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No charges will be filed against Omaha bar owner who fatally shot protester, Don Kleine says

A handful of grainy and graphic videos led Douglas County Attorney Don Kleine to conclude that a white bar owner acted in self-defense when he shot and killed a 22-year-old black Omaha man Saturday night.

As a result, Jake Gardner, owner of the side-by-side Gatsby and Hive bars downtown, will not face charges in the death of James Scurlock.

A surveillance video from Gardner’s bars, played Monday at a press conference, shows a group of young people, including Scurlock, approaching Gardner.

Walking backward, Gardner lifts his shirt to show a handgun, then pulls it to his side and continues backing up. Two people from Scurlock’s group — a man and a woman — tackle Gardner, who ends up on his back in a puddle in the street.

He fires twice into the air — he characterized them as warning shots in an interview with Omaha police. The two people run away from him.

Four seconds after that, Scurlock rushes from the sidewalk and dives on Gardner. Kleine said Scurlock was on Gardner’s back and had his arm around the bar owner’s neck. Gardner could be heard on another bystander’s video hollering, “Get off me, get off me.”

His right arm pinned, Kleine said, Gardner switched the gun to his left hand and fired over his shoulder. The bullet hit Scurlock in the shoulder-neck area, killing him.

Under Nebraska law, a person can be justified in killing another if he has a reasonable belief that deadly force is needed to protect himself or others. People are not allowed to use deadly force to protect property.

Kleine said he and Chief Deputy Brenda Beadle spent Sunday breaking down videos and witness statements “with all of the homicide detectives.”


Douglas County Attorney Don Kleine talks about a video of the confrontation between Jake Gardner and James Scurlock.

“There was a consensus that the actions of the shooter were justified,” he said. “We certainly wish that none of this would have happened. It’s a senseless death.”

No one in the room disagreed with the decision to not file charges, Kleine said.

That wasn’t the case outside the room.

After Kleine’s press conference, Scurlock’s father, James Scurlock II, said much more video exists of the incident.

“What I want is justice,” he said. “This was a quick answer.”

As he had Sunday, the elder Scurlock asked protesters not to be violent or loot in his son’s name. Two mid-size cities — Omaha and Louisville, Kentucky — each has seen a death during protests of police killings of black men.

Nebraska State Sen. Justin Wayne, an attorney who is representing the Scurlock family, said he was disappointed by Kleine’s decision. He and the family asked Kleine to turn the case over to a grand jury. Wayne said he thinks charges could be filed against Gardner, such as manslaughter, a concealed carry permit violation or firing a shot within city limits.

Wayne said that he has clients who are facing such charges now and that he doesn’t understand why those charges wouldn’t be filed against Gardner.

“This was a rush to judgment,” Wayne said.

Kleine disagreed. He said he and Beadle were with Omaha police for nearly 12 hours Sunday reviewing video and interviews.

Rather than rush, Kleine said, they methodically broke down about five videos. Both Kleine and Omaha Police Chief Todd Schmaderer said Monday that they would be happy to receive more videos to determine if any other angles exist. But they said the current videos gave them a solid view of what happened.

A timeline of Saturday night’s events:

  • 10:15 p.m.: A video obtained by The World-Herald shows a man identified as Scurlock and a friend vandalizing RDG Planning and Design, an architecture firm in the former Omaha Chamber of Commerce building at 12th and Harney.

In it, Scurlock apparently has entered the office through a shattered window. He hoists an office chair and, using both arms, hurls it into two computer monitors, then rips what appears to be a phone from a desk and chucks it against a wall. It penetrates the drywall, lodging there with the phone cord hanging out.

His friend smashes something into another monitor. Scurlock looks around, pulls a mask from his neck up over his face and the two hop out of the business onto the Harney Street sidewalk.

  • Forty minutes later, Gardner and his father, David, are at Gardner’s bar half a block away. Also with them: a large, tall man wielding a bat who apparently works as a bouncer/security guard.

