The family of a black man killed by a white bar owner during protests in Omaha, Nebraska, believes a prosecutor rushed to judgment by declaring the shooting an act of self-defense.
Douglas County Attorney Don Kleine on Monday told reporters that after viewing videos of the incident with police officials and homicide detectives, he decided not to charge Jake Gardner in Saturday night’s death of James Scurlock.
While Kleine called the death “senseless,” he said he followed the law.
“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 attorney Justin Wayne, who represents the Scurlock family, said the 22-year-old should not have been shot during a scuffle involving Gardner and a few individuals on Saturday night in the Old Market entertainment district downtown. He said the case should go to a grand jury.
“I would like to see my day in court,” said Scurlock’s father, James Scurlock II.
Wayne, who also is a state senator, and Kleine said that Gardner had a concealed carry permit that had expired. The shooting occurred during protests following last week’s death of George Floyd while being arrested by Minneapolis police.
CNN was unable Tuesday to reach Jake Gardner or any representatives.
Two videos depict scenes from the incident. As described by prosecutors, Gardner’s father asked protesters outside the Gatsby bar to leave and pushed one. An unidentified man can be seen pushing the elder Gardner back, and the son intervened. Wayne claims Scurlock was not part of that group.
Jake Gardner had a handgun tucked in his waistband and lifted his shirt to show it during his confrontation with protesters, Kleine said of one video.
Two people jumped on Gardner’s back and he fired two warning shots, the county attorney said. Within moments, Scurlock jumped into the fray, according to authorities. Gardner told police he was put in a chokehold and he begged for the assailant to get off of him, Kleine told reporters.
“He thought he was in danger of losing his life or serious bodily injury,” said Kleine. That’s when Scurlock was shot in the clavicle and killed.
The incident fueled social media responses, with actress Gabrielle Union and gun control activist Shannon Watts expressing their anger over the shooting.
Kleine pushed back against such criticism.
“Statements that are made without foundation or knowledge about the case are irresponsible – they’re reckless,” Kleine said.
“We have to prove beyond a reasonable doubt that it’s not self-defense,” Kleine explained. “The officers that were involved in the investigation said we don’t think there’s any way we can move forward at this point,” he added.
Kleine said that “there isn’t any audio that we have that shows any racial slurs” and, after reviewing the evidence, he doesn’t feel that the owner was “somebody who walked out and was trying to hunt down somebody.”
Wayne, the family attorney, said, “I surely believe none of this would happened if the bar owner’s father didn’t put hands on a young individual ahead of time. That young individual was not a part of the group that James was a part of.”
He said Scurlock was trying to protect a family member and friend and was confronted by the younger Gardner. The attorney said the decision to clear Gardner came too quickly, compared to the bringing of charges in the Floyd case. He said the family is considering starting a petition in Douglas County to have the matter brought before a grand jury.
CNN’s Renee Valdes contributed to this report.