AUSTIN, Texas — The ongoing murder trial of an Uber driver who shot and killed a Black Lives Matter protester in 2020 after driving into a crowd of demonstrators is putting Texas’ open carry laws under a microscope. 

Garrett Foster was carrying an AK-47 during a Black Lives Matter protest in the summer of 2020 when Daniel Perry drove into the crowd where Foster was marching and fatally shot him.

This trial is a unique look at how Texas’ Stand Your Ground and open carry law collide. Foster’s defense argues he was legally allowed to open carry an AK-47 in public.

Witnesses say Foster never lifted his gun and that Perry was the aggressor. Perry’s defense argues his actions were considered self-defense under “Stand Your Ground” because he feared for his life. The trial was filled with powerful evidence and emotional testimony from witnesses, Foster’s friends and his fiancé, Whitney Mitchell. 

“I jumped out of my chair and I saw him on the ground,” Mitchell said, in tears. 

This witness testimony is describing what happens when two Texans openly carrying guns for protection cross paths. 

“I saw the car coming really fast towards us,” Mitchell said. 

Trying to determine who was more threatened or within their right to defend themselves is a particularly difficult task for this jury. 

“It is what academics call an interesting situation,” said University of Texas law professor Sanford Levinson.

The constitutional law expert says this has nothing to do with the Second Amendment. 

“The Second Amendment has not been interpreted to require states to tolerate open carry,” he said. 

Spectrum News spoke to Levinson outside of the courtroom during the trial. He said the trial is muddied by the state’s gun rights. 

“It’s all about the ramifications of allowing everybody in Texas to openly carry weapons, including military-style weapons like AK-47s,” he said. 

While it’s reasonable to feel threatened seeing someone with a gun, Levinson explained that because of open carry, it’s harder to prove assault when it’s legal to walk around with a dangerous weapon. 

“It would literally be the case that there’s just open season if you go out in public and see anybody with a gun, that you would be licensed to shoot that person because [of] what you would say — I feel fearful whenever I see someone with a gun. So open carry presumably doesn’t allow that,” he said. 

However, Perry drove a car into a crowd. Whether he had a good reason to do that or not, that can also be seen as a threat because the car is considered a dangerous weapon as well. 

“It doesn’t seem that exceptional that the Uber driver might be panicked by seeing someone with an AK-47, which is one of the world’s most dangerous weapons,” Levinson said. “And by same token, it’s not so surprising that the person with the AK-47 would panic if the Uber driver drew a gun on him.” 

Legally, this case boils down to whether Perry had a reasonable fear for his safety or his life, which is all up for interpretation. 

“The difference between paranoia and legitimate fear, and your guess is as good as mine, quite literally,” Levinson said. “I don’t think being a lawyer helps at all.”

The key evidence at this trial will be whether or not there is proof that Foster lifted, pointed or aimed his gun in any manner that would have given Perry license to defense himself with deadly force. 

However, Foster doesn’t get to defend himself in this case, even if he legally had the right to defend himself. The jury only has to decide if Perry was justified in killing the 28-year-old protester. 

For everyone involved, this is a trial where nobody will win in the end, even if the law is on both sides. The Travis County trial is expected to last two weeks. Tuesday marks the first week of witness testimony.