More than 300 people have been arrested in Omaha since Friday, May 29, when the city of less than 500,000 was swept up in the tidal wave of protests against police brutality and systemic racism that had erupted in Minneapolis after the brutal killing by police of an unarmed Black man named George Floyd.
Jake Gardner, the white bar owner who shot and killed James Scurlock, a 22-year-old Black protester, on the second night of unrest in Omaha — Saturday, May 30 — wasn’t one of them.
Within just 36 hours of the shooting, Douglas County prosecutor Don Kleine announced that criminal charges would not be filed, finding that Gardner — a 38-year-old ex-Marine with an expired concealed carry permit — had shot Scurlock in self-defense. Gardner, who’d been taken into police custody for questioning the night of the shooting, was released the following night without even being booked into the jail.
The move was, predictably, met with backlash, fueling more protests, including outside Kleine’s house. Within days, under pressure from community leaders, Kleine agreed to call for a grand jury to review the case, while still maintaining that he believed he’d made the right decision. A special prosecutor has since been appointed, though it’s unclear when exactly the investigation will begin, as the process of convening a grand jury is reportedly expected to take a couple of months due to the coronavirus pandemic.
The quick decision not to file charges in the context of this shooting was viewed by many in the community as an example of the ingrained racism within the criminal justice system that has been the subject of nationwide protests, including the one Scurlock had participated in the night he was killed. And while Kleine’s call to convene a grand jury has been welcomed by Scurlock’s family and community leaders alike, many in Omaha have been left feeling angry and disappointed by what they view as a failure by local law enforcement to consider all pertinent evidence and information, including Gardner’s background and reputation, before apparently siding with his version of events and letting him go.
In addition to several witnesses who said they made repeated attempts to provide police with crucial information in the immediate aftermath of the shooting, Yahoo News spoke to more than half a dozen people, including former employees and patrons of Gardner’s bar, the Hive, who gave firsthand accounts of racist comments and discriminatory policies they say Gardner used. Two family members also offered unique insight into the unabashedly racist culture in which, they say, Gardner was raised.
Describing her initial reaction to the news that Gardner would not be charged, one of his relatives told Yahoo News: “Whatever happened, if they let him go that quickly, they are not looking at all at the rest of it.”
As Omaha braced for protests on the last Saturday in May, Alayna Melendez wasn’t sure she wanted to attend. Melendez, 19, had participated in the previous night’s demonstrations, which had quickly gone from peaceful to chaotic and violent, with reports of windows broken and bottles thrown at police, and pepper balls and rubber bullets in response. Melendez heard rumors that far-right groups and anarchists were intending to incite violence. She said she even told friends earlier in the day that she was worried “someone’s going to get shot.”
But one of Melendez’s friends, a photographer, was eager to go and take pictures, so she relented. The plan, she told Yahoo News, was to take photos, support the cause, “but not really get too involved.”
Not only did Melendez’s fears prove to be eerily accurate, but she would end up being at the center of an altercation that ended in Scurlock’s death. Melendez says she’d never met Scurlock before, nor did she know anything about Jake Gardner. She says she encountered both men for the first time that night when, as she and many other protesters made their way downtown, she heard someone yell, “He’s got a gun!”
Melendez approached a crowd of people that had gathered outside a nearby bar and saw a man (who would later be identified as Gardner) with a gun in his hand, waving it around.
“I was taught gun rules from a very young age,” said Melendez. “My grandpa told me never to point a gun at anybody, even a BB gun.”
In video footage from the scene, Melendez can be seen standing behind Gardner. She was, she said, contemplating how to disarm him.
“I thought, I need to take this man down,” she said.
Melendez, who weighs 130 pounds and is 5 feet 3 “on a good day,” says she had never tried to wrestle a gun from anyone before
. But as soon as Gardner placed the gun back in his waistband, she saw an opening, grabbed him from behind and brought him to the ground, landing in a puddle in the street.
With the young woman on his back, Gardner quickly fired what the county attorney would later describe as “two warning shots.” Melendez said it took her a second to register that the loud noise was not the flash-bangs police had been throwing to disperse crowds. “As soon as I realized they were gunshots, I ran away,” she said.
Video footage shows Gardner briefly standing up before he is tackled to the ground again, this time by Scurlock. Within seconds, Gardner shoots Scurlock in the clavicle, then stands up and walks back toward the bar as protesters and police begin gathering around the young man bleeding in the street.
“If anybody should’ve gotten shot it should’ve been me,” said Melendez, who was still only a few feet away when the fatal shot was fired. “The unfortunate reality is I’m stuck here thinking I caused his death, or I could’ve prevented more.”
As police arrived, Melendez says, she approached several officers to tell them about what had just taken place, but no one seemed interested.