Gardner has previously described himself as a libertarian ex-Marine who had deployed to Iraq and Haiti. He had commented on Facebook about having to protect his business.

“Just when you think, ‘what else could 2020 throw at me?’ Then you have to pull 48 hours of military style firewatch,” he posted.

About 10:55 p.m., surveillance video shows people breaking out windows on the corner of 12th and Harney.

Windows were shattered at the Hive — and both Jake and David Gardner told police that they thought someone had shot out the windows. It turned out that the windows were broken when someone hurled rocks and an Old Market signpost at them.

Gardner and his father rushed outside, past the bouncer, who was guarding the door. David Gardner, 68, exchanged words with people in Scurlock’s group. He didn’t push Scurlock but twice pushed someone in Scurlock’s group.

  • 10:56 p.m.: A man who appears to be the same person who was smashing monitors with Scurlock at RDG is on video pushing David Gardner to the ground, a law enforcement official said.

At that, Jake Gardner rushes to his dad. Kleine said Jake Gardner can be heard asking people what happened and telling them to move along.

  • 10:57 p.m.: Walking backward, with Scurlock and another man approaching, Jake Gardner lifts his shirt to show a gun in his waistband. He soon pulls it out and holds it down to his side.

In one video circulating online, a cellphone user says: “That (expletive) got a gun.” Someone in Scurlock’s group waves at Gardner, as if shooing him away. “It’s not worth it (expletive) you stu--,”

Two seconds before 10:58: Gardner is tackled from behind by an Omaha woman, Alayna Melendez. He ends up on his back in a puddle in the middle of Harney Street.

  • 10:58: Gardner pulls out his gun and fires two shots into the air.

Four seconds later, Scurlock jumps on Gardner from behind as he is attempting to get up. Authorities allege that Scurlock was on Gardner’s back and placed Gardner in what authorities alternately described as a headlock or chokehold. Gardner can be heard yelling, “Get off me, get off me,” Kleine said.

His right arm pinned, Gardner switches his handgun to his left hand. He fires over his shoulder, killing Scurlock. The struggle lasted about 20 seconds.

Gardner was kept in Omaha police custody for questioning, with his attorneys present. He was never booked into jail. He and his attorneys spent Saturday night and Sunday at police headquarters. He was released at 11 p.m. Sunday.

“It’s easy to talk to somebody when they’re alive,” said Wayne, the attorney for Scurlock’s family. “It’s easy to get their version of the story when they can talk. We don’t know what James would have said, but there are plenty of videos out here that can maybe help us figure that out.”

Kleine met Monday morning with the elder Scurlock and Wayne. Scurlock was quiet, telling Kleine he appreciated him showing him videos of what happened to his son.

The county’s top prosecutor said he doesn’t think a grand jury is necessary. In a grand jury process, Kleine or his office would present evidence to 16 citizens and instruct them on relevant law.

An attorney for 40 years and a prosecutor for 30, Kleine said it’s his job to make these calls and that he has long fought for justice for black victims.

Kleine clarified that business owners cannot shoot just to protect property. Whatever led up to it, he said, Scurlock’s pouncing on Gardner led Gardner to fire.

It was important not to delay matters, Kleine said, especially if the decision was clear, even in the nation’s current climate.

A Democrat elected in 2006, 2010, 2014 and 2018, Kleine condemned people on social media for distorting several facts — including Democratic congressional candidate Kara Eastman’s portrayal of the killing as “cold-blooded murder.” Authorities also disputed online accounts that the elder Gardner had displayed a gun. And a member of Scurlock’s group told police that he had not heard anyone utter racial slurs that night.

All that said, Kleine suggested that things easily could have turned out differently. He said he wishes Gardner and his father would have stayed home or behind their bouncer and let the night pass.

