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Posted on December 12, 2023 by in Shawn Vincent

The Daniel Perry Case Part 1: Visualizing Self-Defense

Army sergeant Daniel Perry, moonlighting as an Uber driver, found himself surrounded by a crowd of Black Lives Matter demonstrators. It was the summer of 2020, and the police killing of George Floyd sparked protests in cities across the country. Air Force veteran Garrett Foster had participated in several protest marches in Austin, Texas, and on the night of July 25th, he decided to carry his AK-47, which he was allowed to do as a law-abiding Texan. 

When Perry drove his car among a crowd of demonstrators, Foster approached Perry’s driver’s side window. Poor-quality video evidence hinted that Foster may have raised his rifle, although nearly all eyewitnesses say he did not. What is undisputed, however, is that Perry drew his .357, rolled down his window, and fired five fatal shots into Foster’s chest. Perry left the scene, drove two blocks away, and called 9-1-1 to report the shooting. He said he had never been so afraid in his life and claimed self-defense.

Senior homicide detective David Fugitt interrogated Perry. He thought Perry had a legitimate self-defense claim and did not recommend charges. His decision sparked outrage. Where some saw a clear-cut case of self-defense, others saw a murder. Attorney Joe Garza campaigned to become the Travis County District Attorney, promising to convene a grand jury to consider charges in the Perry case. Garza won his election, and true to his word, he presented his case to a grand jury, and they indicted Perry for murder on July 1, 2021 – nearly a year after the deadly shooting. The trial began on March 27, 2023. The jury convicted Perry on April 7. 

The verdict garnered instant controversy. Texas governor Greg Abbott waded into the public debate, stating that he would pardon Perry as soon as his Board of Pardons issued a recommendation. Many self-defense advocates questioned how an armed defender, confronted by a man with a rifle, could be convicted of murder for acting in self-defense. As news reports of the evidence presented at trial became public, it became clear how Perry’s actions transformed self-defense into murder. 

In the weeks and months leading up to the shooting, Perry expressed his frustration about the ongoing Black Lives Matter protests. He wrote on Facebook, “It’s official, I am a racist because I do not agree with people acting like animals at the zoo.” In June, a month before the shooting, he messaged a friend, writing, “I might go to Dallas to shoot looters.” In another message he wrote, “I might have to kill a few people on my way to work, they are rioting in front of my apartment complex.”

“Can you legally do so?” His friend replied. 

“If they attack me and try to pull me out of my car then yes,” Perry responded. 

Garrett Foster’s brother told reporters he thought Perry’s social media messages showed he was guilty. “This was clearly pre-meditated,” he said. “He thought a lot about it and planned on doing it … he wanted to kill a protester and saw somebody exercising their second amendment right.” 

Firearms instructor Steve Moses says he frequently sees people post inflammatory statements on social media, but he usually passes it off as bluster, skeptical if they would ever follow through with the claims they make online.  Regardless, Steve warns that kind of violent mental projection can have a negative impact on an armed defender’s mindset. 

 Steve says, “In many cases, people see what they think they are going to see.” If you expect to find yourself in a situation, and a similar situation presents itself, you may manifest the result you visualize. A defender whose actions reflect the “tough talk” they posted on social media can find themselves making poor decisions in a life-or-death self-defense scenario. 

Don West, criminal defense attorney and National Trial Counsel for CCW Safe doubts that many people believe Perry drove into the crowd of protesters with the specific intent to kill one of them. “He may very well have wound up in this situation largely by accident, with no intent, but he doesn’t get the benefit of the doubt anymore from those 12 jurors once they hear his social media statements.” Instead, Don says, “It sounds like he intentionally inserted himself in one of those fantasy scenarios he was talking about online.”

What Perry said online before the shooting hurt his case, and what he said to police in the aftermath of the shooting weakened his defense as well. Perry claimed he didn’t realize he was approaching the crowd of demonstrators because he was texting, but according to trial reports, prosecutors were able to make a compelling argument that Perry wasn’t using his phone at the time. 

At trial, prosecutors played a video of Detective Fugitt’s interrogation of Perry. The detective asked Perry to stand in front of him and demonstrate how Foster held the rifle. According to an article in  The Austin Chronicle, “Perry seems uncertain but holds the imaginary rifle pointed down at the officer. ‘I believe he was going to aim it at me,” he stammers, ‘I didn’t want to give him a chance to aim it at me, you know.’”

Steve Moses has demonstrated how it can take less than a second for a shooter to raise a rifle to his shoulder and fire an aimed shot, so Perry had good reason to be concerned about Foster. However, because Perry insisted in his initial statement to police that Foster had raised his rifle, this recorded statement became contradictory. 

“You’re stuck with everything you say right from the beginning, and if it doesn’t match up perfectly, not just with other statements that you make, but also with the physical evidence, then you have lied in their eyes,” Don West says. “It doesn’t matter whether you were lying then or you’re lying now – once you are seen as a liar, and the most critical points of your defense depend on the jury believing what you say, then you’ve dug yourself a big hole.”

Moreover, prosecutors showed the jury that Perry ran a red light immediately before driving toward the crowd of protesters. “That’s the crux of this case,” District Attorney Gonzales told jurors. “Why did he run that red light?” He suggested that Perry, harboring the desire to have an encounter with a demonstrator, spotted a “target of opportunity” and sped through the light to meet it. “They all fit together quite nicely,” Gonzales said. “The social media posts and the red light, and in Texas, ‘I can get away with it’ – that’s his state of mind.” 

As an armed defender, your mindset is critical to identifying and avoiding potential conflicts and surviving the legal aftermath if you cannot preclude a self-defense encounter. According to the prosecutors, Perry instigated the deadly encounter, and that contributed to his guilty verdict. Perry obviously knew about the ongoing protests, and he should have been aware that there had been multiple nights of demonstrations in Austin. Even if he didn’t know about the marches, had he been paying proper attention behind the wheel, he would have easily noticed the crowd of demonstrators before he found himself surrounded by them. Had he not already envisioned a circumstance where he could (in his own mind) justify using deadly force against a protester, then his first instinct might not have been to roll down his window and shoot Foster.

It’s not that visualizing self-defense scenarios is bad. All concealed carriers should envision situations where they may need to use deadly force, but responsible armed defenders use those visualization exercises to imagine a way to avoid or de-escalate a use-of-force scenario – not to “get away” with shooting someone. Armed defenders who use visualization to avoid using deadly force are often able to detect trouble early and take action to preclude a violent encounter. For those who cannot escape an attacker, a positive mindset that is focused on avoidance and de-escalation will help keep a defender from using force before it is justified.