Austin: Libertarian BLM Protester Shot Dead

[dannno]

Only the person defending himself can truly know in his own mind if he was afraid for his life.
This is something that can not be proven in court. A jury can not know for certain if he was afriad for his life or not.

This is an important perspective.

Also, I think jmdrake is not putting the situation in the proper context.

This guy was lawfully driving on a roadway where a riot was taking place. The rioters were illegally blocking the roadway and threatening him, and so he had a mob of people surrounding his car who were threatening him.

Somebody at a riot has a right to arm themselves. Kyle, for instance, went to a riot with a firearm to protect businesses and himself. He helped put out dumpster fires that were being pushed toward gas stations. All very legitimate.

A protester has a right to carry a firearm to protect themselves. The problem becomes when a protest starts to get violent, and you are on the side of the people being violent and committing crimes. As soon as you join with them, this puts yourself in a lot of risk.

Let's say the guy walked up with his gun, people in the mob saw him and decided they were now safe to attack the driver of the vehicle. Now if the driver uses his firearm to protect himself against his attacker, the rioter with the gun will shoot him.

So the driver already felt his life was possibly threatened by the mob and was trying to get out of the situation. Somebody with the mob walks up with a gun, in an aggressive manner, and they felt that they were raising their gun to point it at them.

I don't know how much more you can fear for your life than that.

Point is, if your part of a group, mob or riot that is breaking the law and threatening somebody and you are openly carrying, the standard should, in theory, be much lower for an innocent bystander to feel like you are threatening their life, so I would highly recommend not doing so.

I do not believe the jury came to the correct conclusion here, at all.

[jmdrake]

This is an important perspective.

Also, I think jmdrake is not putting the situation in the proper context.

This guy was lawfully driving on a roadway where a riot was taking place. The rioters were illegally blocking the roadway and threatening him, and so he had a mob of people surrounding his car who were threatening him.

Somebody at a riot has a right to arm themselves. Kyle, for instance, went to a riot with a firearm to protect businesses and himself. He helped put out dumpster fires that were being pushed toward gas stations. All very legitimate.

A protester has a right to carry a firearm to protect themselves. The problem becomes when a protest starts to get violent, and you are on the side of the people being violent and committing crimes. As soon as you join with them, this puts yourself in a lot of risk.

Let's say the guy walked up with his gun, people in the mob saw him and decided they were now safe to attack the driver of the vehicle. Now if the driver uses his firearm to protect himself against his attacker, the rioter with the gun will shoot him.

So the driver already felt his life was possibly threatened by the mob and was trying to get out of the situation. Somebody with the mob walks up with a gun, in an aggressive manner, and they felt that they were raising their gun to point it at them.

I don't know how much more you can fear for your life than that.

Point is, if your part of a group, mob or riot that is breaking the law and threatening somebody and you are openly carrying, the standard should, in theory, be much lower for an innocent bystander to feel like you are threatening their life, so I would highly recommend not doing so.

I do not believe the jury came to the correct conclusion here, at all.

