After he fatally shot James Scurlock, a 22-year-old Black protester, outside his Omaha bar in May, Jake Gardner told police it was self-defense. A county attorney agreed and decided not to prosecute Gardner, 38, who is White.
But on Tuesday, a Douglas County grand jury came to the opposite conclusion, indicting Gardner on four felonies, including manslaughter, for the fatal shooting on May 30.
In a news conference Tuesday, Frederick D. Franklin, a federal attorney with the U.S. attorney’s office in Omaha who acted as special prosecutor, said while investigators interviewed 60 witnesses, Gardner’s own words, through text and Facebook messages, ended up as the probable cause for the indictment.
“I can tell you that there is evidence that undermines” Gardner’s claims of self-defense, said Franklin, without getting into specifics. “And that evidence comes primarily from Jake Gardner himself.”
That weekend, Gardner had written on Facebook that he planned “to pull military-style firewatch” at his bar, the Hive, the Omaha World-Herald reported.
Surveillance footage released later by Douglas County Attorney Don Kleine showed Scurlock and his friends exchanged words with Gardner, a former Marine, after someone in the crowd had pushed his 69-year-old father. At one point of the argument, Scurlock and his friend, Tucker Randall, moved closer to Gardner. Close to 10 p.m., the bar owner backed up and lifted his T-shirt to reveal a gun in his waistband, saying, “Keep the f--- away from me,” according to cellphone footage.
Then, after a woman had tussled Gardner to the ground, he fired what Kleine described as two “warning shots” that sent both the female protester and Randall running. Seconds later, Scurlock jumped on Gardner, placing him in what the bar owner later described to police as a chokehold. With Scurlock on his back, Gardner then fired over his shoulder and killed the 22-year-old.
Kleine announced in June he would not bring charges against Gardner, determining the bar owner had acted in self-defense in a “senseless, but justified” fashion. But the veteran prosecutor relented two days later amid escalating protests, calling for a grand jury to review the case.
On Tuesday, Franklin said the evidence presented to the grand jury showed them “Jake Gardner was threatening the use of deadly force in the absence of being threatened with a concomitant deadly force by James Scurlock or anyone who was associated with him.”
“There was evidence that was gathered and presented to the grand jury about activity that Jake Gardner was engaged in before even coming in contact with James Scurlock,” Franklin said. “Evidence to reasonably be construed as an intent to use a firearm for purposes of killing someone.”
Even if Gardner displayed a handgun in his belt prior to being attacked by Spurlock to get him to back away, other events happened afterwards and Spurlock did eventually physically attack Gardner, calling for the actual use of the handgun. How does that initial showing of a handgun, even if technically wrong in the eyes of the special prosecutor, eliminate any claims of self defense down the road?
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