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.”
News of the indictment 109 days after Scurlock’s death left the family feeling “conflicted” James Scurlock II, the victim’s father, said on Tuesday.
“It was their brother, his son, that lost his life,” Nebraska state Sen. Justin Wayne (D), the family’s attorney, told reporters. “While this family is thankful, this family is also still frustrated that it took this process to occur. If we didn’t call for a grand jury, this case is over.”
If he is convicted, Gardner could face up to 95 years in prison. In addition to manslaughter, he faces counts of attempted first-degree assault, making terroristic threats and use of a deadly weapon to commit a felony. A request for comment to Gardner’s attorney was not immediately returned early Wednesday.
Scurlock’s death came five days after George Floyd’s death in Minneapolis sparked nationwide protests, including a tense Omaha demonstration that eventually led to nearly 100 arrests on the night Scurlock was shot.
The Washington Post’s Annie Gowen reported Scurlock and some friends had been among the thousands of demonstrators who flooded the city’s downtown area on a Saturday described by the city’s police chief as “one of the longest nights Omaha has ever had.”
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.”
Kleine on Tuesday stood by his office’s reasoning in not charging Gardner.
“These are not easy decisions,” Kleine said. “When you’re talking about the death of an individual, there’s a lot of emotions, a lot of things that come into play. … We petitioned for this grand jury; we were not afraid of it. They made a decision and we’ll see what happens.”
It’s unclear whether Gardner will turn himself in to police. Franklin said he planned to contact his attorney. Shortly before the indictment was made official, Gardner told KETV he was “more anxious now than when I was flying to Iraq.”
The grand jury decided against charging the case as a hate crime, despite accusations from relatives and former customers of racism, according to the World-Herald. Gardner denied those claims to the newspaper. Witnesses told The Post that racist language fueled the conflict before Scurlock was shot.
“Being a racist is not against the law,” the special prosecutor said on Tuesday.
Wayne argued that Scurlock’s family “shouldn’t have had to go through this route with having a second or third set of eyes indict this person.”