I never said Perry didn't have a right to arm himself or that this wasn't a dangerous situation so don't put words in my mouth. Also I can see a reasonable jury acquitting Perry. I can also see a reasonable jury convicting Perry. At the end of the day this came down to witness credibility over a vey simple question. Did Garrett Foster point his gun at Daniel Perry or did he not? Here is the context you and everyone else trying to argue me down keep ignoring. Perry's cop "expert" would have likely shot Kyle Rittenhouse based on how Kyle was carrying his rifle. Is that the world you want to have? Seems like it. Perry also indicated animus at the protestors for being anti Jewish. There is much more evidence of anti Jewish sentiment among right wing protestors than among BLM protestors. You may argue that all of the neo Nazis and the "unite the right" rally were feds. That's irrelevant. They were there. There weren't any BLM protesters saying "Jews will not replace us." So Perry was unhinged. And Perry's texts, emails and social media posts just weeks or months prior to the shooting were absolutely relevant, discoverable and admissible as evidence. Arguing that the 4th amendment somehow doesn't allow discovery of communication just because it's electronic is patently ridiculous. Using @TheTexan's argument, Hillary Clinton's private email server could never have been a violation of the law because OMG it's electronic! She could have said "Well it's a private email server!" Now, Hillary was never prosecuted, but we all know she could and should have been prosecuted. Last point, and I know most people won't get this unless they went to law school, is that evidence of prior conduct by Garrett Foster that was not in dispute is not admissible under the Old Chief v United States ruling by the U.S. Supreme Court. You can disagree with that ruling all you want to. But the simple fact is, if both sides agree in a case that a person did X, arguing "And they did X these other times" is simply not admissible under these circumstances. Note that there is a lot of evidence the prosecution admitting at sentencing that it couldn't admit during the trial phase. Once they established Daniel Perry's state of mind they couldn't just dog pile on and say "And he said these same things 100 other times in all of these other messages." I get it. These things are tough for non lawyers to digest. As I said earlier, I've had left wing not lawyers attack me for saying Kyle Rittenhouse should have walked. That's the context that YOU keep ignoring! You and every other want to be lawyer in this case. Just because you want an outcome to come out your way so bad doesn't mean the person who disagrees with you doesn't know what he's talking about. Daniel Perry's attorneys have filed a motion for a new trial. They've raised every legitimate argument they can think of. I wish them well. I really do. They seem to be really fighting for their client. (Trump's lawyer didn't seem to even care but his client didn't seem to care either.) They did not argue, from what I can tell, that Garrett's private emails and DMs somehow should have been excluded because frankly they know that's a dead end. But if you think you know better then try to contact their law firm and explain your argument.

[TheTexan]

Arguing that the 4th amendment somehow doesn't allow discovery of communication just because it's electronic is patently ridiculous. Using @TheTexan's argument, Hillary Clinton's private email server could never have been a violation of the law because OMG it's electronic! She could have said "Well it's a private email server!"

If that's how you interpret my argument, you haven't read a single thing I wrote.

If there was probable cause to believe that Hillary's email server contained correspondence of evidentiary value (which there was probable cause to believe, because the emails could be traced to that server), then that email server is fair game.

Really. Not. That. Complicated.

[jmdrake]

If that's how you interpret my argument, you haven't read a single thing I wrote.

If there was probable cause to believe that Hillary's email server contained correspondence of evidentiary value (which there was probable cause to believe, because the emails could be traced to that server), then that email server is fair game.

Really. Not. That. Complicated.

Considering that Perry's public Facebook posts were so concerning that his mom and dad told him to knock it off or he might get himself arrested, there was probable cause that his private DMs also went to his state of mind.

[TheTexan]

Considering that Perry's public Facebook posts were so concerning that his mom and dad told him to knock it off or he might get himself arrested, there was probable cause that his private DMs also went to his state of mind.

Maybe.

I'm guessing they subpoenas his text messages as a matter of standard practice. Which if I understand your position correctly, this is something you agree with. In which case - fine. Who cares about 4th anyway right.

I don't agree with that.

I don't think that anyone who is defending a self defense case should have their private correspondence opened up for discovery just by default as a standard practice.

The fact that someone died does not by itself provide probable cause that correspondence of evidentiary value will be found in their private messages.

There has to be (or should be) something more.

And if the prosecution did have reason to believe they would find these DMs - and weren't just doing a fishing expedition- then great, all is above board.

And posting racist memes publicly online, as Daniel perry did, is also not adequate justification for subpoenaing private records. (By the same rule you have mentioned previously - its accepted he has posted racist stuff online, why pile on more)

[TheTexan]

Yea, pretty much all his private correspondence was "extracted" just as a matter of standard policy. He got arrested and his phone was "extracted" without subpoena, without search warrant. And this is "fine" because the device was in his pocket therefore its fair game

https://www.documentcloud.org/docume...nsealed-031423

Lesson to be learned here:

ENCRYPT YOUR PHONES

[jmdrake]

Maybe.

I'm guessing they subpoenas his text messages as a matter of standard practice. Which if I understand your position correctly, this is something you agree with. In which case - fine. Who cares about 4th anyway right.

I don't agree with that.

I don't think that anyone who is defending a self defense case should have their private correspondence opened up for discovery just by default as a standard practice.

The fact that someone died does not by itself provide probable cause that correspondence of evidentiary value will be found in their private messages.

There has to be (or should be) something more.

