A day after a county prosecutor in Omaha, Nebraska announced that a bar owner who shot and killed a protester who was attacking him wouldn’t face charges, the same official reversed course and says he’ll now be referring the case to a grand jury.

Douglas County Attorney Don Kleine said Wednesday he will petition a grand jury to look at evidence in the James Scurlock case.

Scurlock, an unarmed 22-year-old black man and protester, was shot and killed by Omaha bar owner Jake Gardner, early Saturday morning.

Kleine said he believed Gardner, who is white, feared for his life when he shot Scurlock, who jumped on top of Gardner after the bar owner had already fired two shots.

Gardner had an expired concealed carry license, which makes his carrying a misdemeanor offense. That would be charged by the city attorney, as opposed to the county prosecutor. The grand jury will be looking at whether or not Gardner committed a crime when he shot James Scurlock, but Kleine laid out the evidence, or lack thereof, when he briefed reporters on Monday.

Scurlock and others could be seen speaking with the business owner in front of The Hive Saturday night after one of the members of the group had shoved the man’s father to the ground.

The man, who Kleine initially did not name but later confirmed was Jake Gardner, is seen backing away from the group and Scurlock, asking them to leave him alone and not to damage his business. Gardner lifted his shirt to display a handgun in his waistband.

The group attacked Gardner and they fell into a puddle on the street in front of the bar. Gardner grabbed his gun and fired two shots, which caused one member to run away from Gardner.

Scurlock was seen tackling Gardner from behind while Gardner was trying to stand. Gardner later told police Scurlock had him in a chokehold and witnesses said they heard Gardner say “Get off me” several times.

Gardner fired one shot which struck Scurlock in the collarbone. He died after being taken to Nebraska Medical Center.

“The bar owner was interviewed with lawyers present. He said the first shot was a warning shot. He said Scurlock jumped on him and he was scared Scurlock was going to take his gun. He fired in self-defense. He was scared he would lose his life or severe bodily injury,” Kleine said.

Gardner was in police custody from Saturday night to Sunday night at Omaha Police Headquarters.

“He has shown he has a gun. He made it clear he was armed. He said when someone was on top of him that they said they were going to kill him,” Kleine said.

Shortly after Kleine’s announcement, Scurlock’s family began calling for a grand jury to decide whether Gardner should face charges. Honestly, I can’t blame them for that. I also don’t blame the Scurlock’s for how the media has framed the story, which I believe is designed to intentionally stoke tensions. Check out the CBS News story headlined “A White Bar Owner Shot and Killed a Black Protester. He Won’t Face Charges.”

During protests in Omaha, Nebraska over the weekend, a black activist was shot and killed by a white bar owner after a fight broke out. The county attorney said the shooter will not face charges because he was “defending himself.”

James Scurlock, 22, was killed by Jacob Gardner, the owner of the Hive Bar and Gatsby Bar in Omaha’s Old Market neighborhood around midnight Saturday in the midst of protests against police brutality and George Floyd‘s death.

The Douglas County Attorney’s Office determined Gardner acted in self-defense after interviewing the shooter and reviewing videos of the incident.

“There was a consensus… that the actions of the shooter were justified,” County Attorney Don Kleine said during a briefing Monday. “There wasn’t any big disagreement about what happened here.”

According to prosecutors, the incident followed an altercation involving Gardner’s father, who pushed several protesters when asking them to leave the bar.

CBS News doesn’t even mention the fact that Scurlock jumped on Gardner’s back until paragraph seven, and never mentions that Gardner says Scurlock had him in a chokehold. One thing the report does mention is that Gardner’s 68-year old dad did shove a protester when “asking” or telling him to leave the bar. That individual then turned around shoved Gardner’s father, pushing him down to the ground.

Again, I can understand personally why the family would want a grand jury to look at the case, and from a political/civil unrest perspective, it makes sense for a grand jury to look at the case. Still, there’s also a very real danger that in this charged environment, Gardner could face an indictment that’s based more on keeping calm in the streets rather than serving justice.Was Gardner’s father justified in originally pushing a protester? I don’t know, and if the city attorney wants to investigate to see if misdemeanor assault charges are warranted, I’d have no problem with that either. But that original shove isn’t what led to Scurlock’s death. Again, this is what happened after Gardner’s father shoved a protester and the protester shoved him back, knocking him to the ground.

Scurlock and others could be seen speaking with the business owner in front of The Hive Saturday night after one of the members of the group had shoved the man’s father to the ground.

The man, who Kleine initially did not name but later confirmed was Jake Gardner, is seen backing away from the group and Scurlock, asking them to leave him alone and not to damage his business. Gardner lifted his shirt to display a handgun in his waistband.

The group attacked Gardner and they fell into a puddle on the street in front of the bar. Gardner grabbed his gun and fired two shots, which caused one member to run away from Gardner.

As Gardner tries to stand, he’s attacked by Scurlock, who jumps on his back. That’s when Gardner fired, killing the 22-year old.

I’m not cheering the death of James Scurlock. I think it was a sad and senseless killing that didn’t have to happen, but it also wasn’t murder. It was pretty clearly a case of self-defense, and it didn’t have to happen because Scurlock didn’t have to assault Jacob Gardner. Street justice had already been served. A shove had been met with a shove. That incident was over, and then Gardner was assaulted after flashing his gun and warning them not to hurt his business. They decided to hurt him instead, first knocking him to the ground and then, once he’d fired two warning shots and his attackers ran away, when he was attempting to get up. That’s when Scurlock leapt onto his back and began assaulting him, and only then, after repeatedly yelling for Scurlock to get off of him, did he fire the fatal shot. I think it sucks that James Scurlock is dead. I just don’t think it was murder.

You know the saying about grand juries and ham sandwiches, though. Prosecutors are expected to get indictments whenever they want, and now that the county prosecutor says he wants a grand jury to look at the evidence, there’s going to be a lot of pressure to deliver an indictment, and we’ve already seen that the media is more interested in advancing a narrative that feeds unrest rather than simply reporting the facts that might bring some calming rationality to the supercharged situation.

Kleine said Wednesday afternoon that he’s “not wavering” in his conclusion that the shooting was self-defense, but added that he was “not afraid of having a decision I have made to be reviewed by others.” Again, I understand the realities of the situation and why the decision was made to have a grand jury consider the evidence. I just hope the same pressure that led to Kleine presenting the case to a grand jury won’t be felt by the grand jurors themselves to deliver an indictment. Serving up a human sacrifice in order to stave off more looting and rioting by bringing a murder charge against Gardner would be an injustice based on the evidence that the county prosecutor laid out, but for the moment it’s still a very real possibility.