Police shooting defendants reply to lawsuit

In a March photo, Jason Harley Kloepfer’s home sits just as it was left following a December 2022 police shooting there.  Holly Kays photo In a March photo, Jason Harley Kloepfer’s home sits just as it was left following a December 2022 police shooting there. Holly Kays photo

Tribal officers in Cherokee County shooting say they thought victim was armed


The police officers accused of shooting an unarmed Cherokee County man  as he stood in the doorway of his home during the early morning hours of Dec. 13, 2022, hands above his head, say they did so because they believed the police robot in his right hand to be a gun. 

The assertion was contained in an Aug. 28 response to a 195-page lawsuit  that the man, Jason Harley Kloepfer, filed in June seeking millions in damages from the Cherokee Indian Police Department, Cherokee County Sheriff’s Office and employees within both departments.

“Jason and Ali[‘s] lives are forever upended by these events,” reads the lawsuit. “They live in fear that the powerful government forces will finish the job, and murder them, to complete the cover up. The physical scars on Jason’s body are obvious, but the mental and emotional scars cut even deeper, and have not begun to heal.” 

The shooting

Kloepfer was shot nearly six hours after a neighbor’s 911 call prompted CCSO deputies to respond to Kloepfer’s home on Upper Bear Paw Road, about 20 minutes northwest of Murphy.

The neighbor claimed she had video of Kloepfer making threats against the neighborhood and said she was concerned for the safety of Kloepfer’s wife, Ali Mahler, after hearing her scream “stop it,” followed by “a bunch of shots,” and then silence. When the deputies arrived, the lights were out, and nobody responded to their knock on the door. A search warrant wasn’t obtained until after 2 a.m., but deputies remained on the property throughout the night. Citing a potential hostage situation, the CCSO requested assistance from the CIPD, which has a SWAT team and arrived on the scene between 4 and 5 a.m. They threw a robot drone into Kloepfer’s camper trailer to assess the scene.

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Kloepfer property 2

Kloepfer said he has not felt safe enough to return home following the shooting. Holly Kays photo

Shortly thereafter, life-threatening gunshot wounds left Kloepfer bleeding on the ground.

In a statement released the next day, Cherokee County Sheriff Dustin Smith said shots were fired after Kloepfer “engaged in a verbal altercation with officers” and confronted them as he emerged from the trailer. As a result, he faced two misdemeanor charges after his release from the hospital, which were not dismissed until March 1.

But home security video Kloepfer released Jan. 18 contradicted that story. The video shows he and Mahler asleep in bed when the robot entered their home, waking them up with its bright light. In the footage, Kloepfer, appearing drowsy and confused, scoops the robot up in his right hand and lights a cigarette in his left. Complying with commands from the loudspeaker outside, Kloepfer opens the door, still holding the robot, and then raises his hands above his head. Mahler stands behind him. “Show us your hands. Hands!” the loudspeaker says, though Kloepfer is already holding them up. Immediately afterward, the officers unleash a torrent of bullets — about 15, the lawsuit says — wounding Kloepfer and barely missing Mahler.

Motions to dismiss

On June 20, Kloepfer filed a lawsuit in U.S. District Court naming 32 defendants and listing 25 causes of action. He accuses various combinations of defendants of civil rights violations, gross negligence, malicious prosecution, defamation, unlawful detention, civil conspiracy and assault, among other claims, seeking millions in damages.

The defendants gave their first reply to the allegations in court filings made Aug. 25 and 28, splitting themselves into five groups: the three CIPD officers who fired their weapons; former Sheriff’s Attorney Darryl Brown, who currently serves as county attorney; the insurance company covering the CCSO; the Eastern Band of Cherokee Indians and remaining CIPD defendants; and the remainder of the CCSO defendants.

“A lot of balls in the air,” said Ellis Boyle, Kloepfer’s attorney. “It’s my fault. I’m the one who filed the complaint, but it still gets complicated.”

Brown and the CCSO defendants both chose not to give a paragraph-by-paragraph answer to the accusations set forth in the lawsuit, but to instead file motions to dismiss. 

Brown, who is named only in one of the 25 counts — defamation related to the inaccurate press release he is supposed to have authored Dec. 13 — moved to dismiss all counts against him.

Cherokee County courthouse

The Cherokee County Courthouse also houses most county administrative offices in downtown Murphy. Holly Kays photo

“There are no allegations that Brown was present or involved in the issuance of the search warrant, investigation into the 911 call or the shooting or that he would have had any basis to supply the factual information that informed the press releases other than what was relayed to him by his client,” reads a memo supporting that motion. “There are no allegations that Brown took actions with the intent to harm Plaintiff. Rather, the allegations support that Brown acted as an attorney to the CCSD [Cherokee County Sheriff’s Department] and that the CCSD published the Subject Statement.” 

