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Suit filed by family of Omaha bar owner charged in protester’s death dismissed

A special prosecutor's comments at a press conference about charges against Jacob Gardner were "fairly characterized as his opinions about the evidence," a federal judge said Tuesday.

OMAHA, Neb. (CN) — A federal judge on Tuesday dismissed a lawsuit filed by the parents of a white bar owner who shot and killed a Black protester in the days after George Floyd’s murder.

Glenda Sue Gardner and David Gardner alleged a special prosecutor made inflammatory and untrue statements to the news media about their son, Jacob Gardner, that led to his death by suicide.

Jacob Gardner, 38, killed James Scurlock, 22, outside of Gardner’s bar, The Hive, on Harney Street in downtown Omaha on the night of May 30, 2020.

In his order dismissing the case, U.S. District Judge John M. Gerrard wrote that while the events were tragic for both the Gardner and Scurlock families, the lawsuit lacked legal merit.

“Gardner's parents are undoubtedly bereaved, and of course they have every right to be,” he wrote. “But not all tragic circumstances ultimately lead to legal liability. This is one of those instances.”

The lawsuit, filed last July in the U.S. District Court for Nebraska, alleged statements made by Special Prosecutor Frederick Franklin in a Sept. 15, 2020, press conference implied Gardner was a racist and caused him to lose faith in the justice system and fear for his life.

Douglas County Attorney Don Kleine initially declined to pursue charges against Gardner in Scurlock's death. But following a public outcry, he called for a grand jury to investigate.

Franklin, a former federal prosecutor, made the comments at issue during the press conference in which he announced the grand jury had just charged Gardner with manslaughter and three other felonies in connection to Scurlock’s death.

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.

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

Gerrard’s 35-page order on Tuesday granted motions defendants Franklin, Kleine, and two unnamed detectives filed to dismiss the case and addressed a variety of issues raised by the Gardners.

Gerrard pointed out that Franklin’s remarks “fairly characterized as his opinions about the evidence” and the suit did not allege he made objectively false statements.

“A grand jury had found probable cause to indict Gardner, and the plaintiffs do not attack that finding,” Gerrard wrote. “Franklin’s opinions about the government’s evidence were nothing more than that. And Franklin’s confidence in the government’s evidence isn’t shocking to the conscience.”

Gerrard also said that Franklin had no constitutional obligation to present exculpatory evidence at the news conference.

Kleine and attorneys for Franklin and for the Gardners could not immediately be reached Tuesday afternoon.

The Gardners' attorney, John Pierce of Los Angeles, has represented defendants involved in the Jan. 6, 2021, U.S. Capitol riot.

Gardner was a U.S. Marine Corps combat veteran. The suit described him as suffering from PTSD and traumatic brain injury.

The path that led to the deaths of Gardner and Scurlock started in Minneapolis with the death of George Floyd at the hands of police officer Derek Chauvin on May 25, 2020. Protests broke out in Omaha — less than a six-hour drive from Minneapolis — and other cities across the country.

According to the suit, on the night of May 30 Gardner, his father and an unnamed bartender, went to Gardner's bar for the stated purpose of protecting it “from rioters and looters.”

The trio got into a confrontation with Scurlock and others outside The Hive after the bar’s windows were broken, the suit says.

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 Scurlock tackled him. After shouting to be let free, Gardner shot over his shoulder. He fatally wounded Scurlock, who was unarmed.

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