Investigations

After one of its members killed David McAtee during last year’s deployment to Louisville, the Kentucky National Guard planned to examine how it responds to protests and draft recommendations for the future.

It’s been nearly a year, and that report was supposed to be completed last summer. But National Guard spokesperson Lt. Col. Stephen Martin says the report is not complete, and that investigators have other priorities.

Martin, the director of public affairs for the guard, said in July 2020 that the National Guard was investigating the “policies and procedures” used during the deployment while the Kentucky State Police and Louisville Metro Police Department were handling the investigation into McAtee’s death.

A month later, Martin said in an email that they’d been given a 30-day extension, and the investigation’s findings would be reported to Brig. Gen. Hal Lamberton and reviewed by the guard’s lawyers, but that he expected it to be completed in about 45 days.

That was 260 days ago. KyCIR filed a records request in December for the report and supporting material, but that request went unanswered until this month. On May 1, in response to KyCIR questions about the report, Martin said the report is not finished, and he didn’t provide a timeline for its completion.

“Because of everything we’ve had going on the last year, unfortunately the report is still in progress,” Martin said in an email. “The team we have working on it is still finalizing their results. It’s just a small part of their everyday job duties to work on this project.”

Gov. Andy Beshear called in the Kentucky State Police and activated the National Guard on May 30, 2020 following two nights of protests in Louisville. The activated units included Kentucky’s National Guard Reaction Force, a unit trained to handle civil disturbances and support local law enforcement agencies.

“Our understanding is the Kentucky State Police completed its investigation more than eight months ago and the findings have been sent to the Jefferson County Commonwealth’s Attorney,” Beshear spokesperson Sebastian Kitchen said in an email. “Any separate review by the National Guard related to the same subject should be completed promptly.”

 

Walt and Shae Smith

David McAtee

Shortly after midnight on June 1, members of the National Guard accompanied Louisville police to Louisville’s West End, 20 blocks from the protests. Police officials later said they were enforcing the 9 p.m. curfew, and they believed protesters were going to regroup there.

LMPD officers and National Guardsmen went to Dino’s Food Mart, across the street from McAtee’s restaurant, Yaya’s BBQ, and began breaking up a crowd.

LMPD officers began firing pepper balls at the restaurant as people ran inside, striking McAtee’s niece and others in the yard. McAtee, 53, appears in surveillance video to lean out the door and fire a handgun. When he leaned out a second time, LMPD officers and two National Guard members were firing, and McAtee died from a single gunshot wound to the chest. A Kentucky State Police investigation, closed in August, determined a guard member fired the fatal round from an M4 assault rifle.

LMPD officers Katie Crews and Austin Allen also fired at McAtee. Neither officer had their body camera activated, in violation of LMPD policies, and both were placed on administrative leave after the shooting. The state has not released the names of the two National Guard members who also fired their weapons that night, including the one who killed McAtee.

McAtee’s family filed a wrongful death lawsuit in September against LMPD and the Kentucky National Guard, alleging their members were “out of control.”

The lawsuit claims the National Guard “did not receive proper command, instruction, equipment or training…. Before being assigned to work in the streets of the city.” 

“The soldiers were armed with military long rifles, proper for military combat, rather than handguns or proper equipment for policing or crowd control,” the complaint says.

Steve Romines, an attorney representing McAtee’s mother, told the Courier Journal last year that learning more about the National Guard’s tactics was one of the goals behind the lawsuit.

Romines said in an email that it was “difficult to imagine” the National Guard investigation was still ongoing.

“The evidence is clear that the Guard soldiers were using improper weapons for the task and following the lead of LMPD who apparently wanted to start an altercation with otherwise peaceful citizens,” Romines said.

Martin said the National Guard’s report would not address the investigation into McAtee’s death, “other than recommendations on the way forward for future operations.”

Beshear has called in the National Guard twice since the McAtee shooting — back to Louisville in September, as a grand jury announced it would not pursue charges against the officers who killed Breonna Taylor, and to the state capital in January to provide security after the insurrection in Washington D.C.

KSP and LMPD completed their investigation into the shooting in August, but neither has been released publicly. The agencies turned their findings over to Commonwealth’s Attorney Tom Wine’s office. They haven’t determined yet if those involved in the shooting will face charges, and a federal investigation also remains open. 

ACLU of Kentucky legal fellow Aaron Tucek said it was disappointing the National Guard has not made the investigation a higher priority.

“The public has a right to know what role the National Guard played, not only in that excursion, but also in supporting the broad violence that we saw law enforcement deploying during the protests last summer,” Tucek said.

Tucek has written about how governments and law enforcement can protect civil liberties during protests by establishing clear standards for protest response, emphasizing de-escalation and dialogue with demonstrators.

Tucek said the state should reassess whether the National Guard should be used to police protests in the first place because there is “broad consensus” that soldiers are rarely trained to handle such situations.

 “So I would encourage the state to think very, very carefully about the circumstances under which the National Guard should be deployed to this and to also think about the broader policies undergirding why this protest movement happened,” Tucek said.