The sad case of Sgt. Daniel Perry

 

I'm sure most of my readers are familiar with the case of Sgt. Daniel Perry, who shot an armed demonstrator in what he believed was legitimate self-defense in Austin, Texas, in 2020.  Sgt. Perry was convicted last week of murder.

Many (including myself) believe the case should never have been brought to trial.  Indeed, the Austin police who investigated the incident specifically recommended that no charges be brought, because they regarded the incident as a legitimate case of self-defense.  The (liberal) District Attorney disagreed, brought charges, and last week succeeded in convincing the jury that Sgt. Perry had not been sufficiently threatened to warrant his claim of self-defense.

Andrew Branca, a well-known lawyer and Second Amendment defender whom we've met in these pages before, has some trenchant comments on the case.

From the start Perry would be arguing that he shot Foster in self-defense, and only after Foster had pointed his rifle at Perry.

And right there we have the key issue in this murder trial.  Certainly, if the jury believed that Perry fired only after Foster pointed his rifle at him, there could hardly be a clearer case of self-defense.  Indeed, as someone who personally carries a firearm for self-defense on a regular basis, anyone who unlawfully points a rifle at me ought to have a high expectation of getting shot in self-defense.

Immediately following the announcement of the guilty verdict, social media rather exploded with outrage at a guilty verdict so insanely inconsistent with Perry’s narrative of shooting in self-defense only after facing the muzzle of Foster’s rifle.

The problem with this outrage, however, is that it presumes as an indisputable fact that Foster initiated the deadly force confrontation by pointing his rifle at Perry.

That “fact,” however, is not indisputable. Indeed, that fact was aggressively disputed by the prosecution, which argued to the jury that Foster never pointed his rifle at Perry, and so Perry’s claimed legal grounds for shooting Foster in self-defense simply doesn’t exist.

In support of this narrative of guilt the prosecution presented the testimony of multiple witnesses who told the jury that Foster never pointed his rifle at Perry. The confrontation itself was captured on poor quality video, from which screen captures were secured, and neither video nor stills ever show Foster pointing his gun at Perry.

Indeed, the only evidence to support Perry’s claim of Foster pointing his rifle at him are Perry’s own self-serving statements following the shooting.

If the jury concluded that Foster had not, in fact, pointed his rifle at Perry, then it must also conclude that it was Perry who was the initial deadly force aggressor in this confrontation when he shot Foster—and, as the initial deadly force aggressor Perry cannot justify his use of force as self-defense.

. . .

Unfortunately for Perry, when considering his own testimony with respect to the alleged pointing of the rifle, a claim for which he is the only source, in light of the factors just described that a jury is told to apply in evaluating credibility, Perry’s own conduct substantially undermined his narrative of innocence.

The prosecution presented the jury with social media messages of Perry’s from which they might reasonably infer that Perry was looking for an opportunity to use deadly force against protestors.  One Facebook message stated “I might have to kill a few people on my way to work.” In a Facebook comment about a video showing protestors being shot in San Antonio earlier that year, Perry wrote that he was “glad someone finally did something.”

Is it possible that these and other similar social media comments were simply expressions of bravado? Certainly no one who believed that they might really have a substantive need to kill people on their way to work that day would simply proceed to work in the normal manner. So perhaps this was merely bravado. The jury, however, is free to instead agree with the State’s preferred inference that they illustrate the state of mind of a man looking for a deadly force confrontation.

And when you go to the fight, folks, rather than the fight coming to you, it rarely looks like self-defense to anybody.

Branca goes on to analyze several aspects of the case that did not help Sgt. Perry's situation (including the fact, of which I had not been aware, that he had been specifically prohibited by his military superiors from going to Austin, and that by doing so he had disobeyed a legitimate order).  He also examines the political influences involved, and concedes that the DA is a left-wing activist who may have brought the charges for political reasons.  He concludes:

I have every reason to believe that this representation of Garza is correct, and that Garza was motivated to bring Perry to trial largely for political purposes—particularly after local law enforcement investigated and concluded that Perry’s shooting of Foster was lawful.

The political motivations of Garza, however, do nothing to change the law and evidence of the trial—and those, as discussed, are more than sufficient to allow a reasonable jury to arrive at a verdict of guilty in this case.

