Don’t Free Daniel Perry
Texas Governor Gregg Abbott wants to issue a pardon for Daniel Perry. Under Texas law, the governor can’t do this on his own, however. He has to get approval from the state’s Board of Pardons and Paroles. The board should not give its assent.
The case goes back to the BLM protests of 2020 when marchers were rallying in the streets of Austin. A video from July 25, 2020, shows peaceful (not evenly mostly peaceful, this was a totally peaceful scene) demonstrators. A car horn honks and seconds later, five shots are fired.
It is difficult to tell what happened from the video, but witnesses say that Daniel Perry, then a 30-year-old US Army sergeant moonlighting as an Uber driver, ran a red light and drove into the crowd of protesters. At this point, Garrett Foster, a 28-year-old Air Force veteran, walked toward Perry’s car. Foster was legally open-carrying an AK-47 and as he approached, Perry opened fire, killing him. Both Perry and Foster are white. After the shooting, Perry drove away and called the police.
Perry claimed self-defense in the shooting, but his story has not withstood scrutiny. The video shows that the crowd was not swarming the car and witnesses contradict Perry’s claim that Foster had pointed the AK-47 at the car.
In fact, Perry’s interview with police contradicts his own claim of self-defense. Perry told a homicide detective on the night of the shooting, “I believe he was going to aim at me. I didn’t want to give him a chance to aim at me.”
These words are damning to the claim of self-defense. If Foster was not aiming at Perry, then Perry fired preemptively at a man peacefully exercising his right to open carry. That is not a reasonable response. That makes it murder.
Perry’s self-defense claim was already on shaky ground even before this admission. In Texas, the burden is on the defendant to prove that he acted in self-defense and the video and eyewitness testimony undercut Perry’s claim. Much has been made of the “stand your ground” law, but Texas law requires a “reasonable” belief that “force was immediately necessary” and states that the defense is not available if the defendant “provoke[d] the person against whom the force was used.” Both of those caveats are problems for Perry.
Perry’s social media history is also a problem. Prosecutors showed the jury a series of troubling social media posts that Perry had made shortly before the shooting. The postings included both public and private messages along with internet search histories that showed that Perry had looked up the location of local protests.
In one Facebook message on May 31, Perry had written, “I might have to kill a few people on my way to work they are rioting outside my apartment complex.” In another conversation a few weeks later, he wrote, “Make sure you only use one shot on the protestors so if they try you have enough. I’ll only shoot the ones in the front and push the pedal to the metal.”
While the posts aren’t an admission of guilt, they do indicate that Perry might have gone looking for trouble. The second posting is eerily similar to what actually transpired, and together with the video, witnesses, and testimony from forensic experts was enough to convince the jury that Perry murdered Foster.
Some might be tempted to compare the Perry case to Kyle Rittenhouse in Wisconsin. The Perry case is different from the Kyle Rittenhouse case in at least one important respect though. Even though both seem to have been self-styled vigilantes who knowingly went into harm’s way, Rittenhouse was able to plausibly claim to a jury that he feared for his life. That claim was supported by pictures and videos from the night of Ritttenhouse’s killings. Rittenhouse also benefitted from poorly written Wisconsin gun laws. The video tells the opposite story for Perry.
America is getting a lesson on the public carriage of weapons and the laws that govern the practice, but if you choose to exercise the right to carry in public, you should learn the laws before you venture out into the streets. Knowing the laws is just as important as being proficient with your weapon. You may not be interested in the finer points of the law, but if you legally carry and shoot someone, your freedom may depend on the exact details of your actions.
This incident is also a good argument against open carry. I have a concealed carry permit (although it isn’t necessary in Georgia anymore), but I have long argued that open carry is a bad idea for most people. I wouldn’t characterize myself as a gun nut, but I do have some training in properly carrying a weapon from my days as a Federal Flight Deck Officer at the airlines. Two things that our instructors stressed were situational awareness and weapon retention. I can guarantee you that most people who open carry do not give these much thought at all.
If you openly carry a gun, you will intimidate some people. What people don’t consider is that you also make yourself a target. This is what happened to Garrett Foster, but he isn’t the first person to be targeted because he carried a gun. In fact, Justice Department statistics show that about 10 percent of police officers who die from gunshots are killed by their own guns. And these are people professionally trained to retain their weapons, not someone who spontaneously decided to strap on a pistol to go to Walmart.
