The smearing of Garrett Foster

The far right justifies political violence by villainizing a decent man

Whitney Mitchell (middle) leads a vigil for her slain fiancé, Garrett Foster. (Photo by Sergio Flores/Getty Images)

Last week, an Austin, Texas, jury convicted Daniel Perry for the murder of Garrett Foster. In the summer of 2020, Perry ran a red light, then drove into a crowd of people protesting the murder of George Floyd.

Foster was open-carrying a rifle, which is legal in Texas. he approached Perry’s car to stop him from driving farther. According to witnesses, Foster’s rifle was pointed down. A few seconds later, Perry picked up his own gun and shot Foster, killing him.

In what has become a predictable reaction, the far right has since turned Perry into a martyr. Fever swamp personalities like Mike Cernovich and Tucker Carlson quickly advocated for a pardon, while far right personalities have called Foster “terrorist,” a “rioter” a member of Antifa, and a “BLM boogaloo member.”

Texas Gov. Greg Abbott, who has already a shown a willingness to take marching orders from Carlson, quickly jumped into the fray, stating that he looks “forward to approving the board’s pardon recommendation as soon as it hits my desk.”

Abbott can’t do anything without the pardon board’s recommendation.

The entire horrific incident is now firmly enmeshed in the culture war, so no amount of truth is going to burst the Fox News bubble. But it’s important to understand why these particular lies about this particular incident are especially dangerous. So let’s break all of this down . . .

The jury’s verdict was both reasonable and consistent with Texas law

Let’s start with what we know to be true about the incident:

— According to multiple witnesses, Perry ran a red light, then accelerated directly toward a group of protesters. He could easily have driven around the protest. He chose not to.

— According to multiple witnesses, Perry’s car nearly struck Foster’s fiancée Whitney Mitchell and the man who was pushing her wheelchair. (Mitchell is a quadruple amputee. Not related, but also awful: a year later an Austin police officer would dump her from her wheelchair during a protest.)

— According to multiple witnesses, protesters then surrounded Perry’s car, some of them kicking and slapping it. Foster stood next to the car, holding his rifle. Multiple witnesses say Foster never pointed his rifle at Perry, though it’s worth noting that these witnesses were protesters, and thus hostile to Perry. The only photo of the incident is ambiguous.

— Perry himself initially said Foster never pointed the rifle at him. During his police interrogation, Perry said, “I believe he was going to aim at me. I didn’t want to give him a chance to aim at me.” If someone is holding a rifle in your general vicinity, but not pointing it at you, you do not have legal cover to kill them.

— According to multiple witnesses, Foster gestured for Perry to move on. He also instructed Perry to stay in his car to avoid any further confrontation. Neither is consistent with someone who presented an immediate threat to kill or harm Perry.

— Despite claims from rightwing personalities, Foster never fired his gun.

— Even if Foster had pointed his gun at Perry, he would not have been in violation of Texas law. Based on Perry’s actions — running a red light toward a group of protesters — Foster had good reason to believe that Perry was attempting to harm Foster and those around him. He had the right to use lethal force to defend himself and others.

— At Perry’s trial, a defense expert testified that Foster could have raised his rifle and shot Perry in well less than a second. This is irrelevant. Texas is an open carry state. Anyone openly carrying a rifle could, in theory, point, aim, and kill someone in a fraction of a second. If what Foster did justifies lethal self-defense, you could plausibly argue the same thing about anyone carrying a rifle in public, particularly at a protest, or at any tense situation where there’s the possibility of conflict.

---

---

There is ample evidence that Perry intended to harm the protesters

Under Texas law, if Perry presented a reasonable threat of death or grave bodily harm to Foster or those around him, Foster could legally use deadly force to defend himself, and Perry would no longer be able to claim killing Foster was self-defense. This would also render moot the dispute over whether Foster pointed his gun at Perry.

Perry’s attorneys argued that he didn’t drive into the protest intentionally. Instead, they argued that he inadvertently ran a red light and into the protest while texting.

The jury clearly thought otherwise, and there’s ample evidence for them to have done so. First, there’s no evidence that Perry was engaged in a call or had sent or received a text at the time he ran the light. This doesn’t prove he wasn’t on his phone — he could have been composing a text or reading an older text at the time. But there’s no evidence to support his claim, either.

