“Might Have to Kill a Few People”

Daniel Perry, who shot and killed protester Garrett Foster during a 2020 Black Lives Matter demonstration (photo by Jana Birchum)

The murder trial of Army Sgt. Daniel Per­ry for the killing of Black Lives Matter protester Garrett Foster is halfway over. The trial – District Attorney José Garza's most important prosecution to date – began on March 27 and has so far provided little new information about the killing. But 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 Wednesday afternoon, 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 claims 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, telling 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 hope 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 is unfolding is less than a mile from where Foster died. It has been 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?"