What We Know About the Austin BLM Protest Shooting

Garrett Foster (right) and his fiancée, Whitney Mitchell (left). Foster was killed on Saturday night in a shooting while marching in a Black Lives Matter protest in downtown Austin. Photo: Handout/Patricia Kirven/Dallas Morning News

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On Saturday night in Austin, Texas, a Black Lives Matter protester named Garrett Foster was shot and killed after a chaotic altercation with a motorist who apparently tried to aggressively drive past marching protesters in a downtown intersection. Foster was openly carrying an AK-47 rifle during the protest, which is legal to do in Texas. Austin Police announced on Sunday night that the driver said that he fired on Foster after he pointed his rifle at his car, while some witnesses have said Foster did not. The driver and another shooter, who fired on the car as it drove away, were questioned and released by police, but the law-enforcement investigation is ongoing. Below is everything we know so far.

The shooting

According to Austin police and witnesses, shortly before 10 p.m. local time, Black Lives Matter protesters were marching through the intersection of Fourth Street and Congress Avenue when an unidentified motorist honked their horn and then turned aggressively through the intersection — while protesters were still in it — and abruptly stopped. In a livestreamed video shot by independent journalist Hiram Gilberto Garcia, some of the protesters can be seen converging on the vehicle, at which point a man can be heard shouting, “Everybody back up!”

Five gunshots can then be heard, prompting the protesters to scream and run for cover. Soon after, three additional gunshots can then be heard, and sound like they came from a different weapon than the first round of gunfire. In another video, the car can be seen driving away after the shooting:

When it was over, Garrett Foster, a 28-year-old white man marching in the protest with his disabled fiancée, was laying on the ground with multiple gunshot wounds in a pool of blood. Foster was carrying an AK-47 rifle while he marched, as fellow protesters say he often did as a regular participant, along with his fiancée, during the ongoing protests against police brutality in the city. Texas is an open-carry state where it is not uncommon to see protesters from across the political spectrum carrying firearms at demonstrations. According to state law, open carry is legal as long as it is not done “in a manner calculated to alarm.”

Medics performed CPR on Foster at the scene, but he was pronounced dead after being transported to Dell Seton Medical Center.

Police were already on the scene and responded to the shooting in less than a minute. A police official later said that they had taken the driver into custody and that he was cooperating with the investigation. No police officers fired their weapons, and no one other than Foster was injured.

Witnesses and police say that the motorist fired on Foster after he approached the vehicle, and that Foster did not fire his weapon — but there are conflicting reports about whether or not Foster did anything to threaten the driver.

Witnesses have told reporters that Foster kept his rifle pointed at the ground as he approached the vehicle, and that he was not the only protester carrying a firearm during the march. They say that the driver pointed a handgun through the car window and fired at Foster. Witness Michael Capochiano told the New York Times that Foster “was not aiming the gun or doing anything aggressive with the gun.”

He was not holding it in an aggressive manner. I’m not sure if there was much of an exchange of words. It wasn’t like there was any sort of verbal altercations. He wasn’t charging at the car. He was just walking over there.

Capochiano said that he did not see the driver fire at anyone other than Foster. He also said that when the driver originally surged through the intersection, “You could hear the wheels squealing from hitting the accelerator so fast … I’m a little surprised that nobody got hit.”

The victim’s mother, Sheila Foster, told Good Morning America on Sunday morning that she had heard that Foster had been pushing his fiancée, Whitney Mitchell, who is Black and a quadruple amputee, in her wheelchair through the intersection when “this gentleman got out of his car and started firing shots, and my son was shot three times.”

So far, no photographs or video footage of Foster pointing his rifle at the car or driver have emerged. One image that has been widely shared on social media appears to show Foster pointing his rifle down toward the ground while near the vehicle.

But on Sunday evening, Austin police announced that the driver told investigators that Foster had pointed his rifle at his car. Austin police chief Brian Manley said at a press conference that the driver of the car called 911 minutes after the shooting to report that someone had pointed a gun at his vehicle and that he had fired on them.

Manley said that the first person who appeared to fire was the driver, and then a second person (not Foster) drew a concealed handgun and opened fire on the car as it drove away. He said that witnesses have told police “several different versions of the incident” and that detectives are reviewing the “precise actions” of everyone involved. He asked for anyone with more information or footage of the event to come forward.

Chief Manley said that the driver and the second shooter had both been released “pending further investigation.” He did not identify either shooter and would not say why the driver had been in the area.

“We are heartbroken over the loss of Mr. Foster last night,” Manley said, adding that the shooting “is actively being investigated … in conjunction with the Travis County District Attorney’s Office.”

Austin mayor Steve Adler tweeted on Sunday that he was “heartbroken and stunned” by the event, which he framed as a consequence of there being “too many guns”:

President Trump, meanwhile, inserted himself into the story on Sunday night when he retweeted a false account of what happened which seemed to celebrate Foster’s death.

Self-defense and stand-your-ground laws in Texas

The full picture of what happened remains unclear, other than the fact that there was a shootout in downtown Austin on Saturday night that left a protester and U.S. Air Force veteran, who was openly carrying but never fired an assault-style rifle, dead. The two people who did fire their guns, including the motorist who shot and killed Garrett Foster, were then questioned and released without charges — at least so far.

How Texas self-defense laws might apply to the shooting also remains foggy, the Austin American-Statesman reported on Monday night, particularly when factoring in Texas’ unique stand-your-ground law:

[ Jennifer Laurin, a professor of criminal law and procedure at the University of Texas,] said a slight majority of states have stand-your-ground laws that, like Texas’, don’t obligate an individual to retreat if possible. But Texas is in the minority of states that go farther, allowing for deadly force based on the perception that someone is under assault or to protect his or her property.

