Illustration: Owen Freeman

In America, ‘Being a Racist Is Not Against the Law’

A broken window and a gun led to the death of James Scurlock outside a bar in Omaha. Then the search for justice began.

Max Ufberg
Published in
17 min readOct 7, 2020


On the night of Saturday, May 30, Jake Gardner sat inside The Hive, a popular bar he owned in the Old Market area of downtown Omaha, plotting against a phantom enemy. The bar was closed and the lights were off. Protesters were on their third night of marching after the police killing of George Floyd; a few instances of looting and violent clashes with police the previous night had captured local headlines and set off a nerve for Gardner, a 38-year-old Marine veteran. He was joined at the bar by his father, David, and the bar’s bouncer; between them, they had one shotgun and three handguns. In texts and Facebook messages later obtained by the Omaha Police Department, Gardner mused about whether he had a clear line of fire to the street from his perch at The Hive. At 9:14 p.m. he wrote on Facebook that, given the threat of looters, he would have to pull “48 hours of military style firewatch.”

Around 10:55 p.m., Gardner’s fears were manifested. He and the others watched as someone smashed the bar’s windows with rocks and an old signpost. Jake and David Gardner ran outside to confront a small huddle of people standing nearby. Included in that group was James Scurlock, a 22-year-old Black man.

There are conflicting accounts of what happened next. Some say David Gardner called a woman standing near Scurlock a “n- — — lover” and pushed her; others deny hearing any racial slurs. Although David Gardner and authorities accused Scurlock and his friend of smashing The Hive’s windows and Omaha Police said there was video evidence showing Scurlock may have participated in throwing objects at the bar, other witnesses have disputed this. One witness, Robert Fuller, said it was “young white kids” responsible for the actual property damage. Fuller said he saw David Gardner accuse Scurlock of the vandalism: “He’s like, ‘Why are you breaking my windows?’ And they’re like, ‘We didn’t.’” Another witness, Alicia Wolford, said David was “very visibly angry,” when he approached the small huddle of people outside the bar. “You could hear it in his voice.”

As Scurlock puts him in a…



Max Ufberg
Writer for

Writer and editor. Previously at Medium, Pacific Standard, Wired