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.

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 headlock, Gardner shouts “Get off me!” and moves the gun from his right hand to his left.

Here’s what security cameras and cellphone footage show: David Gardner, armed with a knife, shoves a man standing outside the bar. In retaliation, a friend of Scurlock’s, Tucker Randall, pushes David to the ground. Jake Gardner runs toward his dad and exchanges some words with Randall. A few seconds later David joins them, though he quickly walks away from the confrontation, brushing past Scurlock. Jake continues to argue with Randall and Scurlock; Robert Fuller tries to intervene, but Scurlock pushes him off. As Jake backs away, he lifts his shirt to reveal a gun in his waistband. Gardner pulls out the gun and brandishes it for a few seconds, then puts it back in his waistband. A moment later, he’s tackled from behind by Alayna Melendez, a 20-year-old protester who was watching the scene unfold. Gardner fires two shots in the air; Melendez springs up and scurries a few yards away. (Speaking to me later, Melendez explained that, given the clashes she’d witnessed between cops and protesters, she mistook the sound of the gun for tear gas: “I thought with the commotion of us all fighting, the police had come and tried to separate it.”) As Gardner returns to his feet he’s again brought down, this time by Scurlock. As Scurlock puts him in a headlock, Gardner shouts “Get off me!” and moves the gun from his right hand to his left. He then fires over his shoulder, hitting Scurlock in the clavicle, killing him.

The Omaha police took Gardner in for questioning and released him about 24 hours later. The next day, June 1, Douglas County Attorney Don Kleine, an elected Democrat, announced Gardner would face no criminal charges as he’d been acting in self-defense. (Nebraska law allows lethal force in the event that someone believes their life is in danger.) “There was a consensus that the actions of the shooter were justified,” Kleine said during a press conference. Almost immediately after his release, Gardner skipped town for Northern California, where he had gone to college at Humboldt State University; a short time later, he would relocate again to Oregon, bouncing between an uncle’s house near Portland and an old Marine buddy’s couch.

Of course, Kleine’s “consensus” didn’t include those who’d seen the shooting, many of whom were incensed that yet another white person was able to walk away free after killing a Black man. Many wondered, how did they reach that decision so quickly? Also, Gardner’s concealed carry permit was expired — didn’t that warrant some kind of punishment? (Don Kleine did not respond to multiple requests to be interviewed for this article.)

And so people — sometimes just a few dozen, other times 100 or more — marched every day, outside the gated community where Kleine lived and through the city’s downtown, seeking justice for James Scurlock. (At one protest in July, police arrested 120 people.) The dissent didn’t let up, not even when, following pushback from the Scurlock family, local city officials, and community activists, Kleine agreed on June 3 to convene a grand jury to review the case; nor when federal prosecutor Frederick Franklin was appointed on June 8 to lead the grand jury’s investigation.

As the protests continued and the grand jury’s selection process inched ahead, many of the people who saw Scurlock die that night still had questions about Kleine’s initial decision not to press any charges. Robert Fuller still couldn’t understand why the police didn’t take his statement the night of the shooting. Nor could another witness, Derek Stephens, who said he heard David Gardner’s alleged “n- — — lover” comment; Stephens claims he had to hound the police to allow him to make a statement. Other witnesses have given similar accounts: The police didn’t ask for their testimony the night of the shooting and took days to call them into the precinct, all of which makes Kleine’s hasty decision to clear Gardner within 36 hours even more curious.

When asked why the cops didn’t interview witnesses the night of the shooting, a spokesperson for the Omaha Police Department said, “Homicide detectives conducted several interviews during the investigation of the death of Mr. Scurlock. Special Prosecutor Fred Franklin mentioned the work that was done by the Omaha Police Department during his first press conference.”

