Douglas County Attorney calls death 'senseless, but justified', no charges in shooting of protester
Douglas County Attorney Don Kleine announced Monday that there would be no charges against Jake Gardner in the shooting death of 22-year-old James Scurlock, a black man who was killed amid protests in the Old Market Saturday night.
"Douglas County is a community of people I truly love. And I've been very proud of and very proud to serve as the county attorney in this this great county that we live in," he began his remarks.
Kleine said the death of Scurlock was "senseless," because the situation stemmed from what was meant to be peaceful protests.
Kleine said the determination has been made that the shooting was in self-defense. He said that there is video evidence that he wants the public to see and that the decision that has been made is based on all of the information the office has currently.
"The other thing I would ask if there is any other evidence that people are aware of other videos. Other witnesses. Anything else that would guide us or help us in decision making process, we would still like that, to come forward because I'm going to talk to you about the decision we've made it based at this point in time," he said.
They want people to call 402-444-5656.
He called the misinformation he has seen on social media "troubling." Kleine said there is no audio in the office's possession that indicates any racial slurs were used and witnesses agreed.
Kleine walked the audience through the footage, showing footage that he said shows the father of the bar owner, Jake Gardner pushing young people in the area, then being shoved. Gardner came up, asking, "Who did that? Who pushed my dad?" Someone was heard in the video saying, "he has a gun on him," referring to Gardner. Kleine draws attention to the fact that windows are seen broken out of the bar.
Kleine said the video shows a group of people surrounding Gardner, tackling him and Gardner firing two warning shots. Kleine said Scurlock jumps on Gardner and and the bar owner fires another shot, fatally wounding Scurlock.
Kleine said Gardner is heard saying, "Get off me, get off me, please get off me," before the final shot is fired.
The bar owner was identified as Jacob Gardner, who owns The Hive and Gatsby's. He said they would not normally name the individual because no charges are being filed.
Kleine said that he understands the emotions that surround Scurlock's death, but he has to focus on "justification for use of force."
"You can't use deadly force to protect property," he said. "Deadly force can only be used if someone is in fear of their own life or serious bodily injury and they don't feel like they can retreat safely. Even if they are mistaken, if their beliefs have a reasonable basis, it's justifiable for them to use deadly force...that's what the law is."
Kleine said Gardner believed Scurlock was attempting to grab his weapon.
"It is a senseless death, a loss of a young man's life, it shouldn't have happened," he said. "We know that emotions are running very high...this decision may not be popular and may cause more people to be upset. I would hope that they understand that we're doing our job to the best of our ability and looking at the evidence and the law. And that's all we can do. All right, that's what the basis of this decision was it can't be based on emotions, it can't be based on anger, it can't be based on any of those things. But I would hope that this great community that we live in, will be able to get through this."
Kleine said there was consensus among law enforcement that Gardner's actions were justified. He said he was disappointed to see people calling the death "a cold blooded murder."
"That is not what we have here," he said.
Kleine said he dreaded someone being hurt in the protests.
"I prayed nothing bad would happen. Always a fear, I was hoping and praying to God no one pull a gun out and do something, and it happened. It saddens me to no end to see our community go through this kind of thing," he said.
One of the protesters who tackled Gardner told KETV Newswatch 7's Michelle Bandur, she had to act when she heard someone had a gun.
"I knew it was not going to end well," Alayna Melendez said.
Melendez, 19, said she had been at the protests Friday and Saturday at 72nd and Dodge and moved downtown closer to home.
"Silence is violence," she said.
Melendez said as a person of color, she had to jump in to help.
"I grabbed him from behind and pulled him to the ground and as soon as I pulled him to the ground, people gathered around us and he had his hand positioned in a way and just shot," she said.
Melendez said Gardner fired two warning shots.
"The very last shot, that got him (Scurlock) and that killed him," she said.
Melendez gave a statement to police hoping it would help bring charges against Gardner.
She also says she would do it again.
"I was not scared to lose my life that night. I was fully indebted to losing my life and fully aware I could have lost my life that night," Melendez said.
Gov. Pete Ricketts said: "Don Kleine is a well-respected prosecutor in the law community both in Omaha and in the state. If Don Kleine doesn't believe he can bring charges at this time, I believe him. Keep an open mind. We have to heal, and move on together."
Below: James Scurlock's family responds to decision not to charge man who shot, killed him