And if the prosecution did have reason to believe they would find these DMs - and weren't just doing a fishing expedition- then great, all is above board.

And posting racist memes publicly online, as Daniel perry did, is also not adequate justification for subpoenaing private records. (By the same rule you have mentioned previously - its accepted he has posted racist stuff online, why pile on more)

A) I'm not saying what I agree with or disagree with. I'm saying what the law is. As I already pointed out to you, and to @dannno, Daniel Perry's lawyers (again according to your link), aren't even contesting the phone records in a motion for a new trial. So if you think they should, you should absolutely contact them and make your pitch. Seriously.

B) It wasn't just "racist memes." It was memes about violence and the use of force. He publicly posted about when and how you could kill someone and get away with it. He certainly had a right to do that. And most assuredly by itself none of this is enough for a conviction. But we weren't even talking about if he killed Garrett Foster but why he killed Garrett Foster. It got to a question of "state of mind."

But again, make your pitch to his lawyers. Maybe they'll find it useful.

[jmdrake]

Yea, pretty much all his private correspondence was "extracted" just as a matter of standard policy. He got arrested and his phone was "extracted" without subpoena, without search warrant. And this is "fine" because the device was in his pocket therefore its fair game

https://www.documentcloud.org/docume...nsealed-031423

What is your source that there was no warrant?

Lesson to be learned here:

ENCRYPT YOUR PHONES

That was already a lesson years ago from Edward Snowden.

[TheTexan]

What is your source that there was no warrant?

I'm assuming that because I saw no mention of a search warrant in that document.

I could be wrong but I'm probably not. "Extracting" cell phone data without a warrant is a fairly common practice.

But again, make your pitch to his lawyers. Maybe they'll find it useful

It would probably be about as useful to them as the 4th amendment has been to us

[jmdrake]

I'm assuming that because I saw no mention of a search warrant in that document.

They wouldn't need to assert that at this point. Part of the data from the cell phone was already admitted. If there was no warrant then that issue should have already been raised and then brought up again in the motion for a new trial to preserve it for appeal.

I could be wrong but I'm probably not. "Extracting" cell phone data without a warrant is a fairly common practice.

Admitting that data in court is not common practice. If the state didn't have a warrant and his lawyers aren't raising that issue on their motion for a new trial that's legal malpractice.

[ClaytonB]

Yea, pretty much all his private correspondence was "extracted" just as a matter of standard policy. He got arrested and his phone was "extracted" without subpoena, without search warrant. And this is "fine" because the device was in his pocket therefore its fair game

https://www.documentcloud.org/docume...nsealed-031423

Lesson to be learned here:

ENCRYPT YOUR PHONES

Not exactly. The real lesson is DO NOT USE PHONES.

The most secure configuration you can have in today's environment (while using mobile tech at all) is: (a) a flip-phone for daily use/carry and (b) a smartphone with no SIM card connected to Wifi for other uses (e.g. Maps). Encryption can add a layer of protection against simple loss/theft, and that is pretty much it (it provides no security whatsoever against cops/Feds).

An encrypted phone is not really encrypted because the keys are accessible through the system and telco layers -- Apple, Google and your carrier all have 100% access to anything on your phone and the Feds are never more than one gagging subpoena away from that same access. Assuming you aren't already just being auto-siphoned into Bluffdale due to being on some "list" (as every RPF poster should assume they are).

To do even better, you should "un-bundle" as many smartphone functions as you can. Do not use your phone's built-in camera, rather, buy a discrete digital camera. GPS. Alarm clock. Etc. Same for all the other functions in the phone. Yes, that means you will have a little clutter in your desk drawer, but is avoiding having several discrete devices in your desk drawer really worth giving 100% access and visibility to all Federal agencies to inspect every single detail of your day-to-day life? And yes, that is in fact what they have access to.

[TheTexan]

. But we weren't even talking about if he killed Garrett Foster but why he killed Garrett Foster. It got to a question of "state of mind."

What case were they trying to make here anyway, with including the racist stuff? Like "bag a negro". Last I checked Garrett was white

[TheTexan]

Not exactly. The real lesson is DO NOT USE PHONES.

Ya, not really an option though.