But during the summer of protests against the killings of George Floyd, Breonna Taylor, Rayshard Brooks, and others, such statements would do little to quell the unease of those who sought justice for Scurlock. At a moment when America’s institutions seem more sympathetic to white vigilantes than they do to anti-racist protesters, they saw Gardner as a picture of white privilege and systemic racism at its most brazen and depraved — a white male business owner who killed a young Black man one night and was allowed to go home the next.

Gardner had his supporters, of course. After Kleine reversed his earlier decision and announced there would be a grand jury, after all, right-wing pundits propped up Gardner as another victim of a justice system that continues to bend to mob rule. And so began the inevitable culture war online: angry conservatives threatening leftists, angry leftists threatening conservatives, and on and on, the cycle as furious as it was familiar.

In the physical world, people were still hurting. I talked with Fuller and Alicia Wolford months after the shooting; both were still haunted by what they saw. “The look on James’ face is the one thing I’ll never forget,” Fuller said. “It’s just a look in someone’s face, you can tell they know they’re not going to make it.” When Wolford recalled his last moments, she had to pause to collect herself. “He looked so scared,” she told me. “Really scared.”

James Scurlock came from a big family; counting full and half-siblings, he was one of 27. They didn’t always live in the same state, let alone the same house, but whenever they were together, Scurlock managed to steal the limelight. “He was really goofy,” said his sister Riss Mitchell, 28. When I spoke with Mitchell and several of her other siblings on Zoom in September, she showed me the photos and posters of her late brother that now hang on her wall. “He was the one that brought the positive energy, but when we’re all together now, we can fill that void.”

Scurlock was, at the time of his death, a new father to a baby girl, six-month-old Jewels. “His daughter was everything to him,” said Mitchell. “He loved his daughter more than life itself.” He’d recently gotten a job at a landfill but had his eye on bigger plans: to earn his commercial driver’s license, maybe; or to get a degree in business; or even to see how far rapping could get him. He was looking for a good life for him and his daughter.

James was born in Omaha but spent his early years in the Denver area with his father and his paternal grandmother. When he was nine, he and his father moved back to Nebraska. They settled in North Omaha, a historically segregated section of the city that, thanks in part to decades of redlining, suffers from higher crime rates and educational achievement gaps. “If you come from North Omaha, like all of us, you start below the bottom,” said Scurlock’s brother, 25-year-old A.D. Swolley. “North Omaha isn’t somewhere where I would encourage anybody to live. Leave and don’t ever come back.”

At 16 Scurlock did leave, joining his mother and some siblings in Norfolk, a small city about 115 miles northwest of Omaha. Though he only lived in Norfolk for two years, that’s where he had his first run-in with the law. In 2014 he was charged with burglary after he acted as a lookout for two men during a home robbery. He spent a little under a year at the Nebraska Correctional Youth Facility, where he earned his GED. In 2019, Scurlock was locked up for a second time, for misdemeanor assault; a few months before he died, he served 57 more days for misdemeanor domestic assault. And on the night of his death, security footage from earlier in the evening appears to place Scurlock and his friend Tucker Randall at RDG Planning and Design, an architecture firm around the corner from The Hive, entering the business through its already smashed windows and destroying some of the computers. (Randall denies it was him and Scurlock in the footage.)

In the aftermath of Scurlock’s death, there was a flurry of news reports that looked at his criminal past. In June, Kleine released a coroner’s report that found methamphetamine and cocaine in Scurlock’s urine but not in his blood, meaning he was likely not under the influence when he died. Kleine’s decision to release the coroner’s report in particular incensed members of the local community, who said its release smeared Scurlock’s name. “Kleine continues to color the public’s perception of a Black victim while protecting the public’s perception of a white shooter,” State Sen. Justin Wayne, the Scurlock’s family’s attorney, said at the time. (Wayne did not respond to multiple requests for comment.)

“If you come from North Omaha, like all of us, you start below the bottom. North Omaha isn’t somewhere where I would encourage anybody to live.”

