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The Parable of the Innocent White Shooter

Something quite extraordinary happened in Omaha, Nebraska yesterday in the ongoing fiasco surrounding the murder of James Scurlock on May 30. The Douglas County Attorney, Donald W. Kleine, undermined the special prosecutor who was called in to independently investigate the case that Kleine himself bungled.

To review what happened up to this point:

On May 30, white bar owner Jake Gardner shot and killed James Scurlock, a young black man participating in a Black Lives Matter protest that passed outside Gardner’s bar, The Hive, in Omaha’s Old Market. Two days after the shooting Kleine announced that the county would not be bringing charges against Gardner. This news shocked and outraged many in the community, who insisted that a white man who carried an unlicensed gun to a protest and shot an unarmed protester on a public sidewalk must have violated state statutes.

The public outcry led Kleine to agree to allow a special prosecutor to independently investigate the shooting. The special prosecutor was Fred Franklin, a recently retired assistant US Attorney of 22 years. Franklin is Black. Franklin is also a career prosecutor whose job was prosecuting federal crimes in the Omaha area, including immigration violations and charges related to drug trafficking, two common kinds of federal crimes prosecuted in this neck of the woods. In other words, Franklin’s office’s bread and butter work is hardly the fare of bleeding heart liberals or racial justice activists. To the contrary, the work involves carrying water for federal policy that most racial justice activists want to see dismantled.

Fred Franklin at a recent press connference.

The culmination of Franklin’s independent investigation was a grand jury indictment of Gardner on four charges: manslaughter, use of a deadly weapon to commit a felony, attempted first-degree assault, and terroristic threats. At the press conference following the grand jury on September 15, Franklin said the following:

  1. He entered the investigation anticipating that he would conclude, as Kleine did, that Gardner had acted in self defense and no crime had occurred.
  2. The investigation, conducted with the Omaha Police Department, uncovered additional evidence that had not been available to Kleine.
  3. That evidence could not be described in detail, but it included evidence from Gardner himself that indicated the shooting was not self defense.
  4. He was not interested in whether Gardner was a racist because racism is not against the law. All he was interested in was whether there was evidence that Gardner had violated state statutes sufficient to convince Franklin that the state could secure a conviction.
  5. He wanted the community to de-escalate tensions and to know that Kleine should not be faulted for failing to bring charges because some of the evidence was only uncovered later.

Gardner, meanwhile, was out of state, reportedly staying with a relative in the Portland, Oregon, area and fearful for his life. Authorities in Nebraska were implementing what Scurlock’s family’s attorney, Justin Wayne, facetiously called the “Jake treatment,” a seemingly lackadaisical negotiation over when and how the white man might surrender himself to authorities on multiple felony charges. Critics reflected on how other suspects have been treated by police and prosecutors–notably Breonna Taylor, who was killed during a no-knock warrant when police burst into her Louisville, Kentucky, apartment because they suspected her of storing cash from someone else’s drug sales.

On September 20, five days after Franklin announced the indictment, and on the day Gardner was supposed to turn himself in, he shot and killed himself in Oregon.

Shortly afterward, Gardner’s attorney held a press conference in which he painted the suspect as an innocent and noble veteran with PTSD and traumatic brain injury, afraid for his own life because of violent racial justice activists. Legions of aggrieved white conservatives agreed, casting Gardner as a hero and martyr for white rule in America who had nobly sought to defend his business’s innocent insured windows against a mob of antifa Orcs and BLM terrorists, only to be falsely accused and driven to take his own life.

So on Wednesday, September 23, in keeping with his earlier press conference effort to deescalate community tensions, Franklin held a second press conference to explain in broad terms the evidence that the investigation had uncovered against Gardner:

  1. Gardner had quite possibly been influenced by President Trump’s tweet the night previous to the shooting: “When the looting starts the shooting starts.”
  2. Gardner had taken three handguns and a shotgun to The Hive on May 30.
  3. Throughout the evening he communicated with people and consulted a police scanner account to track the movement of the protesters.
  4. Gardner communicated about the “field of fire” in front of his bar, making his intentions clear.
  5. As the protesters neared his bar, he turned the lights off, making the bar seem unoccupied.
  6. A video that showed someone pushing Gardner’s father down on the sidewalk outside the bar was showing only the end of a confrontation.
  7. Additional video clarified who the instigator was; further, people who provoke confrontations cannot be found to be acting in self defense if they kill someone.
  8. Scurlock had not assaulted Gardner or his father prior to being shot.

Okay, so.

