Omaha Grand Jury Indicts Bar Owner for Manslaughter of George Floyd Protestor

By Linh Nguyen

OMAHA, NEBRASKA — A grand jury this week charged 38-year-old white bar owner Jake Gardner for the manslaughter of a 22-year-old Black man, James Scurlock, during the George Floyd protests in downtown Omaha on May 30, 2020.

The grand jury charged Garner with four felony charges, including manslaughter, use of a firearm in the commission of a felony, attempted first-degree assault and terroristic threats.

Frederic Franklin, the special prosecutor who led the grand jury, explained the charges in a press conference.

“The terroristic threat count essentially addresses the conduct of Jake Gardner in the verbal confrontation with James Scurlock,” explained Frederick Franklin, who served as the special prosecutor leading the grand jury.

Video footage showed Gardner brandishing a gun in his waistband as he confronted Scurlock.

Franklin said that the grand jury understood that Gardner was threatening the use of deadly force without being threatened with similar danger himself by Scurlock.

“The count that is the attempted first degree assault is tied to the shot that Jake has been characterized as a warning shot,” Franklin continues.

Franklin said that there were two shots fired before the shot that killed Scurlock, adding up to three shots total. It was the second shot that grand jurors decided was worthy of an attempted first degree assault indictment.

Franklin explained that the use of the firearm count is in connection with all other counts.

With respect to the manslaughter count, Nebraska law defines charging manslaughter when a person is killed intentionally as a result of a sudden quarrel.

Franklin said that the decision of the manslaughter charge does not come solely from video footage that surfaced the media on the encounter. Rather, the evidence comes from Gardner himself.

The grand jury was able to use information from Gardner’s cell phone and Facebook Messenger account. They were also able to review surveillance video from Gardner’s bar. Franklin also said the grand jury was also able to get evidence relative to “Mr. Gardner’s state of mind.”

Franklin did not further explain the evidence due to attorney ethics reasons.

The grand jury did not charge the case as a hate crime. Franklin said he would not have allowed grand jurors to indict solely based on allegations of racism, stating, “Being a racist is not against the law.”

Early in September, Gardner told the Omaha World-Herald that accusations that he is racist is false. Neither Gardner nor his attorney, Stu Dornan, responded for comment.

Though Gardner contends that the shooting was self-defense, the grand jury rejected that contention and moved to indict. In fact, initially, Douglas County Attorney Don Kleine did not press charges because he also believed that the shooting was out of justifiable self-defense.

When Frederick Franklin was appointed to lead the grand jury, he admitted that he expected to arrive at the conclusion that the shooting was self-defense. Franklin said that the abundance in evidence undermines that and suggests probable cause that the shooting was out of another nature. Franklin said this evidence comes from “primarily Jake Gardner himself.”

Though the grand jury found evidence that undermines Kleine’s findings that the shooting was self-defense, Franklin addressed that he has known Kleine for 25 years and knows him to be a person of the “highest integrity.” Therefore, Franklin stated that the grand jury’s indictment should not be taken as a “knock or an indictment against Don Kleine.”

The Douglas County Attorney’s Office assisted Franklin’s team in bringing evidence to the grand jury. The Omaha Police Department and their Chief Todd Schmaderer also cooperated with Franklin and his team by sharing evidence gathered from their investigation.

Franklin reiterated that Gardner is presumed innocent, so friends, family and allies of James Scurlock should not take this time for celebration because these are simply charges.

If convicted, Gardner could face up to 95 years in prison.

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About The Author

The Vanguard Court Watch operates in Yolo, Sacramento and Sacramento Counties with a mission to monitor and report on court cases. Anyone interested in interning at the Courthouse or volunteering to monitor cases should contact the Vanguard at info(at)davisvanguard(dot)org - please email info(at)davisvanguard(dot)org if you find inaccuracies in this report.