And by encrypt your phone,I mean do it in a way that actually works... not just the out of the box stuff that is provided by default. Ofc that $#@! ain't gonna work

[TheTexan]

They wouldn't need to assert that at this point. Part of the data from the cell phone was already admitted. If there was no warrant then that issue should have already been raised and then brought up again in the motion for a new trial to preserve it for appeal.



Admitting that data in court is not common practice. If the state didn't have a warrant and his lawyers aren't raising that issue on their motion for a new trial that's legal malpractice.

Ok then how can I go about finding the court document that explains how it was admitted?

[ClaytonB]

Admitting that data in court is not common practice. If the state didn't have a warrant and his lawyers aren't raising that issue on their motion for a new trial that's legal malpractice.

Oh, but there are so many clever tricks to get around all that noise. Most people will immediately consent to a search of their vehicle if an officer simply asks. Once they say "yes", everything that flows from that search is 100% admissible. The same goes for cell phone searches. "Do you mind if I take a quick look at your phone? I'll give it right back." Once you surrender it, you have legally consented to search of everything on that device, no matter if you understood the officer to be only checking something specific and returning the device to you immediately. There is a field device that can just "plug and image" the entire phone right then and there, and I'm sure these devices are very widely deployed. So, "Can I take a quick look at your phone, I'll give it right back?", plug siphoning device, BOOM, the PD now has a 100% legally admissible image of every single byte on your phone. Every image, every GPS location, every SMS, every encryption key, every email cached on the phone, every "encrypted" message, etc. Very few people have the fortitude to go all 4A-"I will only speak with advice of legal counsel". Perry's situation is exactly the kind of situation where this matters most, but again, he's following the "upstanding transparent citizen" mindset so that's how the prosecutor (which is absolutely not of the "upstanding citizen" view, no matter who is on the docket) gets full access to this stuff.

[TheTexan]

This is interesting, if I dig deeper into this case how much more of this type of stuff will I find?

https://context-cdn.washingtonpost.c...d-746e84d77b99.

I am the lead investigating detective in the above referenced case.
2. Prior to the grand jury presentation in this case, I had several
conversations with the District Attorney's Office regarding the
presentation of exculpatory evidence related to Daniel Perry. It became
clear to me that the District Attorney's Office did not want to present
evidence to the grand jury that would be exculpatory• to Daniel Perry
and/or to show that witness statements obtained by the family of Garrett
Foster and/ or their attorneys were inconsistent with prior interviews such
"witnesses" gave the police and/or the video of the incident in question.

[ClaytonB]

Ya, not really an option though.

And by encrypt your phone,I mean do it in a way that actually works... not just the out of the box stuff that is provided by default. Ofc that $#@! ain't gonna work

No, I'm specifically repudiating your second sentence. NOTHING works, period.

As for "not an option", there are always options. It's just a matter of breaking down the device into its separate functions. Do you really need instant access to every single app on your phone at all times? Of course not. For some people with work requirements, the cost may be maintaining two subscriber lines. An extra $100/mo. to not be spied on 24x7 by the Feds? Sign me up.

I cannot emphasize strongly enough..... NOTHING is truly secure on a smartphone platform, it is fundamentally compromised, at root.

[jmdrake]

Ok then how can I go about finding the court document that explains how it was admitted?

Well some courts have all of their court files online that you can access for a fee. That's true for all federal courts and some state courts. Looks like Austin is online.

https://www.traviscountytx.gov/distr...eRecordsSearch

Have fun! Looking forward to seeing what you find.

[jmdrake]

Oh, but there are so many clever tricks to get around all that noise. Most people will immediately consent to a search of their vehicle if an officer simply asks. Once they say "yes", everything that flows from that search is 100% admissible. The same goes for cell phone searches. "Do you mind if I take a quick look at your phone? I'll give it right back." Once you surrender it, you have legally consented to search of everything on that device, no matter if you understood the officer to be only checking something specific and returning the device to you immediately. There is a field device that can just "plug and image" the entire phone right then and there, and I'm sure these devices are very widely deployed. So, "Can I take a quick look at your phone, I'll give it right back?", plug siphoning device, BOOM, the PD now has a 100% legally admissible image of every single byte on your phone. Every image, every GPS location, every SMS, every encryption key, every email cached on the phone, every "encrypted" message, etc. Very few people have the fortitude to go all 4A-"I will only speak with advice of legal counsel". Perry's situation is exactly the kind of situation where this matters most, but again, he's following the "upstanding transparent citizen" mindset so that's how the prosecutor (which is absolutely not of the "upstanding citizen" view, no matter who is on the docket) gets full access to this stuff.