“I was hoping and praying to God (Saturday afternoon) that no one would pull out a gun and do something, and it happened,” Kleine said. “It saddens me to no end.”

Fourth day of protests in Omaha after James Scurlock’s shooter not charged

Photos: Fourth day of protests in Omaha after James Scurlock's shooter not charged

Fourth day of Omaha protests brings more clashes after curfew, but also signs of unity

On a night of tears, anger and sorrow, there were also moments of unity and hugs.

Many small actions among law enforcement and protesters led to less confrontation Monday evening in Omaha's Old Market, the fourth night of protests in the city.

A line of police officers and Nebraska National Guard members knelt in solidarity with protesters after the protesters asked them to. Said one guardsman, explaining his decision to take a knee: "The Minneapolis police officer was in the wrong. I fully believe that. To show people that we are on their side, and not against them, speaks volumes.”

As the police and Guard members rose, they were greeted by hugs, cheers, some tears and fist bumps. Other Guard members and officers also knelt.

Protesters stayed on message and voiced their pain in the wake of Douglas County Attorney Don Kleine's decision not to charge the man who shot and killed 22-year-old James Scurlock, the latest in a string of deaths of black men protesters talked about Monday.

A crowd of more than 300 people filled the air with chants about the need to value the lives of black people, to find justice for Scurlock, and to have police, the National Guard and white residents of Nebraska acknowledge their pain and join them in taking steps to ease it.

Carly Bell, 18, has a 14-year-old brother, and she said she wants people to see black men and black boys as human beings.

Devin Wayne, 24, said he was “very, very upset” by Kleine's decision not to charge bar owner Jake Gardner.

“Back in the Wild West, people fought with their fists,” he said. “It was the outlaws who used guns on people who didn’t deserve it.”

There were clear efforts to find common ground in the hours before the 8 p.m. curfew and the arrests that ensued.

National Guard members handed Gatorade to protesters as temperatures in the Omaha area crested 90 degrees for the first time this year. They did fist bumps and high-fives with protesters.

And Deputy Police Chief Ken Kanger talked with protesters about the difference between peaceful protest and something unlawful. He and protesters engaged in a march along downtown streets, Kanger with his fist raised in the air.

But there were still some clashes between authorities and protesters after the 8 p.m. curfew went into effect. At least 150 protesters were still downtown. A large group tried to leave with Kanger's assistance, and confusion quickly reigned.

Someone threw a water bottle at officers. An officer shot pepper balls at the crowd. And soon, young people were scattered on the ground, their arms handcuffed behind them. Some were lying on their bellies, others kneeling and others sitting cross-legged.

Police had not tallied the number of arrests late Monday but said they filled at least two city buses. Kanger said two protesters who were arrested were illegally carrying firearms.

Overall, Kanger said the dialogue seemed productive.

"To my knowledge, there was no violence, no property damage, and the majority of the people complied with the mayor's order," Kanger said.

Preston Love, an activist in North Omaha, said leaders of Omaha's black community and others spent much of the day Monday crafting a unified statement in response to Kleine's decision not to file charges in Scurlock's death. Kleine said Gardner acted in self-defense.

Love said the statement would be forthcoming. In the meantime, he called upon anyone with video or other evidence to bring it forward. The investigation remains open, Love noted.

"We want people to come forward," he said. "The community needs to realize that they may have evidence to have this case dealt with like it should."

Love also said that outsiders who have come to Omaha to cause violence should leave.

"To those people who are not from Omaha, who have sinister agendas: Get out of my city, leave our city. You are not welcome. You have not sought the community's counsel, you're disrespecting the community, you're disrespecting the family of James Scurlock. We rebuke you and ask that you go somewhere else."

Scurlock’s brother, Nicholas Harden, 24, attended the protest wearing a shirt with his brother’s picture on it.

He said it was so special to see all the people turn out and be peaceful the whole time. That honored his brother and his brother’s memory, he said.

