Judge tosses suit blaming prosecutors for suspect’s death

By MARGERY A. BECK
Associated Press

OMAHA, Neb. (AP) — A federal judge threw out a lawsuit against prosecutors filed by the family of a white Nebraska bar owner who killed himself after being charged in the fatal shooting of a Black man during 2020 protests over racial injustice.

U.S. District Judge John Gerrard said in an order Tuesday that there is no legal basis to conclude that Douglas County prosecutors are liable for the death of 38-year-old Jake Gardner.

Gardner’s parents accused the Douglas County Attorney’s Office, its top prosecutor and a special prosecutor of violating Gardner’s constitutional rights. The lawsuit also accused special prosecutor Fred Franklin of implying during a news conference that Gardner was a racist, leading Gardner to take his own life on Sept. 20, 2020, in Oregon.

Gardner was charged with manslaughter and other felonies in the May 30, 2020, shooting death of 22-year-old James Scurlock outside Gardner’s downtown Omaha bar during protests in the wake of the police killing of George Floyd in Minneapolis.

Douglas County Attorney Don Kleine initially declined to charge Gardner, saying he acted in self-defense after being attacked by Scurlock. Kleine later asked for a grand jury investigation after critics said he hadn’t thoroughly investigated the shooting. Defenders of Scurlock said he was trying to stop Gardner from hurting anyone after Gardner flashed a gun at protesters he engaged in a scuffle.

Franklin 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. Following Gardner’s death, Franklin revealed Gardner had been armed and waiting to ambush people who might break into businesses, including his.

“Gardner’s parents are undoubtedly bereaved, and of course they have every right to be,” Gerrard wrote in his ruling. “The events that led to this case were tragic for Gardner’s family and for Scurlock’s. But not all tragic circumstances ultimately lead to legal liability. This is one of those instances.”

An attorney for the Gardners, John Pierce of California, did not immediately return a message Wednesday seeking comment. Pierce has represented people is several high-profile cases, including at one time Kyle Rittenhouse, who was acquitted of homicide and other counts in the fatal shooting of two men during a Kenosha, Wisconsin, protest.

The Douglas County Attorney’s Office also did not immediately return a message seeking comment.