LOUISVILLE, Ky. — Nearly one year after David McAtee's death, Commonwealth's Attorney Tom Wine said his office will not present a case to the Jefferson County Grand Jury for potential charges against any LMPD officers or National Guard soldiers who fired their weapons.
Wine said an investigation into McAtee's death found that the YaYa's BBQ owner was shot in the chest one time, killing him before paramedics could arrive early June 1.
"I will begin by offering my condolences to the McAtee family," Wine said. "By all accounts David McAtee was well liked by the community, his patrons, and members of the Louisville Metro Police Department."
While two LMPD officers and two National Guard soldiers were identified as firing shots, Wine said they were following standard operating procedure the night of McAtee's death.
According to investigations conducted by LMPD's Public Integrity Unity and Kentucky State Police's Critical Incident Response Team, LMPD command staff directed officers and National Guard soldiers to the intersection of 26th and Broadway to clear a crowd from the Dino's Food Mart parking lot at around midnight May 30. The orders were given due to an ongoing curfew in Louisville.
"Most civilians in the crowd were compliant and began to exit the area, either by walking away or driving off in their personal vehicles," Wine said. "There was no evidence that the crowd was engaged in any type of protest or destructive behavior."
Some of the crowd walked to McAtee's business across the street. YaYa's BBQ was still open at the time, and McAtee was seen going back and forth from the grill to the inside of the building.
LMPD Lt. Aaron Crowell said he had spoken with McAtee and Dino's management about the curfew the night before, saying he knew he would be in violation of the curfew if he were serving people past 9 p.m.
The investigation, Wine said, found that LMPD officer Katie Crews fired one pepper ball into the street outside Dino's and several more pepper balls towards YaYa's.
As McAtee's niece and others outside the business rushed inside, Wine said surveillance video showed McAtee fire one shot outside his side door. He then went back inside before reemerging and firing a second shot. Two shell casing found outside his door were determined to be from the gun he fired.
"After McAtee’s second shot, Crews, LMPD officer Austin Allen, National Guard soldiers Andrew Kroszkewicz and Staff Sergeant Matthew Roark all returned fire," Wine said. "Allen fired once, Crews fired eight times, Kroszkewicz fired four times and Roark fired six times. No other member of the National Guard or LMPD fired their service weapons."
One shot struck McAtee in the chest. Wine said paramedics arrived within about five minutes, but McAtee was already dead.
Neither LMPD officer had their body cameras on, and National Guard soldiers did not have body cameras. The KSP crime lab determined that fragments recovered from McAtee's body did not match the weapons of LMPD officers.
Wine said both LMPD officers and Kentucky National Guard soldiers were in conformance with LMPD and National Guard's policies as "they reasonably believed, basked on the facts and circumstances, that Mr. McAtee posed an immediate threat of death or serious injury to them or to another person."
"I provided a twenty-four page review to the investigating agencies detailing our office’s factual findings, legal analysis, and the conclusion that that this investigation will not be presented to a Jefferson County Grand Jury for further review or potential charges against any of the LMPD officers or National Guard soldiers who fired their weapons," Wine said.
“Cops will rarely, if ever, face accountability for use of force,” Steve Romines said. “You wonder why it keeps happening?... If you never face any accountability, then you’ll keep doing the same thing.”
Romines, representing the McAtee family in a civil lawsuit filed against the city, police department and law enforcement members involved, said Tuesday both he and the family were "disappointed" but "not surprised" by Wine's announcement.
“The law should treat everyone equal regardless of your job. And it's supposed to but with the prosecutors we have and the way these are treated, it does not," Romines said. "Do police have a hard job? Sure, they do. Should they be treated with a separate set of laws than everybody ese? No. everybody has the same laws that they must follow. They have the same defenses that are available to them by the law. Police don’t have any extra right to self-defense."
Romines said the case, whether the officers and Ky. National Guard members were deemed justified or not, should still have been presented to a grand jury for it to decide.
“There’s no valid reason to wait a year to say ‘oh were not going to do anything, we’re washing our hands of it,'" he said. "That’s the true absurdity of this case is nobody even got to hear the proof to decide whether they should charge or not.”
Wine said he informed the McAtee family's attorney of the results of his office's review before releasing a statement. There is still an ongoing investigation into McAtee's death by federal authorities.
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