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OMAHA, Neb. (AP) — This week’s decision to charge a white bar owner who fatally shot a Black man during a chaotic night of protests in downtown Omaha months after the shooting was deemed self-defense highlights how difficult it can be to sort out these cases.

The key difference in the Omaha case is that the grand jury that reviewed the case had additional evidence about what happened before surveillance video showed Jake Gardner shooting 22-year-old James Scurlock on May 30 after the two scuffled.

In at least one other instance of violence during protests this year, authorities are still trying to sort out what happened.

In Minnesota, 43-year-old Calvin Horton Jr. was fatally shot near a Minneapolis pawn shop on May 27 as protests over George Floyd’s death began to turn violent. The pawn shop’s owner was arrested the night of the shooting but released several days later, with prosecutors saying they needed more information about what happened before the shooting to consider charges. Horton’s family complained in July of getting little information on the case. Hennepin County attorney’s office spokeswoman Lacey Severins said Wednesday the case remains under investigation.

“It can often be hard to sort out,” Fordham University law professor Jim Cohen said about crimes during protests. “It’s often not so easy to sort out who is unlawfully protesting — meaning looting, for example — and who is lawfully protesting.”

Those two shootings happened as protests and civil unrest has roiled cities across the country over Floyd’s May 25 death at the hands of Minneapolis police. Floyd, who was black and handcuffed, died after a white police officer, Derek Chauvin, pressed his knee into Floyd’s neck for several minutes even after Floyd stopped moving and pleading for air.

In Omaha, Douglas County Attorney Don Kleine initially decided Gardner, the bar owner, acted in self-defense after he reviewed video of the incident and witness statements in the days after the shooting, but he asked the grand jury to examine the case after his decision was criticized because he wanted people to have faith in the justice system.

On Tuesday, Special Prosecutor Frederick Franklin said that additional evidence from Gardner’s phone and his Facebook Messenger account, along with video from inside his bar, shed light on his intent the night of the shooting. He said the new evidence undermines the self-defense theory although he wouldn’t provide specifics of exactly what it showed.

Gardner was also charged with attempted assault, making terroristic threats and using a gun to commit a felony. His attorney, Stu Dornan, didn’t respond to phone messages from The Associated Press on Wednesday. Legal experts say prosecutors may have a difficult time securing a conviction because the case will hinge on what both men intended to do that night.

“Obviously the video tape evidence is going to be crucial in trying to determine whether or not Gardner believed that his life or his person were in grave danger under the circumstances,” said longtime Nebraska criminal attorney Clarence Mock, who has also served as a special prosecutor before.

The shooting happened outside Gardner’s bar in downtown Omaha as he sought to ward off any theft or property damage. In June, officials played surveillance video that seemed to show words exchanged between Gardner, his father and protesters after the windows of his bar were broken. Gardner flashed the gun but then backed away. Gardner was shoved to the ground by two people before he fired two shots, sending people scrambling. Scurlock then jumped on Gardner’s back and was shot by Gardner. While there was no audio with the video, Kleine said Gardner warned Scurlock to get off of him several times before he fired the fatal shot.

Creighton University law school professor Raneta Mack said determining whether Scurlock was trying to stop Gardner from hurting anyone or whether he was trying to harm Gardner could be key in the case.

“If Mr. Scurlock was coming to the defense of his friends or even members of the general public and that is why he was grabbing Gardner and putting him into a chokehold, then Gardner does not have a right of self defense,” said Mack, who has taught criminal law for nearly three decades.

But Cohen said this will be a tough case for prosecutors because jurors tend to give defendants some benefit of the doubt when they were facing a chaotic situation.

“There is a deference accorded to those who are perceived by a jury as lawfully protecting their property,” Cohen said.

Of course, more evidence will be needed at trial to prove Gardner is guilty than what is required at this stage in the process. But the fact that Gardner has been charged means that the community will be able to learn more about what happened that night. Scurlock’s death inspired protests in Omaha in the days after prosecutors initially declined to file charges.

