DAVID MCATEE - YA YA -COURTESY FAMILY.jpg

David McAtee, also known as "YaYa" 

LOUISVILLE, Ky. (WDRB) – The family of David McAtee, a popular West End business owner who died after he was struck by a bullet fired by the Kentucky National Guard during protests over Breonna Taylor's death, filed a wrongful death lawsuit Monday against several guard members and Louisville police officers.

The lawsuit, filed in Jefferson Circuit Court on behalf of McAtee’s mother, Odessa Riley, accuses law enforcement of making a series of escalating mistakes, including firing pepper balls at fleeing citizens, turning off body cameras and using deadly force without justification or warning.

It claims the 53-year-old barbecue chef committed no crime before he was killed on June 1. 

McAtee was inside his home and business, YaYa’s Barbecue at 26th and Broadway, “calmly grilling” a little after midnight as people milled about outside of Dino's Food Mart across the street, the suit says. At the time, there had been four nights of protests over Taylor's March killing by Louisville police.

But people were “not protesting, vandalizing or looting” when police and guard members “swarmed” the area in unmarked vans and armored vehicles and began yelling for people to leave, according to the suit. 

Within just a few minutes, McAtee was dead and his niece, Machelle, who is also a plaintiff in the lawsuit, had been shot with pepper balls while standing just inside the kitchen of the business, which the suit noted has long been “a place of refuge” for locals and police officers looking for a good barbeque sandwich.

“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 claims.

“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.”

Police have said they were dispersing a crowd at Dino’s Food Mart in violation of the then-citywide curfew when McAtee fired a gun from the doorway of his business and officers returned fire.

An analysis of the bullet fragments recovered from McAtee’s body show they were fired from a guard member, but investigators have not been able to identify which rifle they came from. He died from a single gunshot wound to the chest. 

Two shell casings from a 9mm pistol were found near the doorway of the business, one inside and one outside, according to J. Michael Brown, Gov. Andy Beshear’s executive cabinet secretary. 

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," Brown said at a press conference in June. 

Kentucky State Police, the U.S. Attorney's Office and the FBI are investigating the shooting.

Brown has said investigators believe Louisville police fired nine rounds. The National Guard fired as many as 10 rounds.

Police have released surveillance video of the shooting they say shows that McAtee fired a gun before officers returned fire

"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 in June.

But the lawsuit, filed by attorneys Steve Romines, Ted Shouse and Michael Goodwin, claims police initiated the incident, shooting pepper balls at people in front of YaYa’s, forcing them to run inside the restaurant’s kitchen door. Police continued firing into the restaurant, hitting McAtee’s niece multiple times, according to the suit.

Security video shows Machelle react to the sudden impact and external video  shows puffs of smoke from the fired pepper balls.

“At this point, still no individual had used any force toward any law enforcement officer, and the police use of weapons was completely unnecessary and gratuitous, and in violation of law and police policies and procedures,” according to the suit.

McAtee, the suit claims, was “unaware” of who was shooting and why and looked outside at the same time police fired projectiles “that exploded in smoke around the door.”

McAtee was wearing a gun holstered on his right hip. The lawsuit claims police had in the past told him he needed to carry a weapon to protect himself and his business. 

When McAtee again looked out the door, he raised his arm in the air and those responding “immediately unleashed a hail of at least 18 bullets,” striking him in the chest, according to the suit.  He stumbled back into the kitchen and fell. 

Romines has said McAtee was firing warning shots into the air. 

McAtee and his niece had committed no crime or disobeyed any commands from law enforcement, the suit says.

“They were not in violation of the newly imposed curfew,” according to the suit. “They had not threatened any officer and posed no immediate threat to any officer.”

The only police named in the suit are LMPD Officers Katie Crews and Allen Austin, who both fired shots that night. Twenty unidentified Louisville police officers and National Guard members are included as defendants in the suit, which claims the city has refused to name them.  

Mayor Greg Fischer fired Chief Steve Conrad when he learned that Crews and Austin had no body camera footage of the McAtee shooting. (The lawsuit claims “every single officer at the scene failed to turn on his or her body camera.”)

Also, before the shooting, Crews had "publicly stated her desire to inflict harm on protesters "in a social media post, according to the lawsuit.

Crews posted a photo on social media of a protester putting flowers up to her chest and wrote, "She was saying and doing a lot more than 'offering flowers' to me. Just so for it to be known. For anyone that knows me and knows that my facial expression tells everything. P.S I hope the pepper balls that she got lit up with a little later on hurt. Come back and get ya some more ole girl, I'll be on the line again tonight."

The Facebook post is included in the lawsuit, which said that “tragically, Crews’ aggression and desire to inflict harm on others was taken out on David McAtee and his niece.”

Crews was placed on administrative reassignment while under investigation.

The lawsuit claims it is the first time since 1975 that National Guard troops were called in to patrol Louisville streets and that police “were out of control” in the days preceding the McAtee shooting.

In response to protests over the fatal police shooting of Taylor and George Floyd, Louisville Metro police had “escalated” tensions by using tear gas, pepper balls, flash bang grenades and rubber bullets against citizens, the suit says.

By May 30, Fischer had claimed “anarchist” and “out-of-towners” were intent on destroying the city and issued a curfew while asking Beshear to call in the National Guard, according to the suit.

The night of the McAtee shooting, police had fired flash bang grenades and tear gas at protesters in Jefferson Square Park and were, the suit says, "amped up, armed to the hilt, and still spoiling for a fight" when they arrived at 26th and Broadway. 

Members of the guard were not supposed to make arrests or fire their weapons without instruction from commanding officers, the suit claims. The National Guard hasn’t identified the two members involved in the shooting.

LMPD officers and guard members failed to follow proper procedures in dispersing a crowd, including giving people a reasonable amount of time to leave and a warning that a chemical agent will be used. And pepper balls are supposed to be fired at the ground, not at people, according to the suit.

After McAtee was killed, police left his body on the ground at the scene for more than 12 hours, which is not typical procedure, the suit says.

The conduct from law enforcement was “so outrageous as to shock the conscious,” according to the suit, which is seeking unspecified monetary damages and a jury trial.

This story will be updated.

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Jason Riley is a criminal justice reporter for WDRB.com. He joined WDRB News in 2013 after 14 years with The Courier-Journal. He graduated from Western Kentucky University. Jason can be reached at 502-585-0823 and jriley@wdrb.com.