Social Media and Use of Force Revisited

See Picture Note Below

If you are ever involved in a use-of-force incident and are charged criminally, one thing that you can be certain of is that the prosecutor will ferret out every controversial thing that you have ever posted on-line. They will use that information to paint you as a blood-thirsty, Rambo-wanna be who was itching to kill someone for their own visceral pleasure. What you post on social media, what you wear, the public behaviors you exhibit, and potentially what others post can be used against you in court. 

Posts on social networking sites such as Facebook, Reddit, “X”, Instagram, blogs, and other social media are regularly popping up as evidence in courtrooms across the country. Social media evidence has been a critical element in several use of force court cases. 

Prosecutors and defense attorneys have learned that searching people’s social networking and combing though some of what they have shared with the rest of the world is often a veritable gold mine of information. In several trials, a defendant’s credibility was completely lost in a matter of seconds when the jury was presented with something the defendant had previously written in text messages or posted on social media. 

As an example, in an incident during a protest in Austin, Texas a ride share driver named Daniel Perry shot and killed Garrett Foster (a protestor). Perry told Austin PD lead detective, David Fugitt that Foster approached his vehicle and pointed an AK-47 at him. Perry responded by shooting Foster five times. Based on Perrys recounting of the incident and other witness statements, Detective Fugitt concluded that the shooting was likely justified self-defense and declined arrest Perry at the scene. Detective Fugitt’s further investigation developed exculpatory evidence including animation from Daniel's Perry's driving the night of the incident coordinated with his cell phone records that (in the detective’s opinion) refuted the deadly conduct charge. (1)

However, newly-elected (at that time) Travis County District Attorney José Garza quickly brought the incident before a grand jury. I suspect Garza’s decision to prosecute Perry in large part was because of Perry’s social media postings and private messages. After an eight-day trial, the jury returned a guilty verdict for the murder charge and found Perry not guilty of aggravated assault with a deadly weapon.

The prosecution submitted some of Perry's Facebook postings in evidence during the trial. However, the prosecution requested and I believe the judge likely approved the release of a document containing the transcript of Perry’s private messages and other social media after Perry was convicted to inflame public opinion concerning Perry prior to his sentencing. Travis County prosecutors released seventy-six pages of Daniel Perry’s phone messages, media files, Facebook messages, and other information concerning his internet searches, texting conversations, etc. dating back to 2019. (2)

In Perry’s social media and messages he speculated numerous times about shooting protestors. During his trial, I believe prosecutors successfully used Perry’s social media and private messages to establish mens rea or a “guilty mind” concerning Perry’s actions. Mens rea refers to what the defendant was thinking and what his intent was at the time he committed the crime.

Here is some food for thought. Many self-defense and firearms associated Facebook groups and the discussions in those groups can encourage participants to believe they are among friends and as a result post potentially imprudent comments. Below are just a few examples of actual quotes that I have seen in Facebook groups discussing various incidents.

     -- Should have killed both of those cockroaches.

     -- Needs a bullet between the eyes!

     -- Needs to be shot.

     -- Put a cap in him.

I recently saw a somewhat well-known firearm instructor’s Facebook post stating: “Why can’t we all just see a MF’er and shoot a MF’er?” This post received several hundred likes from people in the firearms community.

Your “likes” on social media can also be viewed as speech. In Bland v. Roberts, the 4th Circuit stated in part: “On the most basic level, clicking on the “like” button literally causes to be published the statement that the user “likes” something, which is itself a substantive statement. … That a user may use a single mouse click to produce that message that he likes the page instead of typing the same message with several individual keystrokes is of no constitutional significance.” (3)

So let's say you’ve been freely expressing your opinion concerning shootings and other use of force incidents on Facebook and other social media. You also like expressive t-shirts and you still find the Marvel Comics fictional character “Punisher” fascinating. Now you are involved in a self-defense shooting and perhaps it occurred in one of the more “progressive” jurisdictions like--Travis County, Texas.