The CCSO sought only a partial dismissal. According to the CCSO, six of the named defendants — Nolan Queen, Jessica Styles, J.T. Gray, Jason Hall, Don Latulipe, and Paul Fry — were not present when the shooting occurred and should be dropped from the suit. Additionally, the filing states, all official capacity claims, save two against Smith, should be dismissed, as well as a handful of individual claims.

“Even if the sheriff wins on all of the points that the sheriff made, which I don’t think he will, but even if he does, I think the case will still go forward,” Boyle said. “It just may be a couple of pieces are chopped off as it goes forward.”

After Boyle files a response to those motions, a judge will rule as to how or whether the case against these defendants will proceed.

The tribe’s side of the story 

The legal process has the potential to drag on for years, but responses from the remaining defendants offer some insight into how they may seek to defend themselves. Perhaps most notable is the assertion of the three men who fired at Kloepfer — CIPD Officers Nathan Messer, Neil Ferguson and Chris Harris — that they did so because they believed Kloepfer to be holding a weapon when he exited the camper trailer where he and Mahler resided.

The “weapon” in question was the robot officers had sent into the trailer minutes earlier, when Kloepfer and Mahler were still asleep, to monitor the supposed hostage situation to which they were responding. In the lawsuit, Kloepfer contends that the robot, equipped with wheels, a flashlight and a camera, sent realtime video and audio feeds to the SWAT team outside, where at least one member was actively monitoring it as the rest wore intercom headsets that enabled them to communicate as to what the video revealed.

“Every SWAT team member was aware of what was seen on the screen,” the lawsuit alleges. As such, it continues, “every SWAT team member was aware that Jason held a cigarette in his left hand and the drone in his right hand,” and that he was not holding a gun. 

In their response, Messer, Ferguson and Harris say that’s not true. They deny that they knew Kloepfer did not have a gun in his hands, and while they admit that one member of the team was monitoring the video feed, they say they are “without sufficient information” to say whether the drone transmitted audio. The EBCI response takes it a step further, outright denying that the robot transmitted real-time audio. Of the three shooters, only Messer and Harris say they were wearing intercom devices inside their helmets that relayed “certain transmissions” by other SWAT team members. As to Ferguson, the response says only, “Except as expressly admitted, denied.” The EBCI, likewise, denies that “every SWAT team member” was aware of what the video showed as it came through on the screen.

After the three officers fired their weapons, Kloepfer collapsed on the ground. But to them, they say in their response, it appeared as though Kloepfer had retreated indoors to “take up a secure position.”

“Defendant Ferguson admits that, consistent with his training, he continued to discharge his firearm after it appeared that Jason went back into the camper to take up a secure position inside,” the response states.

The two groups of EBCI defendants also pushed back against numerous other contentions made in the lawsuit.

For example, Kloepfer claims that, despite the Mutual Assistance Agreement executed in Smith’s office prior to the SWAT team leaving for Kloepfer’s home, no legal agreement was in place between the two organizations when the shooting took place. The MOU is signed not by Police Chief Carla Neadeau but rather by her husband, Lieutenant Detective Roger Neadeau Jr. Section 15-3 of Cherokee Code vests authority to enter into such agreements specifically with the Chief of Police. The EBCI admits that Roger Neadeau signed the agreement, not Carla Neadeau, but denies that Roger Neadeau lacked the authority to do so.

Section 15-3 of Cherokee Code also states that, “while on duty with the requesting agency, an officer shall be subject to the lawful operational commands of his superior officers in the requesting agency.” In this situation, CCSO was the requesting agency. However, in their responses, both groups of CIPD defendants admit that SWAT Commander Scott Buttery was in charge of the operation on Kloepfer’s property, not Smith or one of his employees.

Contrary to Kloepfer’s assertion that nobody from either agency knocked on his door while announcing their identity prior to opening fire, the three officers who fired stated it was their belief CCSO deputies had knocked and announced their presence before the SWAT team arrived. Further, they said, the SWAT team announced its purpose and presence on the Bearcat PA system.

Smith was there, tribal police say

Both groups of CIPD defendants did, however, agree with one aspect of Kloepfer’s version of events that has proven central to criticism of the CCSO’s actions after the shooting — the whereabouts of Sheriff Dustin Smith as the three CIPD officers fired their weapons.

In a statement  issued following Kloepfer’s release of the home security video in January, Smith said that neither he nor Chief Deputy Justin Jacobs were on the scene when the shooting occurred. According to Smith, the initial press release, which alleged that Kloepfer had confronted police and engaged in a verbal altercation with them, spurring the use of deadly force, was prepared by County Attorney Darryl Brown — who at the time was also serving on a contract basis as the sheriff’s attorney — based on information received from the CIPD.

That’s not true, say the CIPD defendants. The EBCI admits Kloepfer’s claim that both Smith and Jacobs were on the property at the time of the shooting. Messer, Ferguson and Harris write that Smith and Lieutenant Milton Teasdale were both present at the church along N.C. 294 where the team assembled before riding to Kloepfer’s property. While the two did not ride there in the same vehicle as the SWAT team, as alleged in Kloepfer’s complaint, they were present on the property, as well. Boyle said he has seen video from that night, not yet released to the public, that proves Smith’s presence on the scene.

