Two days after an Omaha prosecutor declared the shooting of a young black man by a white bar owner justified, he said Wednesday that he will now call for a grand jury to look into the killing.
“I am not afraid of having a decision I made reviewed by others,” Douglas County Attorney Don Kleine said. “Therefore, I welcome and support the calling of grand jury to review the evidence in this rare instance.”
The about-face was hailed as a victory by the attorney for the family of 22-year-old James Scurlock, who had called Kleine’s swift decision not to bring charges a rush to judgement.
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“I think it is important for out community to see that when we come together and we raise our voices about an injustice that we can make a difference,” said Justin Wayne, who is also a state senator.
Scurlock was fatally shot in the neck by ex-Marine Jake Gardner on Saturday during a confrontation that unfolded after a night of anti-racism protests sparked by the death of George Floyd in Minneapolis.
On Monday, Kleine called a press conference to say that he had deemed the shooting a case of self-defense and would not charge Gardner, 38, with a crime.
He narrated grainy, mostly soundless video that had been gathered from the area and said the incident began after the windows of The Hive and The Gatsby bars had been broken as protests yielded to vandalism and chaos.
Gardner’s 68-year-old father had marched down the street and confronted a group of young black people, shoving one of them. When the father got pushed back and knocked down, the younger Gardner confronted the group and flashed them his gun—for which his concealed-carry permit had expired.
Two in the group jumped Gardner and knocked him in a puddle, at which point he fired what he described for prosecutors as two warning shots. As that pair ran off, Kleine said, the video showed Scurlock tackling Gardner.
Gardner claimed that Scurlock had him in a chokehold and he feared for his life. The video showed him firing over his back at Scurlock, hitting him in his clavicle, Kleine said.
Wayne said the prosecutor had too little information to make the determination and acted too soon. “We are still having witnesses, videos and evidence coming forward,” he said. “And I think that played a role in this decision.”
Kleine said he would petition a judge for a special prosecutors and a grand jury—16 people who would meet in secret and then decide whether Gardner should be charged.
Wayne said the selection of a special prosecutor would be key. “It has to be somebody this community buys into,” he said. “This process is one step in the right direction, one step for justice for James, but it is not over.”
Scurlock’s death in the midst of a nationwide paroxysm of grief and anger for a black man killed by a white cop has heightened tensions in Omaha.
On Monday, after Kleine announced his decision, Gov. Pete Ricketts further fanned the flames by referring to black leaders as “you guys” or “you people,’ prompting a pastor to storm out and post an online video in which he called the Republican a racist.
Ricketts apologized, and The Omaha World-Herald reported Wednesday that the governor and the pastor met in private. Afterward, the pastor, Jarrod Parker, said he and Ricketts were now “at peace.”
