Thursday, April 13, 2023

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


21 comments:

Anonymous said...

One can see the validity of Garza arguments in the fact that he ordered the Austin police department to conceal from the defense and the court over 120 pages of evidence supporting Perry’s contentions. Clearly Garza is an honest man by Soros standards.

oldvet1950 said...

This is what REAL gun control looks like now. Use your weapon for self defense - go to jail. I know I'll never set foot in TX again until common sense returns to that state. I never knew TX allowed people to legally riot with weapons drawn and at the ready! And it must be legal since that facet of the case was never once mentioned. Scary place!

Anonymous said...

The Guv is going to the board because of 100 pages of exculpatory evidence that was hidden from the defense and jury...................
Johnny Gee

LL said...

Thanks BRM - soundly reasoned.

Unknown said...

Wait, what? If he is pardoned of a state-level crime, and did not commit a federal crime, why should his 2A rights be denied? Does a pardon not expunge the conviction?

Michael said...

Yep, your social media history WILL show up in court and BTW you're NOT Anonymous even with a fake name. If they want you, they will have your name and address and likely your cell phone records before end of shift.

If you doubt that ask yourself why when you look at shoes on the internet that all your devices soon have shoe ads? Almost like they talk to each other...

It's a lot of work for the officers doing it BUT if you're of interest, they can be directed to do so.


Do remember even if YOU'RE not acting badly that someone that chats with you on the internet or cell phone might be a subject of interest.

As Remus said, "Stay away from crowds" and I suspect he'd agree with this article about staying away from stupid people doing stupid things.

Evil government isn't new, abuse of the LAW to subdue a people isn't new. Even Solomon son of David the slingshot shepherd now King spoke of this.

Ecclesiastes 10:20
Curse not the king, no, not even in thy thoughts, and curse not the rich in thy bedchamber; for a bird of the air shall carry thy voice, and that which hath wings shall tell the matter.

Geofencing it's a thing. Having your cellphone (even if OFF) or a "Friends" cellphone in an area of "Interest" can add you to the "TO DO LIST".


Don Curton said...

Depends. I've read reports that the DA hid and/or failed to release evidence that would help the defense in clear violation of every aspect of our legal system. I've read stories where the lead investigation believed it was self-defense and that the bullet wound - angle, location, entry and exit, etc. all indicate that the deceased was "bladed" in relation to the shooter as if he were holding the rifle to his shoulder and aiming it at the shooter. All suppressed and not allowed in either the grand jury or actual trial.

And the witnesses for the DA? All friends and fellow protestors of the deceased. No incentive for them to lie, is there /s.

Finally, the real nail in the coffin was the shooter's social media posts. Supposedly shows a mindset of someone looking for an excuse to shoot somebody. He was convicted based on social media posts. Friends, don't Fed Post. Just don't.

Anonymous said...

I don't agree with Peter here, but I don't know the details of the system.
I do know that there is currently no federal way to get your 2A rights back, but there are state methods. (There are supposed to be systems everywhere but most jurisdictions don't fudn them).
I'm pretty sure that Texas could do it after a pardon if they wanted to.

Anonymous said...

There is no basis in law for the suspension of civil or human rights once a term of sentence has been completed.

Peter said...

@Anonymous at 9:33AM: Sorry, but there is a basis for that in law. It's been the law of the land in this country for at least a century, and perhaps further back than that. If convicted of a felony offense (as opposed to a misdemeanor), one loses one's civil rights unless and until they are restored by a Presidential pardon. Ask any lawyer.

Aaron said...

Peter: Sorry but that is incorrect.

State level felony offenses can both be expunged (if eligible) or pardoned and thus would restore full firearms and all other rights as if the offense never occurred. Pardons tend to be very rare but expungements of records at the state level of state-level felonies and misdemeanor domestic violence convictions do restore firearms and all other rights lost by the conviction (typically serving on juries and having CPLs, as most places let felons vote).

Federal pardons only apply to, and affect federal crimes.

Since Perry has a conviction of a state-level offense of murder, a state level pardon will in effect wipe his felony slate clean.

Landroll said...

