DENVER -- The family of a man killed after a fight broke out over a cigarette flicked out of a window is suing the sheriff's deputy who fired the fatal shot along with the county that employs him.

David Rossiter of Sheridan, Mont., died Nov. 2 during a confrontation with Arapahoe County Deputy Daniel Montana at a freeway off ramp in the Denver suburb of Lakewood. Montana was off duty at the time.

In a lawsuit filed Tuesday but made available Wednesday, Rossiter family attorneys said Montana fired two shots after an unarmed Rossiter stopped beating him and was retreating to a pickup truck.

A message left for sheriff Grayson Robinson was not immediately returned.

Montana told investigators he was beaten so severely he feared for his life and that after several warnings Rossiter and another man lunged at him when he pulled a gun out of a fanny pack. No criminal charges were filed.

In the lawsuit, attorneys Fred Paoli Jr. and Jeffrey Bogue said that Montana never told Rossiter and his co-worker, Michael Hunter, that he was a sheriff's deputy, nor did he flash his badge or tell the men he was arresting them.

Montana told Lakewood police he got into a fight with two men, later identified as Rossiter and one of Rossiter's co-workers, Michael D. Hunter II, after Hunter flicked a cigarette out of a pickup that landed on Montana's car. Both vehicles were stopped at a light.

The 25-year-old Rossiter got the better of the 49-year-old Montana and Hunter pulled Rossiter back, saying "He has had enough, let's go," according to the lawsuit.

Both men began retreating to their pickup truck when Montana pulled a handgun from a fanny pack and shot Rossiter twice, "without warning and at point black range," the lawsuit states.

"You don't get to kill an unarmed person from point blank range and then walk away just because you have a badge in your fanny pack," said Sheridan, Mont.-based attorney Stephanie Kruer, a family spokeswoman. "Yes, there was a fight that day, as the complaint confirms, but that does not give Deputy Montana the right to execute David Rossiter."