OMAHA, Neb. — A Nebraska grand jury has indicted a white bar owner who shot and killed a Black protester during the first weekend of unrest following the May 25 death of George Floyd.
Jake Gardner, 38, of Omaha, is charged with manslaughter, attempted first-degree assault, making terroristic threats and weapons use in the May 30 slaying of 22-year-old James Scurlock.
Scurlock was shot in the neck after he jumped on Gardner, who had fired his handgun during a skirmish with other protesters outside his side-by-side businesses in the Old Market section of Omaha. Douglas County Attorney Don Kleine initially declined to file charges, agreeing with Gardner’s claim that he had shot Scurlock in self-defense.
Following a critical backlash, however, Kleine announced on June 3 that he would ask a judge to appoint a special prosecutor in the case. That special prosecutor, Frederick Franklin, put the case before a grand jury, who issued an indictment on Tuesday.
“There was evidence that was gathered and presented to the grand jury about activity that Jake Gardner was engaged in prior to even coming in contact with James Scurlock,” Franklin, a retired federal prosecutor, said Tuesday during a news conference. "And that evidence can reasonably be construed as an intent to use a firearm for purposes of killing someone.
“You all want to know what it is, and I can’t tell you about it. But what I can tell you is that that evidence comes primarily from Jake Gardner himself.”
Franklin said he started out his probe believing that it would likely confirm Kleine’s determination of self-defense.
“I can tell you there is evidence that undermines that,” Franklin told reporters. “Again, that evidence comes primarily from Jake Gardner himself.”
Watch special prosecutor Frederick Franklin speak about the indictment below, courtesy of KMTV in Omaha.
Members of Gardner’s extended family came forward following Scurlock’s killing with allegations that the bar owner grew up in a world of racism. Gardner denied the accusations earlier this month in an interview with the Omaha World-Herald.
“My family has never said or acted negatively towards anyone based on their skin color or anything of that nature,” Gardner said.
Witnesses who were at the scene on Harney Street the night of Scurlock’s shooting, however, told Yahoo News in July that Gardner’s father, David Gardner, was hurling racial slurs at protesters prior to the gunfire. The elder Gardner, according to bartender Derek Stephens, appeared to be purposely antagonizing people.
Stephens said when he heard gunfire, he “initially thought it was the old man” who had fired the shots.
“I thought it was the father because the father was the one that was instigating the situation,” Stephens told Yahoo News.
Franklin briefly addressed the allegations of racism on Tuesday.
“There’s been discussion about whether Jake Gardner is a racist,” Franklin said. “I’m not commenting on whether or not that evidence was presented to the grand jury.”
“Being a racist is not against the law,” he continued.
Jake Gardner publicly stoked controversy in 2016 when he suggested on Facebook that transgender women should not be allowed to use female restrooms unless they have had their “appendage” removed. He told the World-Herald he regretted the word he used but that he stood by his statement regarding whether transgender women should be allowed in women’s restrooms.
Gardner, a former U.S. Marine, told KETV in Omaha hours before the indictment was handed down that he was nervous about the outcome.
“It’s stressful. I’m more anxious now than when I was flying to Iraq,” Gardner said.
Gardner’s Facebook page, which was taken down days after the shooting, showed him posing for photographs with Donald Trump Jr., as well as with a variety of celebrities like skateboarder Tony Hawk and actor Adam Devine. The Hive, his bar outside which Scurlock was killed, was themed around the Omaha-based band 311.
The shooting prompted the band to speak out on Instagram.
“We do not stand for bigotry or prejudice of any kind and denounce these senseless killings and those responsible,” the band’s statement said.
Franklin told the news station Tuesday that Gardner was expected to surrender himself to authorities one day later in the week. It was unclear as of Friday afternoon if that had taken place.
Over the past three months, Omaha police investigators and two retired detectives on Franklin’s team interviewed about 60 people and obtained evidence that Kleine did not have at the time he declined to press charges against Gardner, the special prosecutor said.
That evidence includes texts from Gardner’s cellphone, messages from his Facebook Messenger account and Gardner’s interactions with bystanders prior to the shooting.
The World-Herald reported that Gardner had posted on Facebook that weekend that he planned to “pull military-style firewatch” at the Hive and his second bar, Gatsby.
