Family, shooter’s attorney speak out more than 40 days after Austin protester was killed

AUSTIN, Texas - More than 40 days have passed since Garrett Foster was fatally shot at a Black Lives Matter protest in Austin, Texas.

“Garrett loved everybody. Garrett had a really special place in his heart for people who were excluded. He wanted everyone to feel included and equal,” said his mother, Sheila Foster.

According to the Foster family, the 28-year old and his fiancee, Whitney Mitchell began protesting for Black lives following the death of George Floyd in Minneapolis.

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“[Foster and Mitchell have] always experienced some type of level of hate for their relationship. Everywhere that they go, just for (being) a biracial couple.” explained Fosters sister, Anna Mayo. “Garrett has always felt really strongly about changing that.” she added.

On July 25, the couple was participating in a demonstration in downtown Austin. As protestors marched down Congress Avenue, passing 4th street, U.S. Army Sergeant Daniel Perry turned south, onto Congress from 4th, driving into the crowd.

Perry’s attorney, Clint Broden says it was an accident. He says Perry, who is stationed at Fort Hood, was driving for Uber. Foster's family believes Perry drove the car into the crowd intentionally.

“He was there with malicious intent, and you don't get away with something like that.” stated Mayo.

Austin Police say protestors began hitting Perry's car. Some protestors say Perry aggressively drove through the crowd, honking his horn. Foster, then approached Perry’s driver side window with a rifle. He legally carried the gun. His mother says he carried it for protection at protests. Perry claims Foster raised the gun. The question of whether Foster raised his rifle has been at the center of an Austin Police investigation. Perry, drew a concealed handgun, and fatally shot Foster three times. Austin Police Chief Brian Manley says witnesses described “several different versions of the incident.”

"More than anything I want [Perry] behind bars. I don't think it's right that you can shoot somebody in the street and walk away from it. I personally think the self-defense claim isn't accurate at all.” said Mayo.

Broden countered, "The rifle was starting to be raised. I certainly saw some pictures that appear to bear that out and my client saw that and that's probably the most important thing. As an Army soldier, those are things he gets training in.”

Perry was taken to Austin Police headquarters the night of July 25, he was released approximately three hours later.

“Nobody will ever be able to make me understand that.” his mother said.

Another person in the crowd shot at Perry with their handgun as he drove away. Their name has not been made public. After the shooting, Perry parked a few blocks from 4th and Congress and called police to make a report.

The second shooter was interviewed by police, and also released that same night. At this time, neither Perry nor the second shooter are facing charges.

The attorneys representing the Foster family tell FOX 7 Austin the Austin Police Department recently turned their findings in the case over to the Travis County District Attorney’s Office. They will determine what happens next. The Foster family hopes the case will proceed to a grand jury. Broden does not feel that is “necessary.”

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Perry remains at Fort Hood while the case is reviewed by the Travis County District Attorney's Office. He lived off post previously. Broden says he is staying on post for security reasons. Fort Hood will not comment on the ongoing investigation.

“Whitney is scared. She told me that everytime she closes her eyes the only thing she can see is Garrett laying on the ground. He was always the one to protect her and now he's gone, and she knows [Perry] is still out there.” said Foster.

The Foster family points to Perry’s social media presence saying it incriminates Perry. Perry’s attorney points to Foster’s social media presence saying it incriminates Foster.

Mother of 28-year-old killed in Austin protest says he carried a rifle for safety

“I don't know how many of those protestors we met with at Garrett's memorial site that came up and told me that he saved their lives. If you were one of those people that my son died for, please start living a life that would honor him.” said Foster's mother. “That would make it worth it.” Mayo added.