What we then seem to know from a federal prosecutor is that a white dude with PTSD and TBI nevertheless owned multiple guns–something no other economically developed nation would allow, by the way. He carried the guns illegally (his weapon’s permit, according to Kleine, had expired just prior to this incident) to a rental business property against the advice police gave the public in order to conduct a “military style fire watch” on the night of a protest. He fervently disagreed with the protesters and was a devoted follower of a president who had just suggested that people shoot “looters.” After he arrived at his bar with his guns, he assessed the area for where he could reach by shooting outside his bar, tracked the movement of protesters, and turned off his lights as they grew near. Later, he ended up outside in a confrontation he provoked, fired an illegal “warning shot,” then killed a man who had not started a fight with him.

Yet within two days of this, Kleine had already concluded he was guilty of no crime.

And when a career federal prosecutor concluded otherwise?

Well, this is the extraordinary part. Kleine said yesterday that he disagreed with the conclusions of the prosecutor, whom he said had “an agenda.”

An agenda? What the hell could Kleine mean by Franklin’s “agenda”? His stated agenda was to investigate what happened and bring charges as appropriate. But that can’t be the agenda Kleine is referring to.

We know what Kleine meant. He meant that unlike himself, a Black prosecutor cannot be trusted to fairly assess the murder of a Black man by a white suspect. He meant that a Black federal prosecutor–who entered a career filled with prosecutions of black and brown suspects for crimes like hauling weed or making money for Smithfield Foods–cannot be trusted to determine whether a white guy laying in wait to light up a “looter” committed a crime when he shot an unarmed black man.

In other words, the white county prosecutor who determined “nothing to see here, folks” less than 48 hours after a white Trumpian vigilante killed a black man on a sidewalk wants you to believe that you can’t trust the government when the government is represented by a black man because the black man has a racial agenda.

Sound familiar? It should. It’s what Trump said about an Indiana native, Judge Gonzalo Curiel, who Trump said could not be impartial because he is “Mexican.”

In fact, this whole affair could hardly be a more perfect parable for Trump’s America.

A white man with significant psychological problems has no trouble getting firearms, and hears from every NRA/GOP/Fox mouth in the country that he would be a hero for using those guns to protect the almighty idol of Personal Property against real or imagined harm from dehumanized people of color whose quest for justice feels like an existential threat to his status as white man. The man, drunk with lead courage, lies in wait, provokes a fight, illegally fires his gun into the air, then kills a man who hadn’t started a fight with him. Later, the white man says to another white man something akin to “I know I took my fishing pole to the river and cast the line in and indeed caught a fish, but honest to god I never intended to go fishing” and the other white man responded “MakES SenSE tO me!” Then, when a competent black professional is asked to intervene and concludes um, yeah, that guy clearly intended to do what he equipped himself and planned for, the shooter turns his gun on himself, and a chorus of white voices says “loOk what you bAd BLacK People DId,” some by holding a vigil for Gardner and some by publicly announcing as an actual elected official that the black professional has an “agenda.”

Some of the comments posted to Senator Megan Hunt’s Facebook page when she denounced white supremacy and spoke about suicide prevention in the wake of Gardner’s death.

Unsurprisingly, the Omaha World Herald was ready to prop Kleine up as the reasonable person. Their story leads with the fact that Franklin used the phrase “light him up” in his second press conference, then later in the press conference claimed he hadn’t used those words. Who cares? The reporter, Todd Cooper, adds: “He [Franklin] went on to sometimes detail the case and other times decline to answer questions,” as though answering some questions about restricted grand jury proceedings and not others reveals some kind of machinating inconsistency on Franklin’s part. The report uncritically recounts that Kleine, a prosecutor, faulted his colleague because “Franklin and grand jurors appeared to have failed to account for Scurlock’s behavior” and “called the break-in and vandalism at RDG [prior to arriving at the Hive] a felony.” Kleine made a controversial interpretation of the law not shared by a consensus of his colleagues that the victim’s alleged vandalism and “terrorizing of others,” which Gardner was not aware of at the time of the shooting, could have been evidence of a violent disposition in favor of Gardner’s self defense claim.

How remarkable to see a prosecutor–who had declined to even bring charges for illegally carrying a firearm–working so hard for the defense. How remarkable to see a prosecutor put a target on a black colleague’s back by maligning him to the nation’s white supremacists.

Not only did Kleine hold a press conference to undermine the integrity of a black colleague who was called in to bring an independent perspective on the crime, Kleine undermined that grand jury process itself by suggesting that Franklin misled jurors and that grand jury indictments should be called into question. As Kleine knows, grand juries are secret and they are simply a proceeding in which a prosecutor has to show that he has reason to bring charges. They are not trials. They are a basic check against frivolous or malicious prosecutions. The fact that Franklin was able to convince a grand jury that all this evidence was enough to allege that Gardner committed a crime that night–an allegation that would have to be tried in court against Gardner’s defense–should actually be completely unremarkable. What is remarkable is watching the cynical degradation of our institutions by those entrusted to uphold them.