“Nobody talked to me after,” she said. “They didn’t try to talk to anybody at the scene.”
Yahoo News spoke to other witnesses besides Melendez who said they also made multiple attempts to speak to police in the minutes and hours that followed the shooting but were dismissed or ignored.
“They started immediately telling everyone to leave,” said Robert Fuller, another protester who also features prominently in video footage of the moments leading up to the shooting. Fuller described being physically pushed out of the way by cops, even as he identified himself to them as a witness. When he asked one officer where he should go, Fuller said, he was told to “back up or you’ll be arrested for obstruction of justice.”
“We weren’t given any phone numbers, any badge numbers, absolutely nothing,” said Derek Stephens, a local bartender who said he heard a man he would later learn was Gardner’s father, David, yelling racial slurs and antagonizing protesters outside Gardner’s bars shortly before the shooting took place.
“I understand it was a hectic situation and everything, but we were all standing there trying to plead with these cops, like, ‘If you’re going to stand in and push us forward, can you radio in your senior officer, your superior, and have them come talk to us?’” Instead, Stephens told Yahoo News, he and others who tried to offer witness accounts were simply told: “Disperse or be arrested.”
Based on the accounts they provided, all of the witnesses who spoke to Yahoo News seemed to have made their way from the protest route, where police had been heavily deploying flash-bangs, rubber bullets and tear gas, to the Old Market area downtown roughly around the same time, but each witnessed slightly different portions of the events leading up to the shooting.
Stephens, who said he wasn’t friends with Gardner but knew of him, said that as he approached Old Market, he heard that someone had smashed in the windows at the other bar Gardner owned, the Gatsby, and decided to see for himself. That’s when he first encountered an older man who, he would later learn, was Gardner’s father. Stephens said that, as he and others walked by, stopping to take pictures of the damage, the elder Gardner “started yelling racial slurs at everyone.”
“He said the N-word multiple times,” said Stephens, who is white. “At one point he turned to the group and he called everyone ‘N-word lovers.’ He yelled we were ‘all f***ing N-word lovers.’”
Stephens and his group continued on until a line of police officers forced them to turn around. When they passed the bar again, the crowd outside had grown larger and more agitated.
“It seemed as if [the elder Gardner] yelling stuff caused people to stop and engage with him,” Stephens said.
Stephens decided to keep walking, thinking, “This is getting a little heated. I do not feel comfortable being here.” He said he turned the corner and was about 100 feet away when he heard the gunshots.
“I initially thought it was the old man,” he said. “I thought it was the father because the father was the one that was instigating the situation.”
So far, Stephens appears to be the only witness who has come forward publicly to allege that he heard Gardner’s father, or anyone else, using racial slurs before the shooting. Stephens told Yahoo News that there were probably 15 to 20 other people either walking by or stopping to take pictures at the exact moment when he says he heard David Gardner hurl racial epithets at passing protesters, but he noted that even at that point the situation was “pretty chaotic.”
Once the shooting happened, he said, “a lot of people ran and got out of there.”
“There were definitely more people, but not everyone has come forward with witness info,” he said.
None of the witnesses who spoke to Yahoo News disputed Stephens’s account, saying they weren’t in a position to either hear or see Gardner’s father at that moment.
For example, Whitney Ledenbach, another witness who came forward in the days after the shooting, was present during the moments before the windows at the Gatsby were smashed. Ledenbach, who’d attended the demonstration with a friend, similarly described following the flow of protesters downtown, where, she said, she and her friend decided to take a seat “probably 20 to 30 feet away from Jake Gardner’s bars, the Gatsby and the Hive.” In an interview with Yahoo News, Ledenbach explained that her husband is a local musician who had performed at the Hive, so she immediately recognized Gardner standing outside his bars with about three other men, one of whom, she’d later learn, was Gardner’s father.
Over the years, Gardner had become known among many in Omaha for his controversial views. For example, in 2016 he made local headlines for posting on Facebook that transgender women should not use the women’s bathroom unless they’ve had their “appendage” removed and their identification changed. (After the post went viral, prompting backlash, Gardner expressed regret over the “appendage” part of his comment, but told the Omaha World Herald that he stood by what the paper referred to as “safety concerns in allowing expanded access to the women’s restroom.”) More recently he’d become known as an avid Trump supporter, displaying pictures on his now defunct Facebook page of himself with the president and his son Don Jr. or decked out in MAGA gear at his bar. Online reviews for his bar the Hive are filled with allegations of discrimination against Black and transgender customers.
Ledenbach was well aware of all this when she spotted Gardner the night of the protest. She said she also knew that Gardner had been in the military, and when she pointed him out to her friend she said, “I bet he has a gun.”
“I just assumed he had a concealed carry permit,” she explained. “Turned out, it was expired.”