Many racial justice advocates argue focusing on prior criminal records or drug use — whether it’s a toxicology report or the outsize focus on Scurlock’s alleged vandalism shortly before he was shot — distract from the simple truth that a young Black man was shot to death and the white perpetrator was allowed to walk free. “[Kleine’s] clear intention to vilify James is white supremacy 101,” said local activist JaKeen Fox. “We see it with every Black person that’s murdered. The attempt to vilify those people post-mortem is really disgusting.”

That sentiment was echoed by Jennifer Heineman, a sociology professor at the University of Nebraska, Omaha. At a legislative forum on June 8, the same day Frederick Franklin was brought in to lead the grand jury, Heineman called out what she said were the racist power structures that allowed Gardner to skirt any charges, and addressed the “ingrained violence” present in the Gardner family. On the latter point, Heineman wasn’t speaking as an academic — she’s also Jake Gardner’s cousin.

I spoke with Heineman in September; in our email exchanges, she described the culture within the Gardner family as one of absolute prejudice. “I grew up hearing the N-word often in the context of anti-Blackness that was profound. Every social ill was blamed on Black folks,” she told me. “Family members with adopted children were accused of supporting ‘foreigners.’ Queer people, like myself, were called ‘f[*]gs’ and physically punished. This language was omnipresent.”

Heineman said she’s been repeatedly threatened by members of her own family after speaking out: She has received suspicious packages at her office, anonymous letters “detailing all of the ways I am a cunt,” drunken text messages about how she is “creating family genocide,” even death threats addressed her mother, who she said also spoke out against the family. “My family has stated in no uncertain terms that I am dead to them,” she said. (The Gardner family’s attorneys did not respond to multiple requests for comment, but in comments sent to the Omaha World-Herald in September, Gardner said, “My family has never said or acted negatively towards anyone based on their skin color or anything of that nature.”)

Another member of the Gardner family, who spoke on the condition of anonymity, described an atmosphere of “militancy” that David Gardner imposed on his kids — and also one of racism. “It was very obvious that Jake had to toe the line or there would be hell to pay. Toeing the line also meant being militant and following in his footsteps,” the family member said, “including getting gun training, going into the Marines, and hating anybody of a different race or religion — because they also hated Jewish people.”

The elder Gardner’s efforts apparently paid off: Jake joined the Marines and completed two tours in Iraq, where, as his lawyers later said, he suffered traumatic brain injuries. He also, according to some who knew him, maintained traces of the intolerance his father allegedly preached. Though Gardner’s two bars, The Hive and The Gatsby, were popular establishments in Omaha — Gardner was regarded enough to attend, alongside Omaha Police Chief Todd Schmaderer, a competition called “Dancing With the Omaha Stars” in 2016 — they were also known to many as being racially charged environments.

Robert Bradshaw, who worked as a barback at The Hive, said Gardner “really didn’t like Black people in there.”

“Racism is alive and well at The Hive!” exclaims one Yelp review from 2017. “The bouncers and owner are completely racist and the ‘dress code’ only seems to apply to a few when it fits their agenda,” reads another. Indeed, as first reported by Yahoo! News’ Caitlin Dickson, Gardner would allegedly impose seemingly arbitrary dress codes to get into his bar, clearly targeted at Black customers. Scurlock and his brother A.D. Swolley were allegedly subjected to Gardner’s whims over the years too. “It’s simple things like, ‘Oh, you don’t have a belt’ or ‘you got to take off that big ass chain’ or ‘no hats,’” Swolley said.

Robert Bradshaw, who worked as a barback at The Hive, said Gardner “really didn’t like Black people in there.” Bradshaw, who is Black, alleged that during a dispute over pay with Gardner in 2019 he asked his boss point-blank, “Are you racist?” In Bradshaw’s telling, Gardner smiled and said, “I might be.” Another hired hand at The Hive, local DJ Jim Morrison, said both Jake and David Gardner made racist comments. Once, Morrison said, David even “came up on stage when I was playing music and was like, ‘Hey, you think you can play some rock? Maybe it’ll clear some of these damn N-words out of here.’” And, Morrison added, Jake had a habit of calling people of color “dirty motherfuckers.”

