A grand jury indicted Gardner Sept. 15 on charges of manslaughter, use of a firearm in a commission of a felony, attempted first-degree assault and making terroristic threats.
By then, he was in Northern California — shaky, scared and fleeing from death threats.
“I’m more anxious now than when I was flying to Iraq,” the former Marine told Omaha news station KETV shortly before the indictment was revealed.
A police spokesman said they were still awaiting autopsy results Monday. Stuart J. Dornan, Gardner’s lawyer, said that Gardner killed himself.
Black pastors and activists in Omaha said that while they were saddened by Gardner’s death, it would not derail their quest for the city to address larger issues of systemic racism and police brutality.
“I surely don’t want anybody in my community to say this has been brought to a conclusion,” said Preston Love, a longtime civil rights activist and Democrat who is running a write-in candidacy for the U.S. Senate against Republican Sen. Ben Sasse. “This case evolved out of an environment we need to deal with. The fact that we’re not going to have a trial does not change any of that.”
Speaking at a news conference Sunday, Gardner’s lawyer, Stuart J. Dornan, called the former Marine’s death “a terrible tragedy.” Gardner served two tours in Iraq and had long suffered from post-traumatic stress disorder, his attorneys said, adding that he was set to fly back to the area to turn himself in to authorities Monday evening.
“That night in the Old Market was a crossroads of where anger and fear met, and unfortunately, violence ensued and two young men have lost their lives,” Dornan said, referring to the neighborhood where the shooting took place.
Reached by phone, Gardner’s father, David, said, “I’m sorry, I just don’t have anything to say.”
Scurlock’s death became a rallying cry — “Justice for James!” — at racial justice protests after the county attorney Don Kleine ruled Gardner had acted in self-defense. He later reversed course.
Omaha has a long history of racial tension that includes the shooting death of 14-year-old Vivian Strong by a White police officer in 1969, which sparked riots that left an indelible mark on the city.
“The community is in shock. There are a lot of people trying to process their emotions right now,” said Leo Lewis, the board president of the Malcolm X Memorial Foundation in Omaha, a memorial to the slain civil rights leader. “Some people are still protesting, some people are upset all the facts are not going to be presented. That’s where we are.”
Last Tuesday, Frederick D. Franklin, a federal attorney with the U.S. attorney’s office in Omaha who acted as special prosecutor, said at a news conference that investigators interviewed 60 witnesses, but Gardner’s own words, through text and Facebook messages, became the probable cause for the indictment.
The weekend after George Floyd’s death, Gardner had written on Facebook that he planned “to pull military-style firewatch” that weekend at his bar, the Hive, the Omaha World-Herald reported.
“I can tell you that there is evidence that undermines” Gardner’s claims of self-defense, Franklin said. “And that evidence comes primarily from Jake Gardner himself.”
State Sen. Justin Wayne, a Democrat who is serving as an attorney for Scurlock’s father James and other family members, said Monday that the family was “sad, disappointed, frustrated still with the system,” but would not be making any formal comment until a news conference planned for Tuesday.
That Saturday night in May, Scurlock and some friends were marching through the popular Old Market area when they got into an argument with Gardner after one allegedly pushed his father, David, Kleine has said. When Scurlock and a friend moved close to Gardner, he backed up and lifted his T-shirt to reveal a gun in his waistband and told them to stay away, according to cellphone footage.
After a woman jumped on Gardner, he fired what Kleine described as two “warning shots” that sent both the female protester and another protester running. Scurlock jumped on Gardner, placing him in what the bar owner later described to police as a “chokehold.” With Scurlock on his back, Gardner fired over his shoulder and killed the 22-year-old.
Wayne and Scurlock’s family have disputed this version of events, saying that Scurlock jumped on Gardner because he believed he was confronting an active shooter.
Kleine initially said he would not bring charges against Gardner. But the veteran prosecutor later called for a grand jury to review the case.
It was an unusual move, according to Raneta J. Mack, a law professor at Creighton University in Omaha.
“In order to give the community a sense of justice I think the county attorney eventually agreed having a second set of eyes on it was the best course of action,” Mack said.
The grand jury clearly decided that there was enough probable cause to proceed from Gardner’s text and Facebook messages, she noted, but getting a conviction would have been tougher, with Franklin required to prove his case beyond a reasonable doubt.
“Now, we’ll never know the answer to that,” she said.
Many protesters had been surprised by the grand jury indictment and had been readying to take to the streets if the decision had not gone their way, said Cole Christensen, 28, an activist with the local social justice group ProBLAC.
Initially, his reaction was “sadness” that they had to work so hard to get a grand jury review, and worry that people would move on and the movement would lose momentum, he said.
“It was a weird, bittersweet moment,” Christensen said.
Now, the group that gathers in Memorial Park each Sunday to plan their next steps is just in “total disbelief.”
This story has been updated.