An Omaha man who was initially determined to have acted in self-defense is now being charged by a grand jury with manslaughter along with three additional felonies.
The 16-member grand jury indicted Jake Gardner for his role in the killing of 22-year-old James Scurlock during an altercation at a Black Lives Matter protest and riot in May. Gardner has been charged with manslaughter, use of a firearm in commission of a felony, attempted first-degree assault and making terroristic threats.
Immediately following the incident, Douglas County Attorney Don Kleine announced that he would not be filing charges against Gardner. He told the media that his investigation, which included a review of surveillance footage, indicated that Gardner acted in self-defense.
But Kleine received complaints from citizens, according to KMTV, and he agreed to appoint special prosecutor Frederick Franklin III and form a grand jury.
Franklin said during a press conference that the grand jury had evidence based on interviews from 60 people along with additional video and information from Gardner’s cell phone and Facebook messenger account.
“[The grand jury] had much more information available to them than [Kleine] had at the time that the original decision was made,” Franklin said. “That evidence can be reasonably construed as an intent to use a firearm for purposes of killing someone.”
The May incident began when Gardner and his father got into an altercation with Scurlock and his friend, Tucker Randall, according to the Omaha World-Herald.
Grander claims he was sitting inside one of the bars he owns in downtown Omaha when someone shot out his windows. Authorities later identified Randall as having thrown a signpost at the window.
Gardner’s father pushed a woman when he emerged from the bar, and Randall responded by shoving the 69-year-old man to the ground.
Gardner approached and pulled out a handgun. When he returned it to his waistband, a woman tackled Gardner from behind. Gardner, from his back on the ground, fired what have been described as two “warning shots,” which prompted Randall and the other bystanders to flee.
But Scurlock jumped on Gardner’s back and put him in a choke hold, Gardner told police. Scurlock was on Gardner’s back from 18 seconds before Gardner switched the firearm to his left hand and fired over his shoulder, killing Scurlock.
That account of the incident is based on publicly available information, not the evidence the grand jury reviewed.
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Special prosecutor Franklin told reporters that the first-degree manslaughter charge can be applied when someone intentionally kills another person during a sudden quarrel. The evidence for that charge comes from “Gardner himself,” Franklin said, which reveals something about the man’s “state of mind.”
He did not elaborate further, but said Gardner was not indicted based on any racist comments that may have been found on his electronic devices.
“I can assure you that it would have been contrary to what I consider to be justice for Jake Gardner to be indicted because the grand jurors considered him to be a racist. Being a racist is not against the law,” Franklin said.
The terroristic threat charge is related to comments made by Gardner to Scurlock during the incident. Gardner threatened the use of deadly force in the absence of a similar threat from Scurlock, Franklin said.
The jurors charged Gardner with attempted first-degree assault based on the “warning shot” Gardner fired while lying on the ground.
The use of firearm charge is attendant to all the other charges.
Franklin cautioned those who might cheer the grand jury’s decision, and specifically condemned the rioting and looting that has taken place in Omaha over the last few months.
“This is not a time for celebration or exuberance — these are simply charges. Jake Gardner is a man presumed innocent as I stand before you right now,” said Franklin.
If convicted, Gardner could face up to 95 years in prison. Gardner’s defense team is planning to launch a “vigorous self-defense case,” according to the World-Herald.