Daniel Perry’s Murder Conviction Was Legally Sound
Like It or Not, sufficient evidence was presented to allow the jury to reject self-defense. A Pardon may happen for political reasons, but that’s politics not law.
This past Friday, April 7, 2023, Daniel Perry was found guilty in the 2020 murder of Garret Foster during a Black Lives Matter protest in Austin.
The confrontation between the two men occurred as Perry was driving his Uber vehicle amongst a crowd of protestors in the street, and while Foster was among the protestors carrying an AK-47 on a sling. The rifle-armed Foster approached the driver’s side door of Perry’s car, Perry rolled down his window, and shot at Foster five times with a pistol, striking him with three rounds, effectively killing Foster instantly.
Perry would flee the scene a short distance, during which another protestor would fire three shots, striking Perry’s vehicle. Perry then called 911, and was shortly thereafter approached by and spoke with a responding police officer. (Both of these conversations were, of course, recorded and admitted as evidence at trial.)
From the start Perry would be arguing that he shot Foster in self-defense, and only after Foster had pointed his rifle at Perry.
The Key Issue in the Trial: Was the Rifle Pointed at Perry?
And right there we have the key issue in this murder trial. Certainly, if the jury believed that Perry fired only after Foster pointed his rifle at him, there could hardly be a clearer case of self-defense. Indeed, as someone who personally carries a firearm for self-defense on a regular basis, anyone who unlawfully points a rifle at me ought to have a high expectation of getting shot in self-defense.
Immediately following the announcement of the guilty verdict, social media rather exploded with outrage at a guilty verdict so insanely inconsistent with Perry’s narrative of shooting in self-defense only after facing the muzzle of Foster’s rifle.
The problem with this outrage, however, is that it presumes as an indisputable fact that Foster initiated the deadly force confrontation by pointing his rifle at Perry.
That “fact,” however, is not indisputable. Indeed, that fact was aggressively disputed by the prosecution, which argued to the jury that Foster never pointed his rifle at Perry, and so Perry’s claimed legal grounds for shooting Foster in self-defense simply doesn’t exist.
In support of this narrative of guilt the prosecution presented the testimony of multiple witnesses who told the jury that Foster never pointed his rifle at Perry. The confrontation itself was captured on poor quality video, from which screen captures were secured, and neither video nor stills ever show Foster pointing his gun at Perry.
Indeed, the only evidence to support Perry’s claim of Foster pointing his rifle at him are Perry’s own self-serving statements following the shooting.
If the jury concluded that Foster had not, in fact, pointed his rifle at Perry, then it must also conclude that it was Perry who was the initial deadly force aggressor in this confrontation when he shot Foster—and, as the initial deadly force aggressor Perry cannot justify his use of force as self-defense.
Competing Narratives of Guilt and Innocence
In effect, then we have these two competing narratives, both hinging on this question of Forster’s pointing of the rifle.
First, we have Perry’s narrative of innocence, the narrative of Foster initiating the deadly force confrontation by pointing his rifle at Perry, evidenced solely by his own self-serving statements, and utterly lacking in any corrobation.
Second, we have the State’s narrative of guilt, the narrative of Foster never pointing his rifle at Perry and of Perry initiating the deadly force confrontation by firing five pistol rounds at Foster, evidence by the testimony of multiple witnesses and uncontradicted by any other evidence presented at trial (other than Perry’s own statements).
Fact Questions Are Solely Within Province of Jury
This is, obviously, purely a question of fact, and as such it falls exclusively within the purview of the finders of fact, the jury. They are free to believe either narrative and return a verdict consistent with the narrative they find most compelling.
This being a criminal trial the jury must, of course find for the defendant unless they believe the State’s narrative has been proven beyond a reasonable doubt—in this case, that Perry’s claim of self-defense has been disproven beyond a reasonable doubt.
The question then becomes could a rational jury faced with these two competing narratives, each based on their own foundations of evidence, reasonably conclude that the State’s narrative of guilt disproved Perry’s narrative of innocence beyond a reasonable doubt, and return a verdict of guilty.
Factors a Jury Considers in Weighing Credibility
When presented with competing narratives, as here, the jury is routinely instructed on how to go about evaluating the credibility of each. They are told to consider a wide variety of factors that can play a role in determining the weight to the witness testimony and other evidence that supports one narrative or the other.
In the context of witness testimony the jury is told to consider the witness’s opportunity to have seen what they are testifying about, the apparent quality of the witness’s memory, their manner while testifying, their interest in the outcome of the case, their bias or prejudice, whether other evidence contradicted or corroborated their testimony, the reasonableness of the witness’ testimony in light of all the evidence, as well as any other factors the jury thought useful.
I would suggest that a genuinely unbiased, impartial jury could easily come to that conclusion and that verdict on the evidence presented in this trial. As a result, this verdict of guilty is legally sound and meritorious—even if any one of us doesn’t particularly like the outcome for political, social, or personal reasons.
Evidence Showed Perry Undermined His Own Credibility
Unfortunately for Perry, when considering his own testimony with respect to the alleged pointing of the rifle, a claim for which he is the only source, in light of the factors just described that a jury is told to apply in evaluating credibility, Perry’s own conduct substantially undermined his narrative of innocence.
The prosecution presented the jury with social media messages of Perry’s from which they might reasonably infer that Perry was looking for an opportunity to use deadly force against protestors. One Facebook message stated “I might have to kill a few people on my way to work.” In a Facebook comment about a video showing protestors being shot in San Antonio earlier that year, Perry wrote that he was “glad someone finally did something.”
Is it possible that these and other similar social media comments were simply expressions of bravado? Certainly no one who believed that they might really have a substantive need to kill people on their way to work that day would simply proceed to work in the normal manner. So perhaps this was merely bravado. The jury, however, is free to instead agree with the State’s preferred inference that they illustrate the state of mind of a man looking for a deadly force confrontation.
And when you go to the fight, folks, rather than the fight coming to you, it rarely looks like self-defense to anybody.
The defense sought to counter this inference by arguing that Perry find himself enmeshed in that night’s fatal Black Lives Matter protest entirely innocently, having no idea that the protest was even taking place. According to the defense, Perry simply made a right-hand turn, and boom, found himself surrounded by angry protestors slapping and kicking his vehicle.
The prosecution, however, was able to show that Perry’s interest in these protests was substantial, suggesting that the notion that Perry would not be aware the protest was taking place was simply not credible. Further, there was evidence at trial that as an Army sergeant stationed 70 miles away at Fort Hood, he was explicitly prohibited by his command from going to Austin, presumably because of the risk of confrontation with protestors.
Another example of Perry undermining his own narrative of innocent self-defense occurred when he reportedly told 911 that he “panicked” when he fired five rounds at Foster. Deadly force self-defense is often accompanied by a variety of emotions, including fear and even anger. Within that context, however, the use of defensive force must still be objectively reasonable—a merely irrational belief in the need to kill in self-defense, however genuine and in good faith that belief might be, is not sufficient to support a claim of self-defense. And panicked conduct is, by definition, irrational, not reasoned, conduct, and therefore inconsistent with a legal justification of self-defense.
Further undermining Perry’s narrative of self-defense was the testimony of one witness who was able to observe Perry’s demeanor as he shot Foster. When asked if that demeanor reflected fear or anger, the witness answered “His expression … anger. It wasn’t fear.” This testimony was consistent with the State’s narrative that Perry was angrily seeking out an opportunity for a deadly force confrontation, and that his anger overwhelmed him when he heard and felt his car being slapped and kicked, culminating when he found Foster to be a target for his desire to kill.
And what was there to counter the State’s narrative of guilt and support Perry’s claim that Foster had initiated the deadly force confrontation by pointing his rifle at Perry? Nothing.
Perry’s Decision to Not Testify: Sound, or Error?
It is worth noting here that Perry elected to not take the stand and testify in his own defense. A criminal jury is told, of course, that the defendant has no obligation to take the stand, and the jury is not to make any inference of guilt if the defendant chooses to not testify.
But in a case where the only evidence consistent with the defense narrative of innocence could have come only from the defendant, one can only hope that the defense had an exceptionally excellent reason for not putting Perry on the stand. Putting one’s client on the stand is, of course, perilous under the best of circumstances—but in a case of self-defense, where the only exculpatory evidence can come from the defendant, I would suggest that the jury really needs to hear from the defendant himself why the killing of that other human being was genuinely necessary.
Given what was admitted into evidence from Perry’s social media, one must also wonder whether there was even more inflammatory social media content that had been excluded from evidence by the judge on the grounds of being excessively prejudicial, but which would have been admissible as character evidence had Perry taken the stand. If so, that would explain why the defense declined to have him testify.
Photo Purporting to Show Pointed Rifle
I have seen posted on Twitter a photo that purports to actually show Foster pointing his rifle at Perry—indeed, it was posted at least once by my good friend, Jack Posobiec (I’ve a lot of respect for Jack, and urge you to follow him on Twitter at @JackPosobiec). Here’s the tweet that Jack posted purporting to show Foster pointing his rifle at Perry (note that the diagonal red line is a feature I added to this image):
With all due respect to Jack, and to others promoting this image as evidence of Foster pointing his rifle at Perry, I simply don’t see it. If anything, it appears to me that Foster has his rifle held in a quite vertical fashion, rather than in the much more horizontal manner that would be required to orient the muzzle of his rifle at Perry. For clarity, I added to this image the red diagonal line in order to indicate what I perceive to be the approximate orientation of Foster’s rifle.
Jury Verdict Does NOT Require Absolute Certainty
It’s important to remember that in almost any criminal trial the jury never really knows what happened in any absolute sense. They can only very rarely be 100% confident that the verdict they arrive at is correct or true. As noted, we bias criminal trials in favor of the defendant by requiring that the State prove the crime—and, in this context, disprove self-defense—beyond any reasonable doubt.
But the State is NOT required to disprove self-defense beyond ALL doubt.
Could a rational jury have decided to give greater weight and credibility to Perry’s narrative of self-defense, conclude that self-defense had NOT been disproved beyond a reasonable doubt, and reasonably returned a verdict of not guilty?
But any fair, impartial, unbiased view of the evidence presented in this trial must also conclude that a rational jury could also have decided to give greater weight and credibility to the State’s narrative of guilt, conclude that the state had disproven self-defense beyond a reasonable doubt, and reasonably return a verdict of guilty.
As this jury did.
Does that mean this jury returned the “correct” verdict in the sense of absolute truth? Of course not. But that’s not what the legal system requires. Because nobody ever knows what the absolute truth is.
Dispelling Some Political Talking Points Around This Case
Before I let you all go this Easter Sunday, I do want to take a moment to address some of the more emotional and political talking points circling around this guilty verdict. I want to make clear that I don’t mean to suggest any malicious state of mind with respect to anybody espousing these talking points. Indeed, in the context of social and political discussion and debate they have merit.
In the context of legal analysis, however, these talking points are leading well-intentioned people to bad legal conclusions. This doesn’t make these people bad, it makes them normal—but bad legal reasoning rarely arrives at the right legal answer.
Garza Is Just a Soros-Funded Politically-Motivated Prosecutor
One of these talking points is that the local prosecutor, District Attorney Jose Garza, is another Soros-funded politically-motivated prosecutors intent on wreaking havoc in their communities, much along the lines of New York District Attorney who is bringing a feckless prosecution against President Trump, St. Louis Circuit Attorney who sought to prosecute the McCloskeys until her entire office was removed from the case for misconduct, and Los Angeles District Attorney George Gascon whose Progressive mishandling of criminal cases led even the liberal populace of Los Angeles to seek his recall, Baltimore State’s Attorney Marilyn Mosby’s vicious and unjust prosecution of six police officers over the death of Freddie Gray, amongst many other Soros-funded prosecutorial monsters.
And I have every reason to believe that this representation of Garza is correct, and that Garza was motivated to bring Perry to trial largely for political purposes—particularly after local law enforcement investigated and concluded that Perry’s shooting of Foster was lawful.
The political motivations of Garza, however, do nothing to change the law and evidence of the trial—and those, as discussed, are more than sufficient to allow a reasonable jury to arrive at a verdict of guilty in this case.
Zimmerman and Rittenhouse were acquitted despite being politically prosecuted because the evidence was on their side. Perry may have been convicted in this likely politically motivated prosecution because in his case the evidence was contrary to self-defense.
Did Garza Commit Misconduct in Hiding Exculpatory Evidence from Grand Jury?
Another of these talking points also involves Garza, and alleges that he engaged in criminal witness tampering when he ordered a police investigator to strip out exculpatory evidence from the officer’s testimony to the grand jury. It has been reported that of about 150 Powerpoint slides the officer intended to present to the grand jury, 100 slides covering exculpatory evidence were ordered removed. (The investigator in question filed a sworn affidavit in this manner, and I’ve imbedded below for those who are interested.)
Such conduct certainly would strike most reasonable people as unfair—after all, shouldn’t the grand jury be entitled to hear both sides of the story, both the narrative of guilt and the narrative of evidence, both the incriminating evidence and the exculpatory evidence.
Perhaps surprisingly, the answer to that question is: No.
The role of a grand jury is explicitly not to hear both sides of the argument—hearing both sides of the argument is the role of the trial jury, not the grand jury. For all practical purposes, the role of the grand jury is to hear ONLY the evidence consistent with guilt, only the evidence the prosecution has to present, and then decide if even that one-sided presentation of evidence is insufficient to prove guilt at trial. If they so conclude, they return a no true bill, meaning no indictment, and therefore no trial.
As you might expect, anybody who hears only one side of an argument tends to find the only side they hear to be pretty compelling. The result is that grand juries generally return to the prosecutor what the prosecutor wants—and, of course, prosecutors generally want an indictment, so that’s what they get.
There was no obligation on the part of DA Garza to present ANY exculpatory evidence to the grand jury, and so it is not misconduct for him to decline to do so. (I note that there appears to be a bill working through the Texas legislature that would impose such an obligation, which I certainly support, but it’s not currently law.)
Now, it is true that in rare cases prosecutors are ambiguous about whether they really want an indictment, or they are using a grand jury as political cover to not bring a suspect to trial. In such a case the prosecutor, at their discretion, might present the grand jury with both sides of the story, with exculpatory as well as incriminating evidence. When a prosecutor does that, it’s a pretty strong indication that they prefer that an indictment not be returned.
This happened in the 2014 case of the Michael Brown shooting. Then St. Louis County Prosecutor Robert McCulloch presented the grand jury with both the incriminating and exculpatory evidence in the shooting death of Brown by police officer Darren Wilson—and the grand jury declined to indict the officer.
It’s worth noting, however, that this decision by McCulloch to present the Michael Brown grand jury with a balanced rendition of the facts of the shooting cost him his career. Indeed, McCulloch had been the St. Louis County Prosecutor for no less than 19 years, having come to office in 1991 and winning re-election 6 times—often unopposed, but winning by large margins when he did have an opponent.
In the next election after the grand jury’s refusal to indict in the Brown case, however, McCulloch found himself challenged by a young, relatively inexperienced attorney who would normally have had little chance to win—but in the politics of the time, and with the substantial financial backing of none other than George Soros, defeated McCulloch handily by more than 13 percentage points.
If you’re wondering if that sends a warning message to other prosecutors about presenting a grand jury with both sides of the story in politically charged cases, you’d be right.
But the Police Initially Believed Perry’s Acted in Self-Defense!
Much has also been made of the testimony of an officer early on the scene who told the jury that he did not initially arrest Perry because he perceived that Perry’s shooting of Foster might well have been in lawful self-defense.
And this is sound decision-making by the officer. If there is evidence consistent with self-defense, the officer ought to consider that evidence before making a mindless decision to subject a lawful defender to arrest and everything that comes with that arrest.
In this particular case, however, the officer’s perception of evidence consistent with self-defense was largely a misperception.
In particular, the officer based his initial conclusion of self-defense on a bullet hole in Perry’s car. The officer inferred that this bullet hole had been caused by the initial use of unlawful force against Perry, against which he defended himself in lawful self-defense.
In fact, that’s not the case, and the defense never made that argument. That’s because it was uncontroverted that Foster never fired his AK-47, so Foster could not have initially caused that bullet hole in Perry’s car, providing the justification for Perry to shoot back.
In fact, the bullet hole in Perry’s car was caused by a bystander who shot three times at the car as Perry fled the scene of the shooting. That being the case, the bullet hole in the car could have provided no justification for Perry’s shooting of Foster.
It is true that something like 24 different sets of prints were secured from the outside of Perry’s vehicle, as well as some apparent shoe prints, but slapping and kicking of a car by itself could not justify Perry’s decision to shoot dead Garrett Foster. Indeed, a claim by Perry that this slapping and kicking of his car was reasonably perceived by him as a deadly force attack, which would require breaching of vehicle, is inconsistent with Perry’s decision to lower his window when approached by Foster. It’s also noteworthy that if you look at the paired videos embedded above, while there are some people around Perry’s vehicle, he’s hardly awash in a sea of protestors–another example of how our genuinely held understanding about an event can be biased by bad information acquired through second-hand sources.
Compare and Contrast with Kyle Rittenhouse Shooting of Rosenbaum
Before I wrap up, it’s worth suggesting a small thought experiment. If you can, strip away your own political biases and preferences—which we all have, but which can interfere with sound legal analysis—and try this:
Consider the facts of the Kyle Rittenhouse case—and I expect most of us were in favor of Kyle’s acquittal—and the facts of the Daniel Perry case—I expect much more emotionally troublesome for most of us—and see if you can identify any interesting parallels.
If Kyle had lost his fight with Joseph Rosenbaum for control of his rifle, and Rosenbaum and killed Kyle with his own weapon, would we have said that was a justified killing—that it was the rifle-armed Kyle who was the initial aggressor in that confrontation, and that Rosenbaum simply killed Kyle in self-defense?
Of course, in the Rittenhouse case we had the benefit of the video of Rosenbaum’s attack, clearly showing Rosenbaum to be the aggressor—but what if we hadn’t had such clear video evidence, as we don’t have here in the Perry case?
A sound argument could be made that Garrett Foster was the rifle-armed Kyle Rittenhouse on that fatal night in Austin, going about armed not to commit unlawful acts but for purposes of defense of himself and other protestors, and that Daniel Perry was the Joseph Rosenbaum of that night, seeking out a deadly force confrontation.
In this case, of course, Foster lost his gunfight with Perry—but had Foster reacted quickly to Perry’s presentation of his pistol and shot Perry first, killing him, would Foster be in much a different legal position than that of Kyle Rittenhouse with respect to Rosenbaum?
Also, a couple of caveats.
First, on an emotional level this was not a particularly easy analysis for me to write. I’ve shot guns since childhood, I’ve carried a gun for personal protection essentially every day of my adult life, I’m an NRA Life-Benefactor member, I’m a decades-long NRA Certified Instructor in pistol, rifle, and personal protection, I’m on the political Right, and I believe George Soros and the prosecutors he funds to be political enemies of my nation.
Indeed, I can already see on social media that the large majority—perhaps the entirety—of the folks I would typically expect to be on my side of the political divide have taken it as a matter of nearly religious faith that Daniel Perry has simply been railroaded by a Soros-funded prosecutor, that we’re dealing here with what could have happened had George Zimmerman or Kyle Rittenhouse been wrongfully convicted.
But a proper legal analysis must be done rationally, independent of emotion and political or other biases. The evidence and the law must guide us in our analysis. Sometimes the destination we arrive at will be unpleasant. That does not make it legally unsound, however, and forcing a legal conclusion to satisfy emotional and political desires is simply not sound legal analysis.
Second, even this analysis of this trial is being made under unusually unpleasant constraints. If you’re wondering why I didn’t cover the Perry trial live, as I do so many other high-profile trials, it’s because the trial was not televised.
As a result, I was not able to watch the trial in real time, hear and see the evidence and legal arguments presented first-hand. Instead, I’m obliged to rely on the reporting of the evidence and legal arguments as made through various media reports—and journalists are not a class of people I generally find to be well-informed or insightful.
Unfortunately, because the trial was not televised, the media reports are all any of us can use as source content for analysis, assuming we were not personally present in the court room (and none of us were). Indeed, everybody commenting on the Perry trial and verdict who did not watch the actual proceedings can have only the most limited understanding of what actually occurred in that court room—including myself.
The Bottom Line: Guilty Verdict is Legally Sound
The bottom line, however, is this:
Given the evidence and legal arguments that the media covering this trial has chosen to make us aware, a rational and impartial jury was presented here with sufficient evidence to conclude that the State had disproven Daniel Perry’s claim of self-defense in the shooting death of Garrett Forster beyond a reasonable death and return a legally sound verdict of guilty.
Sentencing: Expect Life
It’s been reported that Perry’s sentencing may occur as early as this Tuesday, April 11, which is pretty quick as these things go. Whenever that sentencing occurs, however, I would expect Perry to be sentenced to the maximum of life in prison, consistent with the jury’s verdict in this case.
What About Appealing the Conviction?
I’m sure many people are wondering about the prospects for a successful appeal of this conviction.
As I like to say, folks, appeals are for losers.
First, you only appeal if you lost at trial–if you won an acquittal at trial, you’re free to go.
Second, appeals are not like a second bite at the legal apple. At trial all the legal presumptions are in your favor–you are presumed innocent unless proven guilty beyond a reasonable doubt. Once you have been proven guilty beyond a reasonable doubt, however, now you are presumed guilty, and all the legal presumptions are against you.
My good friend and fellow Attorney Steve Gosney has researched how often appeals result in meaningful relief, and he’s found this occurs in less than 1% of appeals. And meaningful relief generally means either a reduction in sentence, or an entire second trial–it almost never means the appellate court simply sets you free.
In any case, for an appeal to be viable there would have to be some claimed legal error, usually that was preserved by appeal, and that the appellate court agrees was not harmless error (had the legal error not been made the verdict would have been not guilty). Claimed errors in facts, especially in the fact finding of the jury, is not a province in which the appellate courts are inclined to intervene. Nor are they inclined to reverse evidentiary and other decisions of the trial judgment, absent outright abuse of discretion.
Not having been able to observe the actual trial proceedings, I can’t have a good sense of what types of claimed errors might be subject to appeal, and I certainly can’t rely on journalist recaps of the proceedings for that purpose. But even if such can be found, again: appeals are for losers.
What About A Pardon?
There have been media reports that Texas Governor Greg Abbott has announced his intention to take an expedited look at a pardon for Perry.
The bad news for Perry is that any such pardon really can’t be based on legal merit, for all the reasons discussed above.
The more bad news for Perry is that a Texas governor doesn’t have the independent authority to issue a pardon–more technically, the pardon power is not plenary to the governor of Texas. There is a board that must first review the case and recommend pardon–only then can Governor Abbott pardon Perry. If the review board decides against a pardon, Abbott lacks the power to issue one himself. And, once again, any such pardon recommendation for the review board really can’t be based on legal merit, for all the reasons discussed above.
That said, there is also good news for Perry on the pardon front–there’s no particular reason that a pardon need be based on legal merit. Indeed, more often than not the legal merits are largely ignored in considering a pardon.