Surveillance footage from inside one of Gardner’s bars was also used to determine if charges were warranted.
The new evidence was relevant to Gardner’s state of mind the night Scurlock was killed, the prosecutor said.
Footage released by Kleine in June shows the confrontation leading up to Scurlock’s shooting, which was caught on camera. Gardner and his 68-year-old father, David Gardner, can be seen outside the Hive as protesters and bystanders mill about. The windows of Gatsby had been shattered earlier in the protest.
As father and son appear to exchange words with some of the people outside the bar, a protester appears to walk by and shove Gardner’s father to the ground. The World-Herald reported that authorities said Scurlock’s friend, Tucker Randall, shoved the elder Gardner after he pushed at least one woman near the bar.
Jake Gardner runs over to where his father is and confronts the protesters, looking for the person who pushed his father. It is at that point in the footage that Gardner flashes his gun.
He briefly pulls the weapon before putting it back into his waistband.
Watch Douglas County Attorney Don Kleine discuss the footage of James Scurlock’s shooting below. Warning: The footage may be too graphic for some viewers.
Scurlock, wearing a dark-colored T-shirt, can be seen in the footage at that point.
After Jake Gardner returns the weapon to his pants, two of the protesters jump on Gardner and knock him to the ground. One of those people, 19-year-old Alayna Melendez, told Yahoo News in July that she began contemplating how to disarm Gardner after seeing him wave the gun at people.
“I was taught gun rules from a very young age. My grandpa told me never to point a gun at anybody, even a BB gun,” Melendez said. “I thought, ‘I need to take this man down.’”
During the scuffle, the video shows Gardner firing what he later told investigators were two warning shots.
“As soon as I realized they were gunshots, I ran away,” Melendez said.
Gardner briefly gets to his feet before he is tackled by Scurlock.
According to Gardner’s version of what happened, “(Scurlock) then jumped on him or attacked him, that he’s doing a chokehold on him, that he begged and pleaded for this person to get off,” Kleine said in June.
The video does not have audio to confirm Gardner’s statement.
Gardner told police Scurlock attempted to grab his gun as they wrestled one another in the street.
“He thought he was in danger of losing his life or some serious bodily injury,” Kleine said. “And so he fired that shot in self-defense.”
Gardner is seen in the footage swapping his gun from his right hand to his left and firing over his shoulder. Scurlock was fatally wounded by the bullet.
The video shows Gardner stand up and walk toward his bar as a flurry of protesters run to help the mortally wounded Scurlock.
Scurlock’s supporters said that he did try to grab Gardner’s gun, but that he did so to ensure the bar owner couldn’t harm anyone.
Franklin explained Tuesday that the manslaughter charge relates to Scurlock’s death. The terroristic threats charge against Gardner stems from the moment he flashed his gun at protesters.
“Jake Gardner was threatening the use of deadly force in the absence of being threatened with concomitant deadly force by James Scurlock or anyone who was associated with him,” Franklin said.
The attempted assault charge stems from the second warning shot fired during the scuffle. The weapons charge is connected to all three of the other felony charges.
Franklin said he hoped the charges would not ignite further protests in the city.
“This is not a time for celebration or exuberance. These are simply charges,” Franklin said. “Jake Gardner is a man presumed innocent as I stand here before you right now.”
Justin Wayne, a Nebraska state senator and attorney for Scurlock’s family, also said Tuesday that it was not a day of celebration but was instead a day to be thankful that the grand jury indicted Gardner. He said it was also a day of disappointment, however, because it is a “tale of two cities” in Omaha.
Watch attorney and state Sen. Justin Wayne speak about the indictment below, courtesy of WOWT in Omaha. Standing beside him, in the white shirt, is James Scurlock II, the father of the victim.
“The fact of the matter is, if you are Black growing up in Omaha and you brandish a gun, and you run from the cops, and you threaten somebody, you don’t walk away with a $200 fine for disorderly conduct,” Wayne said. “You don’t get the benefit of the doubt.”
He said Kleine’s initial decision not to prosecute was a “rush to judgment” and that it should not have taken a grand jury to file charges against Gardner.
Scurlock’s father, James Scurlock II, nodded his head in agreement as Wayne expressed the family’s frustration “that it took this process to occur.”
“This isn’t about being vindicated,” Wayne said.
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