Gardner’s sketchy reputation wasn’t just confined to the bar-going crowd. He had a brief brush with controversy in 2016 when he posted on Facebook suggesting transgender women should be required to have their “appendage” removed in order to use the women’s restroom. Even after meeting with members of the trans community to discuss his comments, Gardner stood by the post, telling local news station KETV, “I’m definitely not going to back down on my stance, I think that it’s the right thing to do to start these conversations.” Gardner had also been arrested a handful of times in his life, most recently in 2013 when he was charged with two counts of assault and battery, as well as failure to inform an officer of a concealed handgun, property damage, and theft.

“I always felt uncomfortable around him,” said Morrison. “I felt like I couldn’t be myself or have conversations with certain people around him, without him looking down on me.”

On September 9, the 16-person grand jury convened and began to hear witness testimony — not just from those who witnessed the shooting, but also those who could speak to Gardner’s past, and whether it might have factored into the altercation. In total, investigators would interview 60 witnesses and pore over hours of surveillance footage.

Neither Gardner nor Scurlock’s family felt particularly optimistic about their chances with the grand jury. In an interview with KETV, Gardner said “I’m more anxious now than when I was flying to Iraq.” Scurlock’s family was similarly skeptical. “It has my anxiety through the roof,” Mitchell, Scurlock’s sister, told me on September 13. “In my own personal experiences with this justice system, there is really no justice.”

But just seven days after the grand jury began its probe, Franklin, the special prosecutor, took to the lectern in the Omaha Douglas Civic Center to announce the grand jury’s stunning decision: Jake Gardner would be indicted on manslaughter, use of a deadly weapon to commit a felony, attempted first-degree assault, and terroristic threats. Taken together, the charges meant that Gardner was staring at up to 95 years in prison.

“It was nerve-wracking. You’re sitting there waiting for a conclusion to what’s been panning out for those three months, and then you hear the result: Well, we’re actually going to look at what he did wrong.”

Though Franklin said broadly that Gardner’s texts and Facebook activity immediately prior to the shooting undermined his claims of self-defense, he didn’t offer any specifics, nor did he say whether the grand jury’s decision was unanimous. (Nebraska law requires an affirmative vote by at least 12 of the 16 members.) Franklin was also careful not to tread into the debate around Gardner’s alleged racism. “I’m not commenting on whether or not that evidence was presented to the grand jury,” he said. “Being a racist is not against the law.”

A.D. Swolley, Scurlock’s brother, watched the press conference from the family’s lawyer’s office downtown. “It was nerve-wracking,” he said. “You’re sitting there waiting for a conclusion to what’s been panning out for those three months, and then you hear the result: Well, we’re actually going to look at what he did wrong.” Though Swolley was upset by the six days Gardner was given to surrender to authorities — “As a Black man, I know they’d be at my house that same day there were indictments” — he was looking forward to Gardner’s day in court.

That day would never come. Gardner’s lawyers, Stu Dornan and Tom Monaghan, would later say that their client was “really shook up” over the charges. “The grand jury indictment was a shock to him,” Dornan told reporters. But it wasn’t just the grand jury, Dornan said. It was also The Hive’s subsequent eviction by its landlord, the death threats Gardner received on social media, the traumatic brain injuries.

Now Gardner was facing manslaughter charges. Dornan and Monaghan thought they had calmed their client down after the announcement. His was a clear case of self-defense, they assured him. Their efforts were for naught. Around noon on September 20, Gardner’s last day to turn himself in, his body was found by police officers in Hillsboro, Oregon. He had shot and killed himself; he left no suicide note. Speaking to a reporter with KETV in early October, an anonymous friend of Gardner’s said “He’d absolutely lost all his faith in the justice system.”