If I could give one piece of advice to people who engage in public protests, it would be to not carry a gun. A gun sharply raises the potential for a violent confrontation. If you think you’ll need a gun, maybe the better choice is to not go. If you must carry a gun, however, I’d recommend that you conceal it and be very proficient in both the law and your gun’s use.
Daniel Perry was only convicted on April 7. He has yet to spend a week in jail and the governor is already talking about a pardon. My plea to the state parole board is, “Don’t do it.”
While I am concerned about the rising tide of political violence in this country and don’t want to see it normalized, politics should have nothing to do with whether Perry stays in jail. We should focus on the evidence of the case.
Perry was found guilty by a jury of his peers who listened to all the evidence, not just the stuff that Tucker Carlson saw fit to air. That evidence suggests that he shot and killed an innocent man who was no threat. For that, he needs to stay in jail.
Good post. Open carry is dumb outside of some very specific situations like being in bear country. Dumb. Dumb. Dumb. If this were more about gun culture now in general we might want to talk about the 2 f’n morons who got in a shoot out on a highway in FLA.
Perry should be in jail. If/when he gets out will he take the Rittenhouse conservative media route???Report
I know a lot of right wing commenters think that the accusation that the right seeks to have the law protect but not bind the right and bind but not protect the left is overwrought but these kinds of stunts by right wing politicians really don’t help their case.Report
It is angering to see this going on, because it betrays even the pretense of equality before the law. Perry demonstrates no remorse for his actions. His actions harmed society, not just by the taking of a life (as if that weren’t bad enough!) but by demonstrating to people already suspicious of the justice system that they were right to not put their trust in it, that they were right to suspect that people like Perry get treated better than they do.
Consider the way that the justice system treats a person accused of similar crimes who. Is not the beneficiary of a campaign on the part of media figures.
First of all, such a person is more likely than not to be a person of color. Secondly, that person is unlikely to receive such gentle treatment from the police at the crime scene. These first and second facts are not unrelated. I’d love to say that the differential caused by race ends at that point,. But I hope everybody reading this comment knows better.
Once in custody, a person like this will be in processed in lengthy and undignified manner by a reception level jail. In a lot of jurisdictions this involves a strip search which includes a squat so that authorities may be more confident than contraband is not being smuggled into the facility. Conditions within the reception facility very significantly from jurisdiction to jurisdiction, some of which are more racialized than others, but all of which involve a variety of dehumanizing procedures that are effectively intended to indoctrinate the new admittee into a posture of mental inferiority to the uniformed guards.
There is always a delay between admission to the reception facility and an arraignment. Many states have laws requiring an assignment to an attorney at the earliest possible time, but this rarely happens. Because of funding shortages and other systemic problems, many jurisdictions will see people go six months or more before they are assigned a lawyer. Some jurisdictions do not have laws requiring assignment of a lawyer until arraignment occurs. These jurisdictions tend to have longer times between arrest and assignment to an attorney.
Once an attorney is assigned,. The person in the system will find that there are one of hundreds of clients that attorney is tasked to handle. Unsurprisingly, the attorney will typically review that client’s file and prepare a strategy. Only very briefly, and only on the day when some other event is occurring the strategy that the attorney picks will typically follow a cookie cutter pattern, but that may be kinda-sorta OK because prosecutors are also overworked, and they too are following cookie cutter patterns.
To be bailed out of jail while all of this is going that typically requires the payment of a significant amount of money to a bail bondsman. Some jurisdictions have abolished bail, to the great displeasure of law and order advocates within the community. It’s hard for me to see how jurisdictions can afford to keep people in jail, sometimes for as much as a year, before conviction at public expense. Granted, jail is cheaper than prison, because it doesn’t have to elaborately equipped. Jail is intended to be a short term housing facility for people. In custody, where prison is intended to be more or less permanent housing. The result, of course, is that conditions and jails are significantly less humane than conditions and prisons, and if you think conditions and prisons are humane, you are not paying attention.
