No charges against bar owner who fatally shot 22-year-old protester; prosecutor says it was self-defense


Leta Lohrmeyer

County Attorney Don Kleine speaking at the Monday press conference. Photo courtesy of WOWT.

The white bar owner who fatally shot a 22-year-old black man on Saturday night will not face charges, said Douglas County Attorney Don Kleine on Monday.

James Scurlock died after being shot Saturday night in the Old Market, he was protesting the death of George Floyd.

Kleine confirmed that the person who shot Scurlock was Jake Gardner, the owner of the bars The Hive and The Gatsby. The incident took place on the sidewalk of those

The Hive and The Gatsby bars are owned by Jake Gardner. The incident took place outside these establishments.

establishments on Harney Street.


The consensus from the county attorney is that Gardner acted in self defense after Scurlock jumped on him during a skirmish.

“It is a senseless death, a loss of a young man’s life, it shouldn’t have happened,” said Kleine during the Monday press conference. “We know that emotions are running very high, and that this decision 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. All right, that’s what the basis of this decision was 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 I would hope that this great community that we live in, will be able to get through this.”

Kleine showed videos taken that night, breaking down the bar’s surveillance video to explain the reasoning for the decision not to press charges on the basis of self defense. 

The video shows the altercation outside the bars starting with Gardner’s father telling a group of protesters to go away and pushing them, resulting in him being shoved. Gardner questioned the group on who pushed his father. 

Someone is heard in a video saying, “he has a gun on him,” referring to Gardner. 

Kleine said the surveillance video shows a group of people surrounding the bar owner, tackling him and two shots were fired. Scurlock jumps on the bar owner, has him in a chokehold for a few seconds before Gardner fires another shot, fatally wounding Scurlock.

Gardner told authorities he fired those shots as “warning shots,” and that he wanted to get the group to leave the area, Kleine said.

Kleine said that in audio from a different surveillance video, which was not played at Monday’s press conference, Gardner can be heard saying, “Get off me,” several times before the shot was fired.

“It was one gunshot sound to the clavicle. And that was the cause of death,” said Kleine.

Gardner was taken into custody that Saturday night. He was interviewed with his lawyers present and Kleine said that he cooperated, telling authorities “his version of events.”

“He felt in danger for losing his life, so he fired that shot in self defense,” Kleine said. He added that authorities could not disprove that claim.

Kleine also addressed that there was a wide spread of misinformation online, which was “troubling.” Kleine cited social media posts which state that Gardner allegedly used racial slurs against Scurlock. Kleine said there is no audio of racist comments, and that witnesses did not state there were any racial tones in conversations leading up to the shooting.

After Kleine finished, Attorney Justin Wayne, who is acting as a representative of Scurlock’s family, responded on behalf of the family saying it was disappointing that the county attorney met with community leaders about the decision not to press charges before telling Scurlock’s family.

“In this community, we prosecute black and brown individuals a lot more for things like we just watched,” said Wayne. “[Gardner] had an unlawful carry concealed weapon.”

Kleine said Gardner had a concealed carry weapons permit but it was expired.

Wayne said the facts of the case described by Kleine were “a credibility issue” but that is decided by a jury, not a judge. He asked for a grand jury to be formed.

“We watched a video where anybody else would have gotten charged with something,” Wayne said. “We are asking for a grand jury and charges to be brought against [Gardner].”

Scurlock’s father spoke to reporters after the conference, also asking to invoke a grand jury to investigate the validity of the accusation before trial.

“What I want is justice, not a quick answer,” said Scurlock’s father, also named James Scurlock. “This was a quick answer.”

Scurlock’s father said that not all evidence could be collected in 24 or 36 hours. 

“Once again I ask that we investigate this,” said Scurlock. “And I ask my people to stand by me strong but do it peacefully.”

Kleine said during the press conference that the authorities are requesting any other evidence of the incident to be submitted. They want people to call 402-444-5656.

“The other thing I would ask if there is any other evidence that people are aware of – other videos, other witnesses. Anything else that would guide us or help us in the decision making process, we would still like that to come forward [….] this is the decision we’ve made based at this point in time,” said Kleine.