Yeah...if you accidentally consent to search you can screw yourself and the courts won't save you.

[TheTexan]

Well some courts have all of their court files online that you can access for a fee. That's true for all federal courts and some state courts. Looks like Austin is online.

https://www.traviscountytx.gov/distr...eRecordsSearch

Have fun! Looking forward to seeing what you find.

I don't see anything in the case events about a warrant or subpoena for a cell phone extraction.

https://odysseyweb.traviscountytx.go...on/portalembed

[jmdrake]

I don't see anything in the case events about a warrant or subpoena for a cell phone extraction.

https://odysseyweb.traviscountytx.go...on/portalembed

Hmmm....they list the case events but you can't download anything. I saw a CAPIAS/WARRANT event but that's likely just for his arrest. I also saw a states motion to seal. Daniel did a couple of motions for discovery and ultimately a motion to compel. (The state was being slow turning stuff over).

[TheTexan]

After reading the defense's letter to the pardon board... I am convinced at this point he was railroaded for the simple crime of being racist online.

https://www.scribd.com/document/6381...y-Defense-Team

One thing I would note @jmdrake is that the witness interview who said that Garrett did point the weapon at Perry, was not allowed to be admitted into evidence. Any "legal justification" for that? ...

[dannno]

I never said Perry didn't have a right to arm himself or that this wasn't a dangerous situation so don't put words in my mouth.

I never put words in your mouth, I was building a case from the ground-up with full context. Quite the opposite, I was actually responding to a statement I read earlier from you that said the rioter had just as much of a right to be armed as Perry. I agree with all that, I was trying to find common agreement on that point.

I'm not trying to say everything you've said is wrong, I'm just trying to provide more context on the situation as a whole so that you can see that no matter what, this guy was falsely convicted. I think the text messages and whole thing about motivation was a total distraction. I agree that these messages were attained illegally and shouldn't have been, but even with their release I don't think it should have had any impact.

I don't care if he was mad at BLM/antifa, I don't care if he was racist against certain races, I don't think that matters at all in this particular instance. I'll get to the "why" soon.

But as an example, if a black person wanted to go into an area with white supremacists wearing tactical armor and a sidearm, and wait to be lynched, then shoot the lynchers, I don't think I would have a problem with that either.

Also I can see a reasonable jury acquitting Perry. I can also see a reasonable jury convicting Perry. At the end of the day this came down to witness credibility over a vey simple question. Did Garrett Foster point his gun at Daniel Perry or did he not?

Irrelevant. There is no law that says somebody has to point a gun at you before you shoot them. In all 50 states, if somebody says, "I'm going to shoot you!" and they reach for their gun, you can shoot them before they point their gun at you. That's not exactly what happened in this case, but it is analogous.

Here is the context you and everyone else trying to argue me down keep ignoring. Perry's cop "expert" would have likely shot Kyle Rittenhouse based on how Kyle was carrying his rifle.

....which is missing the context that I put forward. There is a different standard for shooting a lawful citizen carrying a gun than there is for shooting a criminal who is carrying a gun. I'm not saying you can shoot anybody committing a crime who is carrying a gun, just that there is a different standard for when you could do it. So since Kyle was not committing any crimes or engaging in criminal conduct, nor was he part of a group that was doing so, then no, there would be no justification to shoot Kyle. Whereas this guy was part of a mob of people who were unlawfully blocking a street and unlawfully threatening somebody who was lawfully driving down said street.

But we weren't even talking about if he killed Garrett Foster but why he killed Garrett Foster. It got to a question of "state of mind."

Probably the same state of mind a police officer who puts out a decoy car in a bad neighborhood for criminals to steal. I have no problem with that.

Additionally, I don't think I would have a problem with an armed person who put on a bullet proof vest and walked down a dark alley at night to see if somebody would rob them with a gun, then they could shoot them. If that is such a big problem in their community that they feel the need to risk their lives to do so, I don't think I see any issue with that. If somebody came by the dark alley ten minutes later and was robbed at gunpoint, they would have the right to defend themselves as well.

