No charges will be filed against Omaha bar owner who fatally shot protester, Don Kleine says

By Alia Conley Todd Cooper Jun 1, 2020 – for The Omaha World Herald

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A handful of grainy and graphic videos led Douglas County Attorney Don Kleine to conclude that a white bar owner acted in self-defense when he shot and killed a 22-year-old black Omaha man Saturday night.

As a result, Jake Gardner, owner of the side-by-side Gatsby and Hive bars downtown, will not face charges in the death of James Scurlock.

A surveillance video from Gardner’s bars, played Monday at a press conference, shows a group of young people, including Scurlock, approaching Gardner.

Walking backward, Gardner lifts his shirt to show a handgun, then pulls it to his side and continues backing up. Two people from Scurlock’s group — a man and a woman — tackle Gardner, who ends up on his back in a puddle in the street.

He fires twice into the air — he characterized them as warning shots in an interview with Omaha police. The two people run away from him.

Four seconds after that, Scurlock rushes from the sidewalk and dives on Gardner. Kleine said Scurlock was on Gardner’s back and had his arm around the bar owner’s neck. Gardner could be heard on another bystander’s video hollering, “Get off me, get off me.”

His right arm pinned, Kleine said, Gardner switched the gun to his left hand and fired over his shoulder. The bullet hit Scurlock in the shoulder-neck area, killing him.

Under Nebraska law, a person can be justified in killing another if he has a reasonable belief that deadly force is needed to protect himself or others. People are not allowed to use deadly force to protect property.

Kleine said he and Chief Deputy Brenda Beadle spent Sunday breaking down videos and witness statements “with all of the homicide detectives.”

“There was a consensus that the actions of the shooter were justified,” he said. “We certainly wish that none of this would have happened. It’s a senseless death.”

No one in the room disagreed with the decision to not file charges, Kleine said.

That wasn’t the case outside the room.

After Kleine’s press conference, Scurlock’s father, James Scurlock II, said much more video exists of the incident.

“What I want is justice,” he said. “This was a quick answer.”

As he had Sunday, the elder Scurlock asked protesters not to be violent or loot in his son’s name. Two mid-size cities — Omaha and Louisville, Kentucky — each has seen a death during protests of police killings of black men.

Nebraska State Sen. Justin Wayne, an attorney who is representing the Scurlock family, said he was disappointed by Kleine’s decision. He and the family asked Kleine to turn the case over to a grand jury. Wayne said he thinks charges could be filed against Gardner, such as manslaughter, a concealed carry permit violation or firing a shot within city limits.

Wayne said that he has clients who are facing such charges now and that he doesn’t understand why those charges wouldn’t be filed against Gardner.

“This was a rush to judgment,” Wayne said.

Kleine disagreed. He said he and Beadle were with Omaha police for nearly 12 hours Sunday reviewing video and interviews.

Rather than rush, Kleine said, they methodically broke down about five videos. Both Kleine and Omaha Police Chief Todd Schmaderer said Monday that they would be happy to receive more videos to determine if any other angles exist. But they said the current videos gave them a solid view of what happened.

A timeline of Saturday night’s events:

  • 10:15 p.m.: A video obtained by The World-Herald shows a man identified as Scurlock and a friend vandalizing RDG Planning and Design, an architecture firm in the former Omaha Chamber of Commerce building at 12th and Harney.

In it, Scurlock apparently has entered the office through a shattered window. He hoists an office chair and, using both arms, hurls it into two computer monitors, then rips what appears to be a phone from a desk and chucks it against a wall. It penetrates the drywall, lodging there with the phone cord hanging out.

His friend smashes something into another monitor. Scurlock looks around, pulls a mask from his neck up over his face and the two hop out of the business onto the Harney Street sidewalk.

  • Forty minutes later, Gardner and his father, David, are at Gardner’s bar half a block away. Also with them: a large, tall man wielding a bat who apparently works as a bouncer/security guard.

