Metro Louisville

The family of David McAtee, who was killed by a National Guard member on June 1, is suing Louisville Metro police officers and Kentucky National Guard members who were on the scene that night. A complaint filed Monday in Jefferson County Circuit Court alleges wrongful death and excessive force and seeks unspecified monetary damages as well as a jury trial.

Shortly after arriving at the intersection of 26th Street and Broadway shortly after midnight on June 1, police, supported by Guard members, fired pepper balls to disperse a peaceful crowd, then switched to firing live rounds. This was the fourth consecutive night of protests over the police killing of Breonna Taylor, and the city was under a curfew. Officials said police and Guard members fired gunshots in response to a shot fired by McAtee from the doorway of his restaurant, Yaya’s BBQ, where he also lived.

But attorney Steve Romines, who is representing McAtee’s mother Odessa Riley and cousin Machelle McAtee in the wrongful death suit, said McAtee would not have knowingly shot at police because he considered many of them to be friends. In the complaint, Romines wrote police encouraged McAtee to obtain a pistol for self-defense.

Romines said McAtee may have fired his gun as a warning. In the complaint, he said that just before McAtee “looked out his restaurant door and raised his arm in the air,” defendants fired pepper balls toward the door, several of which struck his niece.

Americans have a misconception that they have to let law enforcement kill them, Romines said.

“You can fire a shot in the air… You do not have to let someone kill you unlawfully,” Romines said. “If you have a reasonable belief in self-defense, you are allowed to use it. David’s in his own home, had every reason to believe that he needed to act in self-defense.”

The lawsuit comes nearly a week after the city of Louisville announced a record $12 million settlement, which also included promises of police reforms, with Taylor’s family.

Romines is also representing Taylor’s boyfriend Kenneth Walker, who fired a shot in response to police officers breaking down Taylor’s apartment door during the March raid, in a suit seeking immunity under Kentucky’s stand your ground law. Three officers fired their guns in response, striking Taylor five times and killing her. Walker and Romines said he thought the people entering were intruders, not police.

Romines said he is prepared to take the McAtee estate’s case to trial, but said he is open to a settlement “if they’re willing to accept responsibility for their actions and their misconduct.”

In its settlement with Taylor’s family, the city admitted no wrongdoing.

Painful Timing

Romines said Riley, McAtee’s mother, is taking things day-to-day. Over the weekend, McAtee’s nephew Marvin McAtee was shot and killed near 26th and Broadway.

There was a thought to delay filing the lawsuit after Marvin’s death, but Romines said they decided to move ahead.

“When you’re just getting stonewalled in your efforts to find out what happened, there comes a point in time when you can’t wait any longer and that’s where we’re at,” he said. “So we’ll let the courts decide.”

He said the family is both frustrated and impatient to get more information. The FBI and U.S. Attorney’s Office are also investigating David McAtee’s death, but Romines said the family could not wait for criminal investigations to get the facts.

Suit Questions Police Actions

In the complaint and in an interview with WFPL, Romines focused on the speed with which the officers went from arriving on the scene to firing pepper balls, which he alleges was in violation of LMPD policies.

They “never announced they were police, never gave people an opportunity to disperse like they’re required to per policy and just began shooting people,” Romines said, referencing silent surveillance video of the scene that was released by LMPD.

Romines said McAtee and his niece, inside the restaurant, were violating neither law nor curfew.

“Prior to being shot, (Machelle) McAtee and David McAtee had committed no crime. They had not disobeyed any directive from law enforcement. They were not in violation of the newly imposed curfew. They had not threatened any officer, and posed no immediate threat to any officer,” Romines wrote in the complaint.

Representatives for LMPD declined to comment, citing pending litigation. A spokesperson for the Kentucky National Guard did not immediately respond to a request for comment.

Romines told WFPL he originally hoped the Taylor case settlement meant the city and LMPD were serious about reforms. But after seeing police administrators “lying” to Metro Council members about what happened the night McAtee died, Romines said, “I’m less hopeful now that there’s any real commitment to reform. It’s just, you know, more talk.”

Police originally said the operation was meant to break up a large crowd socializing in violation of a curfew. Last week, in sworn testimony to the Council’s government oversight committee, Lt. Col. Josh Judah said he dispatched them there because he “received intelligence” protesters would be meeting in the area.

Louisville Mayor Greg Fischer implemented the 9 p.m. curfew two days after the start of local protests in reaction to the police killings of Breonna Taylor in Louisville and George Floyd in Minneapolis. He ended the curfew on June 4, three days after McAtee’s killing, saying he had heard concerns from citizens and law enforcement.

Romines said learning more about any intelligence obtained by Judah is part of the reason for the lawsuit, since officials have not been willing to share much information.

“There’s never an instance of violence on the surveillance video. There is never any, you know, looting or rioting or anything else. There’s not even any protesting,” Romines told WFPL. “It’s just people there, you know, eating barbecue and hanging out. And so the claims that the reports of unrest or whatever, that’s false.”

He said he plans to depose Judah, particularly to ask whether he was the one who ordered police officers Katie Crews and Austin Allen who fired at McAtee that night, and who are named in the suit — to not use their body cameras. Fischer fired then-police chief Steve Conrad after learning Crews and Allen did not wear or did not activate their body cameras during the incident.

The suit also names unidentified LMPD officers and National Guard members. So far, officials have declined to name anyone involved beyond Crews and Allen. Romines said learning the identities of the others on the scene is another goal of the lawsuit.

About a week after McAtee’s killing, J. Michael Brown, the secretary of the state’s executive cabinet, announced preliminary findings from the Kentucky State Police’s investigation, saying with certainty the fatal shot came from a Guard member. Brown also speculated McAtee fired the gun he was carrying that night toward police and Guard members, saying gunshot residue was found on his body and two casings matching ammunition for his weapon near the door of his restaurant that night.

In August, the Kentucky State Police finished the investigation, saying they believed there was no :significant difference” between what happened that evening and what had previously been reported.

Amina Elahi is WFPL's City Reporter.