Foster, who was a 28-year-old white man and an Air Force veteran, had been seen openly carrying an AK-47 rifle at the time, which is legal. There are conflicting accounts as to whether Foster raised the rifle to the driver first — but seconds later Perry, who was also legally armed, shot and killed Foster and fled the area, police said. He called the police and reported what happened, claiming he shot in self defense after Foster aimed his weapon at him. Perry is also a white man.
The case sparked debates over Texas’ “stand your ground” law, which allows people to use deadly force against someone else if they feel they are in danger. But Perry’s social media posts about retaliating against protesters raised questions about the shooter’s state of mind and his self-defense claim.
The “stand your ground” law prohibits an individual from arguing self-defense if they provoked a threat from someone else. Witnesses said that Perry seemed to drive threateningly into the crowd before shots were fired, and his actions seemed intentional.
Perry’s attorneys argued that the shooting was self-defense as Foster approached Perry’s car with an AK-47 rifle. Prosecutors said Perry could have driven away before firing his revolver and witnesses testified that Foster never raised his rifle at Perry.
prosecutors have developed a fuller picture of Perry's intention and possible premeditation by showing the depth of the hatred he harbored for BLM demonstrators protesting police violence in the summer of 2020.
Two months into those protests, on Saturday, July 25, 2020, Perry, a sergeant stationed at Fort Hood and working as a rideshare driver in Austin, accelerated his car into a crowd of protesters at the corner of Fourth Street and Congress Avenue. Garrett Foster, a 28-year-old Air Force veteran openly carrying an AK-47 across his chest, approached the car. The driver's side window opened and Perry shot Foster four times in the chest and abdomen. Perry turned himself in to Austin police seconds later, claiming he'd shot in self-defense after Foster raised the barrel of his gun. Austin Police Department officers questioned Perry and let him go. Garza presented the case to a Travis County grand jury shortly after taking office in 2021. The grand jury indicted Perry for murder and assault.
The testimony confirming Perry's anger toward protesters came on the third day of the trial as prosecutors displayed text messages and social media comments showing that he thought about killing them. "I might have to kill a few people on my way to work, they are rioting outside my apartment complex," Perry wrote to a friend in June of 2020. "I might go to Dallas to shoot looters," he wrote on another occasion. Perry also encouraged violence in a variety of social media posts.
In addition, Perry speculated about how he might get away with such a killing – by claiming self-defense, as he is now doing. Prosecutors presented a Facebook Messenger chat between Perry and a friend, Michael Holcomb, which occurred two weeks before he shot Foster. In it, Perry argued that shooting protesters was legal if it was in self-defense. Holcomb, who was called to the stand, seemed to try to talk Perry down. "Aren't you a CDL holder too?" he asked, referring to the men's licenses to carry concealed handguns. "We went through the same training ... Shooting after creating an event where you have to shoot, is not a good shoot."
None of this seeming premeditation was on display after Perry turned himself in to APD officers. In his recorded 911 call, played on the fourth day of the trial, Perry claimed that he drove into the protesters by mistake after taking a wrong turn. Body-camera video played the next day shows Perry, after being taken into custody, told officers Foster had pointed his gun at him. "I didn't know he was going to aim it at me," Perry says. "I thought he was going to kill me ... I've never been so scared in my life."
This claim – that Foster raised the barrel of his AK-47 – is, of course, Perry's principal defense to escape a murder conviction. It was refuted over and over during the first three days of the trial by witnesses who were near Foster that night. All repeated a version of the same story: They heard squealing tires as a car sped into a group of about 20 protesters. The protesters, some of whom had almost been hit by the car, slapped and kicked it. Garrett Foster strode to the car's side and issued an order to the driver. All of the witnesses insisted that Foster did not raise the barrel of his gun. According to the D.A.'s lead prosecutor, Guillermo Gonzalez, his gun was recovered with the safety still on and no bullet in the chamber.
The courtroom where the trial unfolded is less than a mile from where Foster died. It was packed through the first week with family members and the young people who protested alongside Foster and his fiancée, Whitney Mitchell. Foster's family sits in the front row on the right side of the courtroom. His mother, Sheila, has wept as pictures of her son's dead body are displayed and attorneys reenact his killing. Perry's parents, visibly worried, sit behind him in the front row on the left side of the courtroom. He sits beside his attorneys, Clint Broden and Doug O'Connell, wearing a dark-colored suit, his hair buzzed close, his face dipping down.
On the trial's sixth day, before resting and allowing the defense to begin presenting witnesses, prosecutors played interviews recorded with Perry after his surrender to officers. In these, Perry cries, talks compulsively, and constantly repeats, "I'm sorry." He reacts with something like panic when he learns Foster has died, saying, "Oh my god, oh my god, he's dead, oh my god!" But after being told that he will be released he calms down. By the end of the interviews he's calm enough to attempt a joke, asking, "Do I get to keep the jumpsuit?"
