VIDEO | Bullitt County man shot by sheriff's deputy in the back of the head while driving away

LOUISVILLE, Ky. (WDRB) -- Eric Kessler's last moments appeared to be clouded in confusion, as he was awakened by Bullitt County Sheriff deputies who were using a baton and flashlight to break his window after he had passed out or fell asleep in the driver's seat of his vehicle.

Within minutes, he would be dead, shot by a sheriff's deputy in the back of his head and spine on Jan. 31, 2021.

Attorneys representing deputies in a wrongful death lawsuit filed against the sheriff's office have said Kessler "accelerated (his vehicle) straight towards a deputy" and "amidst the chaos, he was fatally shot."

And immediately after the shooting, the deputy who fired the shots, Nicholas Hibbs, called dispatch saying, "he tried to run over me."

But Kessler's attorney argues body cam footage released from the shooting contradicts the official account and shows there was no one in front of Kessler or anyone in danger when he was shot while driving away.

"No deputy is in Eric's direct path as they are behind him," attorney Zack McKee wrote in a lawsuit filed against Hibbs, other deputies at the scene and the Bullitt County Sheriff's office last year. "… Eric was not driving at Deputy Hibbs or anyone else. (He) was attempting to avoid the deputies and any civilian and their vehicles by simply going around them, not at them."

In an interview on Tuesday, McKee said "the legal system should treat Hibbs the same way it would treat anyone else who intentionally shoots and kills someone and that is with criminal charges."

Kentucky State Police are investigating the shooting and the case will soon be presented to a Bullitt County grand jury, according to  KSP spokesman Paul Blanton.

Bullitt County Sheriff Walt Sholar, who is also named as a defendant in the lawsuit, said he could not comment on pending litigation.

Sholar did say that Hibbs is still with the sheriff's office, but it would be inappropriate for the deputy to comment while KSP is investigating.

Deputies called to the scene on a report of an abandoned vehicle on Cedar Lick Road had been unable to wake Kessler until bashing a hole in his passenger side window – leaving him "dazed, disoriented, sleepy and startled," according to the lawsuit. His foot was on the brake, but the car was in drive.

With flashlights shining on him and deputies yelling for him to put the car in park, Kessler initially nodded and twice puts his hands in the air as if to surrender, according to the lawsuit and body cam footage obtained by WDRB News.

But then Kessler put the car into reverse, smacking into a deputy's cruiser behind him before he attempted to drive away, going forward and around another deputy's vehicle, the videos show. 

As Kessler drove away, one deputy threw a hammer at the car and Hibbs shot from behind the vehicle eight times, hitting Kessler in the back of the head and the spine, killing him.

"You hit him in the head, brother," Deputy Eric Burdon told Hibbs, according to his body camera video. "He's done."

The other deputies at the scene did not fire any shots.

The lawsuit argues that Kessler was not fully awake as deputies yelled at him from different directions, flashed lights in his face and menaced him "with sledgehammers and batons in an overly aggressive and unnecessary display of force. It must be emphasized that Eric was simply asleep/unconscious just seconds ago."

McKee claims Kessler was "startled" and when his vehicle bumped a cruiser in reverse, he put the car in drive and "begins to pass everyone to exit the hostile situation."

A deputy swung a sledgehammer, taking out his driver-side rear view mirror and breaking his window as the car was moving, according to the suit.

"This clearly frightened and distracted Eric. This was aimed to strike Eric in the head," McKee wrote in the suit. "Eric does not turn left towards any of them. Eric was not trying to run over anyone."

Hibbs, who had been at the scene for less than three minutes before the shooting, has said he believed another deputy was standing near the vehicle and in danger, according to the suit.

"The vehicle passed me and continued in the direction where I believed Deputy (Terry) Compton was standing near his vehicle," he wrote in an incident report. "At this time I fired my weapon an unknown amount of times through the back windshield of the suspect vehicle in fear of Deputy Compton's safety."

But McKee argued in the lawsuit that body cam video shows Compton was "clearly behind Eric's vehicle" standing with other deputies and not in danger as Kessler drove away.

After he was shot, Kessler's vehicle ran off the road into several small trees.

"I should've just opened the windows sooner before you all got here," Deputy Maurice Raque III told the other deputies after finding Kessler lifeless in the car, according to body cam footage.

"This is on him, he tried to run everybody over," another deputy tells Raque. "He knew. He had plenty of warnings."

Raque tapped or hit on Kessler's window several hundred times in an effort to wake him up when he first arrived at the scene, the suit says.

The lawsuit claims the other deputies "escalated" the encounter when they arrived and were "overly aggressive."

Once Kessler, a 20-year-old father of a toddler, woke up, the intense situation should have been over, McKee argues, as he was unarmed and not a threat.

"The initial call was about an abandoned vehicle; it's not some sort of felony was being committed," McKee said in the interview. "As he's leaving the scene, he's shot in the back of the head. … So I think it's unfortunate for anyone to lose their life and especially for a child to lose their father."

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