, so that the muzzle now points low forward, ask your partner how they feel about that.
Now, instead of standing square, crouch slightly. Ask your partner if that changes their reaction.
Now, raise your firing side elbow. Ask your partner if that changes your reaction.
Foster was approaching the car as if it was a threat. He was bladed off, muzzle down and forward for easy target acquisition, crouched for stability, and had his elbow prepped in such a way that it was already in a firing position, and could rotate his arm and gun together, rather than separately, before getting a sight picture. He was not merely open carrying, he was oriented towards what he saw as a threat, and prepared to use deadly force. Perry was not mistaken in his assessment of deadly force threat.
Now, is it tragic that as Foster was approaching in a stalk, that Perry was reasonably reaching for his pistol, which probably made Foster more stalky, which probably confirmed Perry’s initial threat assessment, which then led to Perry’s shots? Yes. Tragic all around. Better if Foster had approached squarely, without crouching or presenting a threat. Maybe even better if Perry had already had his pistol in his hand, rather than drawing while Foster was watching, increasing his anxious pre-combat behavior.
At the very worst, this was mutual combat where both men had a reasonable right to self-defense with deadly force. The fact that one or the other died is a question of skill, not legality.
I agree with your analysis as to posture, but both men did not have a ‘reasonable right to self defense.’ Foster was engaged in the illegal act of obstructing traffic. He was also engaged in a riot. He and others with him were engaged in acts of intimidation, threat, and bullying. He had no right of self defense.
So I guess what we should take away from this is that …
1) you should allow your car to be completely surrounded by the retards before trying to defend yourself
and
2) you should wait for the terrorist to shoot you before defending yourself
Because, god forbid, that a person might take prior experience and observation into account and not want their vehicle surrounded so that they can be dragged out and beaten to death, which has happened, Reginald Denny anyone?
In addition, you should wait until the person with the centerfire, semiautomatic rifle starts shooting at you to pull your own firearm and start shooting back…
Branca is now saying in his live Youtube this motion, if correct on facts, invalidates the guilty verdict.
Which facts?
The facts being claimed in the motion.
More specifically the claims about outside research and the alternate juror making noises during deliberations.
Thanks, Just Al. The last I’ve seen, Branca is not impressed with that part of the motion relating to the exclusion of evidence relating to Foster’s prior conduct.
Of course not. It’s pure junk. But if the claims about the juror bringing in a printout, and the alternate nonverbally participating in the deliberations are correct, then sure, that’s a strong argument for a mistrial.
What can you even say anymore. “Justice” and its aftermath is a crap-shoot of politics and more politics. That’s where we’re at America, and it’s not a winning formula.
“Legal” or not under current law. Whatever’s legal, that’s because somebody made that the law.If we govern ourselves, what’s legal is up to us. If we don’t like how that plays out, we can change it.
Myself, I have a threshold problem — at what point does “shooting” change form “shooting first” to “shooting back?” Do you, in fact, have to wait to get shot at, before firing in self defense?
Or, what’s the standard for “reasonable” fear for life? As quoted in another thread, re: this case, in Texas *not* fear for your life. “Reasonable” fear of threat of deadly force was the standard. Ok, I’m afraid for my life, because I’m about to be nibbled to death by ducks. Duck nibbling is not deadly force, so I’m not allowed to shoot those waddley winged menaces? Or, I can fire in self defense when I reasonably believe the next peck is gonna kill me?
I’m bugged by needing the targets of aggression to be way to sure, of way too much risk, given the uncertainty of situations like these. The “Duty to Retreat”(*) laws have the same problem — endless second-guessing based on what’s let in, and what’s kept out of ponderous pondering in ritual chambers far removed from the situation.
(*) This characterizes these laws accurately. I decline to call the “Stand Your Ground” laws. No, they impose a second-guessed duty to retreat, perhaps somewhat less stringent than where laws like these don’t exist. The presumed duty to retreat, on the non-aggressor, remains. Really?
?Isn’t “brandishing” a thing?
There’s maybe some value in codifying waving a weapon around in an aggressive, threatening manner; a manner mimicking its use. Maybe don’t do that. Maybe brandishing of a deadly weapon counts as creating a reasonable expectation it’ll be used that way — that’s kinda the point of brandishing.