This aligns with a radio exchange that occurred after the shooting and was previously reported by The Smoky Mountain News. In that exchange, Chief Deputy David Williams tells Smith, identified by his call number 401, that one of the tribal units is asking Smith to stand by so they can follow him back to 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.”

Special prosecutor appointed

Since police nearly ended Kloepfer’s life Dec. 13, the N.C. State Bureau of Investigation has been conducting an investigation whose results will be used to determine whether the officers involved should face criminal charges. That investigation is still ongoing and has been for nearly nine months — but Darrin Wright, a retired law enforcement officer who works as a barber, thinks Smith should face consequences now.

“Any longer that he’s in office is a crime,” Wright said.

According to state law , a sheriff can be removed from office for one of six reasons: willful or habitual neglect or refusal to perform the duties of the office, willful misconduct or maladministration in office, corruption, extortion, conviction of a felony and intoxication or conviction of being intoxicated. Initiating a removal requires a petition from the county attorney, district attorney or five qualified electors from the county where the person serves, upon approval from the county attorney or district attorney. The county or district attorney must then prosecute the proceeding in superior court.

Wright wants to see Smith removed from office on the basis of maladministration and willful misconduct in relation to the Kloepfer shooting.

“Dustin lied under oath. He made false statements. He conspired, he violated his oath of office,” Wright said. “He obstructed justice by trying to cover it up.”

However, it appears Wright’s efforts to see Smith removed are going nowhere for now. He said he met with an assistant district attorney to discuss a petition he’d sent to District Attourney Ashley Welch’s office requesting Smith’s removal, but that he was told proceeding with removal efforts now could impede the ongoing SBI investigation. A spokesperson for Welch’s office would not confirm or deny Wright’s version of events and said she would not comment due to the ongoing investigation.

The SBI investigation concerns any criminal charges that could arise from the events of Dec. 12-13, while removal from office is a civil process that does not require criminal conviction. Wright pointed to the example of former Columbus County Sheriff Jody Greene, who, according to reporting from Spectrum Local News, resigned in January as District Attorney Jon David initiated proceedings to forcibly remove him. The removal proceedings were in process despite an SBI investigation remaining active.  

Welch has found herself playing the role of witness in the SBI’s investigation surrounding the Kloepfer shooting due to statements CCSO employees allegedly made to her office afterward. Those statements led her to charge Kloepfer with the two misdemeanors, which were dismissed following the release of the video. In March, Welch wrote to the N.C. Department of Justice seeking to recuse herself from handling the case, given that she and her staff anticipated being interviewed by SBI investigators.

In June, a representative from the N.C. Department of Justice said the office was “unable to take the case because of capacity constraints.” However, Lance Sigmon, a special prosecutor for the N.C. Conference of District Attorneys, has since been assigned to the case. He is currently reviewing the investigation, said NCCDA Executive Director Kimberly Spahos.

Cameron Nieters, who is representing Messer, Harris and Ferguson, declined an opportunity to comment. Attorneys representing Brown, the CCSO defendants and the remaining EBCI defendants did not return requests for comment.

CCSO deputy charged with drunk driving

Adam Christopher Erickson, one of the Cherokee County Sheriff’s Office deputies named in the lawsuit stemming from the Dec. 13 shooting of Cherokee County resident Jason Harley Kloepfer, has been arrested for driving while impaired.

Hunter Wood, who is Erickson’s colleague in the CCSO, arrested him in the early morning hours of Thursday, Aug. 24. At 1:28 a.m., the affidavit states, Wood found Erickson “passed out at the wheel” with “red glassy eyes, slightly unsteady on feet, slurred speech, odor of alcoholic beverage about person” at Bellview United Methodist Church, located east of U.S. 19 about half a mile north of the Georgia state line. A breath test yielded an alcohol content of 0.12, 50% higher than the legal limit of .08, according to court documents.  

Cherokee County Sheriff Office

Dustin Smith was sworn in as Cherokee County sheriff following a November 2022 election. Holly Kays photo

Erickson was booked but released the same day without having to post bond — only a written promise that he would appear for his next court date was required. He is scheduled to appear at the Cherokee County Courthouse at 9:30 a.m. Wednesday, Sept. 6.

Erickson was the first deputy dispatched in connection with the 911 call that led to Kloepfer’s shooting. He was sent to the property at 11:01 p.m. Dec. 12 and remained there until 5:43 a.m. Dec. 13. He was also one of only two deputies mentioned by name in the 911 call. When the dispatcher asks Kloepfer’s neighbor to send the videos allegedly showing the behavior that spurred her to call 911, she says she has already sent them to two deputies: Erickson and Daniels. Deputy Daniels was not named in the lawsuit and was not on scene that night, according to call records.

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