No Charges for Kentucky National Guard Members in Shooting of Barbecue Chef

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A Kentucky prosecutor said on Tuesday that he would not pursue criminal charges against National Guard members involved in a shooting that killed the popular owner of a Louisville barbecue stand last June as officials sought to enforce a curfew imposed after protests against police violence.

Thomas B. Wine, the Jefferson County commonwealth’s attorney, said in a statement that the two Louisville Metro Police Department officers and two Kentucky National Guard members were justified in firing a total of 19 shots during the encounter because they were responding to gunfire from the victim, David McAtee.

Mr. McAtee had fired two rounds after a Louisville police officer fired “several” pepper balls where the victim’s niece was standing, at the entrance to his shop, YaYa’s BBQ, Mr. Wine said.

Mr. McAtee was struck once in the chest and died moments later. Bullet fragments recovered from his body were determined to have been fired by one of the two National Guard members, but it was unclear which one, Mr. Wine said.

The officers and National Guard members “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,” Mr. Wine said. They were justified “to use deadly physical force in response to the deadly physical force used by Mr. McAtee against them.”

A lawyer for Mr. McAtee’s family said he was disappointed but not surprised by the decision.

“When private citizens are forced to act in self-defense, they are charged and have to present that defense to a jury,” the lawyer, Steve Romines, told The Associated Press. “Cops are summarily exonerated without any proof ever being presented. Does anyone really doubt why it continues to happen?”

Federal authorities are investigating the case.

Mr. Wine announced his decision on the anniversary of the killing of George Floyd, a Black man who died after a white Minnesota police officer knelt on his neck for more than nine minutes. A bystander’s video of Mr. Floyd’s killing touched off protests throughout the country, including in Louisville, which was already shaken by the killing of Breonna Taylor in a no-knock police raid.

A spokesman for Mr. Wine declined to comment Tuesday night when asked about the timing of the announcement.

In his statement, Mr. Wine described the brief, confusing and fatal moments around midnight on May 31, when the police and National Guard members descended on the predominantly Black West End neighborhood to enforce Louisville’s new curfew.

Mayor Greg Fischer had announced a 9 p.m. curfew and Gov. Andy Beshear activated the Kentucky National Guard a day earlier, after two days of protests and property damage in the city, Mr. Wine said.

On May 31, the Louisville Metro Police Department sent officers and National Guard members to the intersection of 26th Street and West Broadway, to clear people from the parking lot of Dino’s Food Market. Across the street, Mr. McAtee’s shop was still serving customers; some people in the crowd walked over there.

“There was no evidence that the crowd was engaged in any type of protest or destructive behavior,” Mr. Wine said.

Credit…Marvin McAtee

At some point that evening, one police officer, Katie Crews, “fired at least one pepper ball into the street outside Dino’s to disperse the crowd,” Mr. Wine said. “Crews then proceeded to fire several more pepper ball shots toward YaYa’s,” where Mr. McAtee’s niece, Machelle McAtee, was standing. “As a result Ms. McAtee and others sought shelter inside the building,” Mr. Wine wrote.

One of the balls — which may not have been distinguishable at the time from other ammunition — hit a bottle on an outdoor table, according to bystander video analyzed by the visual investigations team of The New York Times. Another pepper ball, it said, came close to hitting Mr. McAtee’s niece in the head.

Soon after, Mr. McAtee fired a shot from the doorway of YaYa’s. Then a second shot.

Mr. Wine said those two shots led the officers and National Guard members to open fire.

“After McAtee’s first shot, members of LMPD switched from non-lethal weapons such as pepper ball guns to service weapons and the National Guard soldiers armed their M-4 rifles,” Mr. Wine said. After Mr. McAtee’s second shot, he said, they returned fire.

Marvin McAtee, Mr. McAtee’s nephew, said he helped run the barbecue restaurant with his uncle, who lived in the building’s basement. Marvin McAtee said he was in the restaurant that night but did not see his uncle shoot.

“There’s no way he had a clear vision of the police from there,” he said of his uncle. “He had no intention of shooting at no police.”

According to Mr. Wine, Officer Crews fired eight shots; Officer Austin Allen fired one; the National Guard soldier Andrew Kroszkewicz fired four shots; and Staff Sgt. Matthew Roark of the National Guard fired six times.

Evidence of the shooting included surveillance video from inside YaYa’s, Mr. Wine said. He said that Officer Crews and Officer Allen had not activated their body cameras.

A laboratory analyzed four fragments from the bullet that struck Mr. McAtee in the chest and determined it “could have been fired from either of the Kentucky National Guard’s Colt rifles.” But the fragments were “too damaged” to identify which National Guard member fired the shot, Mr. Wine said.

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