Video Series: The Daniel Perry Case Pt. 2

Dressed in tactical gear and carrying an AK-47, there’s no doubt Garrett Foster looked threatening, but did he pose an actual threat to Daniel Perry? Firearms instructor Steve Moses gives his assessment.

 

 

Shawn Vincent: 

Hey everybody, thanks for joining us. I’m Shawn Vincent. Today is part two of our conversation about the Daniel Perry case. In our last segment, we talked about the facts of the case. If you didn’t see that, go back to look. If you don’t want to do that, here’s the facts in a nutshell. You probably know this case. This is the case of Sergeant Daniel Perry, an army sergeant who drove Uber, moonlighting to make extra money. This is back in the summer when there were protests in the wake of the police killing of George Floyd. There were protests across the country. There were protests every couple of nights in Austin, Texas. There was an Air Force veteran named Garrett Foster. He was one of the protestors in Texas. It’s an open-carry state. He was legally carrying his AK-47. He was wearing tactical gear during this protest. Sergeant Daniel Perry drove his car towards this crowd of protesters.

He was surrounded by the protesters, they were kicking and banging on his car. Garrett Foster approached him in his full tactical gear with his AK-47 strapped to him. Daniel Perry felt in fear for his life. He said he pulled out his .357, and he fired at Perry. He said that after Perry lifted his rifle towards the window. His testimony is inconsistent on that point, and the testimony of witnesses is also inconsistent on that. Garrett Foster died. Daniel Perry was eventually arrested and charged with murder. He went to trial earlier this year. I got together with Don West, he’s National Trial Counsel for CCW Safe, and Steve Moses to talk about this case. In this segment, we feature Steve Moses, he is a self-defense expert and a tactical trainer. We ask him to assess what kind of threat that Daniel Perry could reasonably have believed that Garrett Foster posed armed in that tactical gear.

It may seem obvious. It did for a lot of people who felt that this verdict, this guilty verdict in this case, was controversial. Steven tells us it has a lot to do with body language and what Sergeant Perry read into Foster’s intent. And ultimately in additional segments later on, we’ll get into what evidence there was for what Sergeant Perry’s intent was for finding himself in that position in the first place. So, today you’ll be hearing from Steve Moses, talking about the tactical realities of the Sergeant Daniel Perry shooting of Garrett Foster. Here’s my conversation:

Shawn Vincent: 

Steve, I think a good place to start is the point that you brought up because the tactical situation that Daniel Perry is confronted with is that he’s in his car, I’m going to go say he’s kind of boxed in. He’s got people around him. They’re being aggressive. It seems not to be in dispute that they were banging on his car or kicking his car. Whether enough to damage it or not, I don’t know, but that’s a terrifying place to be, I think, especially when you’re strapped into this car and the only way out of it is to potentially run over people. And then out your window, you see this rather imposing figure, Garrett Foster by all accounts was not a petite man, dressed in this tactical gear. In fact, Daniel Perry’s lawyer said in closing statements that Garrett Foster was dressed for combat. Daniel Perry was dressed for the beach. Right?

So, here he comes up, you see the silhouette of this AK-47. And he’s coming right up to the window, he wants to address the driver in one way or another. By the accounts I read, that’s when Perry rolls the window down. He had a .357 revolver. He told officers that he had it between his console and I think the passenger seat. And he draws it and pulls it, he tells the Detective Fugitt, I believe is his name. The press report I saw said in the video played at trial of Fugitt seated, asked Perry who was standing in front of him to demonstrate how Foster held the AK. Perry seems uncertain, but he holds an imaginary rifle pointed down at the officer. And he says, “I believe he was going to aim it at me. I didn’t want to give him a chance to aim it at me, you know?”

That’s a scenario we know. HYe fired five times and killed Foster. And I think a lot of concealed carriers to think about that situation, you’re strapped in the car, you might not be able to just go anywhere because there’s people all around you. And now somebody has a rifle and they’re coming up in this threatening way to the car. Steve, how many fractions of a second are you from being in actual peril in that situation?

Steve Moses:

If that person is halfway competent and has had a little bit of training, one second or less. In that timeframe, a trained shooter can bring that gun up to the shoulder and fire an aimed shot at what appeared to be a relatively close distance. And furthermore, that was an AK-47. That’s a .30 caliber bullet, it was probably more than capable of not only penetrating the car door, but maybe fully penetrating Perry himself. So, it’s a relatively powerful gun. It’s very effective when used against thin-skinned automobiles and everything. So, if Perry had any knowledge of what kind of weapon system that was, which being an army sergeant, I certainly would think he would. I think he was very much aware of how much peril he could be in.

Shawn Vincent:

Sure. And I think Perry had served in Afghanistan, so he’d probably seen an AK-47 before. Now it’s difficult because, so in less than a second, had Garrett Foster wanted to, he could have shot Daniel Perry with that rifle from a low position to firing.

Steve Moses:

As a matter of fact, I even sent you a video of myself demonstrating that that’s something that we actually teach in our defensive carbine classes. The reason we teach that is that by having that skill, that allows perhaps an armed homeowner a little bit more time to manage the situation, knowing that they can respond to it very quickly. And of course, we always want to do anything we can to avoid shooting another person or even aiming that gun at another person.

Shawn Vincent:

Here’s where this becomes tricky. Because from a legal justification point of view, the belief or the fear that somebody might aim it at you, when we’re talking about the imminence of their ability to cause great bodily harm, that’s not quite enough yet if there’s not other indicators as to what their intent is, is there?

Steve Moses:

Yes and no. I mean, I think it remains you’re in a very dangerous area. There are people that are very good at concealing their intent. Basically, we’ve talked about the sucker punch, the same thing could be true with firearms. The other thing I would have to ask myself is what was the body language of Foster when he was approaching the car? Was he striding up there in a manner in which he was appearing aggressive in any way? So, if I take in all these factors that I have someone that’s moving in on me aggressively and they have their hands on a gun. In the one picture I saw Foster holding that gun, it appeared he knew what he was doing. I noticed that he had his trigger fingers straight and along the side of the receiver. And so I believe you said that he was also prior military. Is it Air Force? Is that correct?

Shawn Vincent:

Yeah, Air Force. Yeah. And I’ll tell you, I don’t know if you read this, and this didn’t come into trial, this is something that the defense attorneys want to bring up in their appellate process, but there was evidence that Garrett Foster was deemed unsuitable to handle a weapon when he was in the Air Force. The jury didn’t hear that information.

Steve Moses:

Well, my point being is that, okay, I’m in a situation where I’ve put myself whether I should be there or I shouldn’t be there, I’m still there. I don’t feel like necessarily that I can drive off for fear that I might injure or kill some other people that are in front of my car. And I have someone coming up to me, maybe we don’t know this in a manner that their body language suggested that they were being confrontational. And they had their hands on a firearm and a rifle, a very powerful rifle, and I knew they were capable of engaging me on very short notice. At a minimum, I would be concerned and I would be looking for ideally some other options. I do have some empathy for the situation in which Perry found him in, just kind of based upon the things that I think might have occurred at that time. It doesn’t mean that I think he was justified shooting him, it just means I would have a lot of concerns about that myself.

Shawn Vincent:

After the shooting, Sergeant Perry gave a number of statements to investigators, and while he wasn’t arrested for almost a year, some of those key statements ended up being contradicted by other witness statements and by physical evidence. And that means, despite the clear evidence that Sergeant General Perry had reasonable belief to fear for his life, his own statement started torpedoing his criminal defense. In our next segment, I’ll be talking to Don West about that. Until then, be smart, stay safe, take care.