I am not a lawyer although my father was one. He was convicted of murder so might not have been a very good one. So don't regard this as legal advice. Regardless, it seems the DA withholding 100+ pages of exculpatory evidence would surely be grounds to throw out the trial results on appeal. The DA and his office may have done this purposefully to certainly obtain a conviction whether or not it would be thrown out. They may be just that bad at their job that they needed to conceal the evidence hoping the defense wouldn't discover their duplicity. There may be other undiscovered or voiced reasons why the jury came back with their decision.

Anonymous said...

Calm down. It was AUSTIN, for God's sake, not the entire state.
Get off your high horse

lynn said...

Can I back up a little bit ? I would argue that the person who started this mess pointed a weapon at Sgt. Perry. Sgt. Perry had to assume that the weapon was loaded and ready to fire. Sgt. Perry is alive. The perpetrator is not. Now Sgt. Perry has to deal with the legal quagmire but, he is alive.

BillB said...

If pardoned at the state level, I would not be surprised if the Army brought Sgt Perry back on active duty since he has probably been discharged and court martial him on multiple charges to include murder. This would then be a Federal felony that only a President can pardon and a Democrat junta would never allow him to be pardoned.

Anonymous said...

Peter, you note the Sgt Perry's online history but neglected Foster's history on video tape.
When asked by a reporter why he was gunned up at a march his response amounted to....a friend of mine got arrested at another march...This from the guy who was supposedly attending to his double(?) amputee, wheelchair bound girlfriend.

As if to imply, he was going to use a weapon against police in the event he was arrested.

Is there any evidence Sgt Perry intentionally drove to the 6th Street demonstration with intent to confront?
Not from what I know. He dropped a passenger off and was trying to negotiate between the protest and all the one way streets in that part of town before being swarmed.

Ol'Remus was right but this isn't a case where his insight applies.
An honest juror would say don't approach me, at night, brandishing a gun while I'm swarmed by 6-10 others and I'm hemmed in.

If Sgt Perry had instead accelerated his vehicle to escape the situation and a person runover we would've heard "Chancellorsville, part II" echoed by media.

Your take is all wrong on this.

Anonymous said...

The da hid evidence.

Putting the deadly threat solely upon the pointing of the gun is disingenuous, because there is a mob surrounding the car that is adding to the threat.

There are also other factors that point to default being on the mob and the man with a rifle coming up to threaten a person in a car, who was just trying to make some extra money.

This is how the anti-gun people and the tyrants corrupt the system.

Make it seem reasonable when an innocent man who had to defend himself against a mob, one of that mob having a rifle which could easily cut through the car, is guilty because the da says so.

And again, suppressed exculpatory evidence.

Guilt because the da says so.

Mauser said...

I seem to recall earlier that night Foster posted a video displaying his AK rifle and bragging that it was for dealing with the police. If that wasn't admitted as evidence that Faster ware there hoping for a chance to use deadly force, then there was a mistrial at least.

Stealth Spaniel said...

Folks-Please stop posting on FB, Twitter-Twat, or any other social media site!!! There is no good there-at any cost. You can think all you want, write on a piece of paper that you have 30,000 handguns fully loaded and waiting for Politican X to make an appearance. But that paper doesn't go anywhere, it is easily destroyed, and no one read it. Cities like Austin are not just weird; they're terrifying. The battlelines have been drawn and there is no stopping the haves and have nots. I understand the young man needed a job. Driving Uber is fine but DON'T BE IN THE MIDDLE OF A CF!! Tell your passenger that they can walk from the outskirts of town or you will send another driver. I would advise all to get as Gray as possible. Chasing ghosts is pretty tiring, so stop giving out your live's details.

ravenshrike said...

Branca's analysis of the gun never being pointed at Perry requires one to confuse cover and concealment. The gun was pointed at the car door in the video, and that car door would have done nothing significant to stop 7.62x39. If it hit a support it might have deflected the round slightly in a different direction than the aimpoint.

oldvet1950 said...

If you bring a rifle to a 'demonstration' and especially if it is NOT slung on your shoulder but at the ready position, only an idiot would believe the rifle bearer would never mean any harm.