The reason for this is that ultimately pardons are political decisions, not legal decisions. They typically purport to take into considerations greater notions of justice and fairness than the criminal justice system is built to deal with. (Or, sometimes, as we’ve seen in the case of some past presidents, pardons are simply revenue-generating opportunities, though that would not seem to be the case in this instance.)
So, sure, Daniel Perry has a shot at a pardon, if both the relevant review board and Governor Abbott decide its in their political interests to recommend and sign a pardon for him.
If either does not, of course, then Perry’s simply out of luck on the pardon front.
And that’s all I have for all of you today, folks.
I you like this kind of self-defense law insight, you can click this link to obtain your own FREE copy of my best-selling book, “The Law of Self Defense: Principles.”
Attorney Andrew F. Branca
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Daniel Perry’s Murder Conviction Was Legally Sound before or after David Fugitt, the lead detective in the case, accused District Attorney Jose Garza of witness tampering in a sworn affidavit saying Jose Garza told him to “remove exculpatory information.”?
Perhaps you should actually read the article before commenting as Andrew addressed this very topic in the write up.
Excellent analysis, Andrew. Perry may have been legitimately in fear for his life that night, but the absence of any witness testimony corroborating his version of events combined with his prior social media statements gave the jury the rope they used to string him up.
Yes, the DA is a Soros stooge. Yes, the witnesses were all happy to see a straight, white Conservative male get the shitty end of the stick. But barring any testimony or evidence confirming his version of events, the jury made their decision based on what they were given by both the prosecution & the defense. You bring up an interesting point about Perry not testifying (possibly because doing so would open the door to facts that would show his mindset to be more confrontational than what fits into the idea of self defense).
As much as we might like to see the door swing both ways, decisions about prosecution that favor antifa/progressives over more conservative types don’t justify a “good for the goose, good for the gander” approach to the law. The Ashlii Babbitt shooting on 1/6, the Denver shooting of the Trump supporter by the “security guard”, and any other similar incidents have built up resentment among conservatives that the deck is stacked against us. That feeling is correct, but giving someone a pass to make up for prior bias is just about the most corrosive action you could take. I wouldn’t be overly concerned if the governor manages to pardon him, because this would be a political decision. As such, it cannot corrupt the process.
The Trayvon Martin & Michael Brown shootings both had testimony from bystanders who had reasons to want to see the shooter convicted, but gave testimony that supported self defense. In the Rittenhouse case, video footage demonstrated that Kyle had good reason to be in fear for his life. Unfortunately, Perry didn’t have these things here.
The “witnesses” should have been codefendants, not witnesses.
They came together as a group to commit an illegal act (blocking traffic) through force (threatening and surrounding cars with weapons including multiple firearms) and placed the defendant in a position where he had a genuine fear of being dragged out of his car and killed, or simply killed in his car and his body dragged out into the street. The defendant *could* not simply leave due to their actions, and there was a considerable implied risk of being shot to death if he tried.
It was their actions which created the situation. They should have each been tracked down by police, held without bond awaiting a murder trial for several years, and placed on terrorist watch lists.
A merely subjective fear of harm, however genuinely held, is not sufficient to warrant the use of deadly defensive force. There was zero corroborated evidence that Garret Foster threatened Perry with imminent deadly force.
“They came together as a group to commit an illegal act (blocking traffic) through force (threatening and surrounding cars with weapons including multiple firearms)”
You’re engaged in mind-reading and wished-for-outcome.
There’s no evidence that people protesting by walking down a roadway were in any way working in concert with Garrett Foster, the only person present known to be armed (other than Perry). The walkers didn’t invite Foster, weren’t working cooperatively with him, didn’t ask him to come armed. Or if you have evidence of that, other than them simply being in the same place (which applies to all 50,000 people in an NFL stadium), share it with us.
Andrew, Nobody is engaged in mindreading. You’re simply nitpicking the wording used by the poster. It doesn’t matter if they were an organized group, from Perry’s perspective they were working in concert at that moment to detain Perry, destroy his property and threaten his safety.
His occupied vehicle is his castle. How is this different than a group surrounding your house and pounding on the windows to get in? A person in either of those situations, whether in their home (their castle) or their vehicle (their castle) would have a reasonable belief that they were in imminent risk of great bodily harm or death. Weapon or no weapon.
To say there there is no evidence of imminent deadly force is to ignore everything else going on around Perry in the moment before the shooting.
“A merely subjective fear of harm, however genuinely held, is not sufficient to warrant the use of deadly defensive force.”
BS. It was not a mere “subjective fear of harm”. One is not required to be shot before acting in self defense.
As for “zero corroborated evidence”, that, too, is a BS argument. Anyone militarily trained or having taken the time to learn the process knows that the transition from low carry to a shooting position is accomplished in less than a second. As amply demonstrated by Sgt. Perry’s expert witness who took ~ 1/4 of a second to do so.
The assialant was a threat who deserved precisely what he got.
“As much as we might like to see the door swing both ways, decisions about prosecution that favor antifa/progressives over more conservative types don’t justify a “good for the goose, good for the gander” approach to the law. ”
Pretending that the double standard does not exist just means we will, like Charlie Brown, keep trying to kick that football. The rule of law is beyond frayed. Americans kept in solitary confinement for years shows that the tyrants’ law isn’t worth a bucket of spit any longer.
However, I do agree that a ‘tit for tat’ approach is much too passive. Something much larger and encompassing must be considered to respond to the leftist fascist attacks.
I don’t see “corrosive” as a necessarily bad thing. It’s not corroding people, it’s mainly helping people who deserve the help, and what is corroded may need to be built back better (see I used a phrase they like.)
As i have said repeatedly “””‘anything you post on social media can and will be used against you in a court of law”””
Indeed! I cringe when I see people in self-defense forums like this display a mindset that criminals deserve what they get, and that even more people should die at the hands of victims than already do. Sometimes I even see things like “shoot to kill” or “make sure that the person is dead, because then they can’t be a witness” or even “if you kill an assailant, that’s one less criminal that will be released into the street.
Part of the reason I cringe is that, as a Christian, I understand that, while rare, even the most violent among us can seek forgiveness, and commit to living upstanding lives — it is not up to us to make those kinds of “final judgments” — and I say this as someone who’s willing to consider the idea that people who are defending their lives perhaps should be given more of a benefit of a doubt than they are typically given, when they fire a “coup de grace”.
Another major reason I cringe is that, as someone who has a literally schizophrenic relative, I have some sympathy for those who are suffering from mental illness — even if they are killing people because of their illness. While immediate violence is not a time to reflect on the upbringing or mental state of the assailant, once the assailant is stopped, we can start to ask “what treatment might that person need, if they survive the defensive shots fired at them?”
The third reason I cringe, though, is the thought that, if the commenter is, indeed, caught up in a self-defense shooting, then a hostile DA is going to have a field day with those statements. They might not, in and of themselves, be sufficient for conviction — but these statements might tip a borderline Prosecutor’s case over to “GUILTY”.
Having said that, I’d like to think I’m pretty safe, but I’m not entirely sure what comments I have made over the years that an over-zealous Prosecutor might use against me — we would all do well to remember that anything we say online can become fodder to be used against us, in trials criminal or civil!
Andrew addressed that issue under the heading “Did Garza Commit Misconduct in Hiding Exculpatory Evidence from Grand Jury?”
There is never an excuse for “omitting” exculpatory evidence exclusively held by the prosecution!
The grand jury and petit jury are distinct steps with distinct procedures and requirements. Bottom line is if a DA decides to bring and push the case then 999/1000 the grand jury is going to indict b/c it isn’t an adversarial process like the petit jury. Only the DA gets to present their side.
The DA isn’t under any obligation to act on behalf of the defendant. He must eventually turn over all evidence, including exculpatory evidence, to the defense when the defense make discovery requests so that, among other things:
1. The defense knows what the Prosecution knows about the facts of the case
2. The defense can raise objections to any of it
3. The defense can hire expert witness to present opinions and/or rebut Prosecution experts
Don’t conflate the grand jury and petit jury stages. This was a partisan DA who had an ideological agenda but that doesn’t change the facts of the case or that a jury rendered a verdict based upon the evidence and facts as they saw them.
I look at the red line drawn by AB, and come to the conclusion that either he needs his eyes checked or that he is being dishonest.
I happen to own a rifle just like the one in question and I can see the buttstock on the shoulder of the guy who was shot.
As far as the vertical plane, it IS aligned with the interior of the vehicle.
Also, all this case shows is that a sleazy prosecutor can manipulate the emotions of a jury to convict an innocent man whose emotions were also running high that night.
The buttstock is most certainly not on the shoulder of the AK47 guy in that photo. It is above his shoulder, meaning he is clearly raising the weapon so the muzzle can clear the window threshold of the car door.
You have just pointed out a serious problem with using a single photo in presenting an argument. A single photo captures the event in a tenths or hundrends of seconds * (the shutter speed or frames per second used in the camera). Taking a single frame of a video creates the same issue. You have to look at this in totality. If at any point in time if the driver saw a gun pointed at him would he be in fear of his life, that could be a tenth of a second before or after this. Yes there is a time element in self defense and Andrew can address that, he is the expert in that component.
This particular aspect of this case just screams “What about beyond a reasonable doubt?”
I am a platinum member at Andrew’s website. I am going to address part of this with him there directly. I disagree with how this is being analyzed here. If you watched this in video (I saw it on a live feed, then saw it analyzed frame by frame; you will see that his elbow is coming up and foster is clearly manipulating the rifle. There is absolutely no reason anyone would need to wait until the muzzle was actually on them to justifiably react to that. If that is what the jury is basing this on, I have no sense of how this verdict could be justified. Foster advanced on the car, then began lifting the rifle.
I know Perry was dumb for being there, but so was Rittenhouse. I have some points about this analysis that I would like Andrew to clarify given his analysis of the texas porch shooting. It seems as if Andrew is saying that Foster did not pose an imminent threat, therefore Perry was unjustified in firing. Sounds odd. I also do not understand how mean tweets from months before, unknown to the people involved, and non-specific could possibly void innocence. Foster was not in front of the car and faced no danger, yet he closed with a rifle and began to manipulate it into a firing position. As Andrew has said, even a drug dealer has a right of self-defense. Hating protestors is not provocation for the purposes of self-defense.
This was a prosecutor who wanted to jam this guy up and did everything he could given that he was going to have a very friendly jury in Austin.
If this is “Legally Sound” then we need to override the legal system. It is after all just a part of the political system.
Perry sounds like a dumb ass dick, that does not make him a murderer.
The single frame convinced me that the man was bringing the gun up to the shooting position. There is no other reason his elbow would be pointed out. It would be unnatural to be pointed out, unless he was bringing the gun up to the firing position, in which case he points it out so the butt can make contact with his shoulder and the barrel can come up. From this photo alone, I’m 100% convinced he was bringing the gun up. If you’ve ever shot a rifle or shotgun, you know that as well. You can’t shoot one without bringing your elbow out, unless you’re shooting from the hip.
If you look at the photo you can see just above the tail light image the barrel pointing down below the window ledge. I had to study it but if you follow the top edge of the stock angle and go down the barrel becomes clear and it is pointing down. That isn’t to say it came up before or after the photo was taken.
We are quibbling a little, but the bottom of the stock is tucked into his shoulder, but you are right that he does have it mounted high on his shoulder.
I also agree with your other posts.
To the poster saying it’s a snapshot of a video, that is right.
However, it’s not the only one I’ve seen from the video.
He was raising the rifle.
As we have seen with DC juries the facts don’t matter.
They will protect their own and own punish the “enemy”.
If he had the gun slung over his shoulder, the butt would be above his shoulder, but it appears to me that his other hand is bringing the barrel of the gun up, which would bring the stock down to the shooting position on his shoulder. This photo appears to show just that and my assumption is that he was bringing the gun up to shoot, or the barrel would have been pointed straight down. Add that to the fact the video shows a lot of people running at that car prior to the shots, I can reasonably believe he was in fear for his life. JMO
I need to add to my previous post that his elbow was also pointed out in the shooting position.
That’s a lot of analysis, but, I’m not sure it matters. I think we’ve all seen enough legal BS that until the legal profession and judiciary as a whole make a major good faith effort to clean house, most people are going to see these cases as tainted.
And given the people here have about zero authority to do anything about any of that, preaching here is wasted breath.
You are correct. This is why we need to start the very painful process of breaking the legal system to the political bit. Abbott can fix this. This prosecution was corrupt from the start. He will also be able to use this to start getting control of these prosecutors. This legal system has become so corrupt it is going to be a hell of a fight to get it straightened out.
That is my position on this case, the only thing just is that the rioter is dead. It is a damn shame that a productive citizen ‘s life is ruined. Rioters using riots as cover to loot or worse, deserve an extreme response. This shit is tearing civil society apart.
Yup, and most of it wrong. It was not legally sound. He was reasonable in fear of his life, and it was a good shoot. Andrew is utterly wrong, sorry.
This kind of insightful analysis is why I read LI and was able to gain a very different perspective then that being promoted on all the “Conservative” websites.
Three quick points make me question this analysis, despite my high regard for Mr. Branca:
1. The prosecution was contrary to police investigation conclusions, and was clearly brought solely for political purposes, which Mr. Branca kind of admits. I bet the prosecuter was less than zealous in prosecuting other crimes committed by the mob that night.
2. Mr. Branca seems to give a lot of weight to the prosecusion’s witnesses. A bystander attacked in the middle of a leftist riot, essentially alone, has no supporting witnesses, but the rioters/protestors are willing to testify to whatever the prosecution wants. Color me shocked. Anybody remember ‘hands up, don’t shoot’?
3. Mr. Branca seems awfully sanguine about an AK 47 pointed at the drivers side door panel. What would it take to reasonably fear for your life? Must one wait until the muzzle clears the window sill?
One difference between Perry & Rittenhouse is that Rittenhouse benefitted from testimony about Rosenbaum’s prior statement (“If I catch you alone later, I will kill you”). Foster didn’t say anything (at least nothing that was presented to the jury), but Perry’s statements about killing protesters were out there for God and everyone else to see. That didn’t help his case.
Even though my gut feeling is that Perry was in fear of being shot, I agree with Andrew’s conclusion that the jury didn’t commit misconduct in convicting him. They’re supposed to consider the evidence in front of them and not bring any biases into the process with them. Were they right? I don’t know, but at least on the surface their verdict is plausible.
“I would suggest that a genuinely unbiased, impartial jury could easily come to that conclusion and that verdict on the evidence presented in this trial.”…..
Just like with trump in NY, he’d never get a genuinely, unbiased, impartial jury & the same thing with Austin & other left wing bastions, trying to make the law fit into their narrative
One doesn’t have to assume or show the jury committed “misconduct”, just to say they made a mistake or they were misled.
Ex post facto analysis has one insurmountable limitation. He wasn’t there, and Perry was. Arguing that he acted unreasonably from a safe and detached intellectual perspective is perhaps satisfying to judgmental legalists trying to score debate points, but rings hollow to any of us who have actually been threatened with deadly force. Being confronted by an enraged armed mob already engaged in unlawful behavior would push most of us to the edge, and the defendant’s responses must be analyzed in that context to determine if he had justification to use deadly force to defend himself. The author also raises other specious arguments about the defendant’s own prior behavior and statements that are irrelevant to the decision he made to use his own weapon at that moment in that context. The bottom line is whether a reasonable person would do what he did under those circumstances and whether this jury was manipulated to ignore this reality.
The jury wasn’t there either, and a jury is supposed to decide “from a safe and detached intellectual perspective” whether a defendant’s perception of danger was objectively reasonable, i.e. whether the Man on the Clapham Omnibus, if put in the defendant’s circumstances, would have felt as he says he did. If they think the Reasonable Man would not have felt such fear then it doesn’t matter whether the defendant did; the jury doesn’t have to think he’s lying about that in order to convict him.
Milhouse – I am not privy to any of the facts nor have I spent much of any time to ascertain the reasonableness of any of the facts. Nor am I aware of the point at which he entered into the area at which a heighted level of danger existed nor whether he entered the area inadvertently or intentionally or could have left the area. As such, I will avoid any comments and/or opinions that would indicate any biases I may have.
My only comment therefore will be limited to the concept that there should have been a heighted sense of danger and personal safety once he was in the middle of a protest ( which similar protests in other cities became violent) and upon spotting and individual carrying a weapon. So the obvious question is what is reasonable at that point in time.
I offer no comment as to whether his actions were reasonable under the actual facts.
And this is a good place to bring up some of Branca’s points about handling self-defense:
1) Avoid the fight if you can. Maintaining “innocence” is easy from your point of view, but what will a group of folks sipping lattes and eating blintzes think from their crappy chairs in the jury room?
2) Have a clear understanding of your circumstances and what other options you might have besides pulling a firearm and shooting someone. Because the jurors are going to be able to sit around and spend minutes, if not hours, armchair quarterbacking those same choices.
Foster was raising the rifle. A jury that thought it was unreasonable for Perry to fear has just made a mistake that Abbott will need to fix.
Let’s just say they were motivated in their reasoning.
“Foster was raising the rifle.” This is pure speculation. Or show me the evidence.
Your Point 1 is irrelevant to the legal analysis. Point 2 (as Mr Branca explained at length) was for the jury to decide. As was point 3.
Point 1 is relevant because the people who gathered the evidence said one thing while a Soros-funded prosecutor whose office has filed political cases WITH ZERO EVIDENCE BEHIND THEM decided to ignore exculpatory evidence and file the case.
The prosecutor’s office should all be sued for deprivation of civil rights under color of law.
No exculpatory evidence was excluded from the trial. And the prosecutors in this case had evidence. What the same office has done in other cases is irrelevant.
Let’s clarify, Milhouse: it’s generally legally irrelevant. Morally, it’s very relevant – but that gets handled in a different venue, generally.
It’s irrelevant to this case. It’s relevant in those other cases, and when he is eventually on trial (as he assuredly will be, if not in this life then in the next).
Agree. I understand that 3 shots were fired at him while he drove away. Was that person prosecuted?
They stopped his car and they had firearms. To me, at that point I am fearing for my life. I have seen video of BLM mobs pulling people out of cars and causing bodily harm WITHOUT GUNS. They didn’t stop his car to give him a coupon. It was a threat.
This wasn’t Gunsmoke. There wasn’t a mutual agreement to meet at high noon. These were armed rioters that were stopping and threatening citizens in the cars and walking on the street.
Couldn’t have happened if police had stopped them from stopping cars and rioting.
The person who shot at him as he fled was 100% justified, and cannot be prosecuted. He saw this person kill someone and flee the scene. He had every right to shoot at him in order to prevent his escape. Even a policeman, who is constrained by the fourth amendment, would have that right; how much more so a private person, who is not so constrained.
The common law fleeing felon rule is still good law (wherever state law has not abrogated it) for private people. And even for policemen it has merely been changed from “felon” to “dangerous felon”, which Perry certainly appeared to be.
He had every right to shoot at him in order to prevent his escape.
BZZZZT! Wrong. In almost no state is it still legal for a civilian to shoot a fleeing felon. Not unless you can demonstrate he was obviously an immediate threat to others. (That information, BTW, is from folks like Mr Branca.)
Also, if they were involved in the group hitting the car, they had no innocence, and could not claim defense of others. You might argue that the shooting changed the level of violence, somehow, but it shouldn’t – legally – reinstate your innocence.
Yeah, well. Not how Soros DAs view the law, which should be patently obvious to everyone by now. The mob had no right to be there, certainly not armed. None of them will see the inside of a courtroom. System is chipped.
This post shreds Branca’s heavy reliance on the “no defense witnesses” argument!
Make it make sense.
YUP! Those point destroy Andrew’s arguments. The conviction was not legally sound. He was reasonably in fear of his life.
First the testimony of people attending a BLM protest, well they have the credibility of Gaige Grosskreutz.
Second I looked at the videos you show, and to me there is not enough to determine whether or not Foster pointed the gun.
Third. The social media statements I see are ambiguous unlike eg the Nashville shooters. They seem more like the typical ” I could kill him. ” in a Perry Mason show. If those statements waive his right to self defense then almost every poster here has waived their right to self defense.
Forth. The hole in the car door was made but a bystander. You don’t provide any evidence that it was a bystander shooting before the incident or after.
To sum up. Unlike Zimmerman or RIttenhouse who both proved they acted in self defense, Perry did not do so, but there is more then enough room for doubt.
As to what I believe. Foster went there looking for trouble. Perry went there looking for a reason. Foster and the crowd gave him one. From my sense of morality, each person takes upon himself whatever happens to themselves. Had eg a person walking home from the grocery been shot, that would have been a different story.
As fot pardon, true the board has to approve it, but who appointed the board?
Perry was driving for Uber, transporting a passenger. He was doing nothing wrong when the mob attacked him.
I don’t believe Perry had a passenger onboard at the time of the shooting. There’s reason to believe he went to the protest looking for “a reason”, AKA, “trouble”
He was still doing nothing wrong. A person is entitled to look for trouble, and if he genuinely finds it he’s entitled to act reasonably to defend himself. Bernard Goetz was looking for trouble. But if he was looking for it then he’d better make damned sure he has found it before acting, because a jury will scrutinize and second-guess his decisions with maximum skepticism.
Yes, and no. “Looking for trouble” might constitute revoking the innocence aspect of self-defense.
But otherwise, right.
“Bernard Goetz was looking for trouble.”
That’s a vile and contemptible lie. Or show me the evidence.
I disagree. Looking for trouble does not negate a person’s innocence, because he has a right to look for trouble. So long as look is all he does.
He can even “provoke” trouble by such innocent methods as flashing his wallet as he walks down a dark alley, or by exercising his first amendment right to say insulting things to people he suspects of being violent criminals. That’s still innocent, because he didn’t do anything wrong. He’s still passive as far as the crime is concerned, and it is the bad guy/s who initiated the crime.
Thus, even had Zimmerman deliberately ignored the police dispatcher’s advice, and continued to follow Martin, and even if he’d done so in the hope that Martin would react by attacking him, he would still be innocent and entitled to defend himself, because following someone is entirely legal and not grounds for the person to launch an attack.
But when looking for trouble you have to be very careful that that is all you do, because it’s easy to step over the line and initiate trouble, whereupon it’s suddenly the other guy who has the right of self defense. And that may be what happened to Perry here.
Milhouse, this is another case of you being a pedant and splitting hairs.
“Provocation” has been clearly addressed before as tainting someone’s “innocence” as regards self-defense. And you know darn good and well that “looking for trouble” means stirring it up. You can’t go “looking for trouble” and not actually be involved in it – that’s the essence of the phrase. Unless you’re a pedant, of course.
I based my statement about Goetz on contemporary news reports. Obviously I don’t have them to hand, and I can’t quote them verbatim. It was reported at the time that, after having been the victim of one too many crimes he decided to take the fight to the criminals. And good for him. He looked for trouble, and he found it, but he did nothing to initiate it himself.
