Grand Jury Returns Indictment in Scurlock Fatal Shooting

By 
Scott Stewart
The Daily Record

Updated Wednesday, Sept. 15, 11:40 a.m.

A grand jury returned a four-count indictment Tuesday evening in the May shooting death of a Black man by a white bar owner – a killing that placed Omaha among the litany of recent deaths highlighted by activists seeking racial justice in the United States.

James Scurlock was fatally shot during an altercation with Jake Gardner outside Gardner’s now-defunct bar near 12th and Harney streets just after 11 p.m. May 30.

On Tuesday, the grand jury indicted Gardner on suspicion of manslaughter, attempted first-degree assault, terroristic threats and use of a weapon to commit a felony. The special prosecutor in the case, Frederick D. Franklin, said that he planned to reach out to Gardner’s attorney to discuss whether he would turn himself in or be subject to an arrest warrant.

Gardner and his attorney didn't respond to efforts by the Omaha World-Herald to seek comment late Tuesday, according to the Associated Press.

Attorney Justin Wayne, who represents Scurlock's family, said the family continues to mourn the loss of their loved one and that the months of waiting for the grand jury's decision have been difficult.

“While this family is thankful,” Wayne said, “this family is also frustrated that it took this process to occur.”

Douglas County Attorney Don Kleine announced on June 1 that an initial review of the evidence resulted in a decision not to press charges. Kleine said he believed the shooting met the criteria to be an act of self-defense, but he noted the Omaha Police Department would continue to investigate the case.

The shooting and the decision to not file charges both prompted protests, and demonstrations calling for Justice for James have persisted over the past three and a half months.

The aftermath of the initial protests ­– sparked by calls for justice after the death of George Floyd in Minneapolis police custody – resulted in a curfew being imposed in Omaha and other communities in the metropolitan area. Floyd, who was Black and handcuffed, died after a white police officer pressed his knee on Floyd’s neck, even as Floyd pleaded for air.

Following the announcement of his decision not to file charges, Kleine supported a petition to appoint a special prosecutor to conduct a grand jury investigation, saying he wanted to make sure people have faith in the justice system. The family had called for an independent review.

Franklin, a long-time federal prosecutor in the United States Attorney’s Office in Omaha, was appointed by Douglas County District Judge Shelly R. Stratman to oversee the case. On Tuesday, Franklin said that he had initially expected to echo Kleine’s conclusion that the incident was self-defense, but additional evidence led him to a different conclusion.

“I can tell you that there is evidence that undermines that (self-defense conclusion), and again that evidence comes primarily from Jake Gardner himself,” Franklin said, who declined to detail the new evidence.

Franklin thanked the Omaha Police Department, as well as Kleine’s office, for supporting the grand jury process. He said police interviewed about 60 people as part of their investigation.

The police findings were reviewed by Franklin and a pair of veteran law enforcement officers prior to being presented to the 16-member grand jury.

Franklin said that manslaughter generally involves an intentional killing that results from a sudden quarrel. He said the grand jury’s decision wasn’t based solely on the video that was presented to the news media during Kleine’s overview of the investigation in June.

“There was evidence that was gathered and presented to the grand jury about activity that Jake Gardner was engaged in prior to even coming in contact with James Scurlock, and that evidence can be reasonably construed as an intent to use a firearm for purposes of killing someone,” Franklin said at Tuesday’s televised news conference.

The surveillance video released to the public in June appeared to show Gardner, his father and protesters exchanging words before Gardner, flashing a gun, backed away. Gardner was shoved to the ground by two people before he fired two shots, sending people scrambling. Scurlock then jumped on Gardner’s back and Gardner shot him.

Critics of the initial investigation have said they believe Scurlock was trying to stop Gardner from hurting anyone.

Grand jurors had access to additional evidence recovered from Gardner’s cellphone, Facebook Messenger account and video from inside his business, Franklin said. They had access to evidence that was “relative to Mr. Gardner’s state of mind,” he said.

The attempted first-degree assault count is related to what’s been characterized in the media as a “warning shot” that Gardner fired before fatally shooting the 22-year-old Scurlock. Franklin said that two shots were taken before the fatal shot, and the second shot is what the grand jurors decided to charge as attempted assault.

The terroristic threat count alleges that Gardner threatened to use deadly force in the absence of a concomitant threat of deadly force by Scurlock or anyone associated with him. The use of a weapon count is attendant to the other three counts, Franklin said.

Addressing the broader community, Franklin said vandalism or destruction of property would be “dishonoring the memory of the people who have died,” and he noted it is “playing right into the hands of the people who are against what it is that you are protesting for.”

Franklin said protest has a place in the toolbox of those seeking justice, but it shouldn’t be the only tool. He suggested economic boycotts, voting and uniting behind businesses as other ways to support generating the justice they seek, “rather than simply destroying stuff.”

“For the people who are supportive of James Scurlock, his father stated right after he was killed that he did not condone and did not want that type of behavior,” Franklin said.

Responding to a question from a journalist, Franklin stressed that Gardner was not indicted for being a racist, and Franklin said that he didn’t have any agenda as a prosecutor.

The Associated Press contributed to this report.

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