The Texas approach, Laurin said, “leaves room for people to make mistakes, as long as they’re reasonable mistakes, that deadly force was necessary.” But, she said, an “individual forfeits their right to use deadly force justifiably if they are the provoker of the situation.”

“And if it’s a situation in which the driver of a vehicle turned their vehicle into a deadly weapon, that itself might have justified someone actually threatening deadly force against that driver,” Laurin said.

As for the question of whether Foster had been pointing his gun at the driver, that might matter in further establishing reasonableness, she said. But even if Foster was pointing the gun at the ground, a driver might still reasonably think that someone approaching with an assault-style rifle was a threat.

Laurin also noted that while the police have not filed any charges, that doesn’t mean they won’t.

The victim

Garrett Foster and his fiancée, Whitney Mitchell, were apparently well-known at the ongoing peaceful BLM protests in downtown Austin over the last several weeks. Per the Statesman:

“A lot of us haven’t slept — I haven’t been asleep,” [witness Julian] Salazar said Sunday morning. “It’s been heartbreaking. A lot of us are angry, depressed, sad to learn that his wife now is going to be struggling. The one person she had here in Austin, who was always going to be there for her, is now gone.”

Foster had attended the protests in downtown Austin against police violence for weeks, which is how Salazar got to know him, he said. Foster was “always respectful, and he was an easy guy to get along with,” Salazar said. Foster did often talk to protesters about his rifle, which he often brought to the protests.

Indeed, earlier in his livestreamed coverage of the march, journalist Hiram Gilberto Garcia had briefly interviewed Foster and asked him about the rifle. In the video, Foster said that he was carrying the weapon because “they don’t let us march in the streets anymore, so I gotta to practice some of our rights.” He also indicated that he had the weapon for protection, and seemed to think it would intimidate anyone looking to start trouble with the protesters.

“I mean, if I use it against the cops, I’m dead, and I think all the people that hate us and want to say shit to us are too big of pussies to stop and actually do anything about it,” Foster told Garcia.

Speaking with Good Morning America, Foster’s mother said she found out about the shooting from Mitchell’s mother. Ms. Foster said he had told her the protests had always been peaceful, and that he wanted to demonstrate because he was against police brutality and wanted to support his Black fiancée, whom he has been with since they were both 17. She also said she wouldn’t have been surprised if he was carrying his rifle, since he had a license to carry it and “would have wanted to protect himself” after seeing the violence at other protests around the country. In his Facebook posts, Foster repeatedly expressed anti-racist, libertarian, and anti-police views. (There is also evidence, according to J.J. MacNab, a research fellow at George Washington University’s Program on Extremism, that Foster identified with the anti-government Boogaloo movement, which has followers on both the left and right.)

Foster’s sister, Anna Mayo, told the Statesman that her brother and Mitchell have “experienced so much hate just for their relationship in general,” and that, “from day one, he’s fought to end that.” She also said that he was a strong supporter of the Second Amendment:

“My brother would have never, ever pointed a gun at somebody,” Mayo said. “He always carried his guns with him. He had a license to carry in Texas — we’re an open carry state. He always would exercise his right to carry, but he would never threaten somebody. He was one of the most kind-hearted people — that was the whole reason he was out there.”

Mitchell’s mother, Patricia Kirven, told the Dallas Morning News on Sunday that her daughter was “inconsolable,” and that she had been told that Foster had been trying to protect her when the car drove toward the protesters:

“He jumped in front of Whitney and the guy rolled down the window and shot him,” Kirven said, relaying the accounts of the couple’s friends. “They thought the person was aiming at her because she is a sitting duck.”

Sheila Foster told the News that the couple had been engaged since they were 18, and that her son had taken care of Mitchell after she was struck with a mysterious illness in 2011 that resulted in her having to have all four of her limbs amputated:

After [Mitchell] was shunted from her doctor to the emergency room to the intensive-care unit, Mitchell was put on life support, according to an article The News wrote about her in 2011. As Mitchell’s body tried to fight off infection, it shut down blood flow to her limbs. To fight septic shock, doctors amputated her arms and legs.

Sheila Foster said her son, who was in the military at the time, came home as quickly as possible to take care of Mitchell. “He’s been doing it ever since,” Foster told The News. “He loved that woman unconditionally.”

Foster and Mitchell moved to Austin about two years ago, the couple’s mothers said. Both shy and introverted, he took care of her and she designed and made clothes, all “with no arms and legs,” his mother said. Sewing started as a form of therapy for Mitchell, Kirven said, that grew into a passion and a business.

According to Foster’s LinkedIn profile, he served a little more than two years in the Air Force as an aircraft-maintenance crew chief, and was currently employed as a caregiver. According to his family, he obtained a discharge from the Air Force so he could come home to take care of Mitchell.

After the shooting on Saturday night, Mitchell and other protesters reassembled where Foster was shot for a small vigil:

A larger vigil for Foster was then held on Sunday night:

A GoFundMe set up for Foster’s fiancée and funeral expenses raised more than $108,000.

The shooters

Neither the identity of the person who shot and killed Foster, nor the identity of the second person who fired on the driver’s car as he pulled away has been confirmed. Austin police said that both shooters were carrying legally licensed firearms.

This post has been updated throughout to include new information as it became available.

What We Know About the Austin BLM Protest Shooting