Family of Omaha bar owner charged in protester’s death claim he was denied due process

OMAHA, Neb. (CN) — The parents of a white bar owner who shot and killed a Black man who was protesting George Floyd's killing claim in a lawsuit filed Monday that a special prosecutor made inflammatory and untrue statements to the news media about their son.

This conduct, the family of Jacob Gardner says, led to his death by suicide.

Statements made in a press conference on Sept. 15, 2020, by special prosecutor Frederick D. Franklin caused Gardner “emotional distress,” the lawsuit says. A grand jury had just charged Gardner with manslaughter and three other felonies in the death of James Scurlock, 22.

“Defendant’s statements in the media — which impacted Mr. Gardner’s right to a fair trial — caused Mr. Gardner to lose all faith in the justice system and become paranoid and afraid for his life," the lawsuit states.

“These statements included implications that Mr. Gardner was a racist, in a time when racial issues are at the forefront of the American public consciousness, including that of potential jurors," the suit continues.

Gardner was a U.S. Marine Corps combat veteran, and the suit describes him as suffering from PTSD and traumatic brain injury. He was 38 years old.

The lawsuit says Franklin selectively revealed “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.”

During the September press conference, Franklin described the case against Gardner as “almost a slam dunk.”

Gardner received more than 1,600 death threats following the news conference, according to the lawsuit, and his family left Nebraska out of fear of their own safety.

The suit, filed in the U.S. District Court for Nebraska, was brought by Gardner’s parents, Glenda Sue Gardner — as personal representative of Gardner’s estate — and David Gardner. The suit names Franklin, Douglas County Attorney Donald W. Kleine, the Douglas County Attorney’s Office, Douglas County, and Does 1 & 2 — two retired Omaha detectives whom the suit alleges knew in advance of Franklin’s statements and did not prevent them.

The Gardners' claim the defendants caused their son's wrongful death and conspired to deprive him of his right to a fair trial and due process. They're seeking compensatory, special and punitive damages.

Kleine and Franklin could not immediately be reached for comment Monday.

The Gardners are being represented by attorney John M. Pierce of Los Angeles, who did not immediately respond to a request for comment.

During the press conference, Franklin, a longtime U.S. attorney,  stressed his desire to be fair and objective.

“I accepted this responsibility not to advance any organizations' agenda. Not to advance the agenda of Black people because I am African-American,” he said in the news conference, according to the Omaha World-Herald. “I took an oath to be impartial in terms of gathering the evidence and presenting it to the grand jury.”

Gardner owned a bar called The Hive in the Old Market neighborhood. The theme of the establishment was the Omaha-born rock band 311.

He got into hot water in 2016 after posting a message on Facebook construed by many to be transphobic: that transgender women should not use the women’s restroom unless they had their “appendage” removed, the Omaha World-Herald reported at the time.

Gardner walked back his comments and said he had learned from the experience. He was largely out of the public eye until 2020, when protests broke out in Omaha and other U.S. cities following the death of George Floyd at the hands of Minneapolis police officer Derek Chauvin.

According to the suit, on the night of May 30, five days after Floyd’s death, Gardner, his father and an unnamed Hive bartender went to the bar “for the sole purpose of lawfully protecting his business from rioters and looters."

The suit claims around 10:40 p.m. the bar’s windows were broken, Gardner believed the damage was caused by bullets, a rioter attempted to enter the building, and Gardner called police.

Around 10:55 p.m. Gardner, his father, and the unnamed bartender exited the bar, and began photographing the damage, the suit says. Then they encountered Scurlock and others.

According to surveillance video and various recordings posted to Twitter shortly after the shooting, a scuffle ensued. Gardner fell onto the street, and fired a pistol in what the suit describes as a “warning shot” before he was tackled by Scurlock. After shouting to be let free, Gardner shot over his shoulder and fatally wounded Scurlock, who was unarmed.

Kleine, the county attorney, initially described the killing “senseless but justified,” according to The Associated Press.

After a public outcry, Kleine called for a grand jury to review the case and turned it over to a special prosecutor.

In addition to manslaughter, the grand jury also charged Gardner with attempted assault, making terroristic threats and using a gun to commit a felony.

Five days after the news conference, Hillsboro, Oregon, police found Gardner dead outside of a medical clinic.

“As a result of this extreme emotional distress, Mr. Gardner committed suicide on September 20, 2020,” the lawsuit states.

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