AUSTIN — Police released a driver accused of killing Garrett Foster at an Austin protest this weekend, raising questions about whether the shooter will face charges.

Experts said the case hinges on whether the driver has a solid self defense claim.

In a statement to The News on Monday, the Austin Police Department said it was still investigating the shooting: “APD Homicide is still gathering witness statements and video from the scene to put together the most complete picture of what happened before we make a decision moving forward. Although the issue of self-defense has come up, we will not come to any conclusion about the case until we have gathered all relevant evidence and confer with the [District Attorney’s] Office on the matter.”

What happened?

Witnesses reported that just before 10 p.m. Saturday, a driver turned down the street toward a crowd of protesters, honking its horn. The driver stopped in the roadway, police said, and Foster approached the driver’s side window while other protesters began striking the car.

Foster carried an AK-47-style rifle. The driver shot Foster from inside the car. Foster died about 30 minutes later. The driver called police to report opening fire after Foster pointed his weapon at the car, police said.

Protesters at the scene dispute this account, according to witnesses at the scene, saying Foster did not point his rifle at the driver. Foster was at the protest with his fiancée, Whitney Mitchell, a quadruple amputee who uses a wheelchair. The two met in North Texas as teenagers.

Police said two men at the protest shot weapons that night. In addition to the driver, another person in the crowd who was not Foster returned fire as the car drove away, they said. Police have also not charged that person.

‘Full and fair investigation’

Legal experts agreed the biggest unknown is what happened in those critical seconds before Foster was shot.

Sam Bassett, a former president of the Texas Criminal Defense Lawyers Association, said this case could go one of three ways: local officials could charge the driver with a crime, they could not charge the driver or they could ask a Travis County grand jury to decide.

Bassett and David Botsford, another former association president, weren’t surprised charges have not been brought this early in the investigation. Bassett said police likely determined the driver was neither a flight or safety risk to the community and decided to wait until after the investigation is complete to decide on charges.

“It pains the entire community that that sort of thing has happened,” Botsford said. “But cooler heads need to look at the situation and do a full and fair investigation.”

Merely delaying charges doesn’t necessarily mean no charges will be filed. Some high profile Dallas cases had delays while law enforcement investigated and charges were ultimately filed.

Former Dallas Police Officer Amber Guyger was not arrested until three days after she shot and killed Botham Jean in his apartment. She was originally arrested on a manslaughter charge and was then indicted for and convicted of murder. She is serving a 10-year sentence.

Prosecutors could also take the case to a grand jury and let them decide whether to charge the driver. Texas A&M quarterback and Heisman Trophy winner Johnny Manziel’s domestic violence case went to a grand jury, which indicted him for misdemeanor assault. The charge was dropped after Manziel agreed to drug and anger management counseling.

COVID-19 could delay any trial or grand jury proceedings.

It’s also unclear how quickly outgoing Travis County District Attorney Margaret Moore would take this case to a grand jury or trial. Moore, a Democrat who was recently ousted from office by a more left-leaning prosecutor, said she won’t take two other high profile cases to a grand jury before her tenure ends at the end of the year.

‘Murder or self defense’

There are several charges the driver could face, experts said.

First, protesters could argue the driver assaulted them with the vehicle. For the shooting death of Foster, the driver could be charged with murder, manslaughter or criminally negligent homicide, all felonies.

Bassett believes it is less likely the driver faces negligent homicide charges because the driver reported shooting Foster after he approached the vehicle’s window, implying the driver intended to hit him. Manslaughter, which assumed Foster’s death was the result of recklessness, is possible but also less likely, he added.

“It’s either murder or self defense,” Bassett said. “They all legitimately had firearms. So the question becomes, was the conduct of the deceased sufficient to invoke the right of self defense?”

It’s legal in Texas to openly carry a rifle like Foster’s without a license. One must have a license to carry a handgun. Both the driver and man who returned fire had such licenses, police said. But state law prohibits anyone from exhibiting a gun or other deadly weapon “in a manner calculated to cause alarm.”

That’s where self defense comes in.

Texas law allows someone to use “deadly force” if he “reasonably believes” it is “immediately necessary” to protect his life or property. If someone mistook a toy gun for an actual gun and shot the holder, Botsford said, he could argue self defense if there was a reasonable belief of danger. The law prohibits someone from arguing self defense if they provoked the deadly force. This could come into play if police find the driver threatened protesters by using the car as a deadly weapon.

Without video proof or other real evidence, however, it could come down to a “he said, she said” for police and prosecutors.

“It’s a real judgement call,” Bassett said. “You have to determine who the most credible source of information might be. And does that person have anything that corroborates his or her story?”

The experts said the person in the crowd who returned fire could also claim self defense if charged with a crime for discharging a weapon. Texas law also allows someone to use force to protect someone else with the same general caveats for self defense, if the person “reasonably believes that his intervention is immediately necessary to protect the third person.”

But Jerry Patterson, who wrote the state concealed handgun law, doesn’t anticipate this case going anywhere for anyone.

“At the end of the day, I don’t think anybody is going to be convicted of anything,” he said. “Our judicial system should be tilted toward the defendant, and that’s hard to swallow sometimes.”