Of course it’s entirely possible that those news reports were incorrect, in which case what I wrote is also incorrect.
Who appointed the board is irrelevant. Even those members whom Abbott appointed have no reason to defer to him. They will exercise their own judgment, as is their legal duty.
Who appointed the board theoretically is irrelevant.
As to practicality, they owe something top him, and their standing in the GOP depends on how they reply to him, so it does depend greatly. Note that I was replying to Mr Branca’s question about the practicality of a pardon, not the relevancy of a pardon.
What is more, the board is not there to decide who to pardon, it is there to sift through the pardons and find people who the governor, as best as they understand, would pardon.
No, that is not true. They are there to decide whom they believe the governor should pardon, not whom they believe he would like to pardon. The power to decide who deserves a pardon lies with them, not with the governor. The governor can only act as a further filter, refusing pardons to those who they think deserve one, but he can’t pardon anyone they don’t think deserves one.
As for “owing him something”, first of all, how many did he appoint and how many were appointed by his predecessor? What is their term of office? Second, is this really a plum appointment for which they should feel some sort of gratitude?! Are the people appointed to this board people with future political ambitions, or people nearing the end of their careers? I don’t know what kind of appointment this is, and I don’t know that you know either. But I do know that their duty is to make an independent assessment, and not to pay any attention to what the governor of the day wants.
This is the kind of excellent analysis I come to LI for. Thank you, Mr Branca. I think the part about Perry not taking the stand is particularly insightful. Rittenhouse did take the stand and speak in his own defense while Derek Chauvin chose not too.
As an attorney, I’ve been on both sides — as a prosecutor and as a defense lawyer. When a criminal defendant chooses not to testify in his own defense, which he has every right to do, this never looks good to the jury. No matter how many times a judge reads the jury instruction that the defendant has the constitutional right not to testify, and that the jury must not consider his not testifying in their deliberations, you just know that they are going to do it anyway. The jury wants to hear the defendant tell them his side of story. If he won’t testify, then they are going to infer that he has something to hide. That’s just the way the world works.
Another thorough analysis by Mr. Branca. I only have problems with two points – first that all the witnesses were part of the protest, and so their testimony is too tainted to trust, and second, that the rifle was not pointed in a threatening direction. The rifle appears to be held in a ready position, with the holder’s finger in proximity to the trigger. The time it would have taken to shift that rifle into shooting position, especially with his hand in position to shift to the trigger and shoot, wouldn’t seem to offer much of a window for Perry to react other than with the expectation that he was under threat. OTOH, it’s pretty clear that he was there on purpose, and that along with his own comments presupposes intent.
The other rioters should have been co-defendants. If they had told the truth, they’d have been on the hook for felony murder.
Co-defendants on what grounds? What evidence exists against them?
18 USC 241
How is that relevant? What civil right did they conspire to deprive anyone of? They attended a protest, as the constitution entitles them to do, and as hundreds of thousands of people all over the country were doing. I am not aware of any evidence whatsoever that they were being violent or breaking any law.
They attended a protest
They attended a mob.
I am not aware of any evidence whatsoever that they were being violent
You mean, like banging on a car while preventing it from moving forward safely?
You might be a bit too naive on this one, Milhouse.
“You mean, like banging on a car while preventing it from moving forward safely?”
That is violence to an object, not a person. Quite different.
When there’s a person inside of it? Yikes! That would certainly reasonably up my fear of being beaten or killed!
I would hope the law would generally view it otherwise when it’s – by definition – your safe spot. If not, then the law needs a whooping to make it change its mind.
Are you aware of any evidence that the witnesses did that?
Milhouse, that was in evidence presented. Don’t be dumb while also being pedantic.
The specific civil rights they were conspiring to deny by blocking him in was the right to travel, which could be easily discerned from reading the statute. Please have a trusted friend smack the forward assist on your cranial housing group.
No, it wasn’t.
Witnesses are witnesses by virtue of witnessing. We simply don’t get to ver them by other criteria
Not quite true. The jurors get to decide how much credence to put in their testimony, and they can use any subjective criteria they like. They can choose to disbelieve any policeman’s testimony, simply because they’re aware of too many cases of policemen lying on the stand. Or they can choose to disbelieve anyone who participated in a BLM protest, even peacefully, because they don’t trust such people to tell the truth. But that is the point: it’s up to them, not to us.
Not only was it it in a ready position, but if you go back in the frames you will see his elbow is raising. Foster was manipulating the rifle into a firing position. There was no need for Perry to wait until he had the muzzle on him. That is nonsense. Foster was not in front of the car and was in no danger when he approached the car. They did not televise this trial so the available evidence is sketchy; but it looked to me, when I saw the video that Foster may have had his left hand on the hand guard and was coming up with his right hand to charge the weapon. Or if he had one chambered, he was raising the rifle to fire. Either act is over the line.
This is pure speculation and mind-reading. Foster could have done all those things, and still never have raised the rifle, and those motions would have been consistent with merely keeping the rifle in a controlled position.
What Mr. Branca neglected to mention was that Foster gave a broadcast interview to a local TV news reporter minutes before he was shot where he stated that he was using the AK to terrorize and intimidate motorists and that nothing would be done about it because the cops were “pussies”. Mr. Branca also failed to mention that Foster was a paid protester funded by or indirectly funded by George Soros and bused into Austin for such a purpose along with hundreds of other paid and funded protesters. Foster had been on the streets every night for 80 consecutive days pointing his gun at motorists prior to the event. As such the victim and the District Attorney were both funded by Soros which raises more questions as to the decision to prosecute. This may have been exculpatory evidence suppressed at indictment and perhaps at trial as well.
Austin is possibly slightly Left of San Fransisco politically and any prosecution of someone in any confrontation with Leftist protesters would result in a conviction no matter what the circumstances. Several Austin police were prosecuted simply trying to control the mobs. The Governor had to step in and act as if he did not the State would lose control of the City.
“What Mr. Branca neglected to mention was that Foster gave a broadcast interview to a local TV news reporter minutes before he was shot where he stated that he was using the AK to terrorize and intimidate motorists”
This is an utter lie, and you should be ashamed of yourself. I’ve viewed that interview. If anything, Foster communicated that he expected no trouble at all.
Unfortunately Mr. Branca you did not see the KXAN interview with Foster live as I did. If you had perhaps you would have a different idea of what he was doing out there. Maybe you are unaware that EVERY news broadcast on local television is edited by network employees (in this case NBC) working at the local station before it is aired, with the exception of live on-location reports that are impossible to do at the time of broadcast but can and often are edited in in tape form for later broadcasts. If you don’t believe this is done consider the big picture of how this all started with the media distortion of the fentanyl overdose death of an addict in Minneapolis who swallowed his stash while being arrested and leading to these riot in Austin and far more riots, deaths, and destruction all across the country for months. That is what real media power is so snipping a few lines out of an interview wouldn’t be out of character.
I ask because I don’t know the legal standard here:
If a group of people are banging on a car, preventing the car from moving in any direction, and making threatening noises and gestures to the people in the car, may a reasonable person inside the car conclude that his/her life is being threatened? If so, and if the person can’t move the car, may he/she use lethal force to escape the situation?
I realize that’s a broad question but feel free to narrow it to this particular case.
A link to said interview, please?
I don’t have a link to the interview. I only saw it live. The reporter was asking Foster why he was carrying his AK.
I’m initially sympathetic to the defendants position but also troubled by what the evidence presented in the trial may show.
Looking only at the issue of the victims gun seeming to be only in the low ready position, not directly aimed at the defendant, does the disparity of numbers presented by the angry rioters overcome the states argument that he was not being threatened with deadly force?
Since the victim was part of that group or mob, any one of them was at risk of being shot in this scenario. He just happened to pick the guy with the gun as the most threatening and shot him. Do you think that approach by the defense would have held any weight, legally speaking?
I carried a rifle at low-ready position for some years. What I see in the photo is the rifleman’s right shoulder hitched up and his elbow is elevated, both higher than they would have been if the rifle was at low-ready. He was likely in the process of raising the rifle. Perry may have exaggerated when he said the muzzle was pointing at him, but if the gunman was in the process of raising his rifle, considering the stress of the situation it’s not unreasonable for Perry to think he remembers that, having seen the business end of the rifle coming up. Did he have to wait until the muzzle was actually pointing at him (as he claimed)? I don’t believe so.
Nailed it, IMO.
Therein lies the problem with trying to make a case either way on a single photo. We are not being presented evidence as to what happened before and after a photo or a video frame. You need the complete context instead, the entire chain of events are needed to make decision based upon more evidence. You can take a single frame and interpret nearly however you want, assuming that this or that happened before or after,
I don’t believe I was interpreting the photo in “any way” that I wanted. I analyzed it by employing my experience with the handling of rifles, and the movements that people make when they handle them.
A few months ago, the Internet exploded over a photograph hung in the home of Jamie Lee Curtis, with the allegation that it depicted a young girl “being stuffed into a suit case.” Yet when I looked at the low-resolution enlargement of the photo (because the photo had been captured in a photo taken of the entire room of her home), I was able to discern that the photo was of a young girl taking a bath in a small plastic tub. Somehow, the critics had missed the young girl’s flip-flops beside the tub, and didn’t note the glistening of what appeared to be water in the tub. Commenters railed against me as a “pedo” for pointing this out. Yet when I did a very simple Google search of the photographer’s work, I was able to identify the photo, and I was absolutely correct in my observation. My point is that small details in a photo can often be interpreted in order to give an accurate analysis of what the photos does (and doesn’t) depict. No, that child wasn’t being “stuffed into a suitcase,” no ifs, ands, or buts. Sometimes a photo doesn’t lie.
“He was likely in the process of raising the rifle. ”
Pure speculation. Speculation is not a legal defense.
Pure fact. And facts are a legal defense.
My biggest soncern, as well. We ave all seen video inaging of similar “events” where cars with human occupants have been tipped over by the mob, even lit on fire with saidoccupant still inside. Beong directly and confrotnatively/aggressiely “greeted” by a man with a rifle, surroundedby a large mob, how much longer could it ve been before the bove scenariocould become reality in this instance? Had he waited ten seconds or ine minute, or efefn ten, the guy with the rifle could easily have raised hus muzzle, just as did Kyle Rittenhaus, when the muxzzle of the aggressor’s weaponwas raised (takes halfa secind to do this) and fired?
Had the defendant taken the stand and clearly articulated THIS as what was going through his ind at the time, perhaps the jury MIGHT have grasped a hint of “fear for my life”? His defense attorney I belieev was somewhere between carelss and derelict in NOT persuing this line f defense.
This jury knew this verdict before the opening statement. No way Perry gets a hearing in Austin.
I also want to hear the defense analysis of how the judge decided some issues. I would also want to know the politics of the judge.
The “witnesses” should have been on trial for felony murder. They were rioting and attacking an occupied vehicle, and during their crime one of their own died as a result of the crime.
It’s worth noting, however, that this decision by McCulloch to present the Michael Brown grand jury with a balanced rendition of the facts of the shooting cost him his career.
So he shouldn’t have done it? Should have railroaded into a sham trial and made things worse? His “career” was worth more than the rule of law and an innocent man’s life?
Whether he should have done it isn’t relevant. The point is that he had no duty to do it. Had he not presented the exculpatory evidence he would not have done anything wrong.
“….Had he not presented the exculpatory evidence he would not have done anything wrong.”
He would have done nothing illegal. Legal / illegal and right / wrong are not always the same thing.
No, they’re not always the same thing, but he had no duty to present that evidence, so if he had not presented it he would have done nothing wrong. He went beyond his duty, and good for him, and it’s sad that he paid a heavy price for doing so.
Rephrasing PaulM’s comment, you are right regarding his legal duties. Some believe there are other duties in life.
No, I am specifically saying that he had no duty of any kind to present that evidence. He went beyond his duty, and deserves full credit.
I still don’t understand why Darren Wilson did such a stupid thing as to voluntarily resign without any payout. He screwed himself. And I have no idea what he’s living on now. I just hope he’s OK. But he should have forced the department to fire him and pay him the full amount the union contract requires, whatever that is.
I am soooooooooooooo sure that the “witnesses “ were giving factual testimony, given that they were all BlackKillersMatter sympathizers.
If I were part of that jury, not guilty. No wiggle room.
And I am always happy when thugs are dead. Foster shows up with an AK 47, and as far as I am concerned he was looking for trouble. This isn’t a concealed carry situation. These thugs were looking for trouble. foster found it.
Feel exactly the same way
It’s insane to come to the conclusion that the jury got it right, witholding of evidence, stopping cars, threatening them, pointing guns at innocent people… Austin, the SF of Texas where conservatives go to die…
Give me a break…
Somebody been smoking the liberal facists toot
“Feel exactly the same way”
Feelings are not a legal defense.
Perry acted out the adage ‘better to be judged by 12 than carried by six’. His conviction shows the risks of that strategy in a marginal self defense situation. This was always gonna be a coin flip for the jury b/c it was a marginal use of force situation and unfortunately for Perry he came up on the losing side.
At least Fate got it 50% right. Foster is deservedly dead.
At what point is it proper to stand in the street blocking traffic while carry an AK 47? Harassing drivers?
Dead is dead. One less BLM puke to contend with. One less Antifa puke to contend with.
HIndsight is always 20/20 I know. BUT had Perry simply drawn and presented NOT yet firing, whilst the dead guy’s muzzle was at low ready, perhaps the now dead guy COULD have made an infiormed decision. Of course, so could the angered mob made an “infirmed decision” Hey, looky here we got w white tough guy with a gn. Let’s flip his car and see how he does then?
ANyone else remember the elderly gent who innocently took a wring turn innPortland when BLM were going apecrazy? They started to overturn his car, he punched it and hit a couple of them, and managed to escape Even Portland’s rotten “legal” system could not convuct him of vehicular assault. He walked. Scarred for the few remaining years he has…. but alive. That was ruled justified self-defense. He was unarmed. Perhaps had he BEEN armed and used his weapon the jury would have found as tis one did. No question both men were in mortl danger.
That jury was carefully selected from Austin and there was as little doubt about the verdict as there would have been under the Red Guard.
In other news, Andrew Branca’s new pronouns are Fudd/Cuck.
No. He did us all a service with this analysis. I do not agree with some of it (others have stated similar disagreements as mine so no need to be repetitive) but I appreciate his completely informed opinion.
In fact, my first reaction to reading about Perry’s conviction was to come here and look for Andrew’s opinion on it. Because I trust him to be honest in his justifications and informed about his facts. He gets to make mistakes but his basic point is correct–it was up to the jury to decide. That Perry had about as much chance of a fair trial in Austin as Trump does in Manhattan simply points to a larger problem.
I agree that he did us a service: he revealed himself to be a traitor.
Better to find that out left of bang as opposed to right of bang.
A traitor? So he wrote an article you didn’t agree with so that means you are throwing out all his past stuff?
Yep. He has absolutely chosen to kiss BLM ass on this. Probably had his license to practice law or bar membership threatened
By his lefty buddies.
He showed himself to be a positive menace to my life and liberty. That is treason.
Branca showed his usual high integrity by sticking to his principles despite disapproval from those who demand political correctness (rightward version).
He knows his subject matter, and he tells the truth as he sees it, letting the chips fall where they may. No wonder some people can’t handle that.
Just do it in the form of a rap song (California only)
And this is one of the greatest problems in “conservative” circles today: he doesn’t agree with your conclusions so he must be the enemy. This level of stupidity is why we can’t have nice things.
Pretty sure he doesn’t know what time it actually is. Branca still believes there is equal Justice under the law. He’s a fool
Hoss, we live in an increasingly dangerous world. I am forced to choose my actions carefully, thanks in part to turncoats and cowards. One of the most critical decisions I will make is whom to extend hospitality or protection to in a Festival/Purge scenario (which you helped legitimize with this screed).
You threw Perry to the wolves in the hopes of being eaten last. Get used to the notion that nobody is going to stick their neck out for you or any other Fudd in a SHTF scenario; that’s reserved for actual allies.
Moral of the story: when surrounded by a DIEversitist mob, take a knee, beg, and respect their pronouns.
Similarly, when surrounded by a fascist mob, take a knee, beg, and wait for them to destroy your vehicle.
If you’re law enforcement, check for the Democrat label, throw a baby-cue, and bray.
We have NOW entered The Twilight Fringe of the American Republic.
If you are caught alone in a government-protected mostly peaceful riot then by all means leave peacefully. Even if you have to kiss some rears. Because you will lose to the mob and their Democrat leaders.
And bow-tie wearing Fudds will tell you that you deserved it.
I wondered that Branca did not discuss the ramifications of there being a riot rather than a simple demonstration. As I recall, riot law is more tilted against the rioters.
Andrew certainly did not say Perry deserved his judgement. Learn to read as well as think.
Yes, he did, by saying that the verdict was just.
Where does Andrew say that the verdict was “just”? Legally sound and “just” are not the same things, you do know that, right?
Said Reginald Denny.
Who lost to the mob and its Democrat instigators. My point is that one person against an armed mob–particularly one that is supported by local LE–is a bad bet.
To find the defendant guilty you would have to believe that Perry deliberately sought out an angry mob of protesters, drove into the middle of them knowing that this would induce them to surround him and attack his car, and deliberately seek out someone openly carrying an AK-47 so he could shoot him on purpose and then claim self-defense.
Admittedly I saw none of the trial and as Andrew Branca has admitted, neither did he. However, I find it ridiculous to believe that a person surrounded by an angry mob, pounding on and kicking his car would not be in fear for his life and seeing someone walk by with an AK-47, would not perceive him as an imminent threat.
Andrew’s article reduces the situation to an interaction between two individuals and downplays the surrounding violence as legally insignificant. To me that makes no sense. The witnesses were participants in the mob. They were not people who were trying to keep the mob away from Perry’s car. They were complicit in the attack on Perry. How does that make them disinterested witnesses.
Imagine a mob in 1950s Mississippi marching on a jail holding a black man accused of a rape and demanding that they be allowed to drag the prisoner out of jail so they could lynch him. Then imagine a black person in a car being inadvertently caught up by the mob that surrounded his car and started pounding on it. Then a man walked by with an automatic weapon. Do you think the black man in the car would reasonably see himself in a life threatening situation.
Andrew’s comparison with the Kyle Rittenhouse case is nuts. Rittenhouse was facing a hostile mob. The people he shot were threatening him. He had plenty of reason to be in fear for his life. The people who attacked him had no reason to be in fear of Rittenhouse. Both Perry and Rittenhouse were surrounded by a threatening mob.
The witnesses don’t have to be disinterested. Assessing their credibility will be a matter for the trial jury.
The fact that Perry was under attack by a mob does not justify his perception of someone walk with an AK-47 as an imminent threat. Remember that it’s not enough for him to have had that perception; it had to have been reasonable, and this was not. Especially in a state with legal open carry, where people routinely bring weapons to demonstrations. (Or is that Arizona?)
Evidently, you have no recollection of what was actually happening at the time. You sound like you can’t tell the difference between any day last week and the 2020 riots. “Just another day …”
That day or any other day, the law is the same. It is not reasonable to fear imminent threat merely upon seeing someone who is armed as the RKBA entitles him to be. It’s lefties who are constantly yammering about the “threat” from people innocently bearing arms in public, and the “panic” that such people must inevitably create. It’s lefties who call the police when they see someone in the supermarket carrying. And it’s lefties who reach for their smelling salts at the sight of someone carrying an AR-15 at a political rally. Well, how is this guy any different.
I do in fact remember what was happening then: thousands of completely peaceful protests; hundreds of protests that started out peacefully but at which a small number of violent people rioted, and also many outright riots. The fact that someone was participating in a protest in those days, as literally tens of thousands of peaceful and well-meaning people were doing, was not reasonable grounds to fear imminent harm from them. And the fact that someone was doing so while armed, especially in a state with a healthy respect for the RKBA, does not make such a fear more reasonable.
Now if he brandished the weapon at Perry, as Perry claims he did, that changes everything. But we have nothing but Perry’s word for that, and no reason to believe him.
“Mostly peaceful protests” … okey doke, there.
You have no recollection of what was truly happening and how people felt.
Circumstance certainly matters – and circumstances at that time were utterly unique. Everyone with even half a brain knows that. You seem to have a very convenient amnesia, very much as Mr. Branca.
If you’re denying that the overwhelming majority of protests at that time were peaceful then you’re simply lying. I personally witnessed many protests at that time, and every one I saw was completely peaceful. It’s not possible that you did not also witness peaceful protests then. And, as we saw on Jan 6, 2021, even at a protest that does turn violent most protesters are peaceful.
The only bit with which I will disagree, Milhouse, is that the man was 1) approaching him with said weapon, and 2) there were a bunch of people beating on his car (that’s actual violence).
Given the times, those things go a lot further toward “reasonable” in terms of fear than you blithely state. As I noted elsewhere, I can come up with hypotheticals on him approaching the car that shouldn’t reasonably induce fear in the driver. But they require a different set of facts, I think.
It does, actually. Only people apparently who have been in such a situation seem to understand that. What is so precisely described in courtrooms after the fact is often confusing, very tense and can turn deadly in a second. The idea that a riotor with an AK isn’t a threat. Go ahead and risk your life on that one–I certainly would not. And like several other defendants these days, there’s no way Perry was going to get a fair trial. So it’s lose/lose. Few people entitled to open, legal carry are going to tote a Kalash. It’s all context and perspective.
This is where the motivated thinking of the jury got in the way. Foster was not just carrying the AK. He was raising it as a frame by frame analysis of the video showed at that time. I saw it on live feed than saw it analyzed frame by frame. Had foster taken his hands off the rifle or just left his left hand on the hand guard and taken his hand away from the fire control of the rifle, you would be correct. But he was either charging it or actually bringing it to bear. You can clearly see his elbow up—and ANYONE who has ever shouldered a rifle from a low ready rifle slung like that would know it. I think he may have had the rifle slug a little tight because of his gut. But he was clearly raising his right arm with his hand on the firing controls. That jury chose not to see that because they were not going to let this opportunity pass to jam up a right winger.
What if someone thought Rittenhouse openly carrying at a riot was a threat, a provocation, and a justification for the attack on him? That’s what many on the Left argued; they were wrong
“a person surrounded by an angry mob, pounding on and kicking his car ”
This is a lie. Watch the video immediately preceding Perry shooting Foster. There is no such attack occurring.
No, he’s just being corralled in place by a mob while their designated assassin closes in for the kill.
Folks like you who’ve never actually been on the sharp end are cut from the same cloth as the idiots that wrote our Romeos in Vietnam, Trashcanistan, and Iraq, and we know how those turned out…
“To find the defendant guilty you would have to believe that Perry deliberately sought out an angry mob of protesters, drove into the middle of them knowing that this would induce them to surround him and attack his car, and deliberately seek out someone openly carrying an AK-47 so he could shoot him on purpose and then claim self-defense.”
I recall originally reading where 3 witnesses agreed with the defendants version of the events. Don’t know if they testified at trial and if not why not.