But there is other damning evidence about Perry’s state of mind:

— In one Facebook comment responding to a post about protesters in another state, Perry wrote, “send them to Texas. We will show them why we say don’t mess with Texas.”

— A friend of Perry’s also testified that a month before the incident, Perry had texted him to ask about other incidents in which someone had shot at protesters, and inquired if those shootings were legal.

— In the weeks leading up to the incident, Perry had conducted internet searches on the phrases “protest tonight”, “protesters in Seattle gets shot,” “riot shootouts,” and “protests in Dallas live.”

— After that latter search, Perry texted to a friend, “I might go to Dallas to shoot looters.”

— Among the other messages and comments he had recently sent or left online: “I might have to kill a few people on my way to work they are rioting outside my apartment complex,” and “No protesters go near me or my car.”

Of course, Foster didn’t know any of this, so it has little bearing on whether or not he was justified in pointing a gun at Perry. But it does speak to Perry’s credibility when he says driving into the protesters was a mistake, not a deliberate provocation.

The unjustified attacks on Garrett Foster

Garrett Foster was not a far-left anarchist, a “rioter,” or an antifa “terrorist.” He wasn’t even a leftist. He was a self-described libertarian who believed in gun rights and supported the Libertarian Party presidential ticket in 2020.

He also seemed like a decent human being.

Not only did Foster act lawfully on the night he was killed, he did precisely what gun rights advocates like Abbott, Carlson, and other gun rights supporters say the Second Amendment exists to protect — he defended himself and others from a man he had good reason to think intended them harm.

He also showed remarkable composure and restraint. When Perry drove into the crowd and nearly struck Foster’s disabled fiance, Foster didn’t lash out in anger. Witnesses said he approached the vehicle, gun barrel down, with his finger off the trigger. He then gave Perry a warning and urged him through the crowd. When Perry started to get out of his car, Foster told him to stay in the vehicle, presumably to avoid more confrontation.

Foster’s death has become the latest front in the culture war. So he must be flattened. He gave a damn about racism and injustice, so he must portrayed as a left-wing terrorist. Perry, meanwhile, loathed the protesters and Black Lives Matter, so his actions must have been virtuous and true. The DA who prosecuted Perry is prosecuting a man the right has deemed a martyr, so he can only be a lawless, Soros-funded activist. And any jury who convicted an ally like Perry can be nothing more than a mob of Austin liberals in search of a conservative to persecute.

But there’s a more ominous current running through all of this than in typical culture war posturing. Foster was killed during a period in which a wide swath of the right had been openly advocating running over protesters with cars. And it isn’t just pundits and personalities. Since Ferguson, Republican legislatures across the country have pushed new laws limiting the criminal and legal liability of people who strike protesters with a vehicle, a trend that found new momentum in 2020.

We saw the deadly consequences of this sort of rhetoric in 2017, when James Alex Fields ran his car into a crowd of counter-protesters at the white supremacist rally in Charlottesville, Virginia, killing Heather Heyer. More incidents followed — in the latter half of 2020 alone there were at least 43 documented cases in which a motorist maliciously drove into a crowd of protesters.

So let’s be clear about what Abbott, Carlson and other MAGA types are advocating here. In pushing a pardon for Perry, they’re stating they believe that if someone plows his vehicle into a crowd of protesters, the protesters have no right to self-defense. They believe there should be no liability — criminal or civil — for deliberately striking protesters with a car. And while they may claim to believe the gun rights they advocate are absolute, when it comes to enforcing and protecting those rights, they clearly have little interest in defending those rights for people who don’t look, believe, or vote like them (see Philando Castile or John Crawford for additional examples).

I don’t know if Daniel Perry set out to kill a protester that night. Perhaps he saw the protesters and just wanted to mess with them — to put a scare into them — then went further than intended and, through the lens of too many Tucker Carlson monologues, genuinely but incorrectly saw Foster as an extremist who was about to kill him.

Perry’s defense — that he just happened to have run a red light beyond which stood a group of protesters, shortly after leaving a trail of messages and comments expressing his desire to kill protesters — seems too coincidental to be plausible. But this why we have jury trials.

