Fatal shooting at Austin protest could take months to get final review by prosecutors

AUSTIN, Texas - A memorial of flowers, candles, and cards continued to grow Monday at the corner of 4th Street and Congress for 28-year-old Garrett Foster who was shot and killed there Saturday night.

The gunshots heard in video recorded that night scattered those at the scene, who were taking part in a Black Lives Matter protest march.

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"We've been following this group for the last several weeks, monitoring their protests, making sure it’s done in a safe manner, and this was something no one knew was going to happen. It just popped up in the middle of Congress Ave and it happened.” Said Austin Police Association President Ken Casaday.

Garrett Foster was there with his wheelchair-bound fiancé and his AK-47. "It’s problematic to me when you are whipping up a group of angry protesters to have firearms involved, but again that’s his right, and he had every right to have that firearm,” said Casaday.

It was revealed Monday that Foster was being watched by APD because he carried a rifle at protests even though he had a gun permit.

"Garrett Foster was on the radar because he would commonly come to the rallies with the AK-47, our individuals who were responsible to monitor people with firearms, he was on the radar already,” said Casaday.

Most recently Foster and his rifle were with a group earlier this month at the home of City Manager Spencer Cronk to protest the police budget.

"He has never caused a problem, never until the other night, was never accused of any wrongdoing with the AK-47, but I find it strange when you show up at people's homes with an AK 47 over your shoulder, what are you really trying to say,” said Casaday.

Sunday, Foster's mother spoke to FOX7 and addressed why her son brought his rifle to rallies and protests. "He said "mom I'm not stupid, I'm never going aim my gun at anybody. I've got it for protection,” Sheila Foster said.

RELATED: Man who was shot, killed during protest in downtown Austin has been identified

However, doing just that may be what cost him his life. Police Chief Brian Manley spoke about that Sunday when he gave a briefing on what the preliminary investigation determined. "It appears that Mr. Foster may have pointed his weapon at the driver of this vehicle,” he said.

The confrontation happened after a man drove into the crowd of protesters Saturday night. There’s conflicting information about why that happened, but police know a crowd surrounded the car and started hitting it when Foster approached.

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"If he did point that AK-47 at the person in the car, to me that's justified, to defend yourself,” said Casaday.

The man who shot Foster drove away from the crowd and then called the police. He also had a gun permit and was eventually released after giving a statement claiming Foster pointed the rifle at him. A grand jury review of the case is likely; what’s unknown is when that will happen.

WARNING: THIS VIDEO CONTAINS GRAPHIC CONTENT

Current DA Margaret Moore declined to issue a comment Monday, but her job status could be a factor in the investigation. She lost her re-election bid and it may not be until well after November when a new DA is selected that the case will be presented.

Prosecutors may take a closer look at another man who fired shots Saturday night at the car as it was driven away. Chief Manley has said the man had a gun permit, made a statement, and was also released.

Austin police continue to ask for witnesses who recorded the incident to contact them.