LOUISVILLE, Ky. (WDRB) -- Kentucky National Guard members, not Louisville police, fired the shots that struck and killed David McAtee at his barbecue business earlier this month, a top official in Gov. Andy Beshear's administration said Tuesday.
J. Michael Brown, Beshear's executive cabinet secretary, said that an analysis of bullets that hit McAtee as he stood in the doorway of his building is "consistent" with ammunition the guard carried when they responded to 26th Street and Broadway shortly after midnight on June 1.
However, he said the bullet fragments recovered from McAtee's body were damaged, and state crime lab investigators were not able to identify which rifle they came from.
"We know that that night those rounds were only fired by one agency, and that was the Kentucky National Guard responding to the fire that they had received," Brown said. "Therefore, it's our conclusion that Mr. McAtee's fatal wound came from one of the M4A1 carbines carried by the National Guard. But we cannot identify which carbine, and we cannot identify which guardsmen fired those shots."
While Brown said he believes the guard members were returning shots fired by McAtee, it appears he was referring to live ammunition and not pepper balls, a crowd-control method used during protests in Louisville. Surveillance video released by police last week shows at least one police officer approaching McAtee's business with a pepper ball carbine.
A video analysis by the New York Times concluded that law enforcement on the scene shot pepper balls, first toward a curb, then at the doorway of McAtee’s restaurant before McAtee, who was inside as people began heading inside the building, stepped outside and apparently fired a handgun.
Brown said he only knows of the Louisville police actions from what he has seen on video surveillance footage.
McAtee family lawyers released photos Monday that they say show welts on McAtee's niece after she was hit by pepper balls.
Attorney Steve Romines accused Brown of repeatedly refusing to answer questions about Louisville police "firing unknown projectiles at 300-500 (feet per second) before David fired into the air."
At a news conference in Frankfort, Brown played surveillance video from Dino's Food Mart across the street that shows two uniformed National Guard members moving into position with a Louisville police officer near a blue car.
The guard members and police officer moved toward the car "after they heard and witnessed shots being fired," Brown said. Shell casings were found in that vicinity, he said.
Two shell casings from a 9mm pistol were found near the doorway of the business, one inside and one outside, Brown said. The state crime lab determined that those shell casings were fired from a gun that "we have confidence is the weapon that David McAtee had in his possession the night of the shooting," he said.
McAtee had gunshot residue "on his person," Brown said. One particle "was consistent with a firearm discharge. Five other particles were consistent with him either handling or being around a weapon that had been fired, discharged," he said.
Brown said investigators still believe McAtee died from a single gunshot wound to the chest.
"Based on the information I have at this time, it appears to me that they were returning fire, which is part of the engagement and what any law enforcement officer would do. ..." Brown said.
He claimed McAtee was "firing in their direction, and he did it at least twice, and they returned that fire," he said.
Earlier in the news conference, Brown was asked if he could tell where McAtee was firing, he said: "I don't know that I can positively — he was clearly firing in the direction outside the door."
Kentucky State Police, the U.S. Attorney's Office and the FBI are investigating the shooting. Brown said state police is conducting a frame-by-frame review of the available video, or more than 3,000 frames. In addition, he said, the FBI is assembling a video that will show the incident from other angles.
Brown said investigators believe Louisville police fired nine rounds.The National Guard fired as many as 10 rounds.
He did not give a timeframe for when the state police probe would be finished.
McAtee, 53, was the owner of Ya Ya's Barbecue at 26th Street and Broadway. Louisville police and the Kentucky National Guard arrived there shortly after midnight on June 1 to disperse a crowd across the street at Dino's that had gathered in violation of a dusk-to-dawn curfew in effect at the time.
The response has raised questions about why police and the National Guard were called to the western Louisville neighborhood.
Lawyers for McAtee's family plan to file a lawsuit over the shooting. On Monday, Romines asked authorities to turn over all evidence in the incident.
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