Gov. Abbott of Texas Declares Open Season for Violent, Armed Racists

Gov. Abbott (right) vowed to pardon Daniel Perry (upper left), convicted by a jury of murdering Garrett Foster (lower left) at a BLM protest in Austin in July 2020. Photos courtesy of Occupy Democrats

On Saturday, less than 24 hours after a jury delivered its guilty verdict, Texas Governor Greg Abbott vowed on social media to pardon Daniel Perry, who was found guilty of the murder of Garrett Foster, an Air Force veteran. Abbott requested that the Texas parole board review Perry’s conviction on an expedited basis.

The move set off a firestorm of criticism due to the fraught racial politics surrounding it. Perry murdered Foster during a Black Lives Matter march on the night of July 25, 2020. With strong echoes of the Kyle Rittenhouse case in Kenosha, Wisconsin, both the perpetrator and the victim were white, and at issue was whether Perry acted in self-defense.

Gov. Abbott was bowing to pressure from far-right extremists, including Rittenhouse, Fox’s Tucker Carlson and the Texas Republican Party, all of whom had called upon Abbott to undo Perry’s conviction. Abbott claimed he would follow through with the pardon as soon as it “hits my desk.”

“Texas has one of the strongest ‘Stand your ground’ laws of self-defense that cannot be nullified by a jury or progressive district attorney,” the governor tweeted over the weekend. “I will work as swiftly as Texas law allows regarding the pardon of Sgt. Perry.”

But state Sen. Sarah Eckhardt, D-Austin, called Abbott’s move “a stunning and dangerous abrogation of the rule of law that will embolden more armed confrontations and inevitable tragedies.”

Let’s review the facts as known and reported, discuss what laws were implicated, and then consider what Abbott’s pardon means, not only personally to the victim’s loved ones, but in the broader sense of social justice in a time of extreme gun culture. 

The murder of Garrett Foster

At the time of the incident, the city of Austin, like many other cities across the country, was engulfed in protests following the murder of George Floyd by Minneapolis police. The killer, Daniel Perry, an army sergeant, was a vocal opponent of Black Lives Matter. Before the murder, Perry had expressed violent threats online, including that he might “kill a few people on my way to work” because the protestors were “rioting outside my apartment complex.”

A friend asked, “Can you legally do so?”

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

On the night of July 25, 2020, according to Austin police, Perry stopped his car and honked at protesters as they walked through the street. Seconds later, he drove his car into the crowd, police said.

Protestors then approached his car and surrounded it. Among them was Foster, 28, who was pushing his fiancée in a wheelchair during the protest. Foster was carrying an AK-47. Texas is an “open carry” state, so Foster was within his legal rights to be armed. 

Perry claimed to police that Foster had raised his weapon at him and that he then shot Foster in self-defense, with five shots fired through his car window using a .357 revolver. Perry then sped away, calling police to report the incident later.

The trial of Daniel Perry

Perry’s version of events was contradicted by evidence at trial, including by Perry’s own account. Prosecutors played a tape of the police interview of Perry. In it, the defendant physically demonstrated the height at which Foster had raised his weapon, and it appeared Foster’s weapon had not been aimed directly at Perry but rather toward the ground. To underscore this key point, Perry later stated, “I didn't want to give him a chance to aim at me, ya know?"

Under Texas’s broad “stand your ground” law, deadly force may be deployed by those who feel they are in danger in a place where they have a right to be. Prosecutors argued that Perry initiated the encounter by running a red light on purpose, raising the question of whether it was Foster who was within his rights to defend against a dangerous man who had driven his car into a crowd. They also argued that Perry could have driven away instead of firing his weapon.

The trial lasted over eight days and included dozens of witnesses. The jury then deliberated for 17 hours over two days before reaching its guilty verdict on the murder count. Perry didn't testify during the trial.

The victim’s mother, Sheila Foster, said her son was a Libertarian who had marched for “50 straight days in the Texas summer heat against systemic racism.”

“My son was marching because he believed in equality and in our Constitutional rights. He was fighting the abuse of power. He did not deserve to die, and justice for my son should not be politicized,” she said via a statement.

Foster’s fiancée, Whitney Mitchell, wept as the verdict was read.

An unprecedented pardon

The verdict was only a day old when Gov. Abbott declared he would seek a pardon, meaning he intended to act preemptively and not wait until any appeals had been filed and heard. That itself is highly unusual and suspect; after all, Abbott was not at the trial, so he cannot speak to the strength of the evidence or case presented. And if his argument is that as a matter of law, Perry was somehow within his rights to shoot Foster five times, then that ought to be raised first as a matter on appeal. That is precisely why appellate courts exist and the kind of arguments they consider.

Gov. Abbott to date has only issued pardons on low level offenses, including theft, providing alcohol to a minor, assault by contact, burglary of a vehicle, credit card abuse and illegally carrying a firearm. A pardon for a murder, especially one with such stark racial and political overtones, raises the stakes enormously.

Foster’s brother, Ryan Foster, spoke out on Saturday against the pardon. “This was clearly premeditated,” Ryan Foster told reporters. “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.”

Foster’s fiancée Mitchell says she is now reliving a “nightmare” with the news of a pardon. “I just thought it was disgusting,” she told CNN. “I don’t think that (Abbott) has fully, like, read the case or knows what’s going on with it. And I honestly can’t understand this decision.” She said, “He was the love of my life. He took care of me. I grew up with him,” she said. “I don’t know what to do. He’s been gone for so long and I’m still trying to figure out what to do.”

Beyond the injustice of a pardon in the eyes of Foster’s loved ones, such a move amounts to a dangerous nullification of the jury and indeed the role of the entire judicial system. After all, why even have a jury trial, which by right includes the possibility of appeal and reversal of the conviction, if the governor believes, no matter what the evidence, that a man like Perry ought to walk free?

The pardon is also an unmistakable signal to far-right extremists that the state will act to protect racists, even those who murder others and claim self-defense, and even after a jury, charged with following the laws and reviewing all the facts, unanimously votes to convict. Such a signal promotes a very dangerous and unequal society, where the “open carry” laws of the state enable only those citizens favored by the state, while the “stand your ground” law permits deadly violence against those in disfavor.

The pardon also lands at a time when the independence of local prosecutors in places like Texas, Florida and Georgia are being threatened at the state level. Earlier this month, the Texas Senate passed a bill designed to rein in local district attorneys who decline to pursue certain cases around abortion and elections, as part of a larger effort to limit the authority of elected prosecutors, especially in the state’s large, left-leaning counties. Abbott made it clear that the two issues are connected. “I have already prioritized reining in rogue district attorneys and the Texas Legislature is working on laws to achieve that goal,” he said.

Gov. Abbott’s pardon, issued as a clear shot across the bow of the local Austin DA’s office, now threatens to reach into and insert right-wing politics into the prosecutions of even the most serious and violent crimes. And it does so, intentionally, in a perilous time of rising gun violence and extremist gun rights laws that increasingly sanction vigilante actions.