Family of white combat veteran who killed himself last year sues special prosecutor who accused him of being a racist after he shot and killed Black Lives Matter protester
The family of a white Nebraska bar owner who killed himself after being charged in the fatal shooting of a black man during 2020 BLM protests is suing local prosecutors, alleging their comments led to his suicide.
Jake Gardner's parents sued the Douglas County Attorney´s Office, its top prosecutor and a special prosecutor Monday in federal court, seeking an unspecified amount in compensatory and punitive damages, the Omaha World-Herald reported.
The lawsuit accuses special prosecutor Frederick Franklin and Douglas County Attorney Don Kleine of violating Gardner´s constitutional right to due process by implying Gardner was racist at a news conference last year, which, they claim, ultimately led to his suicide.
Gardner, a 38-year-old retired Marine, was charged with manslaughter and other felonies in the May 30, 2020, shooting death of 22-year-old James Scurlock, a black man, outside Gardner's bar.
He died by suicide on September 20 in Oregon, one day before he was expected to turn himself in, and his remains are now buried in the Arlington National Cemetery, according to WOWT.
Jake Gardner, the owner of The Hive bar in downtown Omaha, left, was indicted with manslaughter charges in the fatal shooting of 22-year-old James Scurlock, right, last fall
Gardner, 38, reportedly killed himself following the indictment. Now, his parents are suing the Douglas County Attorney´s Office, claiming its prosecutors denied his right to due process
David and Glenda Sue Gardner filed the lawsuit, claiming their son suffered from emotional trauma following Franklin's press conference about his investigation into the shooting death last year, and noting that their son was a combat war veteran who suffered from PTSD and a traumatic brain injury.
It alleges that Franklin conspired with Kleine and two retired police officers to make false and misleading claims to the media, with statements that 'included implications that Mr. Gardner was a racist' and 'falsely stated that it was Mr. Gardner's own words that showed his intent to kill.'
Franklin reportedly claimed at the September 15 press conference that the case against Gardner was 'almost a slam dunk,' and refused to comment on whether any racist content was found on Garner's phone.
But, the lawsuit claims, his decision to charge Gardner was not because he 'may or may not have been a racist' as 'being a racist is not against the law.'
'These statements and omissions combined to falsely imply that Jacob Gardner was a racist,' the lawsuit reads.
'The wrongful statements, which were calculated to create an appearance of guilt, denied him his rights to an impartial jury and due process of the law under the Sixth and Fourteenth Amendments,' it continues.
Special Prosecutor Frederick Franklin announced the charges against Gardner in a September 15 news conference, in which, the lawsuit claims he referenced the case against Gardner as 'almost a slam dunk' and refused to say whether the investigation concluded that Gardner was a racist
They reportedly 'caused Jacob to be "surrounded by a dark cloud" of depression and be in extreme emotional distress regarding both the loss of life that had occurred and his fears for a fair trial and his own safety and that of his family.'
According to the lawsuit, Gardner received more than 1,600 death threats in the days that followed and his family, fearing for their safety, moved out of the state.
'Immediately after the press conference, Jacob told friends he had "lost faith in the justice system" and should "walk into the woods" and kill .'
The suit also holds Kleine responsible for letting Franklin reveal 'information from the grand jury proceedings, which were designed to destroy Jacob's image and prejudice the community against him.'
'Defendant Franklin made these statements despite noting that he could not share evidence presented to the grand jury,' the lawsuit continues.
'Defendant Kleine ... had knowledge that these wrongful statements were going to be made to the media, and negligently or knowingly failed to prevent them.'
Douglas County Attorney Don Kleine announced within 36 hours of the killing his decision not to file charges against Gardner based on evidence that he acted in self-defense, but amid mounting pressure, an independent investigation was opened
The charges relate back to an incident on May 30, 2020 when Scurlock was shot and killed outside Gardner's bar, The Hive.
Video posted to social media from the shooting showed a man in a gray shirt, later identified as Gardner, speaking to the victim, who was wearing a dark shirt and jeans.
The person recording the video is heard yelling that the man in the gray shirt has a gun and says, 'It's not worth it.'
Seconds later, two gunshots are heard and the videographer ducks for cover.
Authorities later revealed Scurlock was shot twice in the neck that night at around 11 p.m.
Witnesses on the scene claimed that Gardner 'taunted' the protesters and went out to the sidewalk yelling 'n***** lover,' though it was unclear what transpired before the video was taken.
But, according to the lawsuit, Jacob went to his bar that night, accompanied by his father and The Hive's bartender, 'for the sole purpose of lawfully protecting his business from rioters and looters.'
At around 10:40, it claims, the windows of his bar were broken 'by what Jacob believed to be bullets' and 'at least one person tried to enter The Hive before being scared out by Jacob.'
He then reportedly called the police to report the damage, and at about 10:42 p.m., Scurlock 'and other rioters' began throwing objects at the bar.
More than 10 minutes later, the lawsuit alleges, Gardner, his father and the bartender left the bar, 'believing the rioters had moved on,' and began photographing the damage. Scurlock allegedly started confronting Gardner and assaulted his father.
Gardner 'demanded Scurlock "get away from ,'" according to the lawsuit, and soon he was tackled to the ground. Then he drew his gun and fired a warning shot.
Scurlock reportedly jumped on Jacob's back, put his arm around Jacob's neck and choked him for at least 18 seconds while Gardner pleaded with him to 'get off' before he fired two rounds.
Video from the shooting shows a confrontation between Gardner and Black Lives Matter protesters outside his bar The Hive
In the video, a man in a gray shirt appears to be speaking with the victim, who is in a dark shirt and jeans
Kleine had initially declined to charge Gardner, saying interviews with witnesses and video of the fight between Gardner and Scurlock proved he was acting in self-defense.
But pressure quickly mounted for a grand jury investigation into the shooting, and Presiding Douglas County District Judge Shelly Stratman appointed Franklin to lead the charge.
He later said additional evidence from Gardner´s phone and his Facebook Messenger account, along with video from inside his bar, shed new light on his intent the night of the shooting.
Following Gardner's death, Franklin revealed Gardner had been armed and waiting to ambush people who might break into businesses, including his.
Hours before the deadly clash, Gardner posted a status update on Facebook about protecting his business amid the unrest.
'Just when you think, "what else could 2020 throw at me?" Then you have to pull 48 hours of military style firewatch,' Gardner wrote.
Just hours before the deadly incident, the retired Marine posted this update on Facebook, saying he planned to guard his business during protests
He was a retired Marine who served tours of duty in Iraq and Haiti between 2000-2004.
According to his LinkedIn page, Gardner opened The Hive Bar in Omaha in 2011, followed by The Gatsby in 2017.
The shooting happened as protests and civil unrest roiled cities across the country over George Floyd´s May 25 death at the hands of Minneapolis police Officer Derek Chauvin, who pressed his knee into Floyd´s neck for several minutes even after Floyd stopped moving and pleaded for air. Chauvin was found guilty of manslaughter and sentenced last month to 22 1/2 years in prison.
Kleine said he believes the allegations in the lawsuit are unfounded but declined additional comment.
Franklin also declined to comment on the lawsuit, but told WOWT he stood by the evidence, saying: 'I wasn't there to advance any person or any organization's agenda. I tried to be as objective and just as I possibly could.'