Gardner has previously described himself as a libertarian ex-Marine who had deployed to Iraq and Haiti. He had commented on Facebook about having to protect his business.

“Just when you think, ‘what else could 2020 throw at me?’ Then you have to pull 48 hours of military style firewatch,” he posted.

About 10:55 p.m., surveillance video shows people breaking out windows on the corner of 12th and Harney.

Windows were shattered at the Hive — and both Jake and David Gardner told police that they thought someone had shot out the windows. It turned out that the windows were broken when someone hurled rocks and an Old Market signpost at them.

Gardner and his father rushed outside, past the bouncer, who was guarding the door. David Gardner, 68, exchanged words with people in Scurlock’s group. He didn’t push Scurlock but twice pushed someone in Scurlock’s group.

  • 10:56 p.m.: A man who appears to be the same person who was smashing monitors with Scurlock at RDG is on video pushing David Gardner to the ground, a law enforcement official said.

At that, Jake Gardner rushes to his dad. Kleine said Jake Gardner can be heard asking people what happened and telling them to move along.

  • 10:57 p.m.: Walking backward, with Scurlock and another man approaching, Jake Gardner lifts his shirt to show a gun in his waistband. He soon pulls it out and holds it down to his side.

In one video circulating online, a cellphone user says: “That (expletive) got a gun.” Someone in Scurlock’s group waves at Gardner, as if shooing him away. “It’s not worth it (expletive) you stu–,”

Two seconds before 10:58: Gardner is tackled from behind by an Omaha woman, Alayna Melendez. He ends up on his back in a puddle in the middle of Harney Street.

  • 10:58: Gardner pulls out his gun and fires two shots into the air.

Four seconds later, Scurlock jumps on Gardner from behind as he is attempting to get up. Authorities allege that Scurlock was on Gardner’s back and placed Gardner in what authorities alternately described as a headlock or chokehold. Gardner can be heard yelling, “Get off me, get off me,” Kleine said.

His right arm pinned, Gardner switches his handgun to his left hand. He fires over his shoulder, killing Scurlock. The struggle lasted about 20 seconds.

Gardner was kept in Omaha police custody for questioning, with his attorneys present. He was never booked into jail. He and his attorneys spent Saturday night and Sunday at police headquarters. He was released at 11 p.m. Sunday.

“It’s easy to talk to somebody when they’re alive,” said Wayne, the attorney for Scurlock’s family. “It’s easy to get their version of the story when they can talk. We don’t know what James would have said, but there are plenty of videos out here that can maybe help us figure that out.”

Kleine met Monday morning with the elder Scurlock and Wayne. Scurlock was quiet, telling Kleine he appreciated him showing him videos of what happened to his son.

The county’s top prosecutor said he doesn’t think a grand jury is necessary. In a grand jury process, Kleine or his office would present evidence to 16 citizens and instruct them on relevant law.

An attorney for 40 years and a prosecutor for 30, Kleine said it’s his job to make these calls and that he has long fought for justice for black victims.

Kleine clarified that business owners cannot shoot just to protect property. Whatever led up to it, he said, Scurlock’s pouncing on Gardner led Gardner to fire.

It was important not to delay matters, Kleine said, especially if the decision was clear, even in the nation’s current climate.

A Democrat elected in 2006, 2010, 2014 and 2018, Kleine condemned people on social media for distorting several facts — including Democratic congressional candidate Kara Eastman’s portrayal of the killing as “cold-blooded murder.” Authorities also disputed online accounts that the elder Gardner had displayed a gun. And a member of Scurlock’s group told police that he had not heard anyone utter racial slurs that night.

All that said, Kleine suggested that things easily could have turned out differently. He said he wishes Gardner and his father would have stayed home or behind their bouncer and let the night pass.

“I was hoping and praying to God (Saturday afternoon) that no one would pull out a gun and do something, and it happened,” Kleine said. “It saddens me to no end.”

Fourth day of protests in Omaha after James Scurlock’s shooter not charged

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