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Cherokee County Sheriff’s Office answers police shooting lawsuit

Of the lawsuit’s 31 defendants,  17 are or were associated with the  Cherokee County Sheriff’s Office. Holly Kays photo Of the lawsuit’s 31 defendants, 17 are or were associated with the Cherokee County Sheriff’s Office. Holly Kays photo

In a 65-page answer to an extensive lawsuit  filed in response to the December 2022 police shooting of Jason Harley Kloepfer in Cherokee County, the Cherokee County Sheriff’s Office emphasized that it was officers with the Cherokee Indian Police Department, not CCSO deputies, who fired the shots, and denied allegations that its deputies and supervisors mishandled the case from the beginning. 

Kloepfer was seriously injured in the Dec. 13, 2022, shooting   that occurred after a neighbor called 911 claiming she was concerned that he had hurt his wife, Alison Mahler, and threatened the whole neighborhood. She also claimed she had video evidence of these allegations. Citing a potential hostage situation, the Cherokee County Sheriff’s Office requested assistance from the Cherokee Indian Police Department’s SWAT team, which arrived in the early morning hours. Despite the CCSO’s initial statement to the contrary, home security video  shows Kloepfer coming to the door with his hands up, in compliance with police orders. However, as he stood there three CIPD officers fired their weapons at him, severely injuring him and narrowly missing Mahler.

The CCSO does not contest these basic facts. It admits that the neighbor’s 911 call prompted the law enforcement response, and that none of the three deputies stopped by the neighbor’s house to see the video she had claimed to have before entering Kloepfer’s property. Similarly, the lieutenant who filed the affidavit did not view the video before requesting a search warrant. It was nearly 2 a.m., about three hours into the response and with eight CCSO employees on scene, before anybody knocked on the neighbor’s door.

In response to Kloepfer’s assertion that the videos did not even support the neighbor’s initial accusations, the defendants said they “lack sufficient knowledge or information to form a belief as to the truth of the allegations.”

The CCSO defendants also admitted that the officers who initially responded to the call did not pull their vehicles up the driveway, turn on flashing lights or sirens, or use any other signal to announce their presence as officers. Though they said they knocked on the door multiple times, they did not deny Kloepfer’s claim that they did not announce themselves as CCSO officers or state the purpose of their visit when knocking. Instead, the defendants said they “lack sufficient knowledge or information to form a belief as to the truth” of these allegations.

But the officers did take action to prevent Kloepfer from observing their activities. The defendants admit that Sergeant Dennis Dore, one of the three initial deputies on scene, began obstructing the closed-circuit surveillance cameras Kloepfer had outside. Later, he reported that he had done so because “I don’t want that f—-er watching me.” 

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However, the defendants denied allegations that covering up the cameras — an action that according to the timeline alleged in the lawsuit took place before any search warrant had been granted — violated Kloepfer and Mahler’s Fourth Amendment rights to be free from unlawful search and seizure. Kloepfer also had security cameras inside his home, which Dore did not have an opportunity to obstruct prior to the shooting, and that’s the footage he later published to contest the CCSO’s version of events.

The defendants also had a surprising answer to Kloepfer’s claim that, contrary to a statement  Sheriff Dustin Smith issued after Kloepfer published video of the shooting saying that neither he nor Chief Deputy Justin Jacobs were present at the scene, both men were in fact there.

“Defendants lack sufficient knowledge or information to form a belief as to the truth of the allegations in this paragraph,” the answer reads.

This comes despite the CCSO’s admission in a different part of the document that Jacobs rode to the hospital with Kloepfer after the shooting, and agreement from all EBCI defendants  that Smith was present at the scene. Additionally, a radio exchange  that took place following the shooting has Captain David Williams telling Smith that one of the tribal units is asking Smith to stand by so they can follow him back to the sheriff’s office, indicating that they were coming from the same location.

However, it appears that the CCSO is sticking with a simple answer when it comes to questions of Smith’s whereabouts that night. It gave the same response — “defendants lack sufficient knowledge or information to form a belief as to the allegations of this paragraph” — to the statement that “In a press release published on Facebook on December 13, 2022, Sheriff Smith claimed he was not present at the scene of the shooting on the Property when the shooting actually took place.” In that publicly available press release, Smith had written “Neither myself nor Chief Deputy Justin Jacobs were on the scene at the time of the shooting.”

After the shooting, the defendants admit, Mahler was “transported” to the sheriff’s office and later released. The lawsuit has claimed their treatment of Mahler amounted to unlawful detention, which the defendants deny.

The CCSO’s answer to Kloepfer’s complaint was filed Dec. 15 following U.S. District Judge Max O. Cogburn Jr.’s Dec. 4 ruling  granting some parts of the CCSO’s motion to dismiss and denying others. Of the 31 defendants named in the lawsuit, which is seeking millions in damages, 17 were affiliated with the CCSO.

In their answer, the CCSO says that public official immunity protects the defendants from the individual capacity state tort claims against them, and that qualified immunity protects them from individual capacity claims under U.S. Code Section 1983 claiming their constitutional rights were violated. Defamation claims against Smith are barred by absolute and qualified privilege, the defendants say, and to the extent the plaintiffs did suffer damages, those damages were caused by people or entities other than the CCSO defendants.

In an order filed Dec. 18, the court ordered attorneys for all parties in the lawsuit to hold a conference discussing whether they might consent to a magistrate judge having jurisdiction in the case. A report on the outcome of the conference is due by Jan. 8.

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