Driver Says Austin Protester Shot in Self-Defense
The person of interest in the shooting of an Austin protester armed with an AK-47 has identified himself to a news station and said he had to shoot in self-defense.
An attorney for Daniel Perry said in an email to KXAN that Perry was working as a rideshare driver and had just dropped off a fare and was looking to complete a request for a food pickup when he inadvertently turned into the protest.
“When Sgt. Perry turned on the Congress Avenue, several people started beating on his vehicle. An individual carrying an assault rifle, now known to be Garrett Foster, quickly approached the car and then motioned with the assault rifle for Mr. Perry to lower his window,” which the attorney says Perry did, thinking the gunman was a police officer.
The attorney says Foster then began to raise his weapon, and Perry shot and fired. Perry drove a short distance away to safety while another protester shot at him. He then called police.
Perry is identified as an active-duty Sergeant with the 1st Cavalry Division stationed at Fort Hood.
The attorney’s statement says Perry “deeply sympathizes” with the Foster family but then concluded with a plea to the public: “We simply ask that anybody who might want to criticize Sgt. Perry’s actions, picture themselves trapped in a car as a masked stranger raises an assault rifle in their direction and reflect upon what they might have done if faced with the split second decision faced by Sgt. Perry that evening.”
The statement is consistent with what police said in our earlier post -- Austin Police Chief Manley said it appears Foster may have pointed his rifle at the driver of this vehicle prior to being shot.
In that same post, we said it would be interesting to see what reasons the driver had for being in the area, since you can lose your claim for self-defense if you are participating in an illegal activity at the time. Turns out Perry, like a lot of the drivers we've seen, was going about his business and was trapped by the mob when he turned onto a street oblivious to the protest.
Perry, who had at least one tour of Afghanistan, would have personal experience identifying armed threats. Take a look at this photo of Garrett Foster (right) with his AK-47 set up with what appears to be a two-point sling, a foldable stock, and a 30-round magazine in the well. It's reasonable to surmise that Foster had the ability and the opportunity to deliver deadly force with this set up. His firearm is readily available and is already slung in a semi-low-ready position. Doesn't take much movement to get that muzzle up on target. No doubt Perry is familiar with seeing people with this weapon system and this sort of carry.
Before someone says, "hey, what if it's inoperable or a non-firing replica or an airsoft gun?" Doesn't matter. If it looks like a duck and walks like a duck, a reasonable person would say it's a duck. Being non-functioning is not a defense when you get shot when threatening someone with it. Think about bad guys who rob a convenience store with a toy gun. They still get charged with armed robbery. Play stupid games, win stupid prizes. Think about this before you use -- or recommend someone else use -- a non-firing replica because you "just want to scare the bad guys". You think you are being a good person because you don't really want to hurt anyone. Hey, none of us want to hurt anyone. We just want the bad people to stop hurting us. But pulling out a toy gun to scare someone is just like the subject who pulls out a toy gun to rob someone. It's a very naive and unintelligent move. You are going to be held to the same standards as someone who used an actual functioning firearm.
Now, take a look at this photo below. This is purported to be Foster circled in red in a screen shot from a video.
Presumably, this is Perry's car trapped by the crowd with individuals beating on it. Foster is said to quickly approach the driver's window motioning for Perry to lower the window -- which Perry says he did because he thought Foster was a cop.
But then, Foster pointed his rifle at Perry who responded to the threat of deadly force with deadly force of his own. From the videos associated with this incident (like the one below), it sounds like the first string of five shots must be Perry's handgun which apparently hit Foster multiple times.
How did Perry know what was happening?
If you are familiar with the mechanics of shouldering a rifle* with a pistol grip (like that Foster was pictured holding earlier), you can see Foster's right elbow coming up and out as his right hand is approaching his chin. If this motion is continued, the rifle comes up to the face for a "cheek weld" which is when the stock of the long gun comes into contact with the side of the face as a point of contact so you can align the sights for a sight picture. It's difficult to tell where the rifle is actually pointed, but from this frame, Foster's right hand is positioned in a way that's consistent with the operation of the rifle's firing system.
Use of Deadly Force for Self-Defense
Is Perry allowed to shoot someone who is "just" pointing a rifle at him? I mean, it's not like Foster actually fired it or anything...