I also can’t tell from the videos where the rifle was pointed nor do we know the verbal exchange except from the rioters testimony.
Given that he was an Uber driver doing business I give him the benefit of the doubt that he reasonably felt his life was in danger.
If rioters approached my vehicle blocked me and began pounding on the car and an armed man approached me and wielded a rifle at my window or door I would certainly think self defense is the call.
I would not doubt that in addition the defense was prevented from presenting evidence helpful to the accused but that is just speculation based on the corruption of the DA and likely Leftist judge.
I honestly disagree.
He was legally traveling where he was alloyed to be.
He was not threatening anyone.
If the rioters had let him continue on his way this wouldn’t have happened. But instead the stopped and illegally detained him.
They were being aggressive towards the vehicle,
They were armed,
And it was a very large mob with the preponderance of force on their side.
ANY person would have a reasonable fear for their lives in that situation I know I would.
Or is your book wrong on that subject??
I am right here with you, Starride. Adding to that, I swear have read on this very site that “the threat doesn’t have to be real, but the fear does.”
Foster’s stance is anything but relaxed and neutral. He was military, he would know that stance he was taking would be threatening.. Perry was also military so he would certainly be attuned to when someone armed takes a threatening stance, they’ve got the jump on you. Couple that with being trapped in, how could you not believe you were in danger?
The fear has not only to be subjectively real but also objectively reasonable. The mere sight of someone at a protest carrying is not reasonable grounds for fear. The sight of that person brandishing their weapon at one is reasonable grounds. Thus the key point is whether Foster did so. The jury heard witnesses that he did not, and did not hear any witness that he did. This is the result when that happens.
Problem with that is, the gun didn’t have to be pointed at the car window to be a threat. Bullets can penetrate a metal car door, too, so he wouldn’t have had to lift the gun more than a few inches to be a threat even if he wasn’t pointing it at Perry’s face.
Brandishing does not necessarily mean pointing it at an individual. People are convicted of brandishing for holding their gun in a showy or manner deemed to be reasonably intimidating.
This is a common misconception about the law on brandishing, and it may vary by state. However, you somewhat just contradicted your argument.
I have a great idea for a test of your theory: you sit in the driver’s seat of your car, and I aim an AK-47 at the driver’s door, just like that picture, and then I do a mag dump. Let’s see how long it takes for you to bleed out.
“They were being aggressive towards the vehicle”
This is a lie. Look at the video immediately preceding Perry killing Foster. There is no mass attack on Perry’s vehicle occurring.
“But instead the stopped and illegally detained him.
They were being aggressive towards the vehicle,
They were armed,”
All of this is demonstrably untrue in the context of Perry’s shooting of Foster.
There’s no evidence anyone deliberately stopped Perry’s vehicle. They happened to be in the street, and any interference with Perry’s vehicle was incidental.
At the time Perry shot Foster there was no substantive aggression to Perry’s vehicle, and in any case a mere threat to property cannot justify deadly defensive force. There is zero evidence any of the crowd around Perry’s car was threatening his person. Indeed, Perry himself felt sufficient secure in the presence of the people around his car that he lowered his car window.
There’s no evidence that “the crowd” was armed. Certainly Foster was armed, as was Perry. Not “the crowd.”
Indeed Mr. Perry did himself no favors with his media posts. I read Mr. Branca’s book some while ago, but I am still unclear about a deadly threat. Hypothetically, if a more sympathetic defendant, without media post baggage or harmful statements, had simply claimed that the aggressive, direct, focused and close approach of a heavily armed menacing man associated with a violent riot put him in fear of his life, how would that fare? Must he actually wait until the rifle is raised and pointed at him? That would seem to limit such self defense claims to old west quick draw contests. On a jury I could see the defendant meeting all of the requirements of self defense, including reasonableness, under such circumstances.
a heavily armed menacing man
I think you inadvertently hit on the issue with a lot of the disagreement on this: what was the demeanor of the decedent? If he was angrily shouting at the driver or making threatening statements, “reasonable fear” goes up several notches. If he approaches while people are beating on the car and he appears to be on their side, “reasonable fear” goes up a notch.
Then, as Milhouse keeps insisting: how much of a “violent mob” is it really? Are those people moving down the street throwing rocks or anything? Are they shouting violent chants about killing people? Or are they shouting “No justice, no peace” and just waving their fists in the air? Was the radio station in his car giving news reports about burning buildings in the area or people throwing things at cops?
It sounds like the defense did a poor job (not saying they were inadequate at their job) of portraying those elements to the jury in a convincing manner.
I wonder if it’s time to put some limits on the state using media posts in a jury trial since they literally use anything they find and twist it to make you look bad.
Don’t make a bunch of keyboard cowboy statements if you are concerned about your own words being quoted back at you in a trial.
Are you suggesting that the chilling of 1st Amendment rights is OK?
Ha ha, no. I am suggesting that if you have made public statements that are accessible by the DA then those statements will be used against you.
I seem to recall a clamoring for Manifesto of the tans Nashville shooter to be released. Are we now disinterested in prior communication and statements which may shed light on what happened before the event?
To suggest, as you do, that the jury shouldn’t be allowed to view those materials to decide for themselves the weight they will give that evidence in their deliberations as the finder of fact is ludicrous. Everything we do has consequences and repercussions, some positive and some negative. So think before you angry/drunk post or don’t be be surprised to see your public posts again in court someday. At trial you have the opportunity to explain that your tough guy/cowboy words weren’t serious. Good luck with that.
We do have limits. In this case, it’s called the Texas Rules of Evidence, Rule 801(e)(2)- Statements of a party opponent and Rule 404, assuming such statements are relevant and not unduly prejudicial.
Mr. Perry was charged with murder which is defined as the intentional killing of another human being with malice aforethought, expressed or implied. The State is arguing that Mr. Perry killed Mr. Foster not in self-defense, but with rather with malice. The Defendant is arguing that it was not with malice, but the killing was justifiable self-defense because he was faced with an imminent threat that was reasonably like to cause death and that he responded with reasonable force that was necessary to stop the threat. That’s the issue- were Mr. Perry’s actions reasonable or did he act with malice.
Therefore, Mr. Perry’s online statements about shooting protesters is particularly relevant to this issue and those statements were used by the prosecution to prove motive. The defense has the opportunity to rebut, explain, and/or downplay those statements as much as the prosecution has to use them to prove motive. It’s up to the jury to make the ultimate determination give whatever weight to those statements that they see fit. Some juries might disregard them and some may give them great weight in order to assess whether Mr. Perry’s actions were reasonable or not… and here lies the ultimate issue: what is reasonable to one juror or jury might be unreasonable to the next.
It is hard enough to get 12 people in a room to agree on anything, but here is what many people are forgetting: jury selection or voir dire is the first stage of the trial. The defense and prosecution get to ask questions of the individual potential jurors to assess their biases. If a particular juror is not able to be fair and impartial because of their beliefs or affiliations, etc., then either side can ask the court to remove them for cause. Furthermore, each side also gets a certain number of peremptory challenges where they can strike a juror for just about any reason with the exception of race, gender, etc. so if a judge won’t strike them, the attorney can. So let’s pretend that one particular juror has blue hair and is in her early 20’s and states that she is currently a college student at the University of Texas in Austin. However, she has told everyone there in that courtroom that she will listen to all the evidence with an open mind and will follow the law and will be fair an impartial. The defense has no “for cause” basis to strike her from the panel because she indicated that she can be fair and impartial, However, from what I’ve described, she just scream’s that she is a lefty. Therefore, the defense can use one of its peremptory challenges on her based on her hair color and the fact that she’s a college student at a super liberal university because she fits the mold. The bottom line is that the defense has the opportunity to get rid of those jurors who they believe will sink their case. Also, the prosecution also has the ability to strike those jurors who they believe will sink their case and the jury is then made up of the leftovers.
What I’m saying is that if you believe that this jury was biased, which definitely could have been the case given the location of the trial, then it was the failure on the part of the defense team and the defendant to expose those biases because they passed those jurors for cause.
This is where a motivated judge can do some real damage. He only needs to let in a few things to give motivated jurors something to hang onto and away we go. This judge likely wanted the conviction and knows how to engineer it. One wonders if the defense got to play the video of Foster with the AK. If no one can bring up the criminal history of a defendant, why should we allow obnoxious social media posts to be dragged in.
Why are such posts different from a private diary, or a newspaper article, both of which are of course admissible? On what grounds would you make social media posts privileged? If they’re relevant, why shouldn’t the jury see them?
The fact is that America was under siege all over for days. It was insane anarchy around the nation. Actual violent insurrection attempts were taking place all over. More of these BLM/Pantifa rioters should have been shot for what they were doing. It was a shame that almost none were – which is why this nation burned and why we ended up with Democrats in control of things, looting and burning everything from the inside, now.
This nation has taken to this insane idea of letting lawless lunatics run amok without trying to stop them, at all. It was like that moronic movie, The Purge, brought to life (for those who actually remember how things were). That is crazy and never should have been allowed. It is a sad commentary on this country that we let people loot and burn our cities with abandon, that we let them put their bodies in the way of cars without assuming the risk of their actions, which are intentionally designed to destroy. People were killed by mobs during that insanity and needlessly so, since having people treat the mobs to the reactions they deserved would have put it all to a stop at the start.
To try and argue in favor of the BLM/Pantifa criminals is pathetic and is only effective for those who can pretend to forget everything that was going on and argue as if it was just some normal Wednesday, just out for a drive in a peaceful city, when a couple of kids came up to his car to say “Hello”. Pathetic.
You are correct that that was happening, and it was insane, and those who rioted should have been arrested en masse and had the full force of the law thrown at them.
But it’s not the only thing that was happening. At the same time as all those terrible riots and outright insurrections, there were also thousands of completely peaceful protests. And even many of the riots started out peaceful, and the majority of people at them remained peaceful. And those protesters, however misguided they were and however unworthy their cause, were acting as Americans should, and as the first amendment says they should. So the fact that someone protested does not make them a criminal; in the majority of cases it merely makes them a misguided fool.
When I read this I was unaware of the case except for Mr. Branca’s story and a few headlines.
Since then I heard a brief summary of the case. The DA instructed a witness to remove 100 out of 150 slides from his testimony to the grand jury. My understanding is that a lawyer is allowed to prepare a witness by eg telling them what to expect, telling them what their demeaner should be,
My understanding is that telling them what evidence to present, and not present fis witness tampering, and therefore misconduct.
I’m sorry. I forgot to mention in my examples what evidence is generally legally allowable and not.
Not true. Exculpatory evidence is not normally presented to a grand jury (and this is also explained in the article above).
You are confusing the grand jury with the trial jury. No exculpatory evidence was withheld from the jury at trial.
Regarding the defendant testifying, Branca writes:
“but in a case of self-defense, where the only exculpatory evidence can come from the defendant, I would suggest that the jury really needs to hear from the defendant himself why the killing of that other human being was genuinely necessary.”
This may be good advice on the average, but only because juries are not literally applying the law as written and instructed. Beyond reasonable doubt is a very high standard. The jury must not assume the defendant had something to hide or nothing good to say because he didn’t testify.
If you want juries to draw inferences the way Branca says they do, or even should, you would require a change in the legal standard. Tell juries what they can infer from it. As long as the ground rules are clear, they can be promulgated in a new form. But the rules now are “infer nothing”. And nothing means exactly that.
Juries are composed of human beings who are just as flawed as you and I. They aren’t supposed to infer anything from a failure by the defendant to take the stand, that’s true. Still, they are human and most juries do, at least subconsciously, want to hear directly from the defendant and when they don’t they do sometimes decide to deduct points for that. Legal? No. Understandable? Yes. There’s no practical way to avoid human bias on this desire to have the defendant testify.
I don’t think that’s what Mr Branca is saying. In a case like this, where the only evidence the defense can present is the defendant’s own testimony, even a jury that properly infers nothing from his failure to testify is likely to convict, precisely because it is inferring nothing, when in order to acquit it has to hear his evidence. The prosecution has made out what seems to be a solid case, beyond reasonable doubt; now it’s the defendant’s job to create reasonable doubt, if not to sway the jury entirely over to his side, and to do that they have to hear him because there’s nobody else who can tell them what really happened.
I would suggest a different change to our “adversarial” system of criminal trials. Instead of forcing the defense to guess whether to roll the dice by not testifying or by testifying, allow a preliminary verdict without testifying. Then if that’s not satisfactory, let the defendant testify and have the jury rule again.
It’s like the motion for dismissal. Is there a case based on the indictment? Is there a case based on the prosecution’s case at trial. Now a new step: is there a case based on all the evidence except for the defendant’s testimony? (This step might have to go to the jury.) Finally if that’s bad for the defense, they can still put on the defendant.
There should be no feeling of “rolling the dice” at a trial. That’s what we’re told in justifying the detailed discovery process: get surprises out of the trial. But there’s still this “roll the dice” decision, and that doesn’t smell right.
If you wait until a man with a rifle who is holding it and threatening you to actually point it at you then it’s too late. Seriously? An angry crowd threatening you and a guy holding a rifle, I’d be edgy myself.
I’m just as interested in the bystander that made the decision to recklessly let off rounds at the car which was driving away in a crowded street. Why wasn’t he/she charged with attempted murder and reckless behavior?
Foster had been cautioned about his carrying of that rifle at previous protests, by the police. He was not receptive to it per one of the defense witnesses. He was just the muscle for the mob so they could own the streets, for as long as they liked.
None of the officers who cautioned Foster about his gun handling believed he was doing so in a manner that constituted intentional brandishing or menacing, or he would have been arrested for those crimes. He was not. In any case, what’s relevant is how Foster was handling his firearm in his contact with Perry, not at some unrelated time in some unrelated place.
I don’t know that I agree with your “would have been arrested” scenario. The St Floyd mobs got away with a lot of things that officers would have normally arrested them for had they not been outnumbered and such arrests would require optically unfriendly force.
Because he was trying to stop a murderer from escaping. That’s legal.
He was packing an AK in a crowd because he was trying to stop a murderer from escaping? The mental gymnastics of that one are beyond me.
Huh? We are talking about the person who shot at Perry’s car as he was fleeing the scene. That person was trying to stop a murderer from escaping, so it’s no surprise that he wasn’t charged.
As for “packing an AK in a crowd”, that is straight-out protected by the second-amendment. Whoever it was had the same right to carry whatever weapon he had (we have no evidence that it was an AK) as Perry did to carry his weapon.
You point a weapon in anyone’s general direction, you should expect the consequences. The hair splitting about this case is only happening because it occurred in Libtard central (Austin) where the deck was firmly stacked against anyone who defended themself against Pantifa/BLM.
Mr Branca’s analysis is logical and reasonable, as far as it goes. But I disagree when he says that any pardon will only happen for political reasons, if the Pardons Board and the Governor both consider it to be in their political interests. That is of course possible, but it’s not the only reasonable view. Perhaps the Governor has asked the Board for a pardon, not for political reasons, but because he honestly believes Perry to be innocent. The jury was entitled to believe the witnesses against him, and to disbelieve his unsworn statement; but the Governor is entitled to believe Perry and disbelieve the witnesses. And if he does, then his request for a pardon for Perry would be sincere.
Also, while I agree with Mr Branca’s analysis of the self-defense defense, in my opinion when someone is peacefully going about his lawful business and finds his way blocked by a mob of protesters who refuse to let him through, he ought to be legally entitled to drive through them, and any consequences should be their responsibility.
One would assume that most of all of the witnesses were fellow Marxists to the victim and thus felt it was their duty to lie for the cause.
I would not believe one word out of a Communiost’s mouth in a trial and I bet the Governor doesn’t either.
It reminds me of what one actress said of Lillian Hellman, an avowed Stalinist – “Every word she says is a lie, including ‘and’ and ‘the’”
It’s widely recognized that the Marxists will of course blatantly lie, twist reality not to mention burn down cities, maim and kill for their cause yet people clutch their pearls and retire to the fainting couches at the mere suggestion they would ever resort to some ballot fraud or voting machine software manipulation to achieve these same goals…. Weird that
“…when someone is peacefully going about his lawful business and finds his way blocked by a mob of protesters who refuse to let him through, he ought to be legally entitled to drive through them, and any consequences should be their responsibility.”
What Perry did was actually more surgical than what you suggest (which I happen to agree with). He identified a primary threat from among a crowd of threatening people, eliminated that threat, and used the confusion caused by that moment to get away. Would he have been in less legal trouble if he had simply driven through the mob, possibly killing and/or injuring multiple people? I don’t think so. Considering the situation, Perry acted with intelligence and restraint, and caused the least amount of death or injury to those in the mob in order to protect himself.
I don’t care if it’s more “surgical”. There is a huge difference between an act intended to kill someone, which must therefore be justified by the right to self-defense, and an act intended for some legitimate purpose, which kills someone only as an inevitable but unintended side effect. Cf the difference between and abortion whose purpose is to kill the baby and one whose purpose is to save the mother, with the baby’s death as a much-regretted but unfortunately inevitable side-effect.
This is the inherent problem with self defense law in this country, though.
The state gets to have its cake and eat it, too. Any planning involved in the act seriously jeopardizes the ability to affirm innocence, but defendants are expected to act in as sophisticated and perfect a manner as if they had planned the act.
I”m not talking specific to this case but imperfect self defense is almost impossible to acquit with, yet many of these are high tension situations with just such conditions and zero planning.
Anyhow, I’m not saying there’s an easy solution or that this man should be free. Just opining on the complexity of the issue (and it’s still not enough to appease the selective outrage of the leftist mob).
Patriots cannot handcuff themselves with “law” when our totalitarian adversaries do not. I suggest people here read Kurt Schlichter’s latest about this.
The “We’re better than that” philosophy has caused the right to lose EVERY institution to the Marxists, to the point that to survive I believe we have no choice but secession.
Mr. Branca also does not address an important point (or at least the two thirds of it that I read) – do you really think this guy got an impartial jury in Communist Austin? He was convicted probably as soon as the jury was seated.
Andrew is a lawyer–and all lawyers love the legal system given what they go through to be there. I gladly pay to be a platinum member of Andrews LOSD. If I ever ended up in this situation I want him on my side in a legal struggle. However, I do agree with you that his “legally sound” is weak beer. Those of us not in thrall to the legal system had better start making plans to either avoid it completely (my choice if possible) or to bring the might of the outside world down upon it. It is going to need to be restructured after being deformed. The Kim Potter verdict in MN convinced me of that.
Also, as lousy a cop as Chauvin was, that was a show trial that would have made Vyshinsky proud. We are in bad times. I live in under the watchful eye of a Soros prosecutor as corrupt and racist as any. One must know their ecosystem.
“Patriots cannot handcuff themselves with “law” when our totalitarian adversaries do not. ”
Well, I only do law. I leave the rest up to you Patriots.
Promotion of anarchy is not patriotism.
As it turns out, Schlichter does both law and – given his military service – we can consider a patriot.
He clearly disagrees with you.
Your way will have us end up in the left’s gulags and mass graves. If I have to temporarily avoid the law to avoid that, I can live with it.
Didn’t Lincoln suspend the writ of habeas corpus during the Civil War? Our nation survived that.
It will NOT survive our fighting the Communists by Marques of Queensbury rules while they are rabbit punching us with lead in their boxing gloves.
If in order to fight them we become them, then what is the point? If we do that, why do we deserve to win? If we do that then they will be right and will deserve to win, and we will be wrong to oppose them.
Milhouse, the first commandment of the universe is simple:
Not “Survive, but only in a way that a functionally retarded sperg engaged in intellectual onanism on the Internet will approve of.”
There’s only going to be one set of rules, and they will be the loosest rules chosen. If the adversary wants to play without rules, then there aren’t going to be any rules, and that’s that. You wish to grant the enemy his choice of rules, and require us to follow your choice of rules.
You have to fight ruthlessly to stop ruthless people. It sucks but it’s a fact. I am willing to be you had no problem with fire bombing Dresden or Hamburg (I certainly didn’t) to stop Nazis and Fascists. Did we have to nuke Hiroshima and Nagasaki to win?
If Israel ultimately has to level Gaza and/or Lebanon because the rockets are paralyzing the country, would you consider that “stooping to their level”? I wouldn’t.
These domestic Communists present an existential threat. You know it. I know it.
If you have no problems being utterly ruthless against Nazis, Fascists and Jihadists, why the reluctance against Communists?
Or will you figure that out when they have you blindfolded and gagged against the mass grave, with the stench of thousands of dead bodies going up your nose?
I have many of Mr. Baranca’s materials here and am shocked at his analysis on several points.
First, he is comfortable that the DA is just fine not only with the absence of legal requirement to provide known exculpatory evidence, but he is furthermore comfortable that the DA, *knowing* that evidence and that police investigation using *all* the evidence cleared Perry, nevertheless proceeded to trial. More of who-can-win rather than justice.
Second, he is comfortable that rioters are suitable witnesses for the prosecution of one who has killed one of their own.
Third, he knows well that the angle of that AK could have been, and may have been, point-blank a split second before or after that picture was taken. Such has been the case of officers charged with “shooting the suspect in the back” when the suspect suddenly turned his back to them.
The analysis certainly is thorough, or at least as thorough as Mr. Branca’s bias allows him to be; the the unsaid part bothers me a lot. I expected better of him.
This DA is under court order to record future grand jury proceedings in his cases against officers because it appears he is acting in the interest of his own ideology rather than justice. It’s gross to tell those ground up by the system to just take it because your political prosecution ends up being legally sound when you shouldn’t have been charged. Ugh.
You misunderstand what Branca is saying. He is not saying that he would have convicted if he were on the jury. He is simply saying that there was evidence which supports the jury finding and it’s verdict not some horrible miscarriage of justice.
You personally might discount the rioters’ testimony if you were on the jury because of your own personal experiences. That would be your right had you been seated on the jury. But the individual jury members have to make the evaluation as to the witness credibility themselves. They were entitled to evaluate the evidence using their own judgment and experiences and decide whether the witnesses were credible. There is no other way to conduct a trial.
As far as the gun angle, he is simply stating that he doesn’t see in that picture any clear evidence that the gun was pointed at the defendant. I have to agree. Had the defendant testified, he could have provided evidence that he was in fear for his life because the gun was pointed at him. Absent that testimony, the defense attorney really did not have much to show the jury that the defendant had a reasonable belief that he was in fear for his personal safety because this picture is undeniably ambiguous at best.
At the end of the day, what Branca is saying is that there was competing evidence on the issue of guilt, and the jury had to choose which one it believed was the most credible. This is what’s known as a question of fact, and the jury is free to decide how to resolve the competing inferences, weigh the credibility of the witnesses, and return the verdict accordingly.
I don’t think Mr. Branca said that he was “comfortable” with the D.A. not providing the grand jury with exculpatory evidence. He just said that the law does not require the DA to do so at the grand jury stage.
