Louisville police, Kentucky National Guard sued by family of man killed during night of protests

David McAtee was fatally shot on June 1

The family of a Louisville barbecue stand owner who was fatally shot by law enforcement who were breaking up a crowd during a night of protests has sued the local police department and the Kentucky National Guard for what they believe was his wrongful death, court papers show.

David McAtee’s mother, Odessa Riley, who is the executor of his estate, and Maychelle McAtee, David’s niece, are suing the Louisville Metro Police Department, two officers and the Kentucky National Guard for their fatally wounding David and striking Maychelle with several pepper balls on June 1, the lawsuit states.

The lawsuit, which also names several John Does from both departments, accuses the defendants of wrongful death, assault and battery of both David, 53, and Maychelle, and excessive use of force, among others offenses. It was announced Monday by local media, including WLKY-TV, which shared a copy of the court document online.

Police and Kentucky National Guard troops chase protesters as they flee toward a fence Sunday, May 31, 2020, in a parking lot at the corner of East Broadway and South Brook Street in downtown Louisville, Kentucky. (Max Gersh/The Courier Journal via AP)

Police and Kentucky National Guard troops chase protesters as they flee toward a fence Sunday, May 31, 2020, in a parking lot at the corner of East Broadway and South Brook Street in downtown Louisville, Kentucky. (Max Gersh/The Courier Journal via AP)

The 20-page complaint describes how David McAtee was in the kitchen at his restaurant, YaYa’s BBQ in the West End around 12:15 a.m. when “five unmarked vans and two armored vehicles” responded to a report of a crowd gathering.

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“Two minutes and thirteen seconds later, the police had blocked the intersection and yelled at a crowd at a food mart to leave, pursued and fired upon those leaving, shot into the door of the restaurant kitchen striking Mr. McAtee’s niece, Maychelle, and shot and killed David McAtee inside the kitchen of his business and home,” the lawsuit states.

The National Guard was in the city to help enforce a curfew amid protests spurred by the deaths of George Floyd in Minnesota and Louisville native Breonna Taylor. Taylor was shot by Louisville detectives serving a warrant in her home in March.

Breonna Taylor was a 26-year-old African-American emergency medical technician (Taylor family photo)

Breonna Taylor was a 26-year-old African-American emergency medical technician (Taylor family photo)

The lawsuit describes how people were standing in the food mart parking lot, allegedly miles away from downtown demonstrations, when the law enforcement vehicles showed up. People who were "seeking protection" then rushed across the street to YaYa's BBQ, allegedly prompting LMPD to fire pepper balls at them as they fled.

“Unaware of what was causing the chaos and who was shooting at his customers and his niece, David McAtee stepped out of the kitchen door to try and defend his restaurant, home, family and customers,” the lawsuit states. “Immediately, the police shot and killed him. Less than thirty seconds after David McAtee was cooking a sandwich, he lay dying on his kitchen floor.”

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A later account of McAtee’s shooting describes how he first leaned out his restaurant door, then looked out a second time and “raised his arm in the air,” at which point 18 shots were fired at the doorway, fatally wounding him.

None of the police officers on the scene activated their body-worn cameras, despite a department policy that instructs them to do so “prior to engaging in all law enforcement activities or encounters,” the lawsuit states, quoting LMPD’s Standard Operating Procedures.

A spokesperson for the LMPD declined to comment, while a rep for the Kentucky National Guard did not respond to Fox News’ request.

J. Michael Brown, secretary of the state’s executive cabinet, said shortly after the shooting that Kentucky State Police investigators examined shrapnel from McAtee’s body and matched it to rifles carried by National Guard members.

“So it’s clear, the fatal shot came from the National Guard,” Brown said. “We have no doubt about that.”

WARNING: THIS VIDEO CONTAINS GRAPHIC IMAGES

Officers were seen on a video distributed by Louisville Metro Police shooting pepper balls into the area where McAtee was cooking outdoors. But Brown said he believes McAtee fired the first live round.

“I believe Mr. McAtee fired the first shot, paused, and then fired another shot,” Brown said. McAtee was hit once in the chest and died at the scene.

National Guard members “were returning fire, which is part of the engagement and what any law enforcement would do in that case,” Brown said.

Brown said investigators recovered two shell casings from McAtee’s handgun and found gunshot residue on his body.

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A video released by Louisville Police appears to show McAtee firing a gun from the door of his restaurant as officers shot projectiles. Video from a different camera posted outside the building shows a beverage container on a table outside the door exploding and falling to the ground just before smoke emerges from inside the building where McAtee was standing.

The lawsuit states that McAtee was armed. However, it alleges that the defendants “used deadly force when there was no threat to their safety” and failed to announce themselves, and called their actions “reckless, willful, wanton, malicious and grossly negligent.”

It further alleges that officers “left his body on the ground at the scene of the shooting for over twelve hours.”

McAtee's family is seeking a jury trial and unspecified damages.

The Associated Press contributed to this report.