On April 7, 2023, Daniel Perry was found guilty in the 2020 murder of Garret Foster during a Black Lives Matter protest in Austin.The shooting occurred as Perry was driving his Uber vehicle amongst a crowd of BLM 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 fled the scene, during which another protestor fired three shots, striking Perry’s vehicle. Perry then called 911, and was shortly thereafter approached by and spoke with a responding police officer. From the start Perry would be arguing that he shot Foster in self-defense, and only after Foster had pointed his rifle at Perry.Andrew Branca analyzed the legal sufficiency of the conviction for us, and found it legally sufficient regardless of what the political reaction was or how much people sympathized with Perry, Daniel Perry’s Murder Conviction Was Legally Sound:
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.****I have seen posted on Twitter a photo that purports to actually show 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.
Read the rest of Andrew’s analysis and some of the popular myths about the case at the link above.
There was huge public sympathy, as people instinctively could put themselves in Perry’s situation given the riots rampant around the country. What if you got trapped that way?
But the public feeling sympathy was not going to win the legal argument.
I wrote after the trial, Daniel Perry Files Motion for New Trial As Pardon Process Starts
I don’t like this result, even if it holds up to legal scrutiny, but there may be no legal out, as Andrew demonstrated. The only out appears to be political.Gov. Greg Abbott said he wants to pardon Perry. Under Texas law, he can do that only if the pardon board recommends a pardon, so Abbott has requested expedited review. That process is starting:
… the Texas Board of Pardons and Paroles is looking into possibly recommending a pardon for Daniel Perry per a request made by Governor Greg Abbott.The Texas Board of Pardons and Paroles sent FOX 7 Austin this statement:“Chairman Gutierrez, the Presiding Officer of the Texas Board of Pardons and Paroles has received a request from Governor Abbott asking for an expedited investigation, along with a recommendation as to a pardon for U.S. Army Sergeant Daniel Perry. The board will be commencing that investigation immediately. Upon completion, the board will report to the governor on the investigation and make recommendations to the governor. The Board has no further comment.”
Perry received a 25 Year Sentence.
The Pardon process now is completed, and Governor Abbott accepted the unanimous pardon recommendation, including restoration of Second Amendment rights:
“The Texas Board of Pardons and Paroles conducted an exhaustive review of U.S. Army Sergeant Daniel Perry’s personal history and the facts surrounding the July 2020 incident and recommended a Full Pardon and Restoration of Full Civil Rights of Citizenship,” said Governor Abbott. “Among the voluminous files reviewed by the Board, they considered information provided by the Travis County District Attorney, the full investigative report on Daniel Perry, plus a review of all the testimony provided at trial. Texas has one of the strongest ‘Stand Your Ground’ laws of self-defense that cannot be nullified by a jury or a progressive District Attorney. I thank the Board for its thorough investigation, and I approve their pardon recommendation.”
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