Of course, she would not learn about Gardner’s expired weapons permit, nor the fact that he was, in fact, armed until much later. At that point, all she could see was Gardner and the other men “laughing, smiling, having fun” amid what was otherwise a very tense situation, as a barrage of pepper balls, rubber bullets and flash-bangs followed the hordes of protesters downtown.
“It literally sounded like a war zone,” Ledenbach said. Gardner, however, “seemed to be enjoying what was happening.”
Ledenbach noted that, from where she was sitting, she couldn’t hear anything that Gardner or the other men around him were saying. Still, she said, “it was very apparent that [Gardner] was trying to get someone to engage with him” among the protesters passing his bars. As far as she saw, nobody seemed to be responding.
Ledenbach said that she and her friend watched for a few minutes until someone started smashing the windows of one of the bars. “People were running. It turned into chaos,” she recalled. As they ran back to the safety of her friend’s car, Ledenbach said, “we heard gunshots.”
Meanwhile, Robert Fuller, who went by himself to check out the protest that night, said he was standing in front of another downtown bar called Parliament Pub, facing the Hive and the Gatsby. He saw a group of “young white kids” smashing windows in the Hive. By this point, Fuller said, the protest had spread out across several blocks downtown. Walking around, he came across a group that was attempting to stop others from vandalizing property, then returned to his spot in front of Parliament Pub. There, he says, he first encountered Jake Gardner, whom he did not know, but whose demeanor suggested he owned one of the businesses on the street. Fuller attempted to explain that a lot of the protesters were feeling angry and frustrated.
Fuller said the man pretty much ignored him, then crossed the street toward a group that appeared to be standing guard outside the Gatsby and its sister bar, the Hive. Fuller followed shortly afterward, approaching just as an older man who’d been standing outside the bars was knocked to the ground. Security footage from outside the bar would later reveal that the older man (Gardner’s father) shoved two people who were walking by before someone else knocked him down.
As the older man quickly rose to his feet, Fuller noticed the man he’d approached earlier — Jake Gardner — walk up to two young Black men and accuse them of pushing his father and smashing the windows of his bar, which, Fuller knew from having witnessed it, had been done at least 30 minutes earlier, and by white demonstrators.
“I remember thinking it was weird he went up to those two,” Fuller told Yahoo News, noting that he’d watched the man, whom he now knew to be Gardner, pass by at least half a dozen other mostly white people before confronting the two Black men. “I noted in my mind he went and found the Black people.”
One of the men Gardner accosted was James Scurlock.
Fuller soon found himself between Gardner and the two young men, where he is seen in video footage trying to defuse the mounting tensions when Gardner lifts his shirt to reveal a gun in his waistband.
“Even before Jake got jumped on, there was a mood in the group of trying to get the gun away from him and make him not dangerous,” said Fuller. “The rest of us were scared for our lives. That’s why people tackled him.”
The next day, Stephens, Fuller and Melendez each said, they made repeated calls to the Omaha Police Department, the county attorney’s office, a mayor’s hotline and other officials, only to be met with busy signals and automated “mailbox full” messages. Fuller even went to a vigil on Sunday that had been set up near the scene of the shooting in hopes that he might have more luck talking to police officers in the light of day, but said he was similarly stonewalled. Eventually, one of the cops gave him a number to call, and when he did, Fuller said a voice on the other line told him someone would call him back and then quickly hung up before he could provide his name or contact information.
“I tried to call and contact a bunch of numbers on Sunday, and I got no response. I figured, OK, it’s not a weekday. I’ll call back tomorrow,” said Stephens. “I spent a solid four hours on Monday trying to call.”
In fact, of the witnesses who spoke to Yahoo News, Melendez was the only one who managed to reach the homicide detective assigned to the Scurlock case and deliver an official statement in person on Sunday. Fuller was finally called to the police station to give his statement at 11 a.m. on Monday, just two hours before County Attorney Don Kleine held a press conference to announce his decision not to file charges against Gardner. Kleine revealed that Gardner had been held overnight on Saturday at police headquarters for questioning, with attorneys present, and was released the following night without being booked into the jail.
A spokesperson for the Omaha Police Department confirmed in an email to Yahoo News that Gardner “was taken into custody [detained], questioned but was not charged and booked for anything.”
At the press conference, Kleine sought to dispel what he described as “misinformation” that had been circulating on social media, specifically calling out posts by local politicians that described the incident as “cold-blooded murder,” as well as claims that the shooting had been racially motivated.
Though the primary piece of video evidence presented by Kleine, which came from the bar’s security camera, contained no audio, he said that witnesses who were interviewed, including a friend of Scurlock’s and another protester, reported that they did not hear anyone use racial slurs.