Let's get this disclaimer out of the way -- we're not attorneys and chances are you are not either. All states have some differences in their definition of deadly force and self-defense. Yet, at the same time, most states are remarkably similar in their approach to law because of the common roots of English law and the precedents of case law accepted across the nation. You are responsible for having a grasp on the laws of your state. Remember, ignorance of the law is not a defense.
First what is deadly force? If we talk about it, shouldn't we define what we are talking about to be sure?
California defines it this way: "Deadly force means that force which a reasonable person would consider likely to cause death or serious bodily harm."
New York defines it as: "Deadly physical force means physical force which, under the circumstances in which it is used, is readily capable of causing death or other serious physical injury."
Texas (the jurisdiction where this event happened) defines it as: "Deadly force means force that is intended or known by the actor to cause, or in the manner of its use or intended use is capable of causing, death or serious bodily injury."
All three states have pretty similar definitions of deadly force.
It's probably safe to say that the threat of being shot with the 7.62 x 39 caliber round from an AK-47 constitutes deadly force. A typical 123-grain bullet of this caliber travels at 2,430 feet per second and has 1,653 foot-pounds of energy at the muzzle.
If Foster shoots, Perry stands a good chance of dying or being seriously maimed for life. Perry has to quickly consider four pre-conditions necessary to prove he is under a deadly threat:
Ability. Does Foster have a tool or the strength to cause death? This one is fairly easy -- yes, the rifle is a deadly weapon. Foster has immediate possession of the rifle (it's slung to his body).
Opportunity. Is Foster in a "situation or condition favorable for attainment" of his goal of shooting Perry? Opportunity is usually linked to distance. It appears Foster is right at the driver's window or point blank range.
Jeopardy. Is the threat imminent? Is it happening right now? Is Perry in an emergency situation? Foster is now pointing the rifle at Perry.
Preclusion. This means that all other reasonable means have, or would have failed. Perry could accelerate and drive away. Or does he feel trapped by the crowd? Would his plan to drive away most likely fail because he cannot outdrive a bullet moving at 2,430 feet per second?
These are all horrible conditions to have to consider in the chaotic, rapidly-evolving, and dangerous situation Daniel Perry has been put in. He didn't cause this situation. The crowd was in the street and blocked the legal flow of traffic. The mob was attacking his car. Then Garrett Foster strides up to the driver's window and points a deadly weapon at Perry.
Texas Laws on Defense of Person
Okay, let's look at Perry's choice under the lens of Texas law:
Sec. 9.32. DEADLY FORCE IN DEFENSE OF PERSON.
(a) A person is justified in using deadly force against another:
(1) if the actor would be justified in using force against the other under Section 9.31; and
(2) when and to the degree the actor reasonably believes the deadly force is immediately necessary:
(A) to protect the actor against the other’s use or attempted use of unlawful deadly force; or
(B) to prevent the other’s imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.
(b) The actor’s belief under Subsection (a)(2) that the deadly force was immediately necessary as described by that subdivision is presumed to be reasonable if the actor:
(1) knew or had reason to believe that the person against whom the deadly force was used:
(A) unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor’s occupied habitation, vehicle, or place of business or employment;
(B) unlawfully and with force removed, or was attempting to remove unlawfully and with force, the actor from the actor’s habitation, vehicle, or place of business or employment; or
(C) was committing or attempting to commit an offense described by Subsection (a)(2)(B);
(2) did not provoke the person against whom the force was used; and
(3) was not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic at the time the force was used.
(c) A person who has a right to be present at the location where the deadly force is used, who has not provoked the person against whom the deadly force is used, and who is not engaged in criminal activity at the time the deadly force is used is not required to retreat before using deadly force as described by this section.
(d) For purposes of Subsection (a)(2), in determining whether an actor described by Subsection (c) reasonably believed that the use of deadly force was necessary, a finder of fact may not consider whether the actor failed to retreat.
Again, a horrible situation which has a severe impact on all of the families involved, the witnesses, and friends. But take the lessons out of a terrible incident so that you are better educated and better prepared when the time comes for you to defend yourself as the rule of law continues to erode with the increasing violence and the fracturing of our society.
We will wait and see if any charges are brought up against Daniel Perry.
You can take a look at these previous posts for for self-defense tips as a driver during protests:
*My preference is to call both the AK-47 and the AR-15 platforms 'carbines' because they are shorter and lighter than rifles and shoot an intermediate cartridge. But I'll refer to these long guns as 'rifles' for ease of comprehension and consistency with outside references in this post.