“It’s beautiful to see the community come together,” Harden said. “No violence. No looting. Just peace. And understanding about a good man.”

Photos: Fourth day of protests in Omaha after James Scurlock's shooter not charged

Photos: Fourth day of protests in Omaha after James Scurlock's shooter not charged

Bars across Omaha allowed to reopen early Monday; it's 'good to be back to our normal routine'

The manager of Neighber’s Bar near Saddle Creek Road and Leavenworth Street said Monday that it was “good to be back to our normal routine.”

“It’ll be good to see some familiar faces, because I’ve been missing them,” Josh Bruckner said. “We get a lot of the third-shift workers from the hospital (the nearby Nebraska Medical Center) and Union Pacific.”

People who get off work early in the morning could have a beer and unwind starting at 6 a.m. Monday when bars reopened for the first time since the coronavirus pandemic led to their closure.

But the situation also is intersecting with Omaha’s state of emergency and nighttime curfew. In downtown Omaha, businesses closed early in anticipation of a decision on charges in the death of protester James Scurlock.

Bars were ordered closed March 16 in an attempt to prevent the spread of COVID-19, the coronavirus disease. Nebraska Gov. Pete Ricketts announced last week that bars could reopen at 50% of capacity.

In early May, restaurants, gyms and fitness centers, hair and nail salons, barbershops, tattoo parlors and massage studios reopened in 89 of the state’s 93 counties. And in all the counties, churches were allowed to hold group services again, dentist offices could reopen for regular visits and elective surgeries could restart.

Now, in addition to the reopening of bars, Ricketts has OK’d a range of different events and certain low- and intermediate-contact sports. The bar and event changes apply in 89 counties, including Douglas, Sarpy and Lancaster Counties. The sports restart applies statewide.

The Library Pub, which is south of 90th and Fort Streets, opened at noon Monday, but owner Mark Smith was letting in regular customers about an hour before that.

Smith said he felt “kinda crappy” to open with a curfew in place, noting that he was frustrated with the curfew’s starting time of 8 p.m.

Even though bars are allowed to be at 50% of capacity, Smith said, “I doubt we’ll ever get there for a month or two.” For his bar, 48 or 49 people would be 50%. “I would be singing a song if we got to 50% capacity.”

The Library Pub, which offers more than 3,000 types of whiskey, has lost one bartender in the time since bars shut down, Smith said. Now that his business is open again, he said, he doesn’t know how many bartenders he can afford to pay because he doesn’t know how much business he will have.

Employees sanitized all the glassware Friday and Saturday, Smith said. Now that it has reopened, cleaning crews will come in daily to clean all hard surfaces.

“I’m happy to open and move toward whatever normal is,” Smith said.

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Bruckner, at Neighber’s Bar, said returning customers would find some changes. The restrooms were redone and the premises were thoroughly cleaned.

“We completely redid the bathrooms and cleaned up everything else,” Bruckner said. “The carpets were shampooed and we are repainting the deck.”

Chaz Kline, who owns two bars and a restaurant in Omaha, had planned to open both bars just as the clock struck midnight. That plan was scuttled when Mayor Jean Stothert imposed a curfew from 8 p.m. to 6 a.m. because of the violence and vandalism that have occurred in the city during protests following the slaying of George Floyd in Minneapolis.

The Nifty at 4721 Northwest Radial and the Havana Garage at 1008 Howard St. both were scheduled to be open from midnight to 2 a.m. The Nifty and the Havana Garage reopened at noon.

“We decided to make an early statement to emphasize the importance to help bring a sense of normalcy for both Havana and Nifty,” Kline said Sunday before the curfew was announced. “Customers and staff alike want to get on with life. This is like opening a new bar — the idea of restarting and releasing the pause button. It’s exciting.”

World-Herald staff writer Jeffrey Robb contributed to this report.

Photos: Our best staff photos of May 2020

Photos: Our best staff photos of May 2020