Melendez and Fuller both confirmed to Yahoo News that they did not personally hear racist language in the heated moments that immediately preceded the shooting. Derek Stephens, who says he heard Gardner’s father yelling racial slurs at protesters roughly half an hour earlier, was notably not given the opportunity to provide his account to police until Wednesday afternoon, 48 hours after Kleine’s press conference, despite his relentless calls, messages and social media posts.
Of the witnesses who spoke to Yahoo News, Ledenbach is the only one who did not actively try to speak to police immediately after the shooting. Instead, she said she was encouraged by Stephens, whom she knew loosely through working in the service industry, to come along to the police station and give a statement of her own after she commented about what she saw that night in response to a Facebook post by Stephens.
She agreed, telling Yahoo News that while she wasn’t sure if her information would be helpful to the investigation, she decided, “I would feel weirder not saying anything.” (On June 3, Ledenbach posted on Facebook that she had just gotten back from the police station after sharing what she witnessed leading up to the shooting.)
All the witnesses interviewed by Yahoo News said they felt frustrated by Kleine’s hasty conclusion that Gardner had justifiably shot the unarmed Scurlock (whom he repeatedly referred to as “Spurlock” during the press conference) in self-defense.
“They keep saying how Gardner was in fear for his life,” Fuller wrote in a Facebook post on the afternoon of June 1, during or shortly after Kleine’s press conference. “Not a single damn word about how the rest of us there feared for our lives because of Gardner.”
“The fact that this man brought a gun to the protest and was brandishing it and pointing it in an intimidating way … I believed he was a threat,” said Melendez. “I could tell that this man was going to hurt somebody.”
Ledenbach also noted that the press conference seemed designed to present Gardner as the victim, when in reality “he opened fire into a crowd of people … and people around were trying to defend themselves.”
Based on Ledenbach’s own observations of Gardner from earlier in the night, she said, “He was looking for a fight.” She added: “All I’ll say is, a trained Marine should know how to defend himself without a firearm.”
In response to a request for comment on the alleged conduct of officers at the scene of the shooting, a public affairs officer with the Omaha Police Department told Yahoo News via email: “We will not be able to answer any questions regarding the James Scurlock investigation. The investigation is on-going and will be going to a grand jury. We have asked anyone with information about the case to contact our Homicide unit.”
Don Kleine, the county attorney, did not respond to multiple requests for comment, nor provide answers to specific questions about the initial investigation, including how many witnesses were interviewed before the decision was made not to file charges.
Late last week, the special prosecutor appointed to oversee the grand jury investigation established a separate tip line for information — and particularly any audio or video files — related to the Scurlock killing.
An alleged ‘history of racism’
Witnesses weren’t the only ones who say they struggled to provide authorities with what they believed was relevant information in the aftermath of the shooting.
The day after Scurlock was killed, Jenny Heineman, a second cousin of Gardner’s, posted a tweet about the shooting that suggested Gardner’s actions (which she did not claim to have witnessed herself) may have been racially motivated.
The tweet, which Heineman later took down, was quickly shared by thousands but surprisingly did not appear to draw the attention of law enforcement. Nor did the calls Heineman said she made to the county attorney’s office and the mayor’s hotline hours before Kleine’s Monday press conference, in an attempt to provide what she believed was important context about the racist culture in which she says Jake was raised.
After hearing nothing from authorities for more than a week, Heineman decided to testify at a public hearing in Omaha, where community members had been invited to address state lawmakers about issues related to police misconduct and racial injustice.
“My family has a laundry list of assault charges and a long history of racism,” Heineman said at the hearing, describing how “sleepless and disturbed” she felt “knowing that all the times my family members used the N-word, which was a lot, all of the times that my family made racist jokes, all of the times that my family ingrained violence into the minds and hearts and souls of their own babies, all of those things were leading up to the death of James.”
Heineman did not elaborate on the assault charges referenced at the hearing, nor identify any specific family members as the subject of her testimony. News outlets have reported that Jake Gardner has been arrested a handful of times over the past two decades on a variety of charges, including assault, theft and failure to inform an officer of a concealed handgun. However, it is unclear based on public records as to the precise outcome in all of those cases. At least two of them, one from 2013 and another in 2011, resulted in plea deals in which the gun charges were, respectively, dismissed and downgraded to disturbing the peace. Further, in the 2013 case, one of two assault-and-battery charges was dropped while the other was amended to disorderly conduct. Gardner paid fines of $200 in each of the two cases.
Kleine noted in his June 1 press conference that Gardner’s concealed-carry permit was expired at the time of the protest where he shot Scurlock, meaning that Gardner could still potentially be charged with a misdemeanor for carrying a concealed weapon without a permit. Misdemeanor charges are handled by Omaha City prosecutor Matt Kuhse, who did not respond to multiple calls and online requests from Yahoo News asking whether he planned to file such a charge against Gardner in this case.
