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The state will not bring criminal charges against the Kentucky National Guard soldiers and Louisville Metro Police Department officers who shot at and killed David McAtee last June, Jefferson County Commonwealth’s Attorney Tom Wine announced Tuesday. 

In a statement, Wine said National Guard soldiers Andrew Kroszkewicz and Matthew Roark, along with LMPD officers Katie Crews and Austin Allen, acted in self defense when they fired at McAtee, who fired first. Wine did not bring the case to a grand jury.

Steve Romines, the civil rights attorney representing McAtee’s mother, Odessa Riley, in a lawsuit against the police and National Guard, said police are rarely held accountable by the prosecutors they often work “hand in hand with every day.”

“When private citizens are forced to act in self defense, they are charged and have to present that defense to a jury,” Romines said in an emailed statement. “Cops are summarily exonerated without any proof ever being presented. Does anyone really doubt why it continues to happen?”

Chanelle Helm, core strategic organizer for Black Lives Matter Louisville, said McAtee and Taylor are just two examples of Black people unjustly taken from their communities.

“I can’t even imagine what it is to be his mother but what I can imagine  because I’m living through that as a community member..  who is missing the smell of barbeque from the corner of 26th and Broadway,” Helm said.  

“We’re just watching as this state, this city and its leaders continue to take out whatever it is they are trying to take out on Black people.”

‘Immediate threat of death’

In his statement, Wine said the officers and soldiers were authorized to use deadly force “when they reasonably believed, based on the facts and circumstances, that Mr. McAtee posed an immediate threat of death or serious injury to them or to another person.”

Wine based his conclusion on evidence gathered by investigators from the Kentucky State Police Critical Incident Response Team and LMPD’s Public Integrity Unit and provided to Wine’s office last August. The KSP released Wine’s investigative report Tuesday. The Kentucky State Police has refused to release its own files related to the McAtee investigation, and the Courier Journal newspaper sued the agency in April. 

Wine’s investigation determined that a team of LMPD officers and members of the National Guard were sent to the intersection of 26th Street and West Broadway shortly after midnight on June 1, 2020 to clear a crowd gathered at Dino’s Food Market. Several soldiers told investigators that they didn’t know they were going there, and assumed they were heading to another staging area when they loaded into tactical vehicles. At least one soldier described the scene to investigators as “chaotic.”

Louisville was under a 9 p.m. curfew after two days of protests in response to the killing of Breonna Taylor by LMPD officers, but Wine’s statement notes that there “was no evidence that the crowd was engaged in any type of protest or destructive behavior.”

Officers began clearing people from the surrounding streets, including those gathered at YaYa’s BBQ, the restaurant McAtee owned and ran at the intersection. LMPD officer Crews fired pepper balls at people on the premises of YaYa’s, starting the string of events that led to the shooting. 

Several people, including McAtee’s niece Machelle McAtee, ran inside the establishment. She told investigators that all she said before McAtee leaned out the door and fired a gun was, “they’re shooting.”

McAtee leaned out to fire a second time and was killed by a bullet fired from a National Guard-issued M-4 rifle. Wine says investigators were not able to determine whose rifle fired the fatal shot.

In a 24-page analysis sent to LMPD, Wine added that Crews acted “in contradiction to LMPD’s Use-Of-Force policy” by firing pepper balls towards people on private property. Wine said that this incident, plus her earlier Facebook post about intentionally hitting protestors with pepper balls is concerning, “suggesting she was predisposed to use the pepper balls as a first step to dispersing the crowd.” 

Wine recommends Crews conduct be reviewed by LMPD’s standards unit and the Louisville Metro Civilian Review and Accountability Board. He also raised the possibility that Crews firing the pepper balls at McAtee’s niece constituted 4th degree assault, but noted that required that a person be injured. Ultimately, Wine didn’t consider charges against anyone involved for anything.

The Kentucky National Guard has also conducted a review of the shooting, along with last year’s deployment to Louisville during the protests. The guard released its report last week, which concluded that the soldiers followed laws and procedures, but the documents were heavily redacted. The guard refused to share virtually all of its finding and recommendations for future deployments and also wouldn’t release the names of the soldiers who fired their weapons. 

Wine named them in his letter, though it didn’t include any additional information about their experience.

The majority of the National Guard members on the scene that night provided statements, but Kroszkewicz and Roark refused on the advice of their counsel, Wine said. They cited a state law that says Guardsmen have the power of peace officers when ordered into action by the governor, and that they are immune from criminal or civil liability “for any act done by them in pursuance of duty.”

“While they may enjoy qualified immunity, a refusal to answer questions or be interrogated is more likely to be invoked under the 5th Amendment… the right to remain silent,” Wine wrote.

Ryan Van Velzer contributed to this report.