Zimmerman and Rittenhouse were acquitted despite being politically prosecuted because the evidence was on their side.  Perry may have been convicted in this likely politically motivated prosecution because in his case the evidence was contrary to self-defense.

. . .

I can already see on social media that the large majority—perhaps the entirety—of the folks I would typically expect to be on my side of the political divide have taken it as a matter of nearly religious faith that Daniel Perry has simply been railroaded by a Soros-funded prosecutor, that we’re dealing here with what could have happened had George Zimmerman or Kyle Rittenhouse been wrongfully convicted.

But a proper legal analysis must be done rationally, independent of emotion and political or other biases. The evidence and the law must guide us in our analysis. Sometimes the destination we arrive at will be unpleasant.  That does not make it legally unsound, however, and forcing a legal conclusion to satisfy emotional and political desires is simply not sound legal analysis.

There's more at the link.  Analyzing the entirety of the case, Branca concludes that Sgt. Perry's conviction was "legally sound".

This won't please anyone on the conservative side of the equation, particularly me.  However, I'm forced to agree with Mr. Branca that if the evidence led during the trial was, indeed, correct (something about which I'm not certain:  given all the emotion and partisan politics involved in the case, I suspect some of the witnesses may have "shaded the truth" in several ways), the jury's verdict can be justified.

This is one instance where the "pure" law of the land can't account for all the circumstances of the situation.  For example, the demonstrators were undoubtedly obstructing the constitutional right of freedom of movement of everyone else on the scene.  I personally would regard this as a violation of my legal rights - but would I be justified in using lethal force to defend that particular right?  If I saw demonstrators holding firearms in immediate proximity to my vehicle, I'd certainly feel threatened by that, and would be prepared to defend myself - but is the mere presence of a firearm sufficient grounds to actually do so?  It's all very well for police or the military to say that a suspect refused to release his weapon, and therefore they fired on him;  but as a private individual, I don't have their qualified indemnity, and other civilians are under no legal obligation to obey such an order from me.  This case runs headlong into a whole range of issues that are more emotional than legal, and more instinctive than reasoned in the heat of the moment.  The cold, gray light of hindsight - particularly in a court of law - can't necessarily account for all of those factors.

I note that the Governor of Texas has asked the state's Board of Pardons and Paroles to submit a recommendation for Sgt. Perry's pardon, and has promised to sign it "as soon as it hits his desk".  Under the circumstances, I think that may well be appropriate, and I'll support it.

Nevertheless, all of us would do well to take a long, objective, dispassionate look at this case, and ask ourselves what issues it highlights that we need to take into account should we have to defend ourselves.  We don't want to find ourselves in Sgt. Perry's position.

I close with John Farnam's sage and timeless advice, which we've also read in these pages on several previous occasions.

The best way to handle any potentially injurious encounter is: Don’t be there. Arrange to be somewhere else. Don’t go to stupid places. Don’t associate with stupid people. Don’t do stupid things. This is the advice I give to all students of defensive firearms. Winning a gunfight, or any other potentially injurious encounter, is financially and emotionally burdensome. The aftermath will become your full-time job for weeks or months afterward, and you will quickly grow weary of writing checks to lawyer(s). It is, of course, better than being dead or suffering a permanently disfiguring or disabling injury, but the “penalty” for successfully fighting for your life is still formidable.

Crowds of any kind, particularly those with an agenda, such as political rallies, demonstrations, picket lines, etc are good examples of “stupid places.” Any crowd with a high collective energy level harbors potential catastrophe. To a lesser degree, bank buildings, hospital emergency rooms, airports, government buildings, and bars (particularly crowded ones) fall into the same category. All should be avoided. When they can’t be avoided, we should make it a practice to spend only the minimum time necessary there and then quickly get out.

“A superior gunman is best defined as one who uses his superior judgment in order to keep himself out of situations that would require the use of his superior skills.”

I bet Sgt. Perry wishes he'd done that . . .  Even if he's pardoned, it'll be a state-level pardon, which means his federal constitutional rights (including the right to keep and bear arms) will not be restored.  A sympathetic President might consider a federal pardon, which would restore them, but I suspect the present administration will not.

Peter