Scurlock, who’d recently become a father, also reportedly had a history of run-ins with the law, including a 2015 burglary conviction, for which he served less than a year of a three- to five-year prison sentence. He also served a one-day jail sentence for misdemeanor assault in 2019, as well as a 90-day sentence in February for third-degree domestic assault, also a misdemeanor. In an interview with a local CBS News affiliate earlier this month, one of Scurlock’s brothers, Nicholas Harden, said that the 22-year-old had “changed his life around” following the birth of his daughter, who is less than a year old. “He was settling down,” Harden said.
It wasn’t until after a video of Heineman’s speech at the state Legislature went locally viral that she finally received a message from a detective asking her to give a statement. Reached by Yahoo News for this story, Heineman declined to provide any additional comment on the record, explaining that she had been receiving threats from certain members of her family after speaking out against Gardner. The “most colorful,” which she granted permission to share, was a text Heineman said she received from a relative saying that that her “dishonesty to the family is akin to ‘family genocide.’”
Independently of Heineman, Yahoo News spoke to another relative of Gardner’s, who asked not to be identified for fear of provoking what she described as a tendency among many in the family, including Gardner’s father, David, to be “very easy to anger.”
This person clarified that she could not speak directly to Jake Gardner’s personal views or specific things he has said, but rather, “I can bear witness to the overall environment and family that Jake was raised in.
“He was raised in an absolutely steaming, giant pot of racism,” she continued, explaining that her observations were based primarily on what she witnessed during holidays and other gatherings spent with the Gardners’ extended family over the course of multiple decades. She said that at these events, which were often attended by upwards of 30 to 40 people, David Gardner and certain other men of his generation were particularly outspoken about their “complete hatred and disgust” of most minorities, whom they regularly and openly referred to with a range of slurs and derogatory stereotypes.
“I can tell you that for decades I watched this guy, Jake’s father, sit around with the rest of the men in that clan and talk with complete hatred and disgust about ‘n*****s and k***s and Mexicans and sand n*****s,’” she said, emphasizing that these were not her words but examples of the kind of language that was commonly heard at family gatherings. She said negative views about a range of minority groups were often expressed in the course of regular conversation about anything from sports to politics or a recent story in the local news.
Racism, she noted, is “not unusual here” in Nebraska, where white people still make up 88 percent of the population. “What was unusual was they were so open about it.
“They felt extremely comfortable expressing [those views] around each other and all ages of people in the family,” she said.
Of course, this particular relative and Heineman illustrate that not every member of Gardner’s large, extended family necessarily shares those beliefs. But this relative said dissenters rarely spoke up.
One common talking point was the 1992 riots that took place in Los Angeles, where many members of the family had lived at different times. She said that for years after the riots ended, they would often be used by members of the family as a point of reference to justify their attitudes toward Black people. For example, she said, if any of the then high school or middle-aged children of Jake’s generation objected to something one of their dads or uncles said, a common response would be something like “You don’t remember those riots and those f***in’ n*****s in the street hauling that guy out in the street.” Others would then likely join in agreement with comments like “That’s what they f***ing do” and “That’s why we all moved back.”
“This was how the conversations went,” she said.
Though she said she did not recall ever hearing specific comments made by Jake, who was still a teenager during much of this time, this relative says she observed how the racist rhetoric espoused by David and certain other adults in the family filtered down to children of Jake’s generation.
“Jake was raised, literally, soaked in these ideas and language,” she said.
Like Heineman and others, this relative said she felt compelled to speak out against what she views as a blatant failure by the local officials to fully investigate Gardner’s views and potential motives before quickly deciding not to file charges.
“When I saw those videos, I thought, ‘God, I wish the whole world knew what I knew about this guy,’” she said of Jake’s father, arguing that the presence of David Gardner at the scene of the shooting was “really significant.”
Also of significance, according to this family member and many others who spoke to Yahoo News, is the fact that, just a couple of hours before he shot Scurlock, Jake Gardner had posted on Facebook about having to “pull 48 hours of military style firewatch” outside his bar. The post has since been removed, along with Jake’s Facebook page and all other social media accounts, but many people took screenshots before it had disappeared from their feeds, sharing the message as evidence of Gardner’s mindset prior to his confrontation with Scurlock.
“That indicates that you are expecting problems and that you have a very solid idea of what you’re going to do to address that situation, should it come,” she said.
Outside his family, in recent years Gardner had developed a reputation within the world of Omaha nightlife as the owner of the Hive and the Gatsby. Both have since been shuttered and evicted by the landlord, according to the Omaha World-Herald, citing late rental payments and unspecified “other issues.”