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    1. David Greenwald

      But you are attempting to claim self-defense without citing the law on self-defense.  The prosecutor claims this: “Gardner was threatening the use of deadly force without being threatened with similar danger himself by Scurlock.”  As I pointed out with respect to the situation in Kenosha, in general, you don’t get to escalate a situation and then claim self-defense and you don’t get to use force that is disproportionate to the threat.

      1. Keith Olsen

        He had three guys attack him, he was totally outnumbered.  When you attack someone whatever happens to you from that point on is on you.  Self defense, I think any fair minded jury will eventually see it that way.

        1. David Greenwald

          “When you attack someone whatever happens to you from that point on is on you.”

          That’s not the law. The first question for self-defense is who treatened who first. The second is proportionality.

    2. David Greenwald

      New evidence contradicts self-defense argument that led to lack of charges by county prosecutor, special prosecutor said

      Mr. Franklin said, without discussing details, that police continued to investigate the case, including interviewing 60 witnesses, reviewing video, cellphone records and other evidence.

      Mr. Franklin said that he initially thought he was going to back up the self-defense decision, but that some of the evidence that came from Mr. Gardner himself undermined that theory.

      “I believe that there is competent, credible evidence to support the decision that they did make,” Mr. Franklin said of the grand jury.

      1. Keith Olsen

        Maybe, we’ll see.  But all the videos I’ve seen tend to back up Gardner’s case.  Plus Gardner owned a business where he probably thought he needed his weapon in order to protect himself, his patrons and his business.  I mean we’ve all seen what been happening during these protests/riots. Did you see where they knocked Gardner’s father to the ground prior to the outside scuffle?

        1. Keith Olsen

          Clearly the prosecutor and Grand Jury saw something we didn’t

          So now David you tout Grand Jury decisions when you once wrote:

          A chief criticism of the grand jury process is that criminal grand jury proceedings differ from traditional trials in a variety of ways – they are not adversarial, as no defense attorneys, or judges, participate. There are no cross-examinations of witnesses, or any objections. There is no oversight to how prosecutors explain the law to the jurors and what prosecutors say about the evidence – and the proceedings are secret.
          As Judge Cordell notes, “No judges or defense attorneys participate. The rules of evidence do not apply; there are no cross-examinations of witnesses, and there are no objections. How prosecutors explain the law to the jurors and what prosecutors say about the evidence are subject to no oversight. And the proceedings are shrouded in secrecy.”
          Senator Mitchell said, “As I looked more deeply into the grand jury system, particularly criminal grand juries, I talked to constituents, I realized it is such a kind of black hole. People don’t generally understand the difference between a grand jury and a regular jury trial.”
          “It really lacks transparency,” she added.

        2. David Greenwald

          All I said is they were privy to information we don’t have. The only thing I am weighing in on – self-defense is actually a higher barrier than you think in these cases.

          1. David Greenwald

            If they had to do a preliminary hearing rather than going the grand jury route, we would already know the evidence that they had against it being self-defense.

  1. Tia Will

    Without the full evidence as presented to the grand jury and that to be presented at trial, we obviously have no basis for arriving at any judgment.

    I will however note another aspect of what the video and evidence we have available demonstrates, namely aggression gone awry. So we see an open bar in an area of destructive actions in the street ( breaking windows). Probably a set up for trouble right there as alcohol and violence rarely mix well. Then we are told the owner’s father is deliberately pushed down. Very bad. Obviously should not happen. But what does the bar owner do? Rush to assess and comfort his father? Call for police to search for the assailant? No. He appears to be trying to track down the assailant himself and displays his gun to what purpose we do not know. But probably not to defuse an intensifying conflict.

    We do not know the motives of those who jumped him…perhaps aggressive, perhaps standing their ground in face of the threat from a weapon? We just don’t know. But what we do know is that no one made an apparent attempt to defuse rather than escalate the situation. Tragic, but emblematic of current conditions in our country.

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