Justice for James Requires Arresting My Racist Former Classmate
Jake Gardner, who shot and killed James Scurlock last weekend during a Black Lives Matter protest, was my high school classmate. Until nine days ago, we were Facebook friends, and I assumed I’d see him at our 20-year reunion later this year.
Jenny Heineman — a mother, author, professor, and TEDx speaker — is Jake’s cousin. Last weekend, on a hot, muggy, wind-whipped Sunday afternoon, she and I marched for #JusticeForJames, Jake’s victim, and afterward we talked. We both believe criminal charges against Jake — her cousin and my former classmate — are warranted in this case due to a critical, so-far-under-reported piece of the puzzle: Jake, the killer and instigator, is racist.
But first, imagine: A black man brings a gun to a suburban Omaha shopping center. It’s closed — he’s not even supposed to be there. His permit’s expired, so he’s carrying illegally. Seeing a group of white men in the distance, he shouts and confronts them, then backtracks and reveals the gun as they draw closer. In a fast, confused instant, they scuffle; the black man fires his weapon; and when one of the unarmed white men jumps on his back — perhaps attempting to disable or disarm the active shooter — he shoots him in the neck, killing him.
Do you think the black man — who was in a place he was not supposed to be, carrying a gun he was not authorized to carry, and who provoked, shot, and killed an intervening, unarmed white man — would face criminal charges? Or would he be quickly released, his killing justified as self-defense?
Aside from race-reversing, this hypothetical mirrors Jake Gardner’s killing of James Scurlock in every material respect: In anticipation of racial-injustice protests, downtown bar-owners like Gardner were advised to clear the area and leave the law-enforcement to law enforcement; Gardner nonetheless came, illegally carrying a concealed weapon and declaring on Facebook he was ready “to pull 48 hours of military style firewatch”; Gardner confronted the unarmed Scurlock and others, accusing them of vandalizing his bar — even though he had no evidence that they had vandalized his bar, and in fact they had not vandalized his bar; Gardner’s father revved-up the verbal altercation into a physical one, twice shoving a woman near Scurlock before another group member pushed him back; and when Gardner showed his gun and began firing shots, Scurlock — at all times unarmed, and until then completely removed from the physical conflict — jumped on his back, at which point Gardner shot and killed him.
Racism aside, this case’s potential precedent — that someone could bring a gun he was not authorized to carry to a location he was not supposed to be, start a fight, show and fire a weapon, and then justifiably kill anybody who tries to intervene and disarm him — should be deeply disturbing to anyone.
But more importantly, racism absolutely cannot be set aside here. Because the shooter, Jake Gardner, is racist. And his racism is crucial to understanding his criminal culpability.
The evidence — new to me, until this week — is substantial. Most bars’ Yelp reviews complain of bad service, watered-down drinks, or weird ambiance. Jake’s bar (The Hive) lays out review, after review, after review — I stopped counting around 20 — detailing accounts of hardly-even-bothering-to-hide-it racism over a period spanning more than five years: The well-dressed black man denied entry under the pretext of an all-customers-wear-belts policy, even though the belt-less white guy in the group got in; the woman who complained that when her black brother-in-law was barred from entering, “the owner Jake Gardner actually came out to confirm the establishment’s practice of holding minorities to higher standards for entry”; and the bevy of reviewers attesting that “the owner of this bar is a proud, outspoken racist” and “I have never heard so many people equally hate an establishment simply due to a disrespectful, judgmental and racist staff/OWNER.”
In an odd, dramatic post that now seems prophetic, Jake himself once declared: “The black lives matter group is a terrorist organization.” Given his stance, when Jake shoots and kills an unarmed black man during a BLM protest, are we to chalk this up to mere-coincidence?
Now back to Jenny, Jake’s cousin. For her, since childhood, the family’s racist, violent ways have felt entrenched, steeped to their very cores: Ever-present, always-understood, and frankly so obvious that the issue never needed to be analyzed or discussed. But sometimes, it was discussed — like when one family member uncomfortably noted Jake’s dad’s prolific use of the “n-word,” and others cued her in implicit, subtler, but mutually understood ways — sometimes called “dog whistles” — tipping family members off to spaces that would be unwelcoming or downright unsafe for friends of a certain skin tone. Jenny, like many white people I know, are done looking away. She feels the least her family owes Scurlock’s is honesty about Jake’s racist ways. Last week, she took to Twitter and outed cousin Jake as a “white supremacist.”