Yelp has blocked people from posting new reviews after seeing a spike in activity following Scurlock’s death. But the Hive’s existing reviews help paint a picture of the atmosphere Gardner appears to have cultivated there, with some reviewers saying Black men were subjected to an arbitrary dress code, women were objectified and LGBTQ people unwelcome. Gardner’s name is omnipresent throughout the litany of single-star reviews dating back to 2013.
“Atmosphere is pretty good and most of the bartenders are solid but this bar is overshadowed by a horrible owner,” wrote one reviewer in 2015. “The owner Jake will treat you great if you are an attractive 20 year old girl.”
“Racism is alive and well at the Hive!” declared another in 2017. Like others, this review referenced the bar’s “arbitrary dress code that is clearly based more on skin color than actual articles of clothing,” as well as the “disgraceful owner, Jake Gardner, who not only supports the racist discretion of his employees but encourages it by coming outside to further antagonize the people that are being told they aren’t allowed in.”
“The owner of this bar is a proud, outspoken racist and transphobe,” wrote another reviewer in 2017. “Don’t give him your business if you value open-mindedness and equality.”
The bar also received some positive reviews, bringing the average to 2.5 stars out of five.
James Scurlock’s brother A.D. Swolley told Yahoo News that he and James had been subjected to Gardner’s seemingly arbitrary dress code on a number of occasions.
Swolley, 25, said that he and Scurlock, along with some of their other siblings and cousins, enjoyed going out together in downtown Omaha and that “the Hive was always one of the main places you’d stop in.” But he recalled multiple instances last summer when he and Scurlock were either kept from entering or asked to leave by Gardner “just for appearance alone.” One night, Swolley said he and Scurlock were together at the Hive when Gardner approached Swolley and told him, “You have to go — no chains allowed in my club,” referring to a gold necklace Swolley was wearing. Swolley said he offered to take the necklace off and put it in his car, but that Gardner told him, “No, you can’t come back in.”
Another time, Swolley said, he and Scurlock were both rejected at the door for not wearing belts. On a different occasion, he said, he was told to leave the bar for wearing a hat, even after taking it off.
“You’d see people [of other races] with the same wardrobe malfunction that you just got kicked out for, still in there,” said Swolley. “When I think back about the moments we were kicked out, I did feel some type of way at the time, and I just let it slide.”
Swolley said that the night his younger brother was killed, he’d dropped Scurlock off a couple of blocks from the protest, where he planned to meet up with a couple of cousins. Swolley said he later learned from those who were with Scurlock at the protest that, as tensions between police and protesters began to intensify, the group had decided to go downtown because they thought it would be safer.
Robert Bradshaw, who previously worked as a barback at the Hive, confirmed that Gardner often used an arbitrary dress code, including a ban on hats, and increased cover charges to discriminate against certain categories of customer.
Bradshaw, who is Black, said that when he initially began working for Gardner in 2019, their interactions were mostly pleasant. They even watched “Game of Thrones” together. But after a few months, Bradshaw said, he started to see a different side to Gardner, whom he described as condescending and volatile. He described one instance in which Gardner became particularly angry and defensive after Bradshaw suggested inviting certain locally well-known people to the bar who could help attract new and different customers. At one point, Bradshaw said, he pointed out that he’d also helped draw people to the bar, to which he said Gardner replied, “You could die and nobody would blink an eye.”
Bradshaw said he did not truly believe Gardner was racist until he asked him directly. After about three or four months on the job, Bradshaw’s tenure at the Hive came to a dramatic end when, at the end of a long, busy night of work, he confronted Gardner about his pay. As Bradshaw tells it, Gardner was initially dismissive when Bradshaw expressed frustration over receiving just $20 for a full night’s work, then became angry, threw a tray of glasses on the floor and told Bradshaw to leave, grabbing him by the arm and yanking him toward the door.
Once outside, Bradshaw said, without even thinking he blurted out: “Are you racist?” His former boss turned around and, with a smile, lifted his hand with his thumb and forefinger slightly separated to gesture “a little bit” and said, “I might be.” Bradshaw memorialized the moment in a Facebook post as soon as he got home. Comments posted in the timeline include “the Hive has been under scrutiny for racism for a while now,” “Everyone knows they’re racist at the hive,” and “How is that a shock?”
Yahoo News spoke to another person who happened to be at the Hive during this altercation and was able to corroborate Bradshaw’s account. This person, who asked not to be identified by name, said he had just finished work at another nearby bar and had come to the Hive for an after-hours drink when Gardner and Bradshaw started arguing. He said he remembered hearing Bradshaw ask Gardner if he was racist after being forcefully escorted out the door. “I do remember him saying, ‘I might be,’” the person said, referring to Gardner’s response to the question.
Jim Morrison, a local DJ who previously worked for Gardner at the Hive DJing and hosting karaoke once a week over a period of six months, starting in the summer of 2019, said he recalled several instances where he heard racist comments made by both Gardner and his father and witnessed discriminatory treatment of Black customers firsthand.
