Prosecutor: Bar owner wanted to ‘ambush’ people stealing

September 23, 2020 GMT
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Special Prosecutor Fredrick D. Franklin speaks during a press conference in the Omaha City Council Legislative Chambers of the Omaha/Douglas Civic Center in Omaha on Wednesday, September 23, 2020. (Lily Smith/Omaha World-Herald via AP)
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Special Prosecutor Fredrick D. Franklin speaks during a press conference in the Omaha City Council Legislative Chambers of the Omaha/Douglas Civic Center in Omaha on Wednesday, September 23, 2020. (Lily Smith/Omaha World-Herald via AP)

OMAHA, Neb. (AP) — A white Nebraska bar owner who killed himself after being charged with manslaughter for fatally shooting a Black man during May protests had been waiting to “ambush” people who were breaking into businesses and stealing, a special prosecutor said Wednesday.

Special Prosecutor Frederick Franklin detailed more of the evidence against Jake Gardner three days after Gardner killed himself and more than a week after a grand jury indicted him in the May 30 death of 22-year-old James Scurlock. The evidence included text messages and videos of the encounter that Franklin said undermined Gardner’s claim that he acted in self-defense.


Authorities say Gardner shot Scurlock outside Gardner’s bar during a scuffle after the windows of the business were smashed amid a protest against police brutality and racial injustice. Omaha, like many cities around the world, saw protests, sometimes violent, after the death of George Floyd after a Minneapolis officer pressed his knee onto the handcuffed Black man’s neck for several minutes.

Douglas County Attorney Don Kleine initially declined to file charges against Gardner, but later agreed to have a grand jury review the case. Franklin was appointed as special prosecutor and presented evidence to the grand jury, which also charged Gardner with attempted assault, making terroristic threats and using a gun to commit a felony.

Kleine said Wednesday that he stood by his decision not to file charges.

Franklin said Gardner should not have been able to claim self-defense because he initiated the confrontation. One of the things Franklin noted to explain Gardner’s mindset was that Gardner was a fan of President Donald Trump and that two days earlier the president had tweeted, “when the looting starts, the shooting starts.”

Gardner’s attorneys, Stu Dornan and Tom Monaghan, said in a statement that they continue to believe Gardner was innocent and the evidence Franklin discussed didn’t clearly show Gardner intended to harm anyone.

Franklin said Gardner was monitoring the progress of the unrest through text messages as people approached his bar, The Hive. Before protesters arrived, the lights were turned off inside the bar, where Gardner had a shotgun and three handguns as he waited with his father and at least one bouncer.

Franklin said Gardner asked in one text whether the “field of fire inside The Hive going outside was clear.”

“That evidence is completely supportive of an intention to use a firearm to either kill or to cause serious bodily injury to whatever looter might have decided this was a good idea,” Franklin said.

Franklin said Gardner’s plan was thwarted because no one tried to enter the bar even after someone smashed the windows.

“To the extent that Jake Gardner had set up an ambush inside his business waiting on a looter to come in so he could light him up, and that particular objective was thwarted by individuals not coming in — It would be understandable that Mr. Gardner would have had some frustration about sitting back and watching the place that he was renting be destroyed like it was being destroyed,” he said.

In June, officials played surveillance video that showed words exchanged between Gardner, his father and protesters. The Omaha World-Herald gathered additional videos on social media.

The videos show people streaming past Gardner’s bar as tear gas lingers in the air. Gardner and his father start asking people to move on. David Gardner moves a few steps away from the bar and pushes a woman who is recording with her cellphone. Scurlock’s friend then runs over and shoves the elder Gardner to the ground.

Jake Gardner rushes over and starts talking to Scurlock and a young man. The young man says something the video doesn’t pick up before Gardner responds: “Just keep (expletive) going. If you didn’t punch him, then it’s not your (expletive) problem. Because you (expletive) got too close, dude.”

Then as he backs away from Scurlock and the other man, Gardner lifts his shirt to show he had a gun.

“I’m telling you, I’m telling you, I’m telling you keep the (expletive) away from me,” he says.

Gardner briefly takes his gun out and holds it by this side before returning it to his waistband.

A woman who had been observing the group then tackles Gardner from behind and knocks him into a puddle in the street.

While on his back, Gardner fires what he told authorities were two warning shots. The woman and Scurlock’s friend run, but as Gardner rises, Scurlock dives onto his back. He wraps an arm around Gardner in what Gardner called a chokehold.

Gardner yells, “Get off me!” at least twice. Then Gardner switches his gun to his left hand and shoots Scurlock.

After the shooting, Gardner left Omaha. He was found dead outside a medical clinic in Hillsboro, Oregon, on Sunday, the same day he was scheduled to return to Omaha to face the charges, according to his attorney.

Scurlock’s family declined to comment Wednesday, but they told KETV Tuesday they were frustrated there will never be a trial.

“I feel like there was lack of closure,” said Scurlock’s father, James Scurlock II.