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Judge rules on motion to dismiss claims in police shooting suit

The lawsuit is filed in the U.S. District Court in Asheville. The lawsuit is filed in the U.S. District Court in Asheville. File photo

The court has made its decision in the Cherokee County Sheriff’s Office’s request to dismiss  many of the complaints in a lawsuit stemming from the 2022 shooting of Jason Harley Kloepfer at his home near Murphy.

“The court denied a few things I thought it might grant and granted a few things I thought it might deny, but overall it’s right where we expected the outcome to be,” said Ellis Boyle, attorney for Kloepfer and his wife Alison Mahler, also a party in the lawsuit.

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 Mahler. 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.

In June, Kloepfer and Mahler filed a federal lawsuit  in the U.S. District Court of Western North Carolina seeking millions in damages, and a special prosecutor  is currently considering findings from the State Bureau of Investigation to determine whether criminal charges are warranted. The lawsuit named 31 defendants, including 17 associated with the CCSO.

The CCSO defendants had sought to have many of the roughly 400 claims against them dismissed. The Dec. 4 ruling issued by U.S. District Judge Max O. Cogburn Jr. dismissed about 60% of these claims, but because many of the dismissed claims were redundant, their absence won’t have much impact the final outcome.

Kloepfer had sued each of the parties in both their official and individual capacities, but in its motion to dismiss filed in August, the CCSO defendants had asked to dismiss claims against the CCSO itself and official capacity claims against all CCSO employees except Sheriff Dustin Smith, for all counts except for the intentional infliction of emotional distress claims. Kloepfer and Mahler had not argued that point. Because the employees all worked for the same responsible organization, the Cherokee County Sheriff’s Office, it wasn’t necessary to bring official capacity claims against all of them.

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“Having the claim against the sheriff is all you need,” Boyle said. “It covers all of them.”

However, the parties had disagreed on other aspects of the motion. The CCSO had asked to dismiss claims against Detective Nolan Queen and Deputies Jessica Stiles, J.T. Gray, Jason Hall, Don Latulipe and Paul Fry on the grounds that Kloepfer has not alleged these officers were present when the shooting occurred. However, Cogburn agreed to allow these claims to go forward to the discovery phase of the lawsuit. If discovery shows these defendants weren’t involved in the “alleged conduct” underlying the claims, the plaintiffs must voluntarily dismiss them, Cogburn wrote.

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Jason Harley Kloepfer and his wife Alison Mahler smile in a photo taken in 2019. Jason Harley Kloepfer/Facebook photo

Cogburn also allowed Kloepfer and Mahler’s claims of unlawful detention to move forward, denying a CCSO motion to dismiss that stated “there are no factual allegations to support an unlawful detention claim.” Mahler has alleged that, after EBCI officers shot Kloepfer, CCSO deputies handcuffed her and took her to the sheriff’s office, where she was kept “locked in a small room for hours under guard.” Cogburn ruled that the lawsuit gave defendants fair notice of the claim and facts supporting it.

However, Cogburn agreed with the CCSO’s argument that public official immunity protected the defendants from being sued in their individual capacity for certain claims — negligence, negligent infliction of emotional distress and negligent hiring and supervision/retention. But despite the CCSO’s request to the contrary, he allowed the punitive damages claims brought against defendants in their individual capacities to move forward.

Finally, Cogburn ruled that Smith has not waived governmental immunity to the official capacity claims against him by purchasing liability insurance. However, immunity is waived up to the amount of the surety bond covering Smith, meaning that the claims can move forward.

Cogburn’s ruling also removed one defendant from the lawsuit — County Attorney Darryl Brown, who at the time was also serving on contract as attorney for the CCSO. Kloepfer and Mahler alleged that Brown’s role in preparing the press release sent hours after the shooting, which was later shown to give a false version of the night’s events, amounted to defamation of character. Brown, in a filing separate from the rest of the CCSO defendants, moved to dismiss the claims. Cogburn granted that motion, finding that Kloepfer did not “sufficiently allege actual malice by Brown” and that various legal immunities and privileges protect Brown from suit.

“I have no comment other than to thank my counsel, Ann-Patton Hornthal, for her extraordinary work on my behalf,” Brown said in response to a request for comment.

Cogburn’s decision still allows many significant claims to move forward, Boyle said.

“The civil rights claims based on the constitutional violations remain completely intact against both the sheriff’s defendants and the tribal defendants, so those are pretty serious,” he said. Also “serious,” are the unlawful detention and gross negligence claims. Meanwhile, the court’s decision to retain the punitive damages claim, which could result in a substantial monetary award should a jury see things Kloepfer’s way, was also an important win, Boyle said.

Now that Cogburn has decided which claims can proceed, the CCSO defendants will have to provide an answer to the civil complaint Kloepfer filed in June. The Eastern Band of Cherokee Indians defendants, who did not move to dismiss, filed their answer  in August. After that, Boyle said, the court is likely to issue a scheduling order that will trigger processes like depositions and written discovery to take place. As of press time, no further deadlines or hearings have been set in this case. The attorney representing all CCSO defendants other than Brown did not return a request for comment.

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