Foster’s death also demonstrates the infeasibility of ostentatious open carry. I generally support gun rights. But as I write this, news is breaking of another mass shooting, this time in Louisville. That mass shooting comes on the heels of the mass shooting last month here in Nashville. As Perry’s own expert testified, it takes only a fraction of a second to transition from lawfully open-carrying a rifle to unlawfully killing someone with it. The line between exercising one’s Second Amendment rights and extinguishing a life is thin, blurry, easily transgressible, profoundly consequential and, perhaps most alamring, easily misinterpreted.

In most cases, there’s no reason to think someone open-carrying a rifle is a threat. But at a protest, where the stakes and tensions are high? In the wake of a mass shooting, which tend to happen in clusters? It isn’t difficult to see how someone could err, as Perry clearly did. And Foster’s death demonstrates the consequences of such mistakes.

For these reasons, I think it was ill-advised for Foster to bring his rifle to the protest that night. But of the two gun owners in this story, one acted rationally, safely, and with restraint and respect for the lives and safety of those around him. The other shot and killed a man he himself has since acknowledged posed no threat to him. Yet right-wingers — allegedly Second Amendment supporters — are smearing the responsible gun owner and valorizing the reckless one.

Incredibly, Tucker Carlson just had Kyle Rittenhouse on his show to discuss Perry’s conviction. The far right has been eager to draw parallels between Rittenhouse and Perry. And the two cases are similar, just not in the way they’re claiming. As Texas criminal defense attorney Mark Bennett has pointed out, when it comes to self-defense law, if we’re going to compare the two cases, the person in a posture most similar to Rittenhouse’s is Foster, not Perry.

Rittenhouse may have been reckless rush to the Kenosha protests with his rifle (and I believe he was), but doing so wasn’t illegal, and under state law, he should not have been charged. According to Rittenhouse — and a good deal of the evidence — the protesters in Kenosha mistook his lawful carrying of a rifle as an immediate threat, attacked him, and, as a result, he was justified in using lethal force in response.

Similarly, whatever you may think of Foster’s decision to bring a rifle to the Austin protest, it was perfectly legal. The fact that he and other protesters were in the street might have been a misdemeanor, but as Bennett notes, that isn’t relevant to Perry’s self-defense claim. It was Perry’s actions that presented an immediate threat, and it was Perry who then mistook Foster’s legal actions as a threat.

The only difference between the two is their respective politics and the fact that Rittenhouse was more reckless (he took his gun and rushed into a hostile protest, Foster was among supporters), and Rittenhouse killed his mistaken attackers before they could seriously harm him. Foster showed restraint — and was killed for it. Yet Rittenhouse is made into a hero, while Foster is turned into a villain.

It’s also notable that Abbott and others defending Perry seem to think there’s something inherently illegitimate about a BLM protester with a gun, but not the armed militia members who shut down a Michigan legislative session. We’ve also seen far right activists bring rifles to protest drag events, and while milling about outside of polling places, yet when a member of the Black Panthers stood outside a polling place with a club, it made headlines on Fox for weeks.

These are contradictions, but it isn’t quite correct say the right is being inconsistent. What they’re doing is perfectly consistent; it’s just that it has nothing to do with the Second Amendment or self-defense. The theme running through all of these positions — defending Rittenhouse, smearing Foster, legalizing running down protesters, the Michigan capital protest — is loud and clear. They’re legitimizing violence and the threat of violence against their political opponents.

For all the degeneracy on the political right in the Trump era, this is what I find most alarming — the dehumanizing of political opponents to the point where violence isn’t merely justifiable, it’s almost a moral imperative. Their opponents aren’t just wrong, they’re criminal. People accused of crimes aren’t just presumed guilty, they deserve to be abused by police. Immigrants aren’t just crossing the border illegally, they’re mostly rapists and criminals. Protesters aren’t merely misguided, they should be flattened by big-ass trucks.

You only valorize Garrett Foster’s killer if you’ve convinced yourself that Foster deserved to die. And the only real evidence against Foster offered up by the right has been that was participating in a Black Lives Matter protest. The math here isn’t difficult.

If Abbott and the Texas pardon board want free Perry and clear his record, they have the power to do it. But we ought to be clear about why they’re doing it. This isn’t about the rule of law. It’s the rule of ideology, enforced with violence.

---