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Omaha bar owner who shot, killed protester won't face charges
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Omaha bar owner who shot, killed protester won't face charges

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Protest Sunday

A portrait of James Scurlock is held during a protest Sunday in downtown Omaha. Scurlock was shot and killed late Saturday night during a protest in Omaha.

The white bar owner who shot and killed a James Scurlock, a 22-year-old black Omaha man will not be charged, Douglas County Attorney Don Kleine said Monday.

Kleine said prosecutors in his office, homicide detectives and everyone who reviewed all the evidence were in consensus: "The actions of the bar owner were justified."

At a news conference Monday, he showed a video from just before the shooting and a second of the shooting itself, seeking to counter what he said was misinformation going around on social media.

The first video shows Jake Gardner, the owner of The Gatsby night club near 12th and Harney streets, asking a group of protesters which of them had just pushed down his father, a 68-year-old seen in the video. 

Gardner showed them that he had a gun before moving toward his father.

A second video, from just outside the bar, showed what happened next. Two people tackled Gardner. He fired a shot and one ran. Then a second shot and the other ran. 

That's when the video showed Scurlock jump on top of Gardner and put him in a headlock, Kleine said. Once pinned, he said Gardner moved the gun to his left hand and fired over his shoulder, hitting Scurlock in the clavicle. 

"That's the best video evidence we have at this point in time," the prosecutor said.

He said in audio from another video Gardner can be heard yelling "Get off me" several times before he fired. 

He said two eyewitnesses, one a protester and the other a friend of Scurlock's, denied hearing any racially charged language before the shooting, as some allege.

Referring to the protests over George Floyd's killing at the hands of a Minneapolis officer, Kleine said it creates a lot of emotions and frustrations. 

"But we have to look at the evidence we have in this case and the law," he said. 

In particular, Kleine said, under Nebraska law nobody is justified to use deadly force to protect their property. Deadly force can only be used in situations — and is justifiable — if someone is in fear for their own life and they don't feel they can retreat safely, he said. 

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"Even if they're mistaken, it's still justifiable," Kleine said. "That's what the law is here."

He said the decision to not charge Gardner 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," he said.

Kleine said the decision can't be based on emotions or anger. 

"I would hope that this great community that we live in will be able to get through this and that we won't have any disruption," he said. 

Gov. Pete Ricketts, who delayed his Monday afternoon news conference until Kleine’s announcement was over, said he knew the decision not to press charges against Gardner will make some people unhappy.

Kleine is a well-respected prosecutor in both Omaha and Lincoln, Ricketts said.

“And while this is certainly not my area of expertise, if Don Kleine does not believe that he can bring charges at this time, I believe him,” he said.

So he would ask people to watch the videos of the scene and keep an open mind about what happened, he said. He knows emotions will be high, but people have to heal and move on together. And the only way to do that is with peace and calm.

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Ricketts, Lincoln chief condemn police action in death of George Floyd

Reach the writer at 402-473-7237 or lpilger@journalstar.com.

On Twitter @LJSpilger.

Reporter JoAnne Young contributed to this story.

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Public safety reporter

Lori Pilger is a Norfolk native and University of Nebraska-Lincoln graduate who has been a public safety reporter for the Journal Star since 2005.

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