Three weeks after he first started working at the Hive, Morrison said, Gardner started complaining about the music he played, which he described as mostly rap, hip-hop and R&B.
“You need to stop playing that Black music all the time,” he said Gardner told him on multiple occasions. Morrison recalled that Gardner would often make comments like “Man, there’s a lot of riffraff in here tonight,” which Morrison understood to refer to the number of Black people in the crowd. Other times, Morrison said, Gardner would just give “weird, long stares and dirty looks” to groups of people of color in the crowd. He also said that he personally witnessed on several occasions how the Hive’s notorious dress code was applied to people of color.
“You’d see white guys go in there with T-shirts and stuff, and then a black guy dressed almost the same would walk up right behind him and they’d push him out the door,” he said. “There was definitely discrimination going on in there.”
Morrison recalled one particular incident, around Christmas of last year, when David Gardner came into the bar. “I was talking to his dad, and he shook my hand and everything, and next thing I know he’s looking out in the crowd and says, ‘Wow, there are a lot of N-words around here.’”
“My jaw dropped to the floor,” said Morrison. “I didn’t know what to say.”
“I used to kind of be friends with Jake,” said Victoria Blodgett, who works at another local bar called the Tavern. She explained that she first met Gardner around 2013, when the band she was in at the time performed at the Hive’s original location, about a mile from where he would eventually reopen at the heart of Omaha’s bustling Old Market entertainment district.
“We would always support his bar when it was small and no one went there, and he would reach out to my band and have us play,” said Blodgett. She said Gardner “was a big fan of my band at the time” and would invite her and other members for dinner at his house. For about a year or two, she said, they had a pretty friendly relationship, but over time her impression of him began to sour.
Gardner, Blodgett said, “comes off as a happy, hippie guy, but once you get to know him you find out it’s just an act.”
“I’ve definitely heard him say the N-word casually,” Blodgett said, recalling that when she went to Gardner’s house for dinner, she observed that “the way he talks about people [is] like your racist uncle.”
Blodgett noted that she had also been downtown the night Gardner shot Scurlock and was actually “in front of the Hive when windows got broken,” which, she said, corroborating Fuller’s account, was at least 30 minutes before the shooting took place.
Blodgett said she did not provide a statement to police about what she saw the night of the shooting, in part because she’d heard from other people that “they weren’t taking any witnesses initially” and also because she hadn’t seen the actual shooting, “so I didn’t know if it was relevant.” Once it was announced that Gardner had been released without charges, Blodgett said, she wrote a letter to Don Kleine, the county attorney, “explaining everything I had witnessed.”
Yahoo News made multiple attempts to contact Jake Gardner via email addresses and phone numbers associated with him, but he could not be reached. An attorney and law firm believed to be representing him also did not respond to requests for comment. David Gardner did not respond to requests for comment in regard to the specific allegations made about him.
Defenses of Jake Gardner’s actions can be found scattered among the comments on some recent social media posts about the shooting within local Omaha circles, most of which either cite Kleine’s conclusion that Gardner acted in self-defense or simply seek to smear Scurlock.
The day after the shooting, supporters created a Jake Gardner Defense Fund on the crowdfunding site GoFundMe. The page has since been removed.
Before she was elected last year as the first LGBTQ member of Nebraska’s single-house state Legislature, state Sen. Megan Hunt, a Democrat, said she too had experiences with Jake Gardner through her previous work at a nonprofit called Safe Space Nebraska, which conducted training for bar owners and staff on how to handle reports of harassment and assault.
In an interview with Yahoo News, Hunt said that Gardner was a generous supporter of the organization. “He actually gave us a pretty big donation … and he let us use his bar for trainings and events.”
However, Hunt said, “The more I got to know him, the more it became kind of clear that what he wanted was to protect white girls from being harassed by Black men.”
“His racism was evident. His patronizing attitude about women’s sexuality was evident,” she said, explaining that, ultimately, she and her colleagues decided to stop working with Gardner because of his views.
Hunt, who is white, is outspoken about racism in Nebraska, both historically and today, noting a recent resurgence of white supremacists.
“Every state has their own demons and their own stories, but of course we have a huge history of racism,” she said.
“A lot of young people, a lot of folks who don’t believe in discrimination, who want equity for all people, they don’t see Nebraska as a place that they want to live.”
Hunt said that by “refusing to charge Jake Gardner with a crime, the county attorney, Don Kleine, has really taken the side of Jake, and he’s saying basically that a white man’s right to run in the streets with an illegal gun supersedes an unarmed Black man’s right to protest.”
The protests that began in Minneapolis following the death of George Floyd have since spread to more than 2,000 cities in all 50 states, drawing national attention to other recent cases in which unarmed Black people, like Breonna Taylor and Elijah McClain, were killed by police.
