The indictment came months after a county attorney initially agreed with Gardner that he had shot Scurlock, 22, in self-defense and declined to prosecute the bar owner. A grand jury thought otherwise, pointing to Gardner’s own words in text and Facebook messages as probable cause for an indictment .
“The grand jury indictment was a shock to him,” Dornan said Sunday. “He was really shook up.”
About 12:20 p.m. Sunday, police in Hillsboro, Ore., responded to a call of a body found outside a medical clinic less than 20 miles west of downtown Portland, authorities said in a news release. Investigators eventually identified Gardner, saying that his death is under investigation, but “officers are not seeking any suspects and there is no danger to the community.” Gardner did not leave a note, his attorneys said.
Gardner’s death marks yet another stunning turn in the tragic case. On the night of May 30, Scurlock and some of his friends joined thousands of demonstrators flooding the streets of Omaha five days after George Floyd’s death in Minneapolis sparked nationwide protests.
Surveillance footage released later by Douglas County Attorney Don Kleine showed Scurlock and his friends exchanging words with Gardner, a former Marine who had written on Facebook that he planned “to pull military-style firewatch” at his bar, the Hive. During an argument, Gardner flashed a gun in his waistband, saying to Scurlock and a friend, “Keep the f--- away from me,” according to cellphone footage.
After a woman tussled Gardner to the ground, the bar owner fired what Kleine described as two “warning shots” that sent both the female protester and Scurlock’s friend 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 decided not to prosecute Gardner, calling the shooting “senseless, but justified.” But two days later, he called a grand jury amid escalating protests. Special prosecutor Frederick D. Franklin of the U.S. attorney’s office in Omaha presented the grand jury evidence showing that Gardner had “an intent to use a firearm for purposes of killing someone,” Franklin said last week. The evidence, which came “primarily from Jake Gardner himself,” undermined self-defense claims, the special prosecutor concluded.
“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,” Franklin said.
On Sunday, Dornan told reporters that Gardner had fled to the West Coast after receiving “numerous death threats” following Scurlock’s death. He had initially gone to Northern California but left the state because of the wildfires, his attorneys said. The Omaha World-Herald reported that Gardner was reportedly staying at an uncle’s house around Portland. Gardner was afraid of returning to Omaha and had even hired a bodyguard, worrying that someone would make good on one of the alleged death threats, attorney Tom Monaghan said.
“He was deathly afraid of coming back here because he felt he would not get a fair trial,” Dornan said.
Critics, among them Nebraska state Sen. Justin Wayne (D), the Scurlock family’s attorney, questioned why Gardner wasn’t quickly apprehended after Douglas County District Judge James Gleason approved an arrest warrant on Friday, the World-Herald reported. Dornan said Franklin was agreeable in allowing Gardner to wait out the wildfires before returning to Omaha.
At the Sunday news conference, Gardner’s attorneys maintained that the fatal shooting of Scurlock was “a clear case of self-defense.” Monaghan contended that “the lies on social media” had convicted Gardner before the grand jury charged him last week.
“Cases should be decided in the courtroom and not on social media in the context of public opinion,” Dornan said.
The attorneys remembered Gardner as a veteran of multiple tours in Iraq, telling reporters that he had suffered two traumatic brain injuries. Before the indictment was announced, Gardner told KETV that he was “more anxious now than when I was flying to Iraq.”
“Unfortunately, there are two men who have died in a terrible tragedy,” Dornan said. “It’s a terrible tragedy for the Omaha community; it’s a terrible tragedy for James Scurlock and his family; it’s a terrible tragedy for the Gardner family.”