On the night of May 30, the racism and the killing went hand-in-hand.
Yesterday I spoke with Derek Stephens, a white, grizzly-bearded, Benson-loving bartender. Moments before shots were fired, he saw and heard Jake’s frazzled father (the bar’s windows had been smashed) repeatedly and angrily “dropping n-bombs,” as Derek put it — audibly barking the hate speech under his breath, at first, and then dialing up his vileness and volume as the watchful, listening crowd reacted. At one point, Jake’s dad looked at the group’s white contingency and called them “n — — — lovers.” And Jake, for his part, told a Hispanic group member to “Kiss my WHITE ass.” Seeking to avoid escalation, Derek turned the corner and walked away — then he heard the gunshots.
I have limited but impactful criminal-law experience: In law school I studied advanced criminal procedure, interned in the St. Louis County Public Defender’s Office, and clerked for a federal judge. In private practice I represented a handful of inmates and criminal defendants, pro bono. I once hoped to be a federal prosecutor.
Under Nebraska law, deadly force “shall not be justified” except as necessary to protect oneself from death or serious bodily harm; I’m not convinced the evidence shows James Scurlock ever posed such a threat to Jake Gardner. Moreover, self-defense is unavailable where the shooter, with the purpose of seriously harming another, “provoked the use of force against himself in the same encounter.” I believe substantial evidence suggests Gardner purposely started the very fight that he ended with his gun, again negating his self-defense claim.
I do not doubt that our public prosecutors face legitimate obstacles in convicting Gardner. But I believe it’s absolutely vital that they charge him and try.
Because I cannot accept an America in which a white supremacist who calls Black Lives Matter a “terrorist organization” can interrupt a BLM protest carrying a weapon, hurl racial insults, provoke a confrontation (both verbally and physically), and then shoot and kill an unarmed black intervenor with no legal recourse.
My former colleague Alicia Wolford was fifteen feet away when Jake shot James. Moments prior, she had watched Jake and his dad angrily pacing, in damage-assessment mode. She even approached Jake’s dad, offering her condolences and well-wishes that our community would support him in the repair-work ahead. But the protest sign in her hand only seemed to further agitate him — so she put it away.
As the younger-looking group that included James walked toward The Hive, Jake intercepted them. “Those kids didn’t break their windows. They weren’t trying to engage with him,” Alicia told me. “They would have just walked by.” But Jake had other plans.
When she heard the gunshots, Alicia ducked behind her van. But then, as others ran away, she ran toward James. “He was all by himself. I’ll never forget the look on his face. He looked so scared.” As he lay bleeding, contorted atop a puddle of water and construction equipment, James asked Alicia to help him lift his neck. Before she ran for help, the last words Alicia heard James say were: “I don’t think I’m going to make it.”
As another protestor, Nikki Catron, put it: “The kid jumped on an active shooter to stop him from continuing to discharge his weapon, and they are calling his murder justified. In my eyes, James Scurlock was a hero.”
After I saw Ahmaud Arbery’s murder, I made promise I would work to be better at calling out racism wherever I found it. This weekend I was again convicted by the words of Chicago Tribune columnist Dahleen Glanton: “White people, you are the problem. Regardless of how much you say you detest racism, you are the sole reason it has flourished for centuries. And you are the only people who can stop it. . . Black people, for the most part, are powerless to stop racism. If we could, we could have done it a long time ago.”
So here it is, my former classmate, in my own backyard: Jake Gardner is racist, his racism is highly relevant in assessing his motive, intent, and the legitimacy of his self-defense claim in the killing an unarmed black man at a BLM protest, and he deserves criminal prosecution.
The past weeks have shown that damning evidence combined with popular, peaceful uprising can be powerful forces in making change. So please spread the word and join me, Jenny, Derek, Alicia, and others in seeking Justice for James.
#BlackLivesMatter #JusticeForJames
