Kleine had said earlier this week that he would not file charges against Jacob "Jake" Gardner, who authorities say fatally shot Scurlock on Saturday night as protests swept through the city's popular Old Market area. The two men had grappled, and Kleine said he had determined that Gardner had acted in self-defense. Kleine called the killing "senseless, but justified."
After calls from the victim's family and black leaders for a grand jury investigation, Kleine appeared to shift course Wednesday, saying he stood by his decision not to charge Gardner but was acting in the interest of "transparency" in this unique time of nationwide protests after the death of Minneapolis resident George Floyd in police custody on May 25.
"I'm not wavering in any way in the decision we have made in this case or the findings," Kleine said. "But I'm not afraid of having a decision I have made to be reviewed by others."
Gardner did not respond to requests for comment.
Hundreds of protesters have been arrested in a week of demonstrations that have left Omaha's downtown a maze of boarded up buildings and closed roads. A state of emergency and 8 p.m. curfew for the city were lifted Wednesday.
Compounding the community uproar, a meeting of black leaders, clergy and Nebraska Gov. Pete Ricketts (R) on Monday deteriorated when Ricketts called the leaders “you people,” which they took as a racial slur. The group was meeting to discuss keeping the peace, but the tension escalated when a pastor pressed the governor on equity and public safety. Three people who were at the meeting said Ricketts became visibly angry and said: “Where the hell were you people?”
Leaders and aides prevented the governor from finishing the sentence, according to two pastors who were at the gathering. Six of the community leaders walked out.
Ricketts later appeared on a radio program on 95.7 The Boss — which serves Omaha’s black community — to apologize and say that he “chose his words poorly.”
“In the heat of the moment, I said things that were trigger words,” Ricketts said. “I’m learnin’. I made a mistake. I apologize.”
But leaders said the damage was done. Jarrod S. Parker, the pastor of St. Mark Baptist Church in Omaha, said that when he heard the governor’s comment it was a “gut punch.”
“People gasped. There was a collective disbelief,” Parker said. “You saw staff members hanging their heads.” Parker left the meeting in protest.
As in other Midwestern cities, the relationship between people of color and the Omaha police has long been fraught, black leaders said. In 1969, the shooting death of a 14-year-old girl, Vivian Strong, by a white police officer — who was later acquitted — sparked riots that scarred Omaha for generations. More recently, activists cite the death in 2017 of a mentally ill Native American man, Zachary Bear Heels, as another killing in which officers used excessive force — shocking and punching the victim. Three of the four officers involved were later reinstated, and the fourth was acquitted at trial.
During protests Saturday against police violence, Scurlock and some friends were among thousands of demonstrators who choked the streets of Omaha’s downtown. Some protesters broke windows and spray-painted buildings, in what the city’s police chief later called “one of the longest nights Omaha has ever had.”
At one point in the mayhem, Scurlock and his friends got into an argument with a local bar owner, Gardner, 38, and his 68-year-old father, authorities said. The proprietor owns a bar called the Hive, a tribute to local-band-made-good 311.
Gardner, a former Marine, pleaded guilty to a charge of carrying a concealed weapon in 2011, and a similar charge against him was dropped in 2013 in a case in which he pleaded guilty to disorderly conduct, records show. His permit to carry a concealed weapon is expired, authorities said.
Kleine presented surveillance camera video at a news conference Monday that showed Gardner and Scurlock exchange words after someone in the crowd pushed Gardner’s father. The confrontation worsened, and two men ended up tussling with Gardner on the ground, during which time Gardner fired what the prosecutor called “warning shots.” Scurlock’s friends fled and Scurlock then jumped on Gardner, who shot and killed him, authorities said.
Kleine said Monday that Gardner later told police he feared for his life. The prosecutor said that while the group might have had a “heated conversation,” there was never any “racial tone” to the exchange.
But witnesses told a different version of the altercation.
Derek Stephens, a local bartender who knows Gardner, was passing by shortly before the conflict became violent and said that he heard Gardner say “Kiss my white a--” and that Gardner’s father yelled the “n-word” at protesters.
“I feel like the old man instigated the incident with a racial slur,” Stephens said.
When reached by phone, Gardner’s father, David Gardner, declined to comment, saying he wanted to consult with his attorneys first.
County authorities said that they are aware of the allegations and videos on social media that might indicate a racial element to the incident and that they are investigating.
Protesters and activists said authorities were presenting just one side of the story and did not investigate the matter fully before deciding against charging Gardner. While authorities saw a white man acting in self-defense, others saw a black man bravely protecting other people by jumping on a man firing a gun.
“The kid jumped on an active shooter to stop him from continuing to discharge his weapon, and they are calling his murder justified,” protester Nikki Catron wrote in a Facebook post. “In my eyes, James Scurlock was a hero.”
Protester Danielle Powell, 31, said that she felt “very jaded and defeated” after Scurlock’s death.
“It felt very much like our county attorney decided he was the judge and the jury, and eyewitnesses and other evidence from specific people was not included,” she said. “They’re not listening to us. The people in office right now do not care about it.”
Yet, she said, her activism will continue: “We can’t resist momentum. We can’t have these deaths happen in vain. We need something to change.”
Alex Horton, Meryl Kornfield and Julie Tate in Washington contributed to this report.