Guest Piece: Governor Abbott Acts Decisively To Protect All Texans

[Note: By now, everyone is aware of the heinous prosecution of Army Sgt. Daniel Perry, who was unjustly convicted of murder last week in the 2020 killing of a heavily-armed radical BLM protestor named Garrett Foster last week, in a case brought by a Soros-funded prosecutor in Austin, Texas. In this piece, Nathan Kasper, himself a retired Lt. Commander in the U.S. Navy, details why this case should never have been brought, and details efforts by Gov. Greg Abbott to free Perry with a pardon.]

Since Friday, Texas' state and national news has been focused on the Garrett Foster shooting case. In the circles of military members and veterans (many who carry firearms off duty or as civilians), this is a case that we were very aware of prior to Friday's (short lived) conviction.

Police, military and veterans are typically well versed in combat arms. All police have to be versed in lawful use of force, and civilian statutes closely mirror "Rules of Engagement" that military members act upon while deployed. Military members who carry firearms off-duty also have the benefit of training to meet multiple states LTC (License To Carry) or CCW (Carry of Concealed Weapons) permits. While having to get different permits for different states is a pain when transferring duty stations, it does make for highly trained/professional personnel who know when force can legally be employed.

Garrett Foster was briefly internet famous before he was killed. In the Summer of 2020, when riots were breaking out across the nation and Texas, Foster was fairly unique in his path to gain attention. Foster was an Air Force veteran, who (unfortunately) had no combined arms training. Foster was a fuel technician, which is military speak for "gas station attendant for jets". I'm sure he was good at his job, though he did not even complete his 1st enlistment. Foster did know Texas laws for open carry, and made news and social-media for openly carrying his AK-47. Even in some of these videos, he makes "cringe worthy" movements where he grasps the grip of AK and shows poor muzzle awareness.

The 1st photo attached shows Foster standing with his AK-47 "at rest", with the barrel toward his girlfriend. Is this stance threatening? No. Is it careless and stupid? Absolutely. It was also careless and stupid for Foster to refer to people on the other side of his protest as "Pussies who are scared to do anything". Foster was clearly there with his rifle to intimidate people with the threat of force.

 
Foster was warned by Austin Police Department in the days prior to his death that his manner of carry was problematic, and could result in someone feeling threatened. Foster dismissed their concerns. It isn't known if the police who warned Foster of that concern explained the threshold that his stance (like the photo at rest) was close to crossing.

Texas Penal Code Section 9.32 states "A person is justified in using deadly force against another when and to the degree the actor reasonably believes the deadly force is immediately necessary, to protect the actor against the other’s use or attempted use of unlawful deadly force.

This is the basic self defense statute in Texas. There are other provision and caveats, all of which support the shooter (Army Sergeant Daniel Perry). In Texas, you can legally shoot someone if you are in fear of:

-To prevent imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.

-In defense of a 3rd party.

-or was attempting to enter unlawfully and with force, the actor’s occupied vehicle.

Texas' "Stand Your Ground" laws also apply here, because Daniel Perry had legal basis for being where he was at the time (driving a car down a city street), while Garrett Foster was engaged in an unlawful protest, attempting to prevent use of the streets (with the threat of force).

The 2nd photo in this post is of Garrett Foster approaching Sgt Perry's vehicle with his weapon shouldered and raised to the "low ready" position. 

This is a position that is taken immediately prior to engagement and firing. Every combat-arms, CCW, LTC, class that I have personally taken or instructed are very clear that this position is when you "turn the corner" from being an observer to engagement. While Foster is carrying a rifle in this case, this is the legal equivalent of a concealed handgun being drawn. Unlike the movies (and sometimes police), CCW holders and civilians are always taught not to draw or raise a weapon unless you intend to use it.

It was this action, clearly shown in the in the 2nd photo, that made it perfectly legal for Sgt Daniel Perry to kill Garrett Foster. This was a public, textbook case of a "good shoot" for personal self defense. Austin Police treated the case as such. Sgt Perry was interviewed the night of the shooting, and released without charges. Charges were not sought, nor recommended by the Austin Police Department. The Austin DA ignored the police recommendation and sought an indictment anyway. The lead detective, David Fugitt, accused DA Garza of witness tampering in the indictment of Sgt. Daniel Perry. The investigating officer and forensic analysis were all in support of the defense.

It is an entirely backward case where a lead investigator not only says that no crime was committed, but is the primary witness for the defense. It isn't lost on anyone in the state that Austin is a political city, with local politics that are antithetical to the rest of the state. In any other jurisdiction in Texas, a murder conviction can't be secured without the recommendation of the investigating officers or at least solid physical evidence.

This case was never about facts. It was always about politics. Austin is a city that has chosen to live outside of Texas law, and this trial failed to meet the judicial standard of providing a "jury of peers" for Sgt Perry. It is tragic, though not surprising that 12 jurors sympathetic to the deceased could be isolated and sat. At that point, facts and law no longer matter.

The ripple effect of this conviction, if allowed to stand, would have grave consequences. Firearms enthusiasts will always hotly debate the merits for and against open carry. However, a legal precedent that allows those opting to open carry a rifle to be protected even while aggressively charging a vehicle that is under assault would completely invalidate all existing self-defense statutes.

Further complicating the matter is the overt political nature of the actors in this drama. DA Garza is one of the most liberal/socialist district attorneys in the country. He has no appetite for prosecuting violent crimes in general, and Austin has the skyrocketing crime rate to prove it. This case is the exception, because the deceased was a "foot-soldier" in his political movement. The person who killed him, is an actual U.S. Army soldier, who is trained in threat analysis and combat arms.

Greg Abbott had no choice but to immediately commit to issuing a full pardon to #freedanielperry, not just because it was the right thing to do in this single case, but all of Texas' laws of self defense hang in the balance. While Liberals find themselves in the strange place of defending a "weapon of war" being on the streets, they are trying to find hypocrisy in Republicans for not respecting the "rule of law". While that is a fancy dig and might play well on Twitter, a pardon from Governor Greg Abbott is also within the rule of law. You can't respect one and throw out the other.

Make no mistake, this will be verdict nullification by Executive Order. Just like Daniel Perry shot Garrett Foster, he did it because he was given no choice. It was self defense. Governor Abbott is similarly killing DA Garza's case because it is an imminent threat to rule of law in Texas. The Governor's message is clear: No political prisoners will be taken in Texas.

Johnny Cash's message was also clear and should have been heeded: "Don't take your guns to town, son. Leave your guns at home. 

The Author, Nathan Kaspar, is a retired Navy Lieutenant Commander.  He is a combat veteran, and current chairman of Texas Conservative Veterans PAC.  If you would like to support Texas Conservative Veterans' mission to amplify the voice of Texas Veterans in our continued defense of the US Constitution, please do so at:  https://secure.anedot.com/txconsvets/donate