New Legal Options Coming for Protesters Arrested for Breaking Curfew, City Prosecution Transparency Questioned

City Prosecutor Matt Kuhse said his office currently has no way of showing what, if any, disparities exist in their cases. Activist Ja Keen Fox said that needs to change.


Protesters gather on 72nd and Dodge. Photo by Chris Bowling.

Activists will give protesters still charged with breaking curfew options to fight their cases after being arrested in the early days of unrest.

Ja Keen Fox, who led 36 days of protests at Douglas County Attorney Don Kleine’s home, said clinics will take place at Culxr House and be led by the ACLU of Nebraska. Details and exact times are still to come, Fox said.

Originally more than 250 people were charged with breaking curfew, but Omaha City Prosecutor Matt Kuhse dropped more than half of those cases, continuing to prosecute only those with criminal records. If found guilty, they face a $50 fine and a diversion class. Many have already pled guilty and accepted those punishments.

Others face more serious charges such as property damage and carrying weapons. However, those represent a very small fraction of overall cases, Kuhse said.

Fox, who’s also advocacy chair for the Urban League of Nebraska’s Young Professionals and program officer for the Weitz Family Foundation, said dropping some of the cases was a good step but ignores the fact that those who have negative histories with the criminal justice system are the most important voices to hear.

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“What are we saying about Omaha if we begin to criminalize the act of expressing a constitutional right,” he said. “What does it mean to say freedom of assembly if it doesn’t support the thought process of the people in charge.”

Kuhse said his conversation with Fox really challenged his view on how to proceed with these charges. But ultimately he had to find some middle ground.

“I understand what the protesters are saying, but the argument is where do we make exceptions for people breaking the law? It was the law, there was a curfew in place and everybody knew about it,” Kuhse said. “You’re certainly entitled to your opinion, your argument and your day in court. But it was a violation of the law.”

On June 30, Fox had a meeting with Kuhse to talk about dropping charges against the remaining 88 protestors. The conversation, however, took on a larger role as both sides, along with representatives from the ACLU of Nebraska and the city’s Human Rights and Relations office, talked about accountability and transparency.

Fox asked what racial disparities exist in the cases tried by the Omaha City Prosecutor. Kushe said he had no way of knowing as the office does not track that info. Fox was shocked.

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“Without that tracking tool our conversations hit a wall because we can only go by lived experience and estimates,” Fox said. “We need these systems in place to prove our city’s progress or lack of progress.”

Some departments do breakdown their data that way, like disparities in law enforcement traffic stops, however, Fox said there needs to be more.

Kuhse said the reason they don’t already do that is because race is not a deciding judgement factor.

“When prosecutors look at a case and what if any charges we’re going to file, I’m looking at what the police report said. I’m not focused on a name or a race or an age or a gender or anything like that,” Kuhse said. “I’m looking at what happened and what I can prove.”

Still, the meeting felt like a small step forward as Kuhse and others in the city seem to be genuinely listening, Fox said. Kuhse said and his staff are constantly trying to improve their practices and look forward to more meetings with community members like Fox who have ideas on how they can improve.

Internally he said the office is already considering how they can put more resources into treating the root causes of crime. While the office has made progress in getting more people into diversion or programs that address mental health or substance abuse rather than jail, it’s an ongoing process.

“It hasn’t just been this situation, it’s been prior conversations and prior instances have caused all of in the criminal justice system to take a good hard look at ourselves and consider other people’s point of view and recognize things are not perfect,” Kuhse said.

Many in Omaha have also called on Kuhse’s office to press charges against Jake Gardner, the former Omaha bar owner who shot and killed 22-year-old James Scurlock in the Old Market. The Douglas County Attorney’s office found Scurlock had acted in self defense, but some said Gardner should face other charges including carrying a weapon without a license.

Kuhse said he’s leaving that decision in the hands of the grand jury now investigating the incident which can indict someone for any violation of the law, Kuhse said. Doing anything else could impede their investigation, he said.

“If I took some action, that could be viewed as commenting on the evidence,” he said. “That in some way could impact the grand jury’s decision. And I think all of us want this grand jury decision to be made properly, legally and under the rules. Not subject to some outside influences.”

Moving forward, Fox feels like the solution to disparities lie in the hands of the community. Though he feels positive about meetings he’s had with prosecutors and sits on Mayor Jean Stothert’s LGBTQIA+ advisory board, he still wants to defund and abolish the police. But working with government officials to make these processes and whatever disparities exist transparent is necessary to bridging a gap between the reality many face and the message received by government officials.

“Omaha’s city’s leadership is too used to asking us just to take their words for things,” Fox said. “This is a real opportunity for us to force transparency using public pressure.”


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