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DA recuses herself from police shooting case

Jason Harley Kloepfer stands at the door with his hands up one second before officers fired. Jason Harley Kloepfer stands at the door with his hands up one second before officers fired. Photo from Kloepfer security video


This story has been updated from the original version published Wednesday, March 29, to include reporting from additional public records related to Sheriff Dustin Smith's whereabouts the night of the shooting and a proposed law in Cherokee that would exempt police body cameras from the tribe's public records law.

As the State Bureau of Investigation continues its probe into the Dec. 13, 2022, police shooting that severely wounded Murphy resident Jason Harley Kloepfer, District Attorney Ashley Welch is seeking to recuse herself from handling the fallout — because statements members of the Cherokee County Sheriff’s Office made to Welch and one of her assistant district attorneys mean they are now witnesses in the investigation.

In a March 27 letter addressed to a “Ms. Dismukes” — likely Leslie Dismukes, criminal bureau chief for the N.C. Department of Justice — Welch said that, hours after the shooting, she and the ADA were contacted by the Cherokee County Sheriff’s Office and spoke to a detective there.

“As a result of the information relayed to us, Mr. Kloepfer was charged with resist, obstruct and delay as well as communicating threats,” Welch wrote.

The next sentence in the letter implies that the initial information Welch received from the CCSO was not accurate.

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“We have dismissed these charges against Mr. Kloepfer,” Welch wrote.

The charges were filed Dec. 13 while Kloepfer was at Erlanger Hospital in Chattanooga but not dismissed until March 1. Since Dec. 13, Welch’s office has been assisting the SBI with the investigation, she wrote. Now, because of what law enforcement told Welch after the shooting, she and the ADA are witnesses in the case.

“I anticipate myself and others in my office will be interviewed by SBI as part of the ongoing investigation,” she wrote.

This means her office has a conflict of interest under N.C. Bar rules, leading Welch to recuse herself from the matter. In the letter, she asked the Attorney General’s office to take over advising law enforcement agencies as to any criminal investigation and to handle any potential prosecutions.

“The allegations in this case involve potential crimes committed by a government official,” Welch wrote. “Historically, I have requested the Attorney General’s Office to handle prosecutions involving alleged misconduct of government officials. It is in the best interest of justice and the best interest of the people of North Carolina that the Attorney General’s office handles the prosecution of this case.”

The shooting

In his original public statement detailing the events of Dec. 12-13, Cherokee County Sheriff Dustin Smith painted Kloepfer as the aggressor, writing that officers fired after Kloepfer “engaged in a verbal altercation” with them and confronted them as he emerged from his camper trailer in the small hours of the night. But home security video Kloepfer released Jan. 18 told a different story.

Officers had responded to Kloepfer’s home because a neighbor called in expressing concern that he had shot his wife or otherwise harmed her. Law enforcement treated the call as a potential hostage situation and called on the CIPD SWAT team for help, as Cherokee County does not have a SWAT team. Upon arrival, the CIPD team sent a camera robot into the trailer, where Kloepfer’s video shows he and his wife in bed — asleep, alive and uninjured. Light from the robot and loudspeaker commands from police woke them up. Kloepfer stooped down to grab the robot and, complying with instructions from police, came to the door with his hands held high above his head.

That’s when officers opened fire, hitting Kloepfer in the arm and abdomen. The bullets missed his wife Ali Mahler, who was standing directly behind him.

Two days after Kloepfer published his video, Smith released a new statement. He did not apologize for the shooting or for the apparently incorrect statement his office had published. Rather, he wrote that the original press release was prepared by then-County Attorney Darryll Brown based on information received from the Cherokee Indian Police Department and averred that neither he nor Chief Deputy Justin Jacobs were on scene at the time.

Brown resigned his position following the Jan. 20 press release, writing in his resignation letter that the release and statements in it laying out Smith’s intentions to pursue forming a SWAT team for Cherokee County “came as quite a surprise” and “would come at a high cost, minimal use and open the county to TREMENDOUS amounts of liability.”

Smith’s story vs. public records

Contrary to Smith’s statements in the Jan. 20 press release, public records show that Smith did not have to rely on the CIPD for an account of what happened Dec. 13. The Cherokee SWAT team was not alone on scene that night, and records indicate that Smith and Jacobs were closer to the action than Smith implied.

According to call logs and radio traffic, at least seven CCSO deputies and investigators were at Kloepfer’s home at the time of the shooting. Radio traffic and Smith’s signature on a mutual assistance agreement signed prior to the SWAT response show that Smith was at the sheriff’s office when the SWAT team arrived in Murphy, and a radio exchange between Smith and Captain David Williams indicates he was even closer to the scene than that when the shooting occurred.