I think the lawyers were taking advantage of the fake narrative being set around these "protests". Antifa and BLM were burning down businesses and destroying things and hurting people all over the country. It is perfectly reasonable to be upset about that. It's perfectly reasonable to have bad feelings about these rioters, the ones are destroying people's lives. Additionally, while I disavow racism, it is not a crime. Racists still have the right to defend themselves.

Earlier you said something about his text message about what he could "get away with" as far as shooting somebody legally. That's sort of a weasel word way of saying he was looking up the ways he could legally defend himself in his particular jurisdiction.

So basically, he knew there were going to be riots, he knew he might be at these riots. I don't think it matters whether he put himself there on purpose, like Kyle Rittenhouse did, or whether he thought that as an Uber driver he might end up having to go there for occupational purposes.

[TheTexan]

And the prosecution's narrative that the protestors swarmed his car because they were intimidated by his car, is just patently ridiculous.

And that was the prosecution's whole main argument hinged on.

[jmdrake]

After reading the defense's letter to the pardon board... I am convinced at this point he was railroaded for the simple crime of being racist online.

https://www.scribd.com/document/6381...y-Defense-Team

One thing I would note @jmdrake is that the witness interview who said that Garrett did point the weapon at Perry, was not allowed to be admitted into evidence. Any "legal justification" for that? ...

That's a well written motion for a new trial. Note that they don't say anything in the motion about an illegal search of his cell phone. Feel free to tell them what you think they've missed.

[TheTexan]

That's a well written motion for a new trial. Note that they don't say anything in the motion about an illegal search of his cell phone. Feel free to tell them what you think they've missed.

If I thought honestly they would take me seriously, and they would actually pursue it, I would.

But they likely know as well as I do, that it would be a lost cause. The 4th has been trampled. The fact that cell phone extractions occur as standard practice before a warrant is issued is proof of this.

Add on top of the fact the known and understood fact that search warrants are rubber stamped with zero cause on a regular basis across the country, and why would I bother?

The search warrant for the cell phone is so insignificant to the courts that they don't even bother listing it in their case events.

So excuse me, if I don't take your sarcastic suggestions seriously.

[TheTexan]

https://www.upturn.org/work/mass-extraction/

[ClaytonB]

https://www.upturn.org/work/mass-extraction/

That link is amazing! I was aware of much of the contents of it, but it's a super-accessible, all-in-one summary!

[ClaytonB]

https://www.upturn.org/work/mass-extraction/

One way that MDFTs access account-based information is by copying the account credentials that the phone stores in order to remain logged in, essentially pretending to be the user’s phone. This gives investigators access to any cloud data that the user has access to from their phone, like social media data, emails, or backups of photos and other data. For the most part, this data is not encrypted. For example, an MDFT may be able to pull a remote backup of the phone from Apple’s iCloud service by copying information it finds in the phone’s password management system.30 And because many services allow users to download all of their data (e.g., Google’s Takeout), MDFTs can access even more sources of data, some of which are shown in Figure 2.3. Figures 2.4 to 2.6 show the process of retrieving account-based cloud data in Magnet’s AXIOM software.

^^^THIS is one of the biggest issues that most people are not aware of. If you're on a routine traffic stop, an officer asks to "look at your phone", takes a snapshot of it using an MDFT (there are mobile versions out there, I've read about this), he now has full access to practically any account your phone is currently able to access... email, chat, cloud drives, you name it. That access will persist until you reset the password and clear cookies (reset app credentials, on mobile)! Of course, in that time, the PD could (and just might) download all accessible data from those online locations.

This is why I keep pounding my fist and screaming that the phone is the single biggest security vulnerability in modern life and most of us are (still) completely unaware of it.

[ClaytonB]

Oh that's from a sealed indictment from 2015? Weird how they just let him continue for almost a decade before arresting him.

Kinda weird like Austin DA's office which left the "murder" of Garret Foster un-charged for 2 years (EDIT: 1 year) before a Soros-backed DA suddenly realized that it was actually murder, despite no new evidence or testimony. Justice moves in mysterious ways...