Yes, brandishing is a thing. No, Foster was not brandishing his weapon, or at least the evidence didn’t show that he was. And brandishing on its own doesn’t create reasonable grounds to respond with deadly force.
I think someone approaching you with a rifle at the low ready, crouched, bladed off, prepped for quick rotation up for shooting, might be exactly the type of brandishing that creates reasonable deadly force response.
Imagine someone approaching you with a pistol, pointed down and forward, both arms locked out ready to just raise and fire, while crouched and bladed off. I don’t know how *not* to respond to that as a deadly force threat.
You can find a fine inventory of events, charges, and cases around “brandishing” at various of the 2A orgs, including events where exactly what you describe was successfully identified as “brandishing.” Indeed, folks have been detained, investigated, and arrested for “brandishing”, when carrying hunting rifles slung on their backs otherwise untouched.
If we govern ourselves we can change the law to be useful, congenial, or both, including a definition of “brandishing.”
Myself, I think a single person, alone, not engaged with anyone around them, not touching a long gun slung on their back is not so much a concern worth prosecuting them.
One or more of several armed people, moving their fire arm to more ready hold, more closely oriented toward someone already at point-blank range, already being harried by the gun-wrangler’s mob, seems like a danger, a threat, and a problem.
Perhaps we might define “brandishing”, distinct from “possession”, or “firing” as something that would sweep up the latter, not the former. We could explore the applicability of any particular law if someone would quote one.
In Texas Carrying at low ready isn’t considered brandishing. I’ve always thought it should because carrying a pistol in your hand would be. But I have never heard of it being prosecuted and it certainly hasn’t been directly legislated as such. If it had almost all of the open carry activist who walk around with long guns would be arrested.
You have a definition in law, case law, or even prosecutor’s pronouncements to point to?
Both brandishing and what it justifies have been argued the other way in recent events of public note. Apparently those folks were wrong.
Well the practice of politically motivated Soros DAs prosecuting non-crimes in overwhelmingly Democratic jurisdictions and obtaining convictions is about to come to a head in the case of Donald Trump, It is more than reasonable to expect a conviction of the Former President and current Presidential candidate and a sentence of what is likely to be life.
And Branca has just demonstrated what an utter waste of perfectly good oxygen he is.
I have seen people question if he is looking at the correct car in the video he is using. The black car that cannot drive on their green light on Congress is not the car Perry was driving. It was also being obstructed but not mobbed because it remained in place.
pardon letter from Perry’s defense team:
https://www.scribd.com/document/638134391/Pardon-Letter-From-Daniel-Perry-Defense-Team#from_embed
Affidavit from the lead investigator David Fugitt, alleging witness tampering. Separately, this investigator was in fact punished by the DA, placed on the career ending “brady list”, over this case. That list is for officer’s that have been caught lying in testimony, and once on it you can’t work as an investigator because your testimony is no longer considered credible. In this case, he was placed on it for wanting to testify to facts that the DA did not want to the jury to hear. just the opposite of what that list exists for.
https://www.scribd.com/document/638134389/David-Fugitt-Affidavit-in-Matter-of-Texas-v-Daniel-Perry#from_embed
Exhibit C is interesting. I wish we could see the interview.
You are a liar. This is entirely about the grand jury, not the jury. And the DA has every right to control what evidence the grand jury sees, so what he did is not “tampering”.
The evidence was prevented from appearimg during the trial, idiot, not just the grand jury hearing.
Tey to keep up
Witness tampering law applied to all “official proceedings”, idiot.
And, twice now you call me a liar for merely reposting the official documents of this case.
How are you still not banned from potinf in tgis comments section?
You singlehandedly have made, for many years, this websites comments a wasteland dominated by a single, vile, troll.
I read Branca’s article and looked at the photos and videos he shared. I have to disagree with him. As a lifelong gun owner and shooter, I know that when I pull a rifle or shotgun up to shoot it, even if it is slung over my shoulder, as I am pulling the barrel up, and bringing the stock down to my shoulder, the elbow of the hand that pulls the trigger goes to point out, so there is room for the stock to rest on my shoulder and my head is able to go down and look either down the barrel or through a scope. That is the only time my elbow would go out and when looking at the photo of the man with the rifle in Branca’s story, I am 100% sure he was pulling his gun up to at least point it at the driver and possibly shoot. We’ll never know that, but the very act of him bringing the rifle up is grounds for self-defense. It was not pointed straight down in the photo and his elbow was out.