In the exchange, which takes places after the shooting, Williams tells Smith, identified as by his call number 401, that one of the tribal units is asking that Smith stand by.

“I think they’re wanting to follow you back to 400,” he said, referencing the sheriff’s office.

“If we have anything up there, maybe some drinks or anything, they could unwind a little bit,” Williams adds. “I don’t know what we got available, but they’re welcome to anything in my office.”

“10-4,” Smith responds. “I’ll take care of it.”

Later in the recording of law enforcement communications that night, dispatch receives a call from a man whose name is redacted. The person is trying to get in touch with CCSO Investigator Paul Fry, who wasn’t dispatched to the scene until after the shooting occurred.

“I talked to David Williams who said that the chief deputy [Justin Jacobs] was going up with the person who go shot?” the caller asks.

The person seems unfamiliar with CCSO’s personnel, asking whether Paul Fry is the chief deputy.

“No, he’s an investigator,” the dispatcher says.

“Who went with the person who got shot?” the caller asks. “Was it the chief deputy or was it Paul Fry?”

“I’m not sure, to be honest with you,” the dispatcher replies.

CIPD wants tighter body cam release laws

Thus far, both CCSO and CIPD have remained tight-lipped about the incident, with Smith consistently ignoring requests for comment and CIPD Chief Carla Neadeau declining to comment, citing the ongoing SBI investigation. Kloepfer’s home video is the only video from that night that has been released to the public thus far.

In subpoenas filed in relation to the now-dropped criminal case, Kloepfer sought body and dash cam video from both law enforcement agencies, as well as video from the robot initially sent into his house. The case was dropped before those subpoenas could be executed, and Neadeau has proposed tribal legislation that would make it even more difficult to obtain that video evidence.

The ordinance, which was read into the record during the March 2 Tribal Council session and can be considered for passage April 6, would exempt police records from release under the tribe’s public records law. The measure would apply to body cams, in-car cameras and law enforcement surveillance camera systems.

According to the proposed legislation, the tribe is “beginning to employ” body cams and dash cams, but its public records law was written before these technologies “became commonplace” in Cherokee. The public records law itself is only marginally useful for area journalists. In the past, The Smoky Mountain News has been denied requests made under the tribe’s public records law and told the law applies only to tribal members.

“It is not feasible nor in the public interest to subject recordings made by body-worn and in-car cameras to the EBCI’s public records law,” the document says, adding that the ordinance change “does not limit individuals’ ability to access these recordings through other provisions of the Cherokee Code, such as discovery in a criminal or civil action.”

State law, which applies to CCSO but not CIPD, already exempts such recordings from the state public records law and allows their release only following a court order.

Civil case likely

Welch’s March 27 letter came just one day before Kloepfer released a second video related to the shooting. This one, he said, showed SBI officers investigating the scene at his home the morning afterward. The three-minute, 32-second video includes a clip from the 911 call that prompted the response and three short clips of the SBI officers. In the first one, starting at 11:42 a.m. Dec. 13, an officer asks his colleagues what Kloepfer had been charged with.

“Did they shoot at him, then they went and got a warrant?” the same officer says, accompanied by a laugh of apparent disbelief, in the second clip at 11:44 a.m. In the third clip, at 12:18 p.m., the officers spot Kloepfer’s camera and take it off the wall.

Kloepfer wrote on Facebook that he and his wife, Ali Mahler, have been living out of state since the shooting for “multiple reasons,” the biggest one of which is “fear of being murdered.” In a letter linked on a GoFundMe page raising money for housing, medical bills and other living expenses, Kloepfer and Mahler said that living away from home costs about five times as much as it did to live on their property in Cherokee County, and that neither of them is able to work — Mahler because of “mental and emotional fallout” from the attack, and Kloepfer due to disability from a 2014 injury in which he intervened to save a single mom and her kids, causing a gang member to shoot him, resulting in paralysis.  

“Being a fighter, and with my faithful support, Jason rose from the wheelchair and found his ability to walk again,” the letter says. “Still, his injuries have been a constant uphill battle. It took Jason nine years to finally learn to walk again, and he still uses a cane often.”

Mahler and Kloepfer wrote that they “may never feel safe again,” and that “horrendous flashbacks” to what happened and what could have happened Dec. 13 “cripple us for hours.”

Kloepfer has not filed any lawsuit related to the Dec. 13 shooting, but the letter implies such action is coming.

“These things can take a long time, a civil case may take three to four years,” it says. “We are prepared to do battle and fight for justice until the end, no matter how long it takes.”

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