See Picture Note Below

Let’s go a step further and say that the miscreants who attacked you are of a different race, that the surveillance cameras only recorded one view of the incident, and that view does not completely reflect what you were confronting face to face. The progressive population demands that the progressive prosecutor present the incident to a grand jury and you are now charged with a serious crime. 

Remember, self-defense is an affirmative defense and can be a two-edged sword. To present an affirmative defense, you must admit that you did the act; however, you affirm that you were legally justified in doing so. The prosecution obviously disagrees and will be attempting to demonstrate that your action was not legally justifiable and that you in fact committed a crime. I believe based upon my research of the incident that Daniel Perry acted in self-defense. However, the prosecution successfully used Perry’s own words to support his prosecution.

Now, think about this real hard the next time you are typing something online. Would you want a jury hearing that you had previously said any of the statements above? What if there was a racial difference between you and your attacker and your attacker just happened to be of the same race as the individuals whom you called “cockroaches” and said should have been killed in a Facebook post? How do you think the jury is going to view this and your t-shirt picture that says a bullet is faster than dialing 911 or the Punisher decals on your vehicle? 

“Ladies and gentlemen of the jury, I present "exhibit A" taken from a post the defendant made on social media in an unknown county in Texas on or about June 2020. According to the defendant: “all (insert race) are cockroaches and should be killed.” 

So after the victim approached the defendant in the gas station and said “I am taking your car” but then backed away having had second thoughts about what he was doing. The defendant who, by his own words has been anxious to kill some (insert race) cockroaches, then emptied a clip of DEADLY HOLLOW POINT KILLER BULLETS from his AUTOMATIC ASSAULT PISTOL (liberal lawyers always use incorrect nomenclature like clip and assault pistol). The ‘victim’ in this brutal, premeditated crime has five children and was merely trying to provide for them the best that he knew how. Was he also a “(insert race) cockroach” that should have been killed?” 

Given some of the thug behavior you see today, it may be your opinion that the thug in a video did indeed need to be shot. Regardless, is this really a statement you would like a jury to hear and for your lawyer to try and defend or explain? 

Before making a post on a social media site, think about how people might interpret your words. Even if you feel they aren’t negative or damaging, a viewer might disagree. Never post anything online that you wouldn’t want to own up to publicly. 

Do not to expect your social media posts and text messages to stay private. Plan accordingly when using these accounts to communicate with others. Even so-called private posts made or exchanged on social media can come back to haunt you in court. Consider them a journal that anyone could pick up off your desk or bring to court as proof of your private thoughts and activities. Since even innocuous actions can appear to be inconsistent with certain claims, expect this information to be used in court when it might give the other side an advantage.

Remember that social media posts and text messages can also be a type of evidence that you have a duty to preserve. If you are involved in a self-defense incident and then try to delete these accounts, this could cast doubt on your credibility and imply that you are trying to hide something. 

Since social media is such an ingrained part of modern life, you can expect that it will become an even bigger feature in court cases in years to come. It is a very good practice to keep your social media posts benign and only include things you’d want a potential jury to see. How you dress and present yourself can also have unanticipated consequences. Posing for a picture in from of your cool vehicle that is covered in Punisher decals while wearing a t-shirt that says “a 9mm is faster than 911” may have implications you would rather not have your defense lawyer try to defend at your trial. “Smile, wait for flash” engraved on your pistol muzzle might be clever but . . . you get my point.

If you enjoy reading these posts, please subscribe. The link is on the upper right side of the page. All that will happen is that you will receive an e-mail when I post an article. Your information will never be distributed.

(1). David Fugitt Affidavit: https://archive.org/details/fuggit-affidavit/mode/2up 

(2). Perry Documents: https://www.kxan.com/wpcontent/uploads/sites /40/2023/04/Daniel-Perry-Evidence.pdf

(3). Bland v. Roberts, United States Court of Appeals For The Fourth Circuit, No. 12-1671

Picture Note: The pictures in this article are used solely to illustrate the ideas being discussed. No picture in this article is in any way associated with Daniel Perry or any incident, trial, or other activity involving Daniel Perry.