A bizarre battle of prosecutorial press conferences soon followed. On September 23, Franklin spoke again to the press, saying he was “saddened about Jake Gardner having taken his own life,” partly because “him doing so deprived the community to be able to have this evidence play out at trial.” Franklin, who did not respond to multiple interview requests, also referenced a tweet sent one day before the shooting by President Trump which read “when the looting starts, the shooting starts.”

That same day, Don Kleine, the county prosecutor, reaffirmed his belief that Gardner was acting in self-defense. “I know Fred Franklin,” Kleine told reporters. “He’s a good man. But he really seemed to have his mind made up before he went in there as to what his theory of the case was.” Kleine went on to insinuate that Scurlock had gone out that night seeking trouble. “You know he had his own agenda that night and it wasn’t to peacefully protest.”

Kleine’s decision to cast doubt on a grand jury decision in such a high-profile case drew swift rebuke from his fellow party members: The Nebraska Democratic Party quickly passed a resolution condemning the county prosecutor “in his handling of the James Scurlock case in a way that perpetuated white supremacy and sparked deep division in Omaha.”

Even to outsiders, Kleine’s actions were odd. “It seemed inappropriate,” said Eric Meyer, a criminal justice professor at Creighton University in Omaha, and a former police officer. “At this point, the charges are dropped because Jacob Gardner is dead. Why go out and still defend your original position? It’s pointless.”

“Kleine’s comments accomplished one thing” explained Ryan Wilkins, a local attorney who’d been advocating for charges against Gardner. “They cast unfair, misplaced doubt on the legitimacy of a robust three-month investigation that resulted in at least 12 jurors of diverse races and politics rejecting Jake’s self-defense claim and indicting him for four felonies.”

In the weeks since his death, Jake Gardner has become a martyr for the right. Ann Coulter tweeted sympathetically that Gardner’s “life didn’t matter.” Alt-right activist Jack Posobiec called him a “patriot.” Fox News pundit Tucker Carlson used the story as an omen of liberal frenzy: “If they can do this to him,” he intoned, “then of course they can do this to all of us.”

You don’t have to strain to see what happens next. Warnings like Carlson’s, delivered in this era of unprecedented polarization, are sure to reach the anxious ears of white-picket-fence conservatives as well as their more militant brethren. From there, the name Jake Gardner becomes another rallying cry in the rapidly intensifying war for their vision of America.

The response to such a threat is swift and sometimes deadly: It’s pro-Trump activists coordinating large-scale ammunition buys; it’s Stewart Rhodes, the founder of the Oath Keepers, declaring “We’ve descended into civil war;” it’s Kyle Rittenhouse roaming the streets of Kenosha with an AR-15-style rifle. To the aggrieved, Gardner’s name is a line item in the growing list of injustices.

The same could be said of James Scurlock. I asked Swolley if he felt like justice had been served for his brother’s death, if Gardner’s suicide was a just punishment. He said no. “People are saying stuff like, ‘Oh, you guys should be satisfied, he’s dead now,’ but that’s not the case,” Swolley said. “Not only did you kill my little brother, but you took away the chances that we had of getting justice for it by deciding to take your own life.”

For Swolley, Mitchell, and the rest of James Scurlock’s siblings, all that’s left now are memories of their brother. On the Zoom call I had with Scurlock’s family shortly before the grand jury decision, his sister, Qwenyona Evans, laughed as she recounted mischief they’d made at the dining room table as kids. “When we had a food fight at the table and we were all throwing mashed potatoes at each other and we hit our brother in the face,” she said with a smile. “It’s just stuff like that — that is really going to be missed.”

James Scurlock’s face will, for at least a while, remain a fixture and a symbol in Omaha. A number of murals in his honor have sprung up throughout the city. They show him smiling, surrounded by purple flowers, to honor his favorite color; in some of them, a thin halo hovers above his head. There have been no public artworks created to honor Jake Gardner. But his name still lives on too, on cable news and online message boards, a martyr and a motivator for a very different cause.

Senior Editor, GEN by Medium. Previously: Pacific Standard, Wired

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