By Chris Bowling
Less than two days after the death of 22-year-old James Scurlock during protests in downtown Omaha, the Douglas County Attorney’s office announced Monday afternoon it would not press charges against the shooter.
“There was a consensus on this case that the actions of the shooter were justified,” said Douglas County Attorney Don Kleine in a press conference at the city’s county government building.
Jake Gardner, the owner of two Old Market cocktail bars was released from jail last night, Kleine said. In making the decision Kleine said his office spent all of Sunday reviewing evidence collected by the Omaha Police Department including video and audio taken during the incident late Saturday night as well as interviews with the suspect.
Kleine said in order to charge Gardner, his office would have to prove that beyond a reasonable doubt that he was not acting in his own self defense. Video surveillance from Gardner’s bar The Gatsby at 1207 Harney Street showed Gardner was pushed into a puddle on the street by two individuals. Gardner then fired a “warning” shot with his right hand. When Scurlock jumped on him, putting Gardner into a chokehold, Gardner asked several times for Scurlock to get off of him, Kleine said. When Scurlock did not, Gardner switched the gun to his left hand, fired behind him and struck Scurlock once in the right clavicle.
Gardner had lifted his shirt showing the gun to the group including Scurlock, which had minutes prior broken the windows to his business, The Hive. Gardner’s permit to carry a concealed weapon had expired.
After the decision, Scurlock’s father, James Scurlock II, said the decision was rushed and not made with an acceptable amount of evidence.
“We can’t keep allowing things like this to go,” he said. “And just give it a slap on the wrist and give it an excuse and say I did my job.”
State Sen. Justin Wayne, who is representing Scurlock’s family said this decision shows a clear double standard about who the county attorney’s office considers credible. He said the next step is to try and invoke a grand jury but is also exploring civil lawsuits.
“There needs to be somebody else who listens to the facts and makes that determination of credibility, and it happens every day in that courtroom,” Wayne said.
Kleine repeatedly referenced Gardner’s interview with Omaha police following the incident. In those statements, Gardner said he felt like his life was in danger and that Scurlock was trying to wrestle the gun away from him. When asked whether the County Attorney’s Office considered that Scurlock and others were acting in their own defense, Kleine said the evidence they had showed Gardner believed his life was in serious danger.
In a 3:45 p.m. press conference with Mayor Jean Stothert and Gov. Pete Ricketts, Omaha Chief of Police Todd Schmaderer said today’s announcement was about whether to charge Gardner with homicide. Additional charges, including not having a concealed carry permit which is a misdemeanor, can now be investigated.
“We didn’t want to do that before this issue was addressed,” he said
Wayne and Kleine both asked if anyone has additional eyewitness testimony or video evidence that they submit it. Wayne said he felt Kleine’s office made their decision too quickly and on too little evidence.
At the 1:30 p.m. press conference, Kleine showed two videos of Saturday night’s incident.
Cellphone footage caught by one person and the bar surveillance footage built the bulk of the county attorney’s office evidence. The footage appeared to show people shoving a man that Kleine identified as Gardner’s father. Gardner then asked who shoved and hit his dad. Minutes later Gardner was pushed to the ground and started firing.
Audio of Gardner asking Scurlock to get off of him was not shared with the press. Kleine said he made at least a few pleas before shooting.
After the press conference, many businesses downtown had already boarded up their windows. Police had also blocked off several roads and were directing traffic.
Mayor Jean Stothert said she understands this decision will cause harm to the city’s relationships with different communities. Over the last eight years she said the city and police force have made gains in building those relationships.
“Hopefully we will get through this and we will get back to those peaceful days again,” Stothert said.
When asked whether Schmaderer regrets any actions taken by police over the last few days he said no. Many Omaha police officers and other responding agencies have the same opinions as the protesters, he said, but they’re doing their jobs by quelling the crowds with tools such as tear gas and pepper bullets. With the arrival of the National Guard and now the decision not to press charges in the shooting death of Scurlock, many protesters’ trust in the government has lessened even further.
But Schmaderer said regardless of emotion and tensions, police will operate in the same fashion tonight.
“We all have roles, do you not, you’re a member of the media,” Schmaderer said to one reporter at the press conference. “I’m doing my role and I’m trying to do it to the best of my ability.”
While Kleine said he had not spoken to Gardner, interviews with Omaha police showed the business owner was shocked and remorseful about the actions.
Wayne said one of the worst tragedies of this experience moving forward is the family can’t even hold a funeral to mourn the loss of their son and brother. The Scurlocks are a family of two parents, 10 kids and many more cousins. To hold a funeral, even with immediate family, would break public health mandates.
But even as they find ways to grieve, Wayne said they are focused on next steps—finding new evidence and new eyes to examine it.