All of this is before trial. Bear in mind that we are talking about how the state is treating someone who is, at the time, presumed innocent. Well, ostensibly presumed innocent. They aren’t getting very much information about the progress of their case. , and that’s because the case is not really progressing at all. In theory, the person could insist on their speedy trial rights, but in practice, their attorneys waive those rights so that administrative processing of the court’s docket as a whole can proceed in something that passes for an orderly fashion. The system places immense pressure upon the attorneys to make those waivers, and it is far from clear to me at least that the people involved in the system. Even understand what their rights are much less than they’re being asked to waive those rights for the benefit of people other than themselves.
This is a significant part of the background of the pressure that participants in the system, both on the prosecution side and on the defense side, feel to make plea bargains. But let’s accused person understands at least that much, and insists that they are innocent and demands a trial they might have to have a bit of an argument with their own attorney about that but it is something that a number of defendants seem able to do. So the case goes to trial, and the trial is typically conducted out of evidence folders because very little investigation has been done beyand what initially happened in the day or so after the arrest. People have different opinions about the caliber of public defenders,. But I have seen little evidence to believe that public defenders are any less skilled or less able to present competent defenses, even under these circumstances, then private counsel. So let’s assume a good trial experience. , one more a plausible defense is offered,. But there is nevertheless a conviction..
No. The convict is no longer presumed innocent, and will be sentenced within a period of a few weeks of the conviction. If the result of the sntencing is additional time in custody, they will be transferred to a prison. At this point, they may be appointed or may otherwise obtain the services of an appellate attorney to examine the trial for legal errors and present an appeal. Once there appeals process is exhausted. And if the exhaustion of the appeals process results continued incarceration, they have the option of presenting a habeus corpus claim. Under most circumstances, only one habeas corpus claim (and its appurtenant appeals) may challenge the conviction. Meanwhile of course they are living in prison which might be better than jail but is not exactly the kind of existence one would choose for oneself under most circumstances. Let’s be clear: prison would be an awful life.
In most cases, executive clemency will not be considered until all of these legal processes are exhausted. If what I’m describing above sounds like it could take years and years, it can. And while those are still theoretically viable procedures, there is very little political incentive for a governor of a state, or the president if it’s a federal crime, to consider the granting of clemency. Far easier for the executive to say that the judicial process is not yet exhausted and the system should be given a chance to work on its own merits. So for a significant number of convicts, their terms will expire before their procedural options do.
Mr. Perry appears to have been treated with kid gloves by the police all along. He does not appear to have spent any time in custody at all until after his conviction. This despite the facts and circumstances of his case appearing to indicate guilt from a very early stage he just picked the right victim, such that actors within the system treated him very very well indeed.
He is a convicted and unapologetic murderer, and the system shpuld treat him the way it treats other people similarly-described, before the governor succumbs to pressure from preening perfumed princes of political propaganda purveyors to perpetuate Perry’s protracted privileges.Report
That alliteration at the end was epic, counselor, as was the overall analysis.Report
It seems like a highly questionable case for a pardon. As much as I am against the bad faith exercise of discretion for issuance of CCW permits that was still the law in some places prior to last year it’s also clear to me that a lot of jurisdictions are going way too far in the other direction. Regardless of what the law is I also think a lot of people are doing some highly questionable risk analysis when they carry, open or concealed.Report
Texas is a “Constitutional Carry” state. All you need to carry a weapon out in public is a holster, unless you’re a felon or have a violent misdemeanor within the past five years.
…if you’re white, that is.Report
I don’t really know about the racial angle. I could be convinced but I’d want to see some good data that non-white people are being singled out for legal carrying without any other extenuating circumstances or connection to criminality.
But anyway I think part of the problem with the ‘constitutional carry’ approach is just this kind of situation. You’ve got people who don’t know the law on self defense listening to other people who know even less about the law on self-defense, to the point that they’re violating the law even in a jurisdiction that is really liberal in what it is going to consider self-defense. That’s a problem and I think there are reasonable things that can be done to mitigate it that are completely consistent with the 2A. Instead caution is thrown to the wind.Report
The guy’s no saint, but it sure isn’t hard to miss what else is different between Perry and him.
https://thehill.com/homenews/3948327-man-found-guilty-of-spitting-at-police-gets-70-years-in-prison/Report