However, the jury at the trial were presented with all of the admissible exculpatory evidence. The fact that the police believed the shooting was justified does not preclude the prosecution from charging the case. It certainly does not help the prosecution’s case, whatsoever. But it is the prosecution who decides if charges should be filed and what charges. It is the police’s job to investigate the allegations. Personally, as a prosecutor myself, I would never charge a case much less go to trial in a case that law the investigating officer believed was justified because if the police weren’t convinced a crime occurred, then why would a jury? Obviously, the DA chose to go against the grain here for political reasons. Apparently, the officer’s testimony that he believed it was self defense did not convince the jury.
I also don’t believe that Mr. Branca’s said that he was “comfortable” with the rioters as “suitable witnesses.” You really can’t choose who the witnesses are. Did they see the event in question? If so, then they are witnesses. Are they biased because they were also rioters? Absolutely! Do you think that the defense is going to call them as defense witnesses? No way! Will the state call them as prosecution witnesses? Of course! That’s why our system allows for cross examination. The defense can expose each of those witness biases and credibility under intense cross examination in front of the jury. The jury can then determine whether or not the witness was too biased to be believed since they were also a rioter or whether they were credible, despite those obvious biases. Like it or not, they are witnesses. They saw the event. I’ve prosecuted cases of assault on a victim where my only witnesses were a group of meth heads who saw the whole thing. Would I rather have CEO’s of Fortune 500 companies over meth-heads? Absolutely. How about doctors or any upstanding citizen? You bet! But were any of those people around to see what happened? Nope- just my meth-head witnesses. If I chose not to call the meth-heads to testify, then I would not have had a case and I would be left with no choice but dismiss a case where an innocent woman was beaten severely. Of course I knew that the defense argument to the jury would be something like this: “Ladies and Gentlemen, you can’t believe these witnesses! They’re meth-heads for crying out loud!” But that’s all the evidence I had. The jury could choose to believe them or disregard their eye witness testimony because they were admitted meth-heads. You want the case you want, but you got the case you got. You can’t choose your evidence. The case is what it is.
Finally, your third point: “ Third, he knows well that the angle of that AK could have been, and may have been, point-blank a split second before or after that picture was taken.” Anything “could have”or “may have” happened. It’s not what could have or may have happened, because anything is possible. It’s what you can prove. The angle of that AK could have also not been pointed and may have not been pointed point blank at Mr. Perry a second before or after. What could have happened or what may have happened is not evidence. The only evidence we have is this grainy photo.
In my opinion, it looks like Mr. Foster’s elbow is angled in a manner to support that he was pointing the AK at Mr. Perry. However, Mr. Branca’s sees it differently. However it doesn’t matter what I see or what Mr. Branca’s sees. It matters what a jury sees. If 12 people weren’t convinced by the defense of that grainy photo of Mr. Foster pointing his gun at Mr. Perry, then I think Mr. Branca’s opinion on the fact that he does not see it does not make his opinion unjustified.
Is not what you are saying that there is “reasonable doubt” about the threat of the rifle? If so, we know which way that is supposed to go. It is not up to Perry to prove that rifle was not coming into action. It is up to the state to PROVE it wasn’t. But that jury did not want it that way. That prosecutor did not want it that way, and that judge did not want it that way.
The mere fact that Foster could have pointed the rifle at Perry, before or after the photo was taken, does not create reasonable doubt. Since the prosecution presented evidence that he did not do that, the defense had the burden of presenting some kind of evidence that he did. This photo was advanced as such evidence, and it just doesn’t show that. Perry’s testimony might have been such evidence, but he chose not to give it. So on what basis should the jury have found reasonable doubt?
Mr. Branca can just stop pathetically patting the legal profession on the back over this conviction because he knows damn well that had the tables been turned and it was a violent leftist goon or “trans activist” and there was 10x the evidence they would not have been convicted or likely even charged. The legal profession has become top to bottom a weapon to be wielded against those with the “wrong” political and social views. And the law schools are packed full of totalitarian marxists so it’s only going to get worse.
Well now… from the down votes looks like we have some lawyers refusing to face the cold hard reality of what their profession has become and the even darker days ahead…. Gee maybe get your head out of the sand, cowboy up and do something besides greasing the skids on our country sliding into a lawless 3rd world banana republic
Agree to disagree. I’ve been a LEO in Texas for 20 years and this case would never have been brought to trial of it wasn’t for Garza’s contempt for law and order. Just Foster approaching the car with his rifle as he did with it raised toward the car and the aggressive crowd makes self defense reasonable.
I can’t believe how much hair splitting over pointing is occurring in this case. He was at the very least menacing with that rifle. It’s ridiculous people are arguing that since it’s an open carry state, you can menace whoever you like so long as they don’t raise the barrel to point and someone else just has to eat it and hope they don’t get shot.
So, where are you drawing the line? Because it seems you’re not, except in outcome.
If it’s an open carry state, then carrying a weapon is – by definition – NOT menacing. Open carry of a weapon during* a protest also shouldn’t be seen as menacing, in and of itself. No one is claiming he approached the car with the weapon raised (well, except some commenters here).
In a dispute over whether the gun was raised and pointed at the defendant, there can be a disagreement over what are perceived as facts. But that’s not what you’re actually arguing, it seems. And, it’s the only point concerning imminence that the defense raised.
(* As part of a group acting illegally – throwing molotovs, rocks, pushing through a police line, etc. – yes. But not just due to presence at an event.)
Texas law allows for open carry but prohibits someone from carrying it in a manner calculated to alarm . When you approach someone you don’t known that you’ve never had previous contact with, as part of a mob, and make sure you take a stance that announces you have a rifle and are prepared to use it, that’s menacing . It’s a specific act. Call it brandishing if you like.
“He was at the very least menacing with that rifle.
You’re the idiot that wrote the Romeos I struggled with in Beirut, right?
I’d submit that the decedent pointing the weapon at Perry was irrelevant to the issue of whether Perry reasonably felt fear of imminent bodily harm. If a man with a rifle approaches and surrounds my car, as part of a hostile mob, I’m going to assume and feel that he has hostile intent. There is such a thing as invading the personal space of pedestrians, and, drivers.
Real ‘peaceful protests’ they were having at the time, all over the media. How many had been killed in the rioting up to that point?
Sure feels like a travesty. Reflexively taking the side of Marxist revolutionaries won’t end well.
Can anyone say lawfare?
The issue that I take with the legal analysis that requires the decedent to have pointed the rifle at Mr. Perry in order to allegedly form the basis of conduct creating a reasonable fear of imminent bodily harm, is that it’s unrealistic and unfair. It absurdly posits that possessing a reasonable fear of imminent bodily harm is impossible, in the absence of a weapon being directly pointed at you.
This is not an equitable, realistic or common-sense premise, at all.
I think the mere brandishing of a weapon, taken in the context of a situation in which the firearm-bearer is part of an angry and hostile mob surrounding a driver’s car, creates reasonable fear of imminent bodily harm. Context matters. It’s unfair and absurd to demand that the driver trust in the alleged goodwill and good intentions of a man brandishing a rifle, and, use super-human reflexes to determine when the firearm is actually pointed at him, thus, putting himself in needless harm. Context matters, and, the context here supports the legally justifiable use of deadly self-defense.
The “victim” wasn’t merely exercising his rights to bear arms. Someone exercising their rights carries a rifle on a sling (and carries a handgun in a holster). Put your hands on the rifle (or the handgun), and you’ve moved beyond “carrying” to “preparing to use.”
Carry in low-ready is not passive. It’s not called a “ready” position for nothing. Perry may have been “looking for trouble,” but his “victim” was also. The “victim” was also armed while he was engaged in an illegal act – unlawfully detaining a person (kidnapping?). The totality of the scenario was enough to make any reasonable person fear for his life. Situations like this (with multiple threats) requires the defender to evaluate the threats and eliminate the greatest individual threat first. This is exactly what Perry did, showing great care to shoot the most obvious threat, and then to flee when he was able.
unlawfully detaining a person (kidnapping?)
Which is why Branca argues, I think, that the defendant should have testified.
The problem is, the defense argued the point of “pointing the gun at me caused me to shoot him.” They obviously did a poor job (assuming semi-honest jury, etc.) of setting up the reasonable fear part of the mob surrounding the car and beating on it.
“It absurdly posits that possessing a reasonable fear of imminent bodily harm is impossible, in the absence of a weapon being directly pointed at you.”
No, that is not true. The jury is entitled to look at the totality of the circumstances and determine where there was a reasonable fear of imminent bodily injury. However, they don’t have to conclude the same thing that you would have concluded. One of the circumstances they were free to consider is the claim by the defendant to the police after the fact was that he was in fear for his life because the decedent pointed a gun at him. But there was no clear evidence that corroborated that claim, and the defendant did not testify himself that it happened. So, the jury could conclude this was a false statement.
At the end of the day, it was a question of fact. A jury could conclude that the totality of the circumstances supported the use of deadly force. But there is nothing that required them to so find just because you would have so concluded.
Fair enough; I understand the gist of your statement. At the end of the day, I simply reject the notion that the pointing of a weapon at someone is required for a finding of reasonable fear of imminent, serious bodily harm. Mr. Perry did himself no favors with his post-shooting statements and social media history, but, I still think the totality of the circumstances supports a lawful exercise of lethal self-defense, in this instance. The jury saw it another way; I get that.
Actually they were having real peaceful protests, all over the country. Thousands of them, with tens or hundreds of thousands of participants. There were also protests at which there was some violence but remained mostly peaceful, and there were also outright riots and insurrections with nothing peaceful about them. That is the fact. That is what was happening all over. To pretend there were only riots and insurrections is just as dishonest as to pretend there were none of those.
This is true. The peaceful protesting was taking place during the day, and then once night fell in many cities, the violence, burning, looting, assault, and other grievous wrongs and crimes–up to and including murder–were committed wholesale. And this was indeed happening all over the country.
Here in Free Florida, including my little deep red slice of it, there were peaceful BLM protests during the day (usually organized by students of local colleges and universities). Granted, only a handful of (pretty much exclusively white) people around here showed up for the actual protest part, but they happened. Obviously, nothing violent happened around here. Wouldn’t have been tolerated for one second. The left knows where to go for a free rein on their violence, and it’s definitely not in Free Florida.
I had, and have, great sympathy for Perry, and even greater antipathy for bLM/Anti1A, and my initial reactions to this verdict could probably get me banned from much of social media, but I have to admit that Branca, once again, is right
Actually, I think Andrew is “right” on a very narrow question “legally sound”.
I am going to ask him about this in another more private forum.
All I do is “legally sound,” or not. I don’t do moral or social or political or philosophical questions, at least not as more as mere casual opinion.
25 years in State Police. Action beats Reaction. It may be legally sound but, the man should also be given his freedom back without consequence.
I love your commentaries and it pains me to read people here questioning your integrity in a childish manner. My question is did he have an impartial jury of his peers given the political slant of Austin. I can’t but think there was reasonable doubt therefore he should have been found not guilty.
I find most legal advise to be equal to the 2 handed economist who describes the economy as “on the one hand…… and on the other hand…….” We are constantly reminded of the serious danger of assault rifles (AR’s AK’s etc) and now we learn it is perfectly acceptable to approach someone with an assault rifle and taking action against the assault carrying individual can garner you a murder conviction. I wonder if there is a carve out if one was to carry said assault rifle into a school and refuse to turn it over to the police? Would the police be found guilty of murder of the person carrying the rifle if the person was killed prior to shooting the rifle at a teacher, child etc? I understand the concept of open carry but it also implies that under certain undefined circumstances you intend to use it. One should also be conscious that the person you approach with an open carry weapon might assume you intend to use it and take action. The more Andrew writes about the Law of Self Defense it more it confuses me. No matter the circumstances using a firearm can get you arrested and in front of a jury of fire arm haters and please don’t try to confuse me with the reasonable doubt angle of which bias is a key component.
This is exactly the argument that Branca discusses above. The Dems tried to claim that Kyle Rittenhouse was the aggressor as a matter of law because he was open carrying his AR-15. You can’t just shoot someone because they are carrying a weapon. The defendant in this case had his chance to prove that he feared for his safety, and that’s why he shot. But, the evidence was not without dispute on that fact, and the jury was free to resolve it either way.
1. An AR-15 is not an assault rifle. Nor is an AK-47.
2. Who is “constantly reminding us of the serious danger” posed by such weapons? Not anyone who knows what they’re talking about. You can’t take Democrat propaganda and pretend it’s the law.
Actually an AK-47 is an assault rifle. But the protestor probably had a MAK-90 or some other semi-auto civilianized version of the AK family.
I accept the correction. When news reports say someone in the USA is carrying an “AK-47” I think it’s reasonable to assume they are not being accurate, and mean a semi-automatic that resembles one.
Thank you Andrew Branca for an excellent legal analysis. It dispels my concern that this was a “kangaroo court” so biased against a white, male conservative that they would convict no matter the evidence. That the evidence supports the verdict is very helpful
On the other hand, from your own description, that he was surrounded by an angry and hostile mob and that one of them approached with a rifle, I think I would have been scared out of my mind and would have, preemptively, fired without waiting for the gun to be raised. I would not have wanted to take the chance. The evidence shows not only the deceased but others were armed and, most certainly, hostile. They did surround the car for a reason.
Good point, Kyle Rittenhouse testified. It is not clear why Mr. Perry, who had no criminal record and was legally carrying a weapon, did not testify.
I would add. Under the circumstances, life in prison seems unjustified and hard to defend.
“I would not have wanted to take the chance.”
Personally, I believe we have a right to something more than “self-defense.” I believe we have a right to survive all encounters with criminal assailants. This means that if the attacker is killed, the person responsible is already dead. An assailant takes his life in his own hands when he initiates a criminal assault and starts a chain of events that can lead his victim to (rightly or wrongly) decide to use lethal force in defense. The decision to use lethal force is a response to the attacker’s decision to commit a crime. The defender does not make that decision voluntarily – the need to make the decision was imposed on him by the attacker’s (voluntary) decision to commit a crime. An innocent defender should not be responsible for making an unsound decision because of a criminal’s assault – the criminal bears all responsibility for the results of his crime.
To give an explanation of the concept, by way of analogy:
Two bank robbers pull up to a bank. One goes armed into the bank, and announces a robbery. He is shot dead by a security guard. The robber who remained in the car is charged with felony murder, due to the death of his partner during the commission of a crime. Note that responsibility for the death is not placed on the guard. It is, instead, transferred to the getaway driver.
Now let’s imagine a lone armed robber goes into a bank, announces a robbery, and is shot dead by a security guard. Who was legally responsible for the death? Not the guard, but the person responsible for committing a crime that started a series of events that resulted in a death.
In both cases, we (obviously) don’t prosecute the dead robbers, but we understand that neither death is the responsibility of the security guard.
And we find this completely acceptable.
So why do we prosecute citizens who, when defending themselves against assailants, make a decision to use lethal force in order to assure their own survival of an engagement that would not have occurred except for the assailant’s decision to commit a criminal act? It’s as if we feel compelled to pin responsibility on the survivor, when, in fact, the responsible party is already dead.
Your analysis leaves out everything Branca discusses above. The point is to determine whether that right was properly exercised. The whole point of Branca’s post is to communicate that the jury decided the dead guy was NOT someone obviously intent on a violent crime against the defendant.
The defendant already was suffering a violent crime. And then the criminals were joined by one of their compatriots who was carrying a rifle. If he was not there to provide muscle to facilitate their crime already in progress, then where are the charges against the “protesters” for felony murder? Their fingerprints were all over the car.
What if a security guard shoots a bank customer, and after the fact, he say’s the decedent yelled, “Robbery!” But no one else heard it, and the video doesn’t show the decedent pull a gun?
Foster was raising that rifle. The still photo is less than half the story.
Where in the record is there evidence of the claim that Foster was raising the rifle? You seem to accept the photo isn’t conclusive. Perry didn’t testify, so he didn’t offer that evidence. The witnesses were all BLM shills, so they didn’t corroborate the claim. So, where is the evidence of that claim in the record?
“from your own description, that he was surrounded by an angry and hostile mob ”
You misrepresent my position–I never said those words. That’s a foolish thing of you to do. Please do not repeat.
“And when you go to the fight, folks, rather than the fight coming to you, it rarely looks like self-defense to anybody.”
This is where the defense lost the case. This comment cuts both ways but they apparently couldn’t overcome the damning part of the video when Perry said, “i didn’t want to give him the chance to point it at me.” It would be tough to overcome that. As a layman, I would have approached thusly:
I think Perry went through downtown with his pistol at the ready when other routes were possible. So he went to the fight.
But Foster also went through downtown and his AK47 at the low ready position. He went there knowing he was to be a big part of the problem. Low ready is a muzzle control position that keeps your weapon ready to aim. In combat zones, the escalation of force is “shout, show, shove, and shoot” if a person is still a problem after the first 3 s’s, they have identified themselves as someone needing shot.
In this incident, the crowd was yelling and hitting Perry’s car. That is effectively “shout and shove” but in the absence of a weapon, that is not an escalation of force. But Foster, “went to the fight” and carried his AK at the low ready, that is now the “show”. To Perry, that had to be a clear escalation of force. Especially to a Soldier who should know such things. And the only reason for Foster to go over to where Perry was being attacked was to be a threat, to be the ‘show’ of force.
Now lets flip it a little…if Perry was unjustified in killing Foster, would Foster have gotten off had Perry missed and Foster killed him? I don’t think so.
Approaching a man who is already under attack while carrying a rifle in the low ready clearly says. “I am here and ready if this guy needs to be shot.” I think it would count as instigation.
Like the Rittenhouse situation, this is what happens when idiots meet. But in both cases, I favor the idiot who was under attack by a mob.
The defense for Perry is that he was already under attack from all sides, then some new guy shows up with an AK at the low ready and is marching with purpose towards Perry. The situation was already chaotic and out of control but the introduction of the rifle was a significant escalation and threat to his safety. Perry was alone and left with only one defense available to him. Foster’s presence gave the mob attacking Perry the ability to harm Perry with impunity, or else. That is the only explanation for Foster’s presence…”or else.” And that threat of violence wouldn’t require Foster flagging Perry with his weapon…the presence of Foster’s weapon in support of an already criminal attack on Perry should’ve sufficed.
That is how you defend that case. Tell me I am wrong.
Nothing will turn a faceless, violent mob back into separate, accountable individuals quicker than a jacketed hollow point. Its a good lesson for violent mobs to learn.
“But in both cases, I favor the idiot who was under attack by a mob.”
Bingo. The mob, collectively, made the decision to (illegally) stop Perry. Perry’s search for “trouble” (if that’s what he was doing), would have been for naught except for the mob obliging him. There’s a world of difference between “I’m going to kill anyone who attacks me” and going out into a riot zone, and deciding to victimize someone in the street. The former is aggressive and unwise, the latter is a criminal act.
“The mob, collectively, made the decision to (illegally) stop Perry. ”
Facts not in evidence. No one deliberately stopped Perry. They just happened to be jay walking on the roadway he attempted to use. That’s not a kidnapping.
If they surrounded his car, it certainly is, Mr Branca. And that has been explicitly recognized in some states, legally.
I do think the phrase “the mob” needs clarification. Many are using it as applicable of everyone there that night, and it’s not accurate in that sense. only a small portion of said mob were involved in this, and part of the legal problem is ascribing motive/intent to that small group based on the larger group’s actions.
“If they surrounded his car”
Again, facts not in evidence. In the moment preceding Perry’s shooting of Foster there is no organized activity towards Perry’s car. That video is IN THIS BLOG POST.
Which video? Those crappy tiny things? Maybe if they’re blown up they show something but all I see (since there’s absolutely no identification of the accused’s car) is some people walking in the street, then running, then some shots fired. The only obvious vehicles I can see don’t seem to be involved.
If that was the evidence for anything, then I can understand why he got convicted. Those videos are crap without some indicators on them.
The screen cap in this thread literally shows two people behind Perry’s car and at least one female, possibly two in front of the car. I would consider myself surrounded if I couldn’t operate my car forwards or backwards without hitting someone.
The only disagreement is that Perry rolled down his window. That seems to indicate a lack of fear (at least to the jury). I don’t know if any defense that doesn’t adequately explain that can overcome the hurdle.
Yeah it did. Removing the barrier (the windows) between himself and the threat works to undermine his claim about the severity of the threat. Perry may have been justified but he had a bunch of bad facts to contend with and overcome. In addition this was in Austin, not exactly a right wing, law and order, hang ’em high sort of place; and with a DA who seems more interested in lefty ideology than justice.
My advice FWIW. Do your level best to avoid dangerous areas and dangerous encounters. Walk away from trouble whenever possible. Pick your spots and never forget a pistol is a defense tool to be used only in extremely limited circumstances under threat of imminent danger. Under no circumstances should you ever do anything that a jury might be convinced created, assisted or escalated the situation. None of us are named John Wick and life isn’t a movie where the good guys always win or beat the rap. Fair warning.
His frame of mind should not overcome the actual fact that the actions were menacing.
Still the lesson from this case is clear. Never say a damn thing to the police in an interrogation room. Never, no matter how reasonable you think it is or it actually is. NEVER.
We are getting technical now? In a multiple tiered system of ‘justice’?
Well, Law IS technical. Would you have it to be otherwise?
“…genuinely unbiased, impartial jury…”
Good luck with that these days, especially in the blue zones.
Andrew, thank you for the detailed and insightful analysis.
I also believe the issue isn’t quite as cut and dry as many seem to believe, but I do still have a problem with the verdict.
Can you explain why I shouldn’t be looking at the Tueller Drill in this case?
If I am legally justified to use deadly force against a man threatening me with a knife standing 21 feet away, how can it not be justified to use that force against a threatening man (backed up by an angry, violent mob) who is standing three feet away with a firearm in the low-ready position?
The 21 foot rule of thumb isn’t a statutory right to claim that overrides everything else. It’s an argument made by defense use of force expert witness. Which means it is put before the jury at your Trial just like other testimony and evidence that Jury, not you, ultimately decide whether it has any merit on your self defense claim.
The 21-foot rule assumes the threatening. There’s no corroborated evidence of threatening here.
Another point: being in a car with locked doors and windows rolled up would be a complicating factor in an actual Tueller Drill. Opposite that is that this person didn’t have a knife, but a gun.
Excellent write up. The “better” defense was precisely what the author explains.
When you poorly frame your own deadly force incident with a debatable or incorrect factual assertion to police (even with something that is not legally controlling – the rifle was pointed or not), you greatly reduce your chance of acquittal. Add bad social media posts and disobey of a military order; you then cannot testify in your defense because you will be crushed on cross-examination.
Because judges often allow the prosecution to weave a wide frame and admit evidence of questionable relevance, the self-defense defendant’s subjective good faith belief in the necessity to use force is now routinely attacked. In part, to defeat the no duty to retreat concept, and even when the objectively reasonable requirement appears clearly met based on the actions of the “victim.” I think the subjective state of mind of the force user should be deemed inconsequential in such cases.