“This will allow people to understand how the system works and be able to see for themselves what evidence the prosecution has and what evidence the defense presents to have maybe a greater understanding about what happened during the night of Mr. Scurlock’s death,” Mock said.

Copyright © 2020 The Associated Press. All rights reserved. This material may not be published, broadcast, written or redistributed.

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Kremlin Chafes at Navalny Team Taking Suspected Evidence


MOSCOW (AP) — The Kremlin accused colleagues of opposition leader Alexei Navalny on Friday of hampering a Russian investigation by taking items from his hotel room out of the country, including a water bottle the colleagues claimed had traces of the Soviet nerve agent that German authorities said was used to poison Navalny.

Navalny's colleagues revealed Thursday that they removed the bottle and other items from the hotel room in Siberia and brought them to Germany as potential evidence. because they didn't trust Russian authorities to conduct a proper probe after the Krmlin's arch foe became critically ill on a flight to Moscow.

“Regrettably, what could have been evidence of poisoning was taken away,” Kremlin spokesman Dmitry Peskov told reporters.

Navalny, the most visible opponent of Russian President Vladimir Putin, fell ill on the domestic flight on Aug. 20 and was transferred to Germany for treatment at his wife's request two days later. A German military lab later determined that Navalny was poisoned with Novichok, the same class of Soviet-era agent that Britain said was used on a former Russian spy and his daughter in England, in 2018.

Members of the Navalny team said they searched his hotel room in the city of Tomsk upon learning that he collapsed on the flight home. They said they packed half-empty plastic water bottles and other items and sent them on to Germany for further inspection to help investigate what they suspected to be his poisoning.

Navalny's colleagues said Thursday that a German laboratory subsequently found a trace of Novichok on a bottle from his hotel room. Top associate Georgy Alburov noted that the German experts concluded that the bottle did not contain the Novichok that Navalny consumed, saying he likely transferred a tiny trace of the toxic substance behind when he drank from the container after having already been poisoned.

Chancellor Angela Merkel has said the German lab conducted tests on “various samples from Mr. Navalny,” but neither she nor other German officials haven't given details of what samples were tested. The German government had no comment Friday on the Navalny team’s statement that Novichok was found on the water bottle taken from Russia.

Germany has said that independent tests by labs in France and Sweden backed up the military lab's findings.

The Hague-based Organization for the Prohibition of Chemical Weapons also is having samples from Navalny tested. German Foreign Ministry spokeswoman Maria Adebahr said those tests were ongoing and Germany had not received any results.

The Kremlin reiterated that before Navalny's transfer to Charite Hospital in Berlin, Russian labs and a hospital in the Siberian city of Omsk found no sign of a poisoning. Moscow has called for Germany to provide its evidence and bristled at the urging from Merkel and other Western leaders to answer questions about what happened to the politician.

“There is too much absurdity in this case to take anyone at their word,” Peskov said Friday.

The kremlin spokesman charged that Germany and the Organization for the Prohibition of Chemical Weapons have pointed to the other when Russia demanded access to the analyses and samples that allegedly demonstrated his poisoning.

“The OPCW's technical secretariat tells us, 'We don't know anything, turn to the Germans,' and the Germans tell us, ‘We don’t know anything, turn to the OPCW,'" he said.

Vyacheslav Volodin, the speaker of the Russian parliament's lower house, suggested Friday without offering any evidence that Western spy agencies could have poisoned Navalny to pave way for new sanctions against Russia.

Asked if the Kremlin agreed with Volodin's theory, Peskov replied, “We can neither agree nor disagree" with the claim. “The only way to shed light on this incident is to share information, biomaterials and evidence and to work together in analyzing the situation,” he said.

Merkel's spokesman, Steffen Seibert told reporters Friday that Germany was in contact with its European partners regarding the consequences Russia might face.

“We have urgently asked Russia to explain itself on this matter, and this demand continues to stand,” he said.


Geir Moulson in Berlin contributed to this report.

Copyright 2020 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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