Much of the discourse, including a number of recently proposed reforms that have been put forth in response to the nationwide demonstrations, has focused on issues related to police, such as the disproportionate rates of violence against Black civilians and the lack of accountability for officers who use excessive force. But also on the list of victims whose names have inspired the Black Lives Matter movement are those like Ahmaud Arbery and Trayvon Martin, who, like James Scurlock, were not killed by police officers but by armed civilians. The men who killed Arbery and Martin, who were both unarmed, faced legal consequences only after public pressure.
According to a review by the Marshall Project of civilian homicides dating back to 1980, white people who kill Black men in the U.S. rarely face legal consequences.
Nebraska does not have a “Stand Your Ground” law like the ones in Florida and Georgia, which essentially allow civilians to use deadly force to defend themselves in public, even if they can safely avoid using such force by retreating. Under Nebraska state law, the use of deadly force against another civilian is permitted only in cases where a person “believes that such force is necessary to protect himself against death or serious bodily harm.” However, it is not considered justifiable if that person is able to safely retreat without using such force, or if “with the purpose of causing death or serious bodily harm, provoked the use of force against himself in the same encounter.”
“The question is not, did he shoot him? The question is, why did [he] shoot him?” said Hermann Walz, a civil rights attorney and adjunct professor at John Jay College of Criminal justice in New York City.
Though he could only speak to self-defense under New York law, Walz noted that the prevalence of video footage between cellphones and security cameras in recent years has been a game changer for prosecutors.
Walz, who previously served as a prosecutor in Queens and Brooklyn, said Gardner’s alleged history of racist views, as well as his Facebook post from the night of the shooting, should be taken into consideration.
“It’s relevant to show he’s a racist. He’s shown ‘I don't like these people.’ That doesn’t mean he tried to kill anybody,” he said, clarifying that “people can be racist and not want to do harm. But this guy has geared himself up, he’s carrying a weapon for use and he takes the first opportunity to use it. That’s the case I would make as the prosecutor.
“It seems like they want to believe very much [Gardner’s] version of events without challenging it too much,” he said.
“If it happened in Brownsville in New York and a Black male did it, he would be arrested, brought to jail, charged with murder and then he’d have to prove his justification,” he said. “There’s definitely a double standard.”
“It may or may not have been self-defense, but there’s no way you did a complete and thorough investigation in 36 hours, when many officers were working 12 [hours] on and 12 off, and we knew of witnesses who hadn’t been interviewed yet,” said state Sen. Justin Wayne, an attorney who is also representing Scurlock’s family.
In an interview with Yahoo News, Wayne, who is one of just two Black members currently serving in the Nebraska Legislature, called the county prosecutor’s initial decision not to file charges “a rush to judgment” that not only “does disservice to the justice system, but it also says that this young Black man’s life doesn’t matter.
“It goes to the broader issue of bias and systemic racism in our justice system,” he said.
“I think now there is a full investigation going on, and I believe, ultimately, charges will be brought,” Wayne said. “What those charges look like may vary, but I believe that.”
Ashlei Spivey, an Omaha-based racial justice advocate who serves as the equity and inclusion officer for the ACLU of Nebraska, told Yahoo News that “as a Black person I wasn’t surprised” by the decision not to charge Gardner. “We’re not hopeful that justice will truly be justice for us.
“I think now that there is a special prosecutor and grand jury, again we’re holding our breath, but we are not setting expectations that we’ll truly see our system demonstrate something different than it has demonstrated ever before.”
Spivey said she hopes that what happened to James Scurlock can help further elevate conversations about racism and inequality, particularly in smaller cities and towns in the Midwest, which, she said, are often left out of the national discourse on race.
“My hope is that this act, even though it is super-unfortunate and heartbreaking and devastating, that it would show that no community is exempt,” she said, “that there is work to do in every community, whether you’re a big metropolitan city or a smaller Midwestern town.”
“I think every time something like this happens, you have hope, you have hope that justice might be served,” said the Rev. Darrell Goodwin, associate conference minister for the United Church of Christ in Omaha. Goodwin, who is also Black, said he’s had a lifetime of negative interactions with cops in various parts of the country, but noted that he’s been pulled over by police for no reason more times since moving to Nebraska last year than in any other state he’s lived in.
Based on his own experiences, he wasn’t surprised by the handling of the case, which he considered confirmation of “an inherent bias in the legal system against black-skinned people.” As for the decision, after the fact and under pressure, to turn the case over to a grand jury and special prosecutor, Goodwin said, “I think that is the response of someone who is waking up, but it is not the response of someone who is awake. I think the city of Omaha is far from being awake.”
Additional reporting by Dylan Stableford.