“Went looking for trouble” matters under Canadian law, but should not in the U.S. absent express statute. (In any event, Perry wasn’t looking for the rifleman he found). See, e.g., Davis v. Strack (2d Cir. 2001).
Add: See the comment of “thesgm” for the “better” defense. Also, notwithstanding the quality of the author’s analysis, I would have voted “not guilty.” While a juror must follow the law as the judge instructs, a juror is free to determine what “facts” admitted belong in the self-defense frame and which do not.
That is a bold proclamation, since you did not hear or see what the jurors heard and observed during the trial.
Gun pointing or not, advancing on someone with a rifle like that would cause a reasonable person to believe death or great bodily harm is imminent. As a matter of law — in my opinion. However, with a provocation instruction one might have cause for pause. Texas has a broad meaning for provocation so I understand. Other places no, and a generalized “looking for trouble” isn’t really the specific provocation needed.
Here’s something I wrote in 2020, about an NFAC rally:
NFAC marchers were carrying their weapons at low ready. At conservative rallies, firearms are carried slung. The messages sent by the methods of carry can’t be more plain or more different – the former says “we’re ready to fight, now,” the latter says “we’re armed, but we come peacefully.”
The messages sent by the methods of carry can’t be more plain or more different
And, unfortunately, that is a case that has to be made to the jury. Very few of whom will have military or LEO experience. And someone else could argue “low ready” is a defensive stance, not an offensive one (which would be “high ready” or on the shoulder, etc.). But it certainly is a case that can be made to the jury, if handled properly.
I’ve been on a criminal jury, which doesn’t mean much, but I would have a hell of a time not seeing reasonable doubt from that scene. All it takes is reasonable doubt.
The intended victim does not need the best of intentions to fight back. He just has to be threatened whether he knows it or not. Isn’t that the law? And anyway, his comment in the interrogation does not preclude that he genuinely felt threatened. He was just not defending himself verbally, but speaking to the interrogator as a friend, and he got screwed by the cops.
interesting that branca admits that, given the same circumstances, branca would likely have shot the perp himself
if defending myself but more especially my loved ones, would not have given foster the opportunity to shoot us all
seems the analysis is a tortured effort to assess what perry’s act MAY NOT have been vs the clear and expected act of a man surrounded and then threatened at gunpoint–whether foster intended to shoot perry or not is irrelevant–foster approached perry with a rifle viz a lethal force threat
“interesting that branca admits that, given the same circumstances, branca would likely have shot the perp himself”
You’re a bald faced liar, and you should be ashamed of yourself.
Indeed, as someone who personally carries a firearm for self-defense on a regular basis, anyone who unlawfully points a rifle at me ought to have a high expectation of getting shot in self-defense.
your statement–so were YOU lying?
I think that you misinterpreted what Andrew wrote and in doing so put words in his mouth. What you quote is what he said in his article, but what you said above is completely different, right? Here’s what you wrote and he responded to: “interesting that branca admits that, given the same circumstances, branca would likely have shot the perp himself.”
Andrew specifically states “anyone who unlawfully points a rifle at me,” which is not at all “the same circumstances” he writes about in this piece given that he argues the rifle was not pointed at the shooter, unlawfully or otherwise. Disagreeing with his opinion is one thing, but putting words in his mouth and then acting like it’s some kind of “gotcha” is just not going to work.
took him at his word–and didn’t parse his statement as you did–even used his word “likely”–he didn’t stipulate any conditions
at best, his statement is disingenuous–and at worst?–well……
I hear you, but as Andrew is quite clear that he doesn’t believe the dead guy was pointing his rifle at the shooter, it’s inaccurate to say that’s what he meant in his own comment about someone UNLAWFULLY pointing a rifle at him, right?
It’s hard to tell what did or didn’t happen (to me, anyway), and Andrew is going by rational legal thought based on what has been reported and the evidence that he’s seen, not by emotion (as most of us are). It’s what he does. And he does it better than anyone when it comes to self defense.
Personally, I hope that this guy is given a pardon. And that he never again goes anywhere near a BLM, antifa, et al. “protest” (peaceful or otherwise).
My statement includes the condition of “pointing a rifle at me”.
Perry himself states that Foster NEVER pointed the rifle at him.
That’s NOT “given the same circumstances,” you dolt.
regardless what perry said ( eye-witness testimony is often conflicting, as other witnesses stated that the rifle WAS pointed at him), from the photo alone is evident that foster is at arm’s length distance with the rifle–and at that range, as stated, even a 5.56 round will penetrate the door–foster can shoot/kill perry from the low-ready position in the photo–in my opinion, that is a real lethal-force threat–to my mind, that is “unlawfully pointing a rifle” but perhaps not to yours–something foster did–his eyes, his words, his body language prompted perry to act–believe that is the call of the man/woman facing the weapon–it’s their’s alone to make–and legend has it that the defendant is deemed a competent witness and is presumed innocent
Was the “bystander” who shot into the car arrested and charged with assault? If the car was leaving and he shot, it certainly couldn’t be self-defense either but rather some sort of assault?
No, the bystander you described had just witnessed a homicide and was stopping the fleeing killer. That’s not an assault.
In most places it certainly is. Shooting a fleeing felon is seldom (anymore) considered a valid act for a civilian.
1. The fleeing felon rule is still good law wherever state law has not abrogated it; as far as I know Texas is one state that hasn’t. In Texas (unlike any other state, as far as I know) you can even shoot a fleeing thief, to prevent his escape, let alone a murderer. And the supreme court decision limiting the rule to dangerous felons applies only to state actors.
2. In any event, someone who has just committed a murder is obviously a dangerous felon, so the rule still applies even to police, let alone private actors.
This was mentioned earlier. “The cops do it” was basically the response.
But if you’re a lone person, accosted by someone who takes a shot at you, and you draw a gun and your assailant runs, see how fast you’ll end up charged with attempted murder (murder, if you kill him) if you fire at him while he flees. Andrew’s book on self-defense (along with all others) beat the drum of “when the threat dissipates, lethal force is no longer lawful.” (Although I agree that you should be able to shoot a fleeing felon, just like the police. But in actual practice, that’s not generally how it works.)
There’s a huge difference between someone who has merely taken a shot at you and one who has actually killed someone in front of you.
That’s as far as self-defense is concerned. The immediately threat to you has gone with the shooter, so you no longer have to defend yourself. But the threat to the general public from having a murderer running around has not dissipated, and it’s your right and duty to stop him, if you can, before he kills someone else. You have the right to arrest him, by as much force as necessary, and if that means shooting at his car, or even at him, you can do that. I find it hard to believe there’s any state where that isn’t the case, and certainly not Texas!
But it does make the somewhat overlooked point that the victim wasn’t the only rioter who was armed, and Perry was facing multiple armed threats, not a single armed rioter whose gun may or may not have been pointed in his direction.
Correct, but did he know those other folks were armed?
I don’t think the defense presented that as evidence.
So, our new standard is that when someone approaches your car with an AK-47 amidst open hostilities toward you, you can do nothing until he shoots you.
No. But if you do fire, you had better be prepared to present up a defense that justifies the use of deadly force.
While the verdict may have been “legally sound”, I wounded how many cases that were also “legally sound” were not tried by the same DA. Yes, politics plays a role in this and I do applaud the effort of the governor to pardon.
This DA is fixing to grind a whole bunch of officers through the process for the St Floyd riots. One officer has been charged outside the use of a grand jury to avoid having to record the proceedings as required by the court.
multiple witnesses who told the jury that Foster never pointed his rifle at Perry
Were they all part of the mob?
And the videos presented in that 38 second bit showed me absolutely nothing useful.
I do appreciate the legal, factual argumentation, Professor. It’s always helpful to better understand what actually went on.
But, yeah, armed man who appears belligerent is going to get shot would be the right outcome in most circumstances.
I do appreciate the legal, factual argumentation, Professor.
Oops. Thank you, Mr Branca. I should have realized.
Everyone is going to Rittenhouse, but I’m going to Portland. At the same time this was going on, BLM / Antifa in Portland were holding neighborhoods hostage- with mobs carrying rifles. You SHALL NOT PASS. There’s plenty of footage of those interactions.
Until one of the Gypsy Jokers put hot lead in a few of the BLM crowd and declared open season on BLM from that point forward.
Note that BLM all went into hiding- even though a few were hit.
There is no local government more friendly to BLM / Antifa than Portland, but what is interesting is that while BLM/Anfifa’s violence is condoned, the Gypsy Jokers are more violent and don’t rely on the government being friendly- in fact they know how to do what they do while being hunted by law enforcement and blending in / disappearing. They make BLM look like freshmen to their PHD in anarchy.
This is not salient to the legal merits of the prosecution, but as society erodes you have to look at those who already believe it has eroded. On one end of that you’ve got biker gangs etc and at the other end you have hard core religious groups who don’t engage outside their tribes. Both are resilient to the collapse of social contracts. I doubt the Amish and Mennonites or biker gangs are really sweating this gender dysphoria nonsense.
Now I need to write a story about post-apocalyptic Amish biker gang warlords dividing up the land….
BTW – I’m not Andy Ngo, but you should totally get him to write the forward.
An Amish biker gang is a contradiction in terms. Not because of the bikes, but because of the violence.
Not the Amish, or any other Mennonites. They depend on the social contract to keep them safe from violence, because they’re against violence even in self-defense. They’re radical pacifists, who believe you should rather let someone torture you to death than raise a hand against him. cf the Moravian Massacre.
I am just not seeing your argument. You appear to be bending over backwards to justify a verdict that clearly does not come to its findings based on guilt beyond reasonable doubt. Witnesses that were engaged in mob behavior are already tainted. The car was surrounded, and the vehicle was being struck repeatedly. At this point a reasonable person might fear for their life. Then an individual approaches the car with a AK-47? Should you wait until he brings it to your face before you can defend yourself. Then it is too late, and you are the one going home in a casket. In the picture where you mark up the drawing with a slash, I cannot see what you are tracing? The gun is obscured from view but an individual in the background clearly has his forearm parallel to the ground indicating that if there was a rifle in that arm it would be in fact pointing directly at the vehicle and its operator. There is much too much ambiguity in this case for any jury to find guilt and discount the driver’s right to self-defense. The only rational explanation for your interpretation of this case and its verdict is that perhaps you harbor a personal bias against the right to bear arms?
The only rational explanation for your interpretation of this case and its verdict is that perhaps you harbor a personal bias against the right to bear arms?
The only rational explanations for that statement are that you didn’t read the post, or that you’re not able to separate your personal opinion of right and wrong from legal requirements.
The verdict is so awful — a member of our armed forces, one of our protectors — that perhaps the natural reaction is to try to justify it.
If Perry was ordered by his CO not to go there, then let the army write him up for that.
Otherwise, he had every right to be there, even as a “counter-protester” by driving on a public street such that protesters in the street (this was no permitted parade) should have stepped aside and let him through — not blocked and attacked.
He did not “come to a fight”. His driving on the public street legally cannot reasonably be viewed as seeking a fight. The most reasonable view, given that the “protesters” had no legal right to be doing what they did, obstructing the road, was that his counter-protest (if for arguments’ sake it was that) was to make them move aside and take back the public’s right of way.
Both played a game of Eff around and find out.
Optional fight for both.
The dead guy was right. Hurray for being right… you sure proved you can open carry at a riot and be “right” … it’s called “dead right”
The other guy proved it’s better to be judged by 12 than carried by 6. Well he got judged by 12.
Would have been a lot better for both to just stay home and fold laundry and THEN engage in civil debate in the right forums.
The dead guy won’t be able to go mentor all those black children in the school to prison pipeline— I’m sure he did tons of that along with intervening in substance abuse areas for minorities, since he’s so concerned about black lives.
Armed Self Defense 101… Not my monkeys and not my circus.
“the vehicle was being struck repeatedly”
This is simply a lie. We have video of the car in the moment preceding Perry shooting Foster. There is no mass attack on the Perry’s car occurring. That video is IN THIS BLOG POST.
Wow. I wish that were the stupidest comment I’d ever read on LI, but it isn’t.
IN my book the entire band of rioters should be shot on the spot. Bring a firearm to the riot and you will be shot dead. HAve you ever experienced a riot. I have and they are terrifying. I can imagine being surrounded by a mob of vermin ans simply reacting solely in your own defense.
“Bring a firearm to the riot and you will be shot dead. ”
So you would have killed Kyle Rittenhouse on sight. Good to know, I guess.
As to the photo not showing it pointed into the car, I’m going to slightly disagree. It might not show the weapon being pointed into the car at that exact moment, but…
The right hand position is so high in relation to the body there is no way that is a relaxed, slung position. He has gripped the stock/pistol grip and is raising the weapon so as to clear the door with the muzzle.
Now, if the timing in relation to the shots fired isn’t known, obviously there’s no indication as to whether he is reacting to the driver or vice versa.
But I would say vertical position of the weapon at an instant in time is totally irrelevant to the imminence, Mr Branca, given the weapon appears to be in motion or readied.
Foster as Rittenhouse?
Not even close.
Rittenhouse had been there helping cleanup. That night he was there to protect a particular building and offer medical help to anyone that needed it. He hadn’t picked any side.
Foster was part of a violent protest and had menaced several people before pointing his rifle at Perry.
That his fellow Antifa drones perjured themselves is unsurprising.
Rittenhouse did not point his rifle at anyone until his life depended on it and there was clear video evidence of this.
No, the more I look at it the more I see a coordinated effort by leftists to railroad an innocent man.
They learned what to do from the Rittenhouse trial.
The fact Perry said some things that helped them achieve their goal makes it no less of a sham.
Rittenhouse also had the benefit of copious amounts of video evidence to support his claim.
And this is the argument for having cameras in your car that record the front, rear, and to the sides. Or, at a minimum, have a personal body cam that you wear (maybe just while driving, or some such) or carry.
Branca notes that there really wasn’t much evidence of what the defendant said happened. Having your own video copy of what went down might not prove everything you say, but it sure can’t hurt if you’re being truthful.
“Rittenhouse had been there helping cleanup. ”
Rittenhouse was not present to “clean up” the night he was carrying the rifle.
And Foster also said shortly before being killed that he was present with his rifle to secure safety, and didn’t expect to need to use his rifle or any force.
BTW, my comments above regarding my personal opinion on the issue of whether the decedent’s firearm was pointed at Perry, isn’t intended as a criticism of Mr. Branca’s stellar (as usual) legal analysis.
I agree with Mr. Branca that Perry’s social media posts and post-shooting statements did not help his case.
The key fact for me is that the decedent approached Perry’s door. Why was he doing that? What benevolent purpose could he possibly allegedly have, in approaching a driver’s door, while carrying a slung rifle? This idiot should have stayed away from the car.
I’d support the verdict, if the decedent had been minding his own business, standing on the sidewalk. But, the facts show that the decedent made a choice to approach the driver’s door and was, in my opinion, justifiably killed, as a result of his own foolish conduct.
I can see reasons for it, as hypotheticals. All of those hypotheticals would have had him urging the group around the car to move back/away, so not likely here.
The problem isn’t just “armed” and “moving toward car”, but “mixed in with group committing assault.”
Fair point. My opinion is that, irrespective of whether or not the decedent possessed ill intent, by moving toward the door and mixing with an angry mob, he effectively made it impossible for Perry to perceive his intent. And, generally speaking, I am not going to ascribe benevolent intent to a civilian man holding a rifle, moving toward my car door, for no ostensible purpose, nor will I give him the benefit of the doubt.
Although the weapon may have been on a sling, I disagree that it was “slung.” The position of the stock (by Foster’s ear), and the raised shoulder and elbow all indicate that his hand was on the pistol grip and he was raising the rifle. (And not merely holding the rifle, as one could have one’s hand on the grip while the sling was still bearing the load.) The load was no longer on the sling, so the rifle wasn’t “slung.” “Slung” is analogous to “holstered.” But when a pistol is in the hand, it is no longer “holstered.” Likewise, a rifle on a sling is no longer “slung” when hands are on it and lifting the load from the sling. This is the difference between merely exercising one’s right to bear arms, and the transition to actively using those arms (lawfully or unlawfully). Foster appears to have been transitioning from “bearing” to “active use,” even if only to threaten.
Ii appreciate the factual clarification. I was referring to the fact that the decedent had the rifle on a sling and I wasn’t attempting to address or assert what position the rifle was in at the moment of his death. Your statement on the decedent’s rifle position is a fair point.
but slapping and kicking of a car by itself could not justify Perry’s decision to shoot dead Garrett Foster
I’m going to disagree with this. At least as a statement isolated from everything else.
When in a mob of almost any size, and that mob is hammering at your car, and you have no way to identify individual miscreants to hold them accountable, the natural feeling is one of fear. An unaccountable group of people is assaulting you – that right there is reasonable fear of bodily harm or death, IMO.
Now, rolling down your window diminishes any claim to that, yes. But the idea there is a mob smashing on your car certainly, IMO, gives cause for “reasonable” fear.
A sound argument could be made that Garrett Foster was the rifle-armed Kyle Rittenhouse on that fatal night in Austin
I would disagree, simply because the group with which he appeared to affiliate himself was a somewhat lawless group (punching and kicking cars being a prime indicator of that). I would say that identification strips him of his innocence – very much unlike Rittenhouse.
“Rittenhouse had been there helping cleanup. ”
Rittenhouse was not present to “clean up” the night he was carrying the rifle.
And Foster also said shortly before being killed that he was present with his rifle to secure safety, and didn’t expect to need to use his rifle or any force.
So, an individual walking toward you with an AK 47 is no different than an individual with 9mm handgun?
I think you have spent too much time reading law books.
What would be the difference?
Greater lethality. Rifles and carbines, especially at close range, pose a greater threat than handguns. If confronted with someone toting a rifle and another with a handgun, it would be tactically sound to shoot the one with the rifle first.
What would be the difference?
capacity and muzzle velocity of rifle vs handgun
No, a man in a riot walking in your direction with a *slung* rifle and a man with a *holstered* pistol have rough parallels.
A man walking in your direction *holding* a weapon, *pointed* in your general direction, with his finger on the trigger and surrounded by a bunch of his rowdy pals keeping you from driving away is a half-second from you being shot in the car and dragged out, or shot while trying to escape, or shot if you present/brandish a weapon to get them to back off, or just plain shot by the mob of criminals period.
Far more than apples and oranges comparison. More like apples and rhinos.
It sounds like Perry could be guilty, but Andrew’s analysis leaves out the most important circumstance: that BLM protesters and rioters were at that time systematically employing tactics that constitute conspiracy to commit murder.
Illegal marchers were intentionally trying to entrap cars, jumping in front of them and surrounding them instead of trying to allow them through, which is the quite serious crime of false imprisonment.
Then salted among the protesters were substantial numbers of self-identified “defenders,” many armed with guns, others with various other weapons, like skateboards, that could be used to attack anyone who resisted being false-imprisoned by the other BLM protesters.
Note that those who are directly engaged in the crime of false imprisonment cannot in self-defense shoot a driver who resists their crime because they have lost innocence. BLM tries to get around this by having the false imprisoners and the “defenders” be different people, but because this is a planned strategy it becomes a conspiracy, and in fact a conspiracy to commit murder, which had been seen in action many times.
It had happened a couple of times in Colorado (at Elijah McClain marches) , and it had happened in Texas. When cars resisted being blocked in and Reginald Denny-ed, the drivers were shot at by designated “defenders,” there for just that purpose.
Since Perry followed the news about the riots he would have been well aware of this tactic, and if he had innocently found himself caught up in the false imprisonment tactics of a BLM/Antifa mob he would have reasonably expected that anyone rushing up to his window with an AK47 was one of these accomplices of the false imprisoners, there to execute the second half of their murder conspiracy.
Was the situation Perry faced really any different than if one of the false imprisoners had pulled out a gun? And in that circumstance, a person certainly doesn’t have to wait until the criminal aggressor’s gun is pointed at him to shoot in self defense!
But if Perry intentionally fell into BLM’s false imprisonment trap just so he could have a legal justification for using lethal force to fight his way out, then it seems that he would likely have lost innocence, if he intentionally created the dangerous situation. Maybe Andrew could weigh in on that.
Perry’s behavior in this case would be almost a mirror of what BLM was doing: intentionally creating a situation where people can be shot in supposed self-defense.
If Perry intentionally put himself into BLM’s false imprisonment trap then he can’t claim that he was trying to push through the marchers in an effort to avoid being false imprisoned. That would seem to make his attempt to get through the marchers a hostile act, not a self-defensive act of reasonable force necessary to avoid criminal false imprisonment.
To me this seems to be the actual issue in this case. Perry can’t be allowed to do what BLM was doing: creating false pretexts for “defensive” shootings.
But can we have any confidence that this is what he did? To get to the bottom of that question, that is what the trial would have had to explore, but it didn’t, and it’s a shame.
BLM’s distributed murder conspiracies were very widespread. Kyle Rittenhouse had to shoot not just one overt attacker, but two self-proclaimed “defenders,” whose role was to go after whoever their mob identified as a threat.
Remember the “defender” in Portland who tried to soccer kick a young man’s head off after he had already been beaten to pulp?
The young man’s “crime” was trying to save an autistic girl who was being beaten for unwittingly offending someone. He got her into his truck and tried to get her out of there, at which point the mob false imprisoned the two of them and the “defender” went full Reginald Denny on the boy.
They did this hundreds of times. It was a central activity and aim. At every march cars were surround and smashed, with occupants often not just terrorized but attacked and beaten.
This context obviously informs a reasonable person’s perception of whether he is facing a lethal threat, yet Andrew does not take it into account at all, which makes his analysis seem very inadequate to me. Sorry Andrew.
Properly analyzed the case becomes maybe more complex than our legal system can handle. It’s a situation of conflict approaching war, showing how important it is that illegal protests not be accommodated.
Rioters can’t be allowed to take over the streets and start violently imposing their own rules or this kind of very difficult legal tangle is bound to emerge.
Even if the rioters have a super-compelling cause (say a drug addict who ate his entire drug stash, causing him to die from overdose while police were arresting him), they still can’t be allowed to burn our cities down, or it will also burn our legal system down.
This is the better analysis but I would like to add that it should be viewed as irrelevant whether Perry “intentionally” drove on that street.
It does not matter why Perry was there. He had every right to be on that public street. And they did not. Nor, under the “theory” that this was a “protest” should Perry have had to assume that even if he drove into the midst of it, he could be endangering his life or that an armed “protester” would approach him while others trapped him in his car. Legitimate “protesters” would have moved aside and let him pass though.
If Perry deliberately had walked into a bank in the middle of a hold-up, and one of the bank robbers approached him with a readily usable weapon after the others encircled him and then blocked his ability to leave… should he be charged with murder? How about a home owner who deliberately enters his house knowing that burglars are in there, but then they encircle him, and one approaches with a firearm.
False imprisonment, rioters banging on your car (proved), threatening screaming and shouting. And then another riot participant approaches (why?) with a firearm? Should he have to wait, like the wild west, until it’s directly pointed at his face? While trapped in a car? See who can “outdraw” the other?
