LOUISVILLE, Ky. — A new lawsuit claims the use of excessive force and policies that were ignored are what led to David McAtee's death.
The popular West Louisville barbecue business owner was shot and killed in June by a National Guard member after McAtee fired at least two rounds.
A caravan of Kentucky National Guard members and LMPD officers were stationed at 26th and Broadway on June 1 to break up a crowd after a night of protests over the deadly shooting of Breonna Taylor.
"What happened to David was wrong," attorney Steve Romines said who is representing McAtee's family. "There's a common misconception – 'oh it's his restaurant' – he lived there also."
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According to the lawsuit, less than 30 seconds after McAtee was cooking a sandwich he laid dying on his kitchen floor.
"There was no protest going on, there were no riots going on, there were no crimes going on and there was no violence going on," Romines said. "There had never been a single call for service to that location that night."
McAtee's mother Odessa Riley and Romines accuse law enforcement of violating department policies such as firing pepper balls at a crowd of people running, turning off body cameras and using deadly force without warning.
"These are people eating barbeque," Romines said. "They're not protesting, they're not doing anything – they are eating and hanging out."
Hanging out at YaYa's BBQ was described as a safe haven where locals and police officers would grab a bite.
"We were promised transparency," Romines said. "The Mayor comes out and goes to the funeral to get a photo-op with Mrs. Odessa and yet the information we've been shared is zero."
Ballistic evidence and security cameras show McAtee fired at least two rounds from his 9mm handgun that night. Two national guard members and two LMPD officers fired back with multiple shots. One of those shots hit McAtee in the chest killing him.
"He had every reason to believe that these people that are shooting and not announcing that they're police, were not police," Romines said.
Romines argues McAtee thought people who were not from Louisville were possibly shooting outside of his business. His niece Maychelle McAtee was hit three times by pepper balls fired by police which Romines said prompted McAtee to act in self-defense.
"If somebody goes and pulls out one of those guns they were using to shoot pepper balls at LMPD, they're going to kill them because they're going to say 'it looked like a gun' okay that's what they were shooting people with," Romines said. "They're expecting [McAtee] to distinguish between a projectile fired at 500 feet per second."
LMPD does not comment on pending litigation. WHAS11 reached out to the Kentucky National Guard for comment but has not heard back.