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Prosecutor asks Texas court to reverse governor's pardon of man who fatally shot BLM demonstrator

Daniel Perry shot and killed Garrett Foster during a Black Lives Matter protest in downtown Austin in July 2020.
This booking photo provided by the Austin, Texas, Police Department shows U.S. Army Sgt. Daniel Perry
Posted at 4:52 PM, Jun 05, 2024

Texas Gov. Greg Abbott's pardon of a former Army sergeant who fatally shot a Black Lives Matter demonstrator undermines the state's legal system and constitution and should be reversed, a prosecutor said Tuesday.

Travis County District Attorney José Garza said he is filing a request with the Court of Criminal Appeals — the state's highest criminal court — to review the pardon issued by the Republican governor, which he said made a mockery of the legal system and put politics ahead of justice.

“We will continue to use the legal process to seek justice,” Garza said during a news conference in Austin.

Daniel Perry shot and killed Garrett Foster during a protest in downtown Austin in July 2020. Perry was convicted and sentenced to 25 years in prison in May 2023, prompting immediate calls for a pardon from conservative figures. Abbott issued the pardon last month and Perry was quickly released from prison.

The quick pardon undermined an established appeals process that was available to Perry, and violated state constitutional separation of powers, Garza said.

Abbott’s office did not immediately respond to messages seeking comment.

All nine elected judges on the court are Republican. Garza said he believes the case is unique in state history, from the rapid request for a pardon and its approval, to his request for the appeals court to intervene.

“All of this is new ground,” he said.

Perry's legal team called the pardon and the process kick-started by Abbott “fully appropriate" under the state constitution and said it was Garza, a Democrat, who was driven by politics in prosecuting the case.

The governor, following the recommendation of the state Board of Pardons and Paroles, “has the absolute power to pardon a person on any grounds, including the grounds of actual innocence,” Perry attorney Clint Broden said.

Foster's mother, Sheila Foster, described the pardon as “absolutely unacceptable to our family.”

“We will fight this until we get justice for Garrett,” Foster said at the news conference, her voice trembling with emotion. “My own child was killed on American soil for doing nothing but practicing his First and Second Amendment rights. And our governor just said, ‘That’s OK. That’s acceptable.’”

Perry, a White ride-share driver, claimed he was trying to drive past the crowd and fired his pistol when Foster pointed a rifle at him. Witnesses said Foster, a White Air Force veteran, never raised his gun. Prosecutors argued that Perry could have driven away without shooting.

Even though Perry was convicted of murder, Abbott called the shooting self-defense, noting Texas' “Stand Your Ground” law.

Last month, 14 Democratic attorneys general said the U.S. Justice Department should investigate whether Perry denied Foster his right to free speech and peaceful protest. A federal probe could open Perry to federal charges.

The “DOJ has historically used federal civil-rights laws to prosecute acts of hate, especially when states refuse or fail to hold people accountable for violating their fellow Americans’ civil rights,” the coalition of attorneys general said.

Garza said he will pursue what action he can in the state's legal system, but that he would welcome federal scrutiny of the case.

“People all across the country are outraged about what happened to Garrett, what happened to his family,” Garza said. “We're grateful for their request and would echo their request.”

Foster was killed amid the widespread demonstrations against police killings and racial injustice that followed the murder of George Floyd, a Black man, by a White Minneapolis police officer.

“Throughout American history, our freedom of speech and right to peaceful protest have been two of the most powerful tools used to combat injustice and oppression,” Minnesota Attorney General Keith Ellison said last week. “Vigilante violence is unacceptable, particularly when that violence is used to deprive Americans of their lives and most fundamental liberties.”

Abbott’s rush to wipe away the conviction also raised questions about how a governor might try to overturn a jury’s verdict in the future.

After the verdict but before Perry was sentenced, the court unsealed dozens of pages of text messages and social media posts that showed Perry had hostile views toward Black Lives Matter protests. In a comment on Facebook a month before the shooting, Perry wrote, “It is official I am a racist because I do not agree with people acting like animals at the zoo.”