I would not be surprised if Foster started shouldering his weapon as he saw Perry reaching for his. This is a case where everyone’s actions confirms the worst case scenario bias in the other person.
Foster LARPed his way into a bullet storm, and from what I heard, he didn’t even have a round in the chamber.
Walking around in a demonstration with an assault rifle where people are blocking traffic and acting aggressively toward others is asking for trouble. And no, you never have to get shot at first before protecting yourself. Foster was asking for trouble and he found it. Another example of authorities not protecting the people and letting agitators run wild.
It was not an assault rifle. Just an ordinary semiautomatic rifle.
kjon should have left out the word “assualt.” His point would have still been valid, particularly because he included the phrase “and acting aggressively toward others.”
What was an alternate juror doing in the room with them during deliberations? The one time I was on a jury, the two alternates who remained by the time we got to deliberations were kept in a separate room and could not interact with us in any way until after we’d arrived at our verdict. (They both told us afterwards that they agreed with us completely.)
Yea, this is what has really bothered me as well. I have been on 2 juries, (neither for any thing particularly exciting, both were financial crimes). The alternates stayed with us through the trial, but once we went to the cramped slightly funny smelling room, I don’t remember seeing them again. I think they were dismissed once we reported that we had reached a decision.
Maybe that is just the way Juries work in Texas?
All of the excluded evidence listed in this post was properly excluded, and would have been excluded by any judge.
I just saw on cnn that there was a “Leak” of Perry’s media and it looks terrible for him. He calls the protesters monkeys and says that he is going to shoot some. He calls himself a racist and hates the blm and other protesters. The defense claims that they have the social media of the deceased but the judge will not allow it in the case and claim that it is just as bad in the other direction. This will certainly be pushed by the left and it doesn’t make Perry look like the innocent man he claims to be. Social media may turn out to be the most dangerous thing in our lives.
You just saw on CNN? I have bridge to sell you…
Branca’s article covered the social media part of this. Read that for accurate information. Yes, his social media posts most likely hurt him with the jury, but the “called himself a racist” or called the protesters monkeys is a CNN fabrication. Furthermore what CNN is reporting on was not admitted as evidence during the trial because none of it had any bearing on the incident in question.
of course it’s fabrication–all window dressing / prep for the “mostly peaceful” demonstrations that will ensue in the event of a mistrial / pardon
Another shoot from the lip commentator. Read before you write!
Get f led. If you want to deny what I write then research it first before you accuse me of lying or misreporting. I followed up and found the info and it is a fact and the jury did not hear this but will in a new trial.
This stuff was released today, and the jury didn’t see it. And yes, he did literally write “I am a racist”. But in context it’s clear that that’s almost the opposite of what he meant. At least in what I’ve seen, which I have to assume is the worst of it (because why would the news industry cover up for him?), there’s nothing racist, and nothing a reasonable person would object to. But it certainly looks bad, and I can see how the jury would probably have taken it the wrong way.
According to CRT, all white people are racists and they’re supposed to admit it publicly and frequently. So Perry did the right thing. Sarc, sort of.
Asked elsewhere: Is there a carry–not slung–which promises there is no possibility of evil intent or deadly use? And the elbow-out issue is irrelevant, since firing from the underarm is quite popular. In the movies, too. I qualified with the 16 and a number of other Infantry weapons, and there is no prescribed set of ballet moves required prior to firing in difficult or hurried circumstances.
I saw one M16 instructor fire with the weapon upside down. No trainees were present or I suspect something would have been said. No recall if he hit anything on the, iirc, 200m range.
Perry would have known this, even if he’d never seen the upside-down joker.
11B10 71542
As countless instructors have said numberless times, ‘If you think you need a gun to be safe in a place, don’t go to that place.” Except if you’re Roderick Scott.
So, how about this: If you’re going to be open carrying, don’t put yourself at the front of a ravening mob which is evoking memories of Reginald Denny.