image from YouTube
An Omaha bar owner who was originally determined to have acted in self-defense in the shooting of a protester on May 30th has now been indicted by a grand jury investigating the case. Days after the death of James Scurlock, Douglas County Attorney Don Kleine said that he would not file charges after an investigation determined that Gardner felt his life was in danger. After public pressure, the prosecutor reversed course and said that a special prosecutor would in fact present the case to a grand jury, and on Monday the jurors indicted bar owner Jake Gardner on charges of manslaughter, use of a firearm, attempted first-degree assault and terroristic threats.
What changed? Frederick Franklin III, the special prosecutor appointed to the case, says that more evidence emerged than what was originally available to the Douglas County Attorney.
Franklin mentioned evidence of back and forth between Scurlock and Gardner, with Gardner threatening the use of deadly force towards Scurlock.
Evidence relative to Gardner’s state of mind was a part of what was presented to the grand jury.
Franklin said evidence came primarily from Gardner himself. The grand jury reviewed evidence from Gardner’s cell phone and Facebook messenger account along with video from inside his Old Market business.
In his comments to the press, Franklin made it clear that Gardner should be considered innocent until proven guilty in a court of law, and Gardner will likely continue to make the case that he acted in self-defense.
KMTV reporter Ruta Ulcinaite was in the courtroom as the grand jurors handed down the indictment, and said on Twitter that the jurors believe that Gardner was the one who actually initiated the confrontation that led to Scurlock’s death.
Attempted first degree assault: Tied to the “warning shot”. The second shot is the shot that the grand jurors connected here though.
— Ruta Ulcinaite KMTV (@RutaUlcinaite) September 15, 2020
The Omaha World-Herald has a pretty good timeline of what happened on the evening of May 30th, as hundreds of people took to the streets of downtown Omaha to protest the death of George Floyd in Minneapolis five days earlier. Gardner and his father were standing outside a bar that Gardner owns when the confrontation unfolded.
The newspaper also has obtained eight videos from that night. Varying in quality, some add clarity to what went down in the fateful 90-second square-off between Gardner, who is white, and Scurlock, who was Black.
Four people show up again and again in the videos: Scurlock and a friend, Tucker Randall; and Gardner and his 69-year-old father, David Gardner.Among the revelations from the videos:
» Scurlock and Randall can be seen holding objects and facing Gardner’s adjacent bars 15 minutes before the deadly confrontation. Authorities say Randall hurled a signpost and Scurlock a small object at the picture windows. (Randall denies this.)
» Jake and David Gardner look for culprits, apparently unaware of who vandalized the bars. David Gardner twice shoves a young woman.
» Randall decks David Gardner after the shoves. Jake Gardner confronts Scurlock and another man and touches that man. Scurlock shoves a bystander next to Jake Gardner. Jake Gardner pulls a gun from his waistband.
Scurlock then jumped on Gardner’s back and put him in a chokehold, which is when Gardner fired the fatal shot. The manslaughter charge issued by the grand jury indicates that they believe the shooting happened “upon a sudden quarrel, a legally recognized and sufficient provocation, which causes a reasonable person to lose normal self-control.” Gardner’s argument will likely be that he was in fear for his life when Scurlock placed him in the chokehold, and that he only fired in defense of his life.
We don’t have access to all of the evidence seen by the grand jury, so I’m not going to weigh in on the odds of Gardner’s acquittal if the case goes to trial. It certainly doesn’t sound like the jury found any evidence of premeditation on the part of Jake Gardner, so ultimately a jury will have to decide if Gardner acted reasonably in that chaotic moment, and whether or not he instigated the trouble in the first place.