Prosecutor to call for grand jury review of protest killing

Graffiti in downtown Omaha on Sunday, May 31, 2020. Police and protesters clashed for a second night in Omaha.

OMAHA, Neb. (AP) — A prosecutor who declined to bring felony charges against a white business owner who fatally shot an unarmed black man during recent civil unrest in downtown Omaha says he’s now call for a grand jury review of the case.

Douglas County Attorney Don Kleine said Wednesday that he'll petition the court to call a grand jury to determine whether bar owner Jake Gardner should face felony charges in the Saturday night shooting death of 22-year-old James Scurlock. Kleine said he would also turn the case over to a special prosecutor.

On Monday, Kleine announced he would not charge Gardner with a felony in the case after reviewing video of and witness statements regarding the altercation, saying he believed Gardner acted in self-defense.

Kleine's change of course followed his meeting Tuesday with Omaha City Councilman Ben Gray and Douglas County Board member Chris Rodgers, both of whom are black, and Omaha Mayor Jean Stothert's suggestion of a grand jury review after reports of the public exploring how to petition for a grand jury. Under Nebraska law, citizens would need to gather signatures equivalent to 10% — or about 20,000 signatures — of the total votes cast for governor in the last election in the Douglas County district.

Kleine said Wednesday his call for a grand jury is in the interest of transparency by his office, saying he wants to make sure people have faith in the justice system.

“I’m not wavering in any way in the decision we have made in this case or the findings,” Kleine said. “However, I am not afraid of having a decision I have made reviewed by others.”

Scurlock's shooting happened as protests and civil unrest has roiled cities across the country over the May 25 death of George Floyd at the hands of Minneapolis police. Floyd, who was black and handcuffed, died after a white police officer, Derek Chauvin, pressed his knee into Floyd’s neck for several minutes even after Floyd stopped moving and pleading for air.

The Omaha shooting happened outside Gardner’s bar in downtown Omaha as he sought to ward off any theft or property damage. Officials played surveillance video that seemed to show words exchanged between Gardner, his father and protesters before Gardner, flashing the gun, backed away. Gardner was shoved to the ground by two people before he fired two shots, sending people scrambling. Scurlock then jumped on Gardner’s back and was shot by Gardner. While there was no audio with the video, Kleine said Gardner warned Scurlock to get off of him several times before he fired the fatal shot.

The decision not to charge Gardner has drawn criticism, with defenders of Scurlock insisting he sought only to stop a shooter from hurting anyone. Others have questioned why Gardner's flashing of a gun — for which he did not have a conceal carry permit — in a city street before the shooting did not warrant charges.

Copyright 2020 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed without permission.

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