Would it have been preferable for Perry to lean on his horn,,, count to three… and then just run over “protesters” who didn’t get out of the way? They would have had no more right to “stand their ground” any more than a burglar would standing in your living room. (That wouldn’t have been a viable option anyway with “protesters” with guns right there to prevent or “rectify” that kind of self-defense.)
Perry had every right to assume that — even as a “counter-protester” — that he could drive down that street where vehicles actually have the legal right of way, and protesters do not.
Agreed. An interesting analysis. But I also balk at the possibility that Perry “intentionally fell into a trap.” This is only possible when the trap is passive (e.g., bear trap or pitfall). But Antifa/BLM “traps” are active, and directed by human decision-making. The rioters made a decision to entrap Perry, even if Perry drove that street in anticipation of being trapped. The mob could have decided otherwise, and Perry would have just driven down the street, his intent notwithstanding. In this situation, it would not have been “it takes two to tango,” but rather “it takes two to tango, and one of them must do something illegal.”
“BLM protesters and rioters were at that time systematically employing tactics that constitute conspiracy to commit murder.”
Zero evidence of this in the context of Perry shooting Foster. What might have been happening elsewhere at other times in other places is irrelevant. Perry is not privileged to shoot Foster dead because other people are doing other bad things in other places.
Thanks Andrew, but I’m not so sure about your “zero evidence of this in the context of Perry shooting Foster.”
Is there zero evidence that the marchers did try to illegally false imprison Perry? I haven’t dug far enough into the details to know, but I thought there was some evidence for that happening here, as it certainly has happened in many other places.
Then a “defender” immediately rushes up with an AK. That also fits with what had happened elsewhere, and would seem to constitute a bit of evidence that the same thing was happening to Perry.
Then there is the fact that the protesters are marching under the banner of the same national organization that has pulled off the “defend the false-imprisoners” murder conspiracy in other locations. That would also seem to be relevant, and hence constitute evidence.
In the body of Andrew’s analysis he suggests that we must look at Foster the same way we look at Rittenhouse, both with their rifles slung in similar fashion, both saying they are carrying purely for the purposes of defending themselves and others. If Foster can be shot in self-defense without raising his muzzle, then so could Kyle.
But no, the situation is not symmetrical because of the radically different behavior of the two different sides that they identified with. One side was lighting the town on fire, committing many acts that were violently aggressive, not defensive, while the other was committing no crimes and maintained a genuinely defensive posture.
When the act in question is conspiracy—a group action—then whether or not one is on the side of the group that has been conspiring to commit crime would seem to be central to a reasonable person’s perception of whether or not he faces an immediate lethal threat from criminal conspiracy.
If the first half of an established murder-conspiracy ploy is already in motion, and the second step is the group “pulling its gun,” in effect, by bringing in an armed person, does the person who recognizes himself as being targeted by this easily recognizable form of conspiracy really have to wait until the muzzle of the gun is on him before he can defend himself?
If the aggressor was a single actor the answer would clearly be no, and the answer should be the same for a conspiracy.
A conspiracy is harder to identify than a threat by single actor, but if a reasonable person would identify the situation as a conspiracy to commit murder, that would seem to be the proper standard.
That standard would absolutely not justify anyone shooting Kyle without his raising his muzzle at them because his side had never engaged in any criminally conspiratorial behavior and there was no evidence that any conspiratorial activity had commenced. There was no illegal false imprisonment being conducted by conservatives that Kyle could possibly be a part of.
I’m not saying that it was reasonable for Perry to judge that he was about to be shot as part of a murder conspiracy. I have my own doubts about that. But it clearly seems to be possible.
Note also that being immediately shot by Foster wasn’t the only threat. What if Perry judged that he was about to be Reginald Denny-ed by the crowd and that Foster’s role would be to shoot him if he tried to defend himself against the mob?
Then Foster’s presence would be like when a person is confronted by a trio of threatening characters on the street and one of them tries to circle behind. Massad Ayoob described giving expert testimony in defense of a man who drew and fired in that situation, and they won.
This may have been happening in some places, but if it was happening in that place and at that time then the defense should have presented some evidence of this.
I have for decades been saying that it ought to be legal for anyone who is going about his lawful business, and finds his way deliberately blocked by those who would rather he not go about it, to keep going, and any harm to them should be counted by the law as self-inflicted.
This is not because of self-defense, but simply the right to go about ones business unmolested. I first came to this view not in regards to rioters but “peace activists” who were lying down in front of troop trains, and union picketers who were trying to strangle businesses into submission.
In particular a dock strike, where people were physically prevented from going to the dock themselves to retrieve the shipments they desperately needed; the picketers were achieving this not by straight-out violence but by making themselves human hostages, and having the police standing by to “protect” them from anyone who would drive through them. In my view the police should have been forcibly clearing the picketers away, and if they refused then they should not have been able to arrest anyone who drove through the picketers.
Golly. If only there were some type of publicly funded, and highly trained organization of professionals who could be deployed to ensure public safety against domestic terrorists, rioting in the streets, threatening the life and property of citizens who then have to defend themselves, but afterward find themselves the target of a weaponized government that punishes those attacked by the domestic terrorists. If only…
The conviction may have been “legally sound” but it’s unlikely Perry would have been convicted anywhere else in Texas. Austin is one of the most liberal cities in America, with a jury pool equivalent to Washington, DC. The witnesses said? Bear in mind that the witnesses were BLM supporters who were there with the “victim.” Witness testimony is basically worthless but the memory remembers what it wants to remember, not what it actually saw. The picture isn’t that easy to see, but it certainly looks to me like the butt is angled so that the muzzle was pointed at Perry. What was the shooter doing with an AK-47 anyway? They are foreign military weapons with full automatic capability and require special licensing. AR-15s are legal weapons but AK-47s are not.
The link to the claim that Perry was prohibited by regulation from being in Austin is not supported by the linked article. I spent 12 years in the military. At that time, there were restrictions on lower-ranking personnel but Perry is an NCO and not subject to those restrictions. The Fort Hood commander may have issued a warning to personnel – probably aimed at BLM supporters – to stay away from Austin but that is not supported by the linked article.
Despite the length of Mr. Branca’s article, it was not persuasive for many reasons (as many have commented). For me, the peculiar paragraph in the article about the St. Louis County Prosecutor Robert Cullough’s providing of exculpatory evidence (“balanced rendition”) to the grand jury as costing him his career struck a wrong note & cast serious doubt, in my opinion, on the integrity of the entire article which ostensibly was only about the legal aspects of this case.
Wow. Legally sound, but factually incorrect. Legally sound because the conviction follows the jury’s determination of the facts. However, the jury was incorrect on the facts. But that’s okay, the conviction is “legally sound.”
There is photographic evidence that Foster pointed his AK-47 at Perry. The jury reached an incorrect factual decision.
No one should to prison for “legally sound” verdicts when the facts on which the verdict was reached are incorrect. That renders “legally sound” totally ridiculous.
“There is photographic evidence that Foster pointed his AK-47 at Perry. ”
This is a lie. Even Perry told police that Foster’s rifle was never pointed at him.
American Tinker does not agree Mr Branca
The red line drawn by Mr. Branca to show the angle of the rifle is absolutely a fantasy. The rifle stock is elevated just above the rifleman’s shoulder, and there is no way it is pointed on that largely vertical line. The rifle (apparently an AK knockoff?) would have to bend down at a 45 degree angle just forward of the stock to be pointed on the author’s proposed line. Ridiculous. It makes me question the good faith analysis in the author’s many other posts.
Even Perry told police that Foster never pointed his rifle at him.
You people who continue to repeat the lie that Foster pointed his rifle at Perry are simply deranged.
something else that seems not to have been considered–at virtually arms-length, even a 5.56 would penetrate the door, through the steel–also, not necessary to shoulder the weapon at that range–you’re point shooting all the way–you’re firing at a seated target, below their line of sight (and also that of the other “protesters” / cameras / etc)
if you’re sitting down in a chair right now, place your right hand on your knee, now raise your forearm till it’s level with the floor–that’s how much time perry had to make a decision
George Soros – with the help of greasy people in positions of trust and power – has destroyed the concept of “Legally Sound”.
“Like It or Not, sufficient evidence was presented to allow the jury to reject self-defense. A Pardon may happen for political reasons, but that’s politics not law.”
1. I agree with Branca’s first sentence quoted above, and his excellent analysis supporting it.
2. The pardon may happen for non-political reasons. For example, a pardon might be coming down the pike because the Texas powers that be (I personally don’t yet know the pardon process in Texas) believe that the jury’s interpretation of the evidence was wrong, even if beyond being overturned by an unbiased judicial appeals panel, or believe that defendant was not afforded a fair trial, or both.
3. I disagree with Branca’s interpretation of the photo. I believe it is consistent with (and actually does show) Foster’s raising his rifle into position to be pointed at Daniel Perry. At that very moment, Perry, despite the evidence that he had gone looking for a confrontation, might actually have been in the position of the person entitled to act in self defense.
To be clear, while I agree with Branca’s first sentence quoted in my comment above, I believe the jury also would have been justified in acquitting Perry.
Many years ago I was an alternate juror in a jury trial in which the only the state submitted evidence. And the defendant’s public defender made only a generic closing argument in defense. That is, while he asked the jury to consider the evidence carefully, the public defender did not discuss, let alone dispute, any specific piece of evidence. The jury found the defendant not guilty. Why? Because the prosecution’s case relied on testimony from the alleged victim that the defendant had “bashed” her in the head with a weapon just 3 minutes before the police arrived. Other than that, there was no evidence of any other violent confrontation between the alleged victim and the defendant. The jurors realized that the police report showed that, according to the officers, the only evidence of an injury to the alleged victim was a scabbed over spot on her head that she pointed too. The jurors also realized that the injury had to have been an old injury, otherwise there would not yet have been a scab.
My point is that the jury might have missed that, and the poor defendant would have been convicted.
I think the importance of the photo might have been missed by Perry’s jury.
“I believe the jury also would have been justified in acquitting Perry.”
I said this explicitly in the blog post which you apparently didn’t bother reading.
I obviously did read the entirety of what I noted is an excellent analysis regarding the legal and evidentiary justification of the jury’s verdict. I in no way indicated that you had stated or even implied that the jury could not have reasonably acquitted Perry.
I’m surprised you took any offense.
Regarding the photo, I urge readers to check out other images of Foster holding his rifle during the BLM march. See, e.g., https://www.dailymail.co.uk/news/article-8563675/Wheelchair-bound-fianc-e-slain-BLM-protester-leads-vigil-Austin.html. That webpage has two photos of Foster. One is the same image Andrew posted, but is a bit clearer. The other shows Foster peacefully holding his rifle. Here is another website depicting an image of Foster peacefully holding his rifle. https://www.the-sun.com/news/1206544/blm-protester-predicted-death-before-being-shot/. Notice that in the “peaceful” handling of the rifle, Foster’s right elbow is down and adjacent his lower chest. In the first image (i.e.,, the one like Andrew posted), Foster’s right elbow is raised, which is consistent with his raising his rifle to point it at Perry.
The confrontation between the two men occurred as Perry was driving his Uber vehicle amongst a crowd of protestors in the street, and while Foster was among the protestors carrying an AK-47 on a sling. The rifle-armed Foster approached the driver’s side door of Perry’s car,
Sorry, but those facts in and of themselves establish that Perry had every right in the world to shoot and kill Foster.
No one has the right to block the streets and force us to be inconvenienced by their “protests”
You do that, and then you come up to someone who’s trying to get through your thuggish BS, while you are carrying a rifle?
You are a Nazi thug threatening the person you are coming up to
Foster deserved to die, Perry had every right to kill him, and he absolutely should be pardoned.
“Sorry, but those facts in and of themselves establish that Perry had every right in the world to shoot and kill Foster.”
By your reasoning, anybody in a car in the vicinity of Kyle Rittenhouse would have been privileged to shoot Kyle dead. Make it make sense.
Only if Kyle was standing in the street, blocking them from driving, in a manner different from a pedestrian getting right of way when crossing a street.
If you hold your “protest” in the street, when you don’t have a parade permit, and you are blocking people from going about their lives, then the people you are blocking have the moral right to run you over, and to shoot you if you threaten them in any way.
And they should have the legal right to do so as well
Certainly, if the jury believed that Perry fired only after Foster pointed his rifle at him, there could hardly be a clearer case of self-defense
The jury is left wing scumbags from Austin. What they believe is that their political interests are served by punishing Perry, no matter what happened.
That “fact,” however, is not indisputable. Indeed, that fact was aggressively disputed by the prosecution, which argued to the jury that Foster never pointed his rifle at Perry, and so Perry’s claimed legal grounds for shooting Foster in self-defense simply doesn’t exist.
In support of this narrative of guilt the prosecution presented the testimony of multiple witnesses who told the jury that Foster never pointed his rifle at Perry.
“Multiple witnesses!” Wow, that sounds so special!
Now, who are these “multiple witnesses”?
1: His wife (who told one story to the cops, and then came up with a “better” story that she told the grand jury and at the trial)
2: His roommate (who was caught lying to the prosecutors, and eventually admitted he’d kicked Perry’s car before the shooting)
3: A fellow protester
The only person who would believe those people is someone who was “believing” them for political reasons.
You dont’ go up to someone’s window in that situation, with a gun, unless you’re going there to threaten the person.
Foster deserved to get shot. I’m glad he’s dead. I hope hundreds to thousands more left wing thugs get shot and killed, until such time as they respect that we have rights too.
And I greatly look forward to Abbot pardoning Perry
“You dont’ go up to someone’s window in that situation, with a gun, unless you’re going there to threaten the person.”
I literally approach people every day, WITH A GUN ON MY PERSON.
Number of people I’ve threatened or killed with that gun? ZERO.
Ask an adult to explain it to you.
Really, you block streets, kick people’s cars or have other friends kick their cars if they try to drive by, and then approach them with an openly displayed firearm?
Do you have any video evidence of you doing these psychotic things?
The prosecution presented the jury with social media messages of Perry’s from which they might reasonably infer that Perry was looking for an opportunity to use deadly force against protestors. One Facebook message stated “I might have to kill a few people on my way to work.” In a Facebook comment about a video showing protestors being shot in San Antonio earlier that year, Perry wrote that he was “glad someone finally did something.”
1: We should all be glad when someone does something like that
2: Perry, like I, apparently remembers Reginald Denny, and what happens to people who the left wing thugs decide to punish for going through “their protest”
3: Perry had an absolute right to drive not eh public streets and go about his lawful business
The left wing thugs had NO right to block the road, threaten people, kick their cars, or in any other way try to threaten, intimidate, and / or bully the people who didn’t give a damn about their “protests”
“Perry, like I, apparently remembers Reginald Denny”
Reginald Denny was forcibly removed from his vehicle.
There was zero attempt to remove Daniel Perry from his vehicle.
Reginald Denny didn’t have a gun to shoot the first attackers who approached him.
If he had, and had used it, he wouldn’t have been dragged from his car.
The apples and oranges aren’t going your way.
Your Rittenhouse analogy sucks for you, and supports Perry
Like Kyle, Perry was approached by the thug, not the other way around
Like Kyle, Perry was threatened, and did no threatening
One of those “multiple witnesses” you blathered about testified that he kicked Perry’s car before the shooting. So Perry was a law abiding citizens, driving legally, who had already been attacked by the thugs, then yet another thug came up to him carrying a gun.
I’m sure it was to offer him chocolates and a bunny, right?
That’s sarcasm, in case you missed it
So, if Kyle had walked around kicking protesters, THEN your analogy would hold some water.
But in that case Kyle would have been convicted
“Like Kyle, Perry was approached by the thug, not the other way around”
That’s a lie, actually. Garret Foster didn’t drive to Perry’s home 70 miles away. Perry drove to the protest 70 miles from his home.
Sorry, that’s irrelevant. Perry had every right to be where he was at that time. And at that time Foster approached him, not the other way around. GregTCT is correct in pointing out that this distinguishes him from Rittenhouse, who did not approach his “victims”; they approached and assaulted him, and he did the only thing he could.
Perry had a fundamental American right to drive on that street
Foster and his fellow thugs did NOT have the right to block that street, or ANY public street, unless they had a previous legally issued parade permit.
Which they didn’t.
This is the fundamental place where you are completely screwed up:
Protesters have absolutely no right to make the rest of us care about their protest.
They have no right to make us look at them, listen to them, care about them, or change our lives / actions for them.
Are they a legally registered / setup parade that has worked with the government to get a street shut down for their use, under the same rules that anyone else can use?
Great, then they can block the street during the time of their permit.
Then we all have a absolute right to go driving through their “protest” and not be harassed or bothered in ANY way.
And if the person bothering us is armed, or or otherwise threatening, then we have the absolute right to shoot them.
Because the person going on about his or life is a valuable and important human being
The thug in the street blocking traffic is not
But a proper legal analysis must be done rationally, independent of emotion and political or other biases. The evidence and the law must guide us in our analysis.
1: The protesters were blocking the road, and threatening / harassing / assaulting those who tried to get through
2: A rifle armed “protester” came up to a guy trying to get through, who’s already had violence done to his car (by people who would have been happy to do violence to him, if they could only reach him)
3: The only people who claim that Foster didn’t point his gun at Perry were Foster’s wife, roommate, and a fellow “protester”
Which is to say there was not a single believable person testifying that Foster did NOT threaten Perry
There’s no justification for anything other than a not-guilty verdict
“1: The protesters were blocking the road”
Zero evidence of this. They were merely walking along the street.
If the protesters weren’t blocking the road, then Perry would have driven through and never interacted with Foster.
if the protesters weren’t blocking the road, then no one’s car should have slowed down enough that the roommate could have kicked it.
“by people who would have been happy to do violence to him, if they could only reach him)”
Pure speculation, zero evidence of this.
No one kicks someone’s car, who wouldn’t be happy to kick the person driving the car
“The only people who claim that Foster didn’t point his gun at Perry were Foster’s wife, roommate, and a fellow “protester””
Exactly 3x the witnesses that Perry had, and he’s certainly no less biased.
You’re really not very good at this.
But Perry didn’t testify, so it’s not 3×1, it’s 3×0, which is equal to 0 🙂
(Which is why the rules of arithmetic are not always applicable in real life)
Perry “testified” via his recorded statements to police that were played for the jury.
Three completely not-credible people do not equal “proof beyond a reasonable doubt”, which is the requirement for conviction.
The BEST the prosecution has is the one fellow protester, so the score is 1×1, which is not the “overwhelming evidence” you’ve been claiming.
Reality check: There’s two possible situations here:
1: The protesters were bullying thugs who drove out everyone who wasn’t part of their protest. In this case that bullying and hostility are solid evidence for the claim that Foster had continued that bullying by threatening Perry with his gun
2: There were a fair number of people around who had nothing to do with the protest. And not one of them was willing to testify that Foster didn’t point his gun at Perry. Which means the prosecution is nowhere near meeting THEIR burden of proof that Foster did not threaten Perry.
The only person actually there says Foster pointed his gun
Foster had no reason to approach Perry OTHER than to threaten him for the “crime” of driving through their protest
The only people who dispute Perry’s claim were Foster’s wife, roommate, and a fellow protester, all of whom had a strong reason to lie
It is the prosecution that carries the legal burden of PROOF for all the elements of the crime, which means that Perry didn’t have to prove that Foster pointed a gun at him, the prosecution had to prove that Foster did NOT point the gun he was openly carrying at Perry
No honest jury would have convicted Perry. But you’re not going to get an honest jury in a political case in a Blue city
While I’m confident Mr. Branca is trying to do his level best in explaining his opinion, he leaves out information that I believe pertinent to this case. The surroundings and the actions of Jose Garza and the City of Austin.
A major Target store off IH 35 was later ransacked by these “mostly” peaceful protesters who plagued Austin that summer. Some of the ransackers were arrested, but lo and behold, charges were dismissed by Garza. Same people as were present during the downtown protest. Garza also has charged (last year) 19 Austin PD officers for injury to protesters. This was AFTER the City of Austin awarded the protesters $10 million of tax payer money (does that tell you the mindset of the city council that Garza serves?).
Here are the questions Mr. Branco didn’t answer: did Perry have a passenger at the time of the shooting that he would have been responsible for their safety? What was the circumstances of the crowd? Were there tens, hundreds, thousands that were shouting “No justice, no peace” with raised clenched fists? How many of those protesters were carrying (being a concealed carry state at the time)? Was Perry traveling down one of Austin’s very narrow two lane streets (you don’t move historic buildings to make a 4 lane street in Austin, Texas). Would Perry’s military training taught him to remove all obstacles (the car window) when confronting an adversary?
And the most important of all; was Mr. Branco present for the trial?
I do know this; Austin is called by us Texicans as the San Francisco of the West. I don’t live far from Austin (in Texas miles) and I only go there when I absolutely have to. Had Perry been tried in any other city, I have no doubt he would have gotten off with self defense. His lawyers made the mistake of not demanding a change in venue.
“A major Target store off IH 35 was later ransacked by these “mostly” peaceful protesters”
Unless demonstrably known to Perry, entirely irrelevant to his trial.
It is reflective of the DA’s practice of not prosecuting those who are in line with his Bragg mentality.
No comment on the 19 APD officers that are now forced to hire lawyers to protect their jobs?
“It is reflective of the DA’s practice of not prosecuting those who are in line with his Bragg mentality.”
Which has absolutely nothing to do with the law and evidence in the Perry trial.
He all know about “mostly peaceful” left wing “protests”.
Which is to say we all know that BLM / Antifa “protests” contain a significant number violent criminal thugs.
Any time a BLM / Antifa “protest” did NOT burn / destroy anything belonging to other people, it was because they were prevented from doing so by armed police / private citizens.
You know that, I know that, Perry knew that, every even slightly informed American knows that
” Some of the ransackers were arrested, but lo and behold, charges were dismissed by Garza. ”
Irrelevant to whether Perry’s killing of Foster was lawful.
“Were there tens, hundreds, thousands that were shouting “No justice, no peace” with raised clenched fists? How many of those protesters were carrying (being a concealed carry state at the time)? ”
Irrelevant to whether Perry was justified in killing Foster.
You’re just not very good at this.
Clearly, my comments got to you. No one responds three times to one post if they are not challenged by it. Apparently, you think your opinion is the only one that counts.
Mom, you PROMISED you’d stop drinking!
#1, I’m not your mom.
#2, I do not drink alcoholic beverages
#3, you seem to know damn little about what transpired in Austin that night.
Perry was traveling on a very narrow street (4th) when he turned onto Congress Avenue. The view of Congress from 4th is blocked by large buildings. The next two blocks were full of protesters who were headed north on Congress. These protesters did not have permits to protest.
The protesters were blocking the road”
You replied: “Zero evidence of this. They were merely walking along the street.”
Wrong, Counselor. The protesters were in the MIDDLE of the street, not on the sidewalk. And that was illegal. Blocking traffic in Austin is illegal.
