By Randy Foster
Cherokee Scout
Cherokee County and Cherokee tribal police officials named in a federal lawsuit over a Dec. 13, 2022 incident in which a tribal SWAT team opened fire on an unarmed Bear Paw man have filed motions requesting to have their cases dismissed.
A flurry of answers to the lawsuit were filed in late August by defendants in the lawsuit.
Depending on the respondents, arguments include claims of immunity, lack of jurisdiction, justification for the shooting, coverage by liability insurance, insufficient information and placing blame on other defendants in the case.
The Cherokee County Sheriff’s Office requested the Cherokee Tribal SWAT team after receiving a 911 call from a neighbor who reporting that Jason Harley Kloepfer, 41 at the time, was shooting a gun and setting off fireworks. The caller heard a man and woman arguing. On their initial response, deputies were unable to make contact with the couple, so they obtained a magistrate’s warrant and requested assistance from the SWAT team.
With the couple’s travel trailer where they lived surrounded, SWAT team members deployed a surveillance drone into the trailer, which woke the couple from sleep. Kloepfer picked up the drone and in answer to commands for him to come outside, opened the door to a volley of gunfire, severely injuring him.
Charges filed against them were dismissed after they released shocking surveillance video.
A 195-page lawsuit was filed on June 20 in the Western District of North Carolina, Asheville Division, U.S. District Court on behalf of Kloepfer and his wife, Alison Mahler. They are represented by Raleigh attorney W. Ellis Boyle of Ward & Smith P.A.; Murphy lawyer Zeyland McKinney Jr. of McKinney Law Firm P.A. and Murphy lawyer Beverly Cook of Cook Law Firm.
The couple is demanding a jury trial. They are asking for compensation for actual damages in excess of $75,000, court costs, unspecified punitive damages and any further relief the court deems just and proper.
Named in the lawsuit were:
• The Cherokee County Sheriff’s Office, Eastern Band of Cherokee Indians and Ohio Casualty Insurance Co.
Individuals named in the lawsuit were (by agency):
• Cherokee County Sheriff’s Office: Sheriff Dustin Smith, Chief Deputy Justin Jacobs, Capt. David Williams, Lt. Milton Teasdale, Lt. Mitchell Morgan, Lt. Drew Payne, Sgt. Dennis More, Sgt. Cody Williams, Detective Nolan Queen, Deputy Jessica Stiles, Deputy J.T. Gray, Deputy Jason Hall, Deputy Don Latulipe, Deputy Adam Erickson and Deputy Paul Fry. Darryl Brown, the sheriff’s office’s attorney at the time of the incident, is being sued for defamation.
• Cherokee Indian Police Department: Police Chief Carla Neadeau, Assistant Chief Joshua Taylor, Lt. Detective Roger Neaudeau Jr., Patrol Lt. Neil Ferguson, SWAT Commander Scott Buttery, Detective Sgt. Jesse Ramirez, Special Operations Sgt. Jeff Smith, Detective Dustin Wolfe, Detective Cody McKinney, Special Operations Officer Nathan Messer, Special Operations Officer Andrew Sampson and Patrol Officer Chris Harris.
The respondents have broken off into five groups each represented by their own attorneys: The Cherokee County Sheriff’s Office, its insurance company, Brown, Cherokee Tribal Police and three tribal police officers, who have split off and are represented by their own attorneys.
Ohio Life, the insurance company, is represented by attorney Mason Goldsmith Jr. of Greenville, S.C.- based Elmore Goldsmith Kelley & deHoll P.A., who asked the lawsuit to be dismissed for lack of information for it to admit or deny allegations. It asked the court to award Kloepfer and Mahler nothing and to be compensated for its costs.
Darryl Brown is the attorney for Cherokee County’s government, but he was also the sheriff’s office attorney at the time of the SWAT incident. He is represented by Ann-Patton Hornthal of Asheville-based Roberts & Stevens P.A.
Brown is being sued for defamation and punitive damages by Kloepfer and punitive damages by Mahler.
Brown’s attorneys argue that he is immune from prosecution based on sovereign and qualified immunity laws and that, similar to Ohio Life’s arguments, the accusations are vague. Sovereign immunity is a legal doctrine in which state and local governments cannot commit a legal wrong and are immune from civil suit or criminal prosecution in their own courts.
“The doctrine of qualified immunity protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known,’” the attorneys argue.
“There are no allegations at all that Defendant Brown acted outside the scope of his official authority or was corrupt in any way; and Plaintiff’s factual allegations as to malice are insufficient to pierce his public official immunity,” the lawyer argues.
Brown’s lawyer also says that because the sheriff’s office has also been sued, the complaints against him are redundant.
The Cherokee County Sheriff’s Office is represented by Sean Perrin of Charlotte-based Womble Bond Dickinson (US) LLP, which filed a partial motion to dismiss for lack of subject matter jurisdiction, lack of personal jurisdiction and failure to state a claim pursuant to Federal Rules of Civil Procedure.
The sheriff’s office is accused of numerous violations, including excessive force, gross negligence, malicious prosecution, unlawful detention, trespass and more. Some members have fewer charges depending on their position and role at the time of the incident.
The lawyer argues that the sheriff’s office is a non-suable entity. “In North Carolina, it is well established that ‘unless a statute provides to the contrary, only persons in being can be sued,’ ” he argues.
According to a declaration submitted by Cherokee County finance director Candace Anderson, the sheriff’s officer personnel, sued in their official capacities, are entitled to governmental immunity, he said.
As for sheriff’s office personnel individually named, Queen, Stiles, Gray, Hall and Latulipe are listed in the lawsuit without any allegations that they were on the property at the time, he said. Fry allegedly took out the warrant against Kloepfer, but there was no allegation that he was even on the scene.
Kloepfer and Mahler’s lawyers also failed to prove the court has jurisdiction in the case, he said.
The Cherokee Tribal Police Department, except for three of its members, is represented by Charlotte-based attorneys Jake Stewart and Patrick Flanagan of Cranfill Sumner LLP. Their arguments for dismissal are similar to those made by attorneys for the sheriff’s office and, in addition to asking for charges to be dismissed, want to be compensated for costs in defending the case.
That leaves the three tribal police who are represented by their own attorneys, Adam Peoples and Cameron Nieters of Asheville-based Hall Booth Smith, P.C. Their clients are defendants Ferguson, Messer and
Harris.
They claimed immunity and said they saw what looked to be a weapon in Kloepfer’s hand. If they had any negligence, it “was passive and secondary,” they said.
“In the event it is determined that these defendants are in any way liable to the Plaintiffs, which has been and is once again denied, it is alleged that the Co-Defendants were negligent, and that Co-Defendants’ negligence was active and primary and the true cause of any damages or injuries sustained by the Plaintiffs,” their attorneys argued.