And since when is it legal to shoot into a crowd? A second shooter fired three shots at Perry’s car but missed. That shooter was arrested at the same time Perry was. Want to tell us how that arrest came out?
You’re not very good at this.
Remember, Greg Abbott is a former AG. A lawyer, such as yourself. He lives and works in the same city where this trial was held. But I’m sure you think you are more informed on this case than he is.
When individuals brandishing arms enter a roadway and proceed to surround a motorist and to prevent his progress or escape, they have crossed a line and have become armed hostage takers. It does not matter if they point their weapons at the hostage. The hostage has a right as a matter of self defense to use deadly force to escape.
“proceed to surround a motorist and to prevent his progress or escape,”
Literally zero evidence of this in the moment before Perry shot and killed Foster.
Perry was on a one-way street and surrounded by protesters. Should he have just run over them? Or do you just believe that the circumstances of his surroundings do not matter?
None of those protestors was threatening Perry’s person or attempting to breach his vehicle. Indeed, Perry felt safe enough in their company that he lowered his car window.
He could simply have been patient, rather than killed Foster.
I think you are making assumptions that he felt safe. Picture and 45 hand print on car make it look like he was surrounded and threaten.
“proceed to surround a motorist and to prevent his progress or escape,”
You: “Literally zero evidence of this in the moment before Perry shot and killed Foster”
You, later: “He could simply have been patient, rather than killed Foster.”
So, you now agree that what there was “Literally zero evidence of” is in fact proven?
Yes, he could have “been patient”
He also could have just pointed the gun at his head and shot himself
But NO ONE has the legal, moral, or ethical right to demand he do that
And that’s what these thugs did.
Which is why it was right, moral, and proper for him to shoot and kill Foster.
I have an absolute First Amendment right to NOT give a damn about your protest
To ignore it, and to go about my life without giving you so much as one second of my time.
You are siding with the Left and their evil, bullying, thuggish ways. Hell, you might as well go join the Stanford Law thugs the next time they shut down a talk
H doesn’t have to slow down, he doesn’t have to wait, he doesn’t have to care, he has the absolute right to go about his life, and to shoot and kill anyone who threatens that
Foster threatened that
He deserved to die, I’m glad he’s dead, I just wish the same had happened to 1,000 other left wing thugs, and kept on happening until they clearly understood that they have to leave the rest of us alone
They have to let us hear the speakers we want to hear
They have to let us say what we want to say, unless it’s the middle of their scheduled speech
And they have to let us go about our lives without paying attention to them or their issues
Anyone who’s on the opposite side of that is evil, and you’re making the strong case that that’s where you are
“And when you go to the fight, folks, rather than the fight coming to you, it rarely looks like self-defense to anybody.”
Andrew, I have read your book and a lot of your reviews but he didn’t come to the fight. He was trapped and could not drive away and only a fool would have gotten out of the car. Then a guy with a rifle approaches your window while people are threatening you and banging on your car, can you imagine what he must have felt like and feared? If ever there was a case of fear of bodily harm this is it. If I had been the defense lawyer I would have asked the judge to allow him to put the twelve jurists in a van at night and have people bang and scream at them and then ask them to do a simple math problem. Or approach the van with a flaming stick or gun. Then they would see what he must have felt like at the time, not sitting in a jury box.
“only a fool would have gotten out of the car”
Perry felt safe enough amidst the protestors that he lowered his car window. One doesn’t do that if they have a genuine fear of harm for the people on the other side of that window.
I’m sorry to disagree with you Andrew but when you look at the picture of his car with the gun bearer, he is surrounded by protesters. Sure, he rolled down his window because he knew he was going to be either shot or shooting and no one wants glass fragments flying in his face. I cannot imagine anyone in that situation “Feeling” safe enough to step out of his car into a maelstrom of unknown danger.
Perry felt safe enough amidst the protestors that he lowered his car window. One doesn’t do that if they have a genuine fear of harm for the people on the other side of that window
or they want to be heard over the ambient noise and warn foster to back off, or he’s decided to go for the weapon (depending on his position in the car) in attempt to disarm foster–he has a foot on the brake pedal perhaps to push from and use the door as an impact weapon
As a trial judge for twenty years, I believe that the author is being hyper-technical in his analysis. I would call this a case of clear self-defense.
Hey “Judge” Guimo, I’m calling you out on this B.S. Tell us your real name and where you were a trial judge. All of us here know exactly who Mr. Branca is . Who the hell are you?
So many comments here from people who didn’t even bother to read all of Mr. Branca’s analysis. And so many people here who have never conducted a criminal jury trial or know anything about the law of self defense. But hey, you are all experts now. If you are ever charged with a crime, just log on to LI and read the comments, and then you’ll never have to hire an attorney.
I wonder how Branca, I, or any sentient person capable of armed self defense, would react to someone who restricted their freedom to move and pointed a “Weapon of War” AT THEM at a quite vertical manner.
In the same situation, Branca would have made them the quietest person in Church the next day.
Why the law and its conjurers can be an ass.
“With all due respect to Jack, and to others promoting this image as evidence of Foster pointing his rifle at Perry, I simply don’t see it. If anything, it appears to me that Foster has his rifle held in a quite vertical fashion, rather than in the much more horizontal manner that would be required to orient the muzzle of his rifle at Perry. For clarity, I added to this image the red diagonal line in order to indicate what I perceive to be the approximate orientation of Foster’s rifle.”
“pointed a “Weapon of War” AT THEM”
Zero corroborated evidence that Foster ever pointed his weapon at Perry.
Indeed, Perry told police HIMSELF that Foster never pointed his rifle at him.
Other than that, good talk.
Well sir, I have to disagree. You had me questioning the point until I saw the still shot. I see a man with a rifle with the barrel pointed diagonally, and with the buttstock above his shoulder. The fact the barrel isn’t pointed straight down, along with the fact that the holder’s elbow is out in a position, which shows he was bringing the rifle up to the shooting position, tells me the guy did point the gun at the person in the car. No one else has their elbow up like that. Add the fact that many people were rushing the car in the first place, and I believe he did act in self-defense. Nothing else matters. JMO However, the state is required to prove him guilty, yet you seem determined to belong to the Nancy Pelosi doctrine that the shooter must prove his innocence. With all due respect. I disagree.
You’re literally looking at a photo of someone NOT pointing a rifle at anybody, and concluding that the also DID point the rifle at a PARTICULAR PERSON.
Good for you! Have fun! 🙂
“Legally sound” as far as we are allowed to know, so far.
They won on points in the game as played, but did someone under-inflate the ball? “Hey, none of our bought refs called soft-balls at the time, so the game counts.”
What’s it mean to “win” a game nobody trusts?
Institutions, like courts for example, work by reputation — people have expectations because of who they are. “Byond a reasonable doubt” now means “prove you played clean”, as well as “make your case”. That’s hard to do in a system that’s repeatedly gotten caught playing dirty.
“You betrayed the Duke. You stole his wife. You took his castle. Now, no one trusts you.”
For this particular case, here’s the reasonable doubt: that’s all the video? It’s a frakking BLM riot — excuse me “mostly peaceful” “action” (carrying AKs), with cops around, with media present, at a city intersection. Where’s the activist-cam video collected to clip into misleading twit-vids, trafffic cameras for red and speeding revenue, drone footage for seansationalist reporting, police bodycam FPS footage?
Unless the prosecution *can demonstrate* they have every video vacuumed up to The local Federal Fusion Center — that’s what they’re for — the video seen in court is presuptively a cheat. Sandman, anyone? Rittenhouse? “Mostly peaceful” protests in front of flaming backdrops.
Nobody is convinced by what happens in a court room they already believe is corrupt. This is the game they have made for themselves.
OK, 250 comments, let’s take a look at how things have developed. 🙂
IAAL. “Beyond a reasonable doubt” is not inconsistent with ACTUAL innocence. That is one of the reasons our Anglo-American justice system created and allows Pardons.
Appeallate courts are not concerned with ACTUAL innocence either. Men have been executed in cases where all the legal “bases” had been touched so the Appeal was denied but every judge acknowledged that the “murderer” was innocent.
I would try to avoid crowds of lefty agitators if I can, but in cases like this were I in a self-defense situation I absolutely would fear witnesses will lie (I’m not saying they lied in this case) to protect fellow lefties, especially if a conservative (or perceived conservative) would be prosecuted.
I would imagine this same jury would let off a rapist after the victim was shown to have flirted with someone on social media.
If that AR15 (or whatever rifle was carried) wasn’t slung over Foster’s shoulder the whole time, I would assume it was pointed at Perry. I just hope other liberal idiots take a lesson here, but sadly, they won’t. FAFO!
I reading that the prosecutor was was Exculpatory Evidence from the defense. That along should trigger an appeal. I think it is reasonable to assume that he felt his life was in jeopardy with his car surrounded. There was something like 45 hand prints all over his car and picture show his car surrounded.
Remember Reginald Oliver Denny? That along is justification for self defense.
That is not true. Or at least, if it is true, nobody knows about it.
What you are probably referring to is covered in the post: That the DA instructed a witness to withhold such evidence from the grand jury. That is entirely proper, and not a reason to dispute the trial verdict.
Lead Detective in Daniel Perry Case: Soros-Funded DA Removed 100 Pages of Evidence from Jury – DA’s Actions Went from Highly Unethical to Criminal Conduct
It appears they are talking about the “grand Jury” which is addressed above. I wonder why the defense did not have access to this information.
The defense had full access to this information. But the defense does not present to the grand jury.
I was talking about the defense. You covered the Grand Jury. I don’t know if that is clear. what the defense had. (not the Grand Jury). Did the defense have all the information? They are suppose to, but lately it seems disclosure seems to be a problem. It is a tough case in a tough court location. Without seeing the case, I would guess the defense fumbled this one. I really think there is enough evidence to show he was in fear of his life.
It is reasonable to think that 20 people banging on your car and a guy with a gun is threatening enough to worry about my safety. His lack of common sense is what got him. I really do think he was in a self defense position. They just failed at it.
Yes, the defense had full access to every bit of the information. Anyone who tells you it didn’t is a liar.
Well, if you’re going to be reading the Hoft brothers’ lie sheet, then of course you’re going to be misinformed. That stands to reason. The Hofts are both damned liars, and nothing coming out of their keyboards is worth anything. Assume every word they write is a lie.
Couple of points: One of my family members was one of four convicted of a very serious crime–resulting in death. During the trial of the fifth involved, exculpatory evidence escaped leading to all cases being thrown out. Presumably the prosecutors received the usual penalty, a sympathy note from the local bar wishing them better luck next time.
Another spent two years of hell and a six-figure legal bill fighting a case in which the defense’s most devastating witness was the prosecution’s expert. IOW, he had nothing going in and he knew it.
Were I on a jury, I’d vote to acquit despite any evidence presented. Can’t be too sure.
Spent time in the Infantry. When you move a weapon from one position to another, you might, despite training, run the muzzle past a position threatening another. Sometimes it’s accidental. In AIT, with the .45, I saw a kid scratch his ear–presumably absentmindedly–with the weapon. Perry was entitled to look at the AK and predict its direction in the next couple of seconds after the position we see in the picture was the reality. Presuming the reality is as Mr. Branca says it is.
Texas is not New York, but Austin may be. Perhaps we can get a jury white wash on the Roderick Scott acquittal here.
It’s not about the facts, it’s about the lineup.
To presume an Austin jury would not take the decedent’s buddies’ testimony at face value but with some skepticism was a mistake, although what the defense could have done about it escapes me.
Back in the day, I spent a lot of time on the mat. And I have the Infantry hand-to-hand, which could legally put me in the position of an armed person. Thirty years ago, I pulled an assailant off a woman he was assaulting. Nothing came of it, but two attorney friends opined it might be me accused.
And to dismiss the Reginald Denny case by remarking he was pulled out of his truck is pretty cheap. Before he was pulled out, he was….this may be difficult to follow…INSIDE the freaking thing.
I find Widburg’s analysis of the photo unconvincing. Look at the clean photo again. There is a woman standing behind the car blocking the left side of Foster’s body. Then you see two arms to her right, the one of the left is hanging down (this might even be Foster’s own left arm), the other is bent at the elbow. Both those arms appear to be behind Foster.
If you assume that Widberg is correct, that Foster has the rifle at horizontal, then where is the barrel of it? It should be visible in front of one or both of those two arms. If his right hand is essentially on the trigger, with it shouldered or near shouldered, where is the muzzle? It should be visible and isn’t.
I think Andrew is taking out of context what Perry said. Per https://www.fox7austin.com/news/daniel-perrys-garrett-foster-murder-trial-police-interview:
In my opinion it is reasonable for a person to believe his life is being threatened when someone is raising the end of a rifle barrel toward him.
By the way, a possible reason Perry did not testify is that his statements to police were already entered into evidence. His statements supported his self defense position, and he avoided potentially distorting cross-examination. Not everybody is a naturally clear communicator like Kyle Rittenhouse.
There also was expert testimony presented to the jury regarding the nearly instantaneous threat posed by Garrett Foster. Per https://www.fox7austin.com/news/daniel-perry-garrett-foster-murder-trial-renderings:
During his testimony, he presented a video where he recreated how fast a person with a rifle can shoot in a low ready position from 18 inches away from a car door. He shot seven consecutive shots and each one averaged less than a quarter of a second.
exactly–the other aspect that’s important for all of us to consider, regardless of this particular incident, is the idea of “waiting for the weapon / muzzle to bear (aim)”–if you follow that line of thought then the shooter has either already fired/hit you or left you trying to deploy your own weapon against an armed opponent with the drop on you–both of those options favor the perp–drawing against an armed opponent who’s already lined-up on you is a last resort indeed
What degree of surrounded and blocked by how many hordes, carrying how many visible arms, doing how much what to the captive car, before one may be in reasonable fear for one’s life?
What’s the threshold off a mob itself becoming a threat to eliminate?
Asking for people who might get mobbed. That happened 2 blocks from my home. Twice.
I’m sure Andrew’s legal conclusion is sound, but I think also immaterial. The foundational underpinnings of the legal system is: That to secure these rights (our unalienable rights), Governments are instituted among Men, . . .
The City of Austin sanctioned these riots and those people depriving others of their rights.
. . . whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it,
In other words that government that sanctions riots and the deprivation of rights is no longer legitimate and niether are their “legal proceeding.”
Obviously prudence still dictates, however, when the continued lawlessness is encouraged (just look at the LI article about Portland, University of San Francisco, not to mention Saint Louis, Philadelphia etc. ) one wonders how long this train needs to be before it is our duty, to throw off such Government, and to provide new Guards for their future security.
American are remineded to mutually pledge to each other our Lives, our Fortunes and our sacred Honor.
with his analysis of this case, I have lost respect for Branca and his opinions. What mattered was — Did PERRY fear for his life?
and if you dont give weight to what PERRY was thinking, then you CAN NOT give weight to Foster’s previous remarks that he did not think he would need to use his rifle.
“What mattered was — Did PERRY fear for his life?”
That may matter to YOU, but it’s not sufficient for the killing of Foster to be lawful.
A merely subjective belief in the need to use deadly force in self-defense is required, but not sufficient to justify that use of deadly force. That subjective belief must ALSO be objectively reasonable. A speculative, irrational, PANICKED, belief is inadequate.
How surrounded and confined by an armed mob, explicitly affiliated with a group that has done street violence, including pulling people from cars, to make fear for one’s life objectively reasonable?
How much movement of gun barrel towards one, to constitute a reasonable threat, or for self defense do you have to wait until they fire?
What’s the “reasonable” standard here, in legislation or case law?
Contrary to Mr. Branca’s assertion of this verdict being legally sound, it was anything but. 1) No one is legally required to be shot before acting in self defense. 2) The evidence does, in fact, show the aggressor (I will not use his name) holding his weapon in the “low carry” position beside Sgt. Perry’s vehicle. 3) The time that it takes to go from low carry to a firing position is extremely small as demonstrated by the use of force expert who testitifed in defense of Sgt. Perry. Which, by the way, took less than 1/4 of a second. 4) The DA not only tampered with a witness but tampered with evidence.
None of the above points to a “legally sound” verdict and Mr. Branca knows that.
The emotional screeching is so tiresome.
Stay away from juries, folks–you might get one loaded with people like this.
Nice, evassive answer. Now, cite any law that requires any person to be shot before attempting to defend themselves. I’ll save you some time. There isn’t any.
“Emotional screeching?” I’ll ask dispassionately…
— What are the standards in legislation or case law for the level of aggression, risk, or threat required to make self defense justified?
— Quite a few people get shot for far less aggressive posturing with fire arms that the guy in this instance, or things that look like maybe fire arms, and the “defensive shooters” get off.
— What are some facts that would flip the correct verdict the other way. I assume if in-his-car-guy himself died of the bullet wounds received before he shot back, he’d have a defense — er — defense. Cold comfort.
Does one have to, say, be pinned under an aggressor, with head being banged on concrete side walk beneath to make responding with deadly force defensive? Responding with any force? It’s OK to shadow a guy in the neighborhood, and as things play out, shooting him may be defensive. But going about your driving business, stumbling intoa protest makes you a part of the provocation, disqualifying arguing defense?
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.
Oh, that’s useful. OK,
— Rising barrel of AK, while surrounded, during a riot, by uniformly clad folks affiliated with street violence. Seems reasonable that it’s deadly force, or get deadly forced yourself.
Once the AK barrel is pointed at you, point-blank, it’s kinda too late.
— Public street, driving. Or was it closed down for protests. De facto “closed down” — how is one to know that?
__ “Provoke.” Well, that particular flavor of rioting goblins asserts that being there is a provocation, not agreeing well enough is provocation, some people’s simple existence is a provocation. ANIFA claimed this about Andy Ngo and others — their simple presence was provocation.
— I don’t see any claim of an associated crime. But, maybe some NY DA can come up with one.
New fodder for discussion. Motion for new trial filed. https://www.fox4news.com/news/daniel-perry-murder-case-attorney-files-motion-retrial?taid=6436ce84ddebfa00014f9991&utm_campaign=trueanthem&utm_medium=trueanthem&utm_source=twitter
Thanks, LongTimeReader, for the link. Defendant Perry’s brief is terse and persuasive. Let’s see what the prosecution puts up in opposition.
The motion for a new trial appears on initial look to be pathetically weak, as least with respect to the headline issue re: the admissibility of Foster’s purported “prior specific acts of violence.”
The motion correctly notes that “prior specific acts of violence” by Foster should be admissible (the trial judge excluded what the defense offered)–and then the motion fails to list even ONE “prior specific acts of violence.”
That said, the motion also raises separate issues that may be stronger–e.g., court erred by not allowing defense to admit police report that concluded justified homicide, that a jury improperly researched the law on burden of proof at night during deliberations and shared that purported mistaken research with fellow jurors, that an alternate juror “participated” in deliberations, etc.
This might depend on what the meaning of “violence” is. I think many will agree (and will grant me poetic license) that the Left has done violence to the meaning of “violence.” For example, Riley Gaines’ spoken words denouncing the allowance of men to compete in women’s sports was such violence as required her to be punched. Perry’s lawyers apparently recognized that their examples of excluded evidence might not include Foster’s engaging in acts that would be considered violent as we normals would use that word. Thus, while the case they cited refers to specific acts of violence, Perry’s lawyers refer to “specific instances of [Foster’s] conduct.” A later opinion in the same Texas case does not seem so stuck on the prior act being “violent” as in inflicting physical harm. “The proper predicate for the specific violent prior act by the deceased is some act of aggression that tends to raise the issue of self-defense, which the violent act may then help clarify. * * * For Diane’s testimony to be admissible at the time it was offered, there must have been evidence of an act of aggression by the deceased that tends to raise the issue of self defense. We find the deceased’s action of climbing up the second-story balcony, uninvited and unannounced, at 6:30 a.m. constitutes an act of aggression. Even if Valdez’s purpose of retrieving his belongings was not aggressive, the manner in which he pursued his purpose was aggressive.” Torres v. State, 117 S.W.3d 891, 895 (Tex. Crim. App. 2003).
Just broke 400 comments! Let’s see what’s up. 🙂
Well Mr. Branca I have served on several criminal trial juries and as we both know and any criminal lawyer will tell you, all jury trials are a crapshoot. That is why nobody likes to go to trial. Your opinion at the end of the day carries even less weight than the juror who states “Let’s convict this guy and go home because my husband likes his dinner on time.. That kind of conversation in a jury room is more common than you may think. Perhaps you can ascertain by these 400 comments this trial would not have resulted in a conviction if it were held in any other Texas county other than Travis.
I would like to commend Mr. Branca for his participation in this conversation.
I read the comments several times before noting that you say that the jury could have also acquitted (not your precise statement but I am on a cell phone and very time consuming to relocate the post).
I am not an attorney but have served as an expert witness in civil litigation and have been the corporate representative and/or witness in several civil trials.
My only experience in criminal trials was as a jury member in a 2nd degree murder trial in NY and in another state the rape of a minor child.
In both cases we were told we were the judges of facts and the credibility of witnesses and evidence. The veracity of witnesses in both cases determined the outcomes as the jurors believed that some witnesses were not truthful and their testimony was not trustworthy.
In this case I have not seen much detail of the trial unlike the Rittenhouse case. My guess is that the Governor with his legal background has someone who followed the trial closely.
He has said he will pardon Perry if he gets the request from the Board which he asked for. I think he will carry through with the promise and I think the legislature will enact law to provide a reasonable process to remove openly partisan prosecutors.
Both would be good outcomes for justice and for the nation.
I neglected to mention the reasonable doubt argument which I assume was part of the jury instructions. Maybe that is not part of the Texas system and the prosecution does not have to prove beyond a reasonable doubt in Austin. Don’t know.
With all of the back and forth on this board about whether the rifle was just being carried or wielded in a threatening manner I think the Governor could easily conclude that Perry could have easily believed to be in mortal danger.
Is there a carry, one or two hands, not slung, which shouts…NO HARM MEANT OR POSSIBLE…?
First, I should state that I am a huge fan of Mr. Branca. I have his book and have given several of them as gifts.
Second, based on the totality of what I know (which is a fairly high amount), I think Perry is not guilty. That said, I certainly appreciate that failure to testify and especially some of Perry’s stupid social media postings certainly lean toward a guilty verdict.
Finally, I understand Branca’s determination that the verdict was “legally sound”. But his argument entirely convince me that it is the Justice System which is flawed. Be it politically motivated prosecutors or giving weight to “co-conspirators” testimony and the obviousness of Judges allowing their courtrooms to be defiled with faulty argumentation … we no longer live in a Republic (The Rule of Law).
If on the open road my car were attacked by a gang of bikers and when I was stopped, a biker came to my car with a weapon and started swinging the muzzle of his rifle toward me and I shot him … are we really going to take the word of his biker friends that their buddy never started aiming his rifle at me?
Perry has options and when he runs out of them, he will still have his life in prison. Admittedly, that sucks. But Foster was playing stupid games with a long-gun and is dead and buried. Do not allow a bad guy to get the drop on you if you can do otherwise.