DA says two officers justified in fatal shooting; News-Capital pursuing records

Mar. 2—A district attorney said two police officers who fatally shot a McAlester man in January "were justified in their use of deadly force," but he lacked jurisdiction to make a decision regarding a third officer involved.

District 18 District Attorney Chuck Sullivan announced Wednesday that McAlester Police Officer Eli Copeland and Krebs Police Officer Corey Cantrell were justified in the Jan. 14, 2023, fatal shooting of James Klembara at a residence in McAlester. Sullivan said he would not pursue charges against the two officers.

"Officers repeatedly attempted to de-escalate the situation by non-lethal means," Sullivan wrote. "Sadly, the incident evolved to where that was no longer possible and the officers were justified in their use of deadly force."

Sullivan said he did not make a decision regarding McAlester Police Officer Joseph Barlow, the third officer involved in the shooting, due to his Native American status.

The U.S. Supreme Court's July 2020 in McGirt v. Oklahoma declared Congress never disestablished the Muscogee (Creek) Nation Reservation and a subsequent ruling applied the analysis to the remaining Five Tribes and the Quapaw Nation. The decision meant Oklahoma lost criminal jurisdiction over Native Americans in what is defined by federal statute as "Indian Country."

The U.S. Attorney's Office for the Eastern District of Oklahoma did not respond to request for comment.

McAlester Police Chief Kevin Hearod said Copeland will remain on administrative leave until a mental health professional clears him to return to active duty, as per the department's policy.

Hearod said U.S. Attorney Christopher Wilson told a decision on Barlow could come as soon as next week.

Krebs Police Chief Dennis Cook was not available for comment Wednesday.

RECORDS REQUESTS

The McAlester News-Capital requested all body camera footage and relevant reports from the shooting on Jan. 16 from the McAlester and Krebs Police Departments.

An official with the Krebs Police Department said they would "pass it on" to the Oklahoma State Bureau of Investigation.

The city of McAlester acknowledged receipt of the request the same day before denying the request two days later.

"At this time, no information in this incident may be released, due to the ongoing investigation," a city of McAlester representative said in an email.

51 O.S. 24 A.20 also states Open Records Access "shall not be denied because a public body or public official is using or has taken possession of such records for investigatory purposes or has placed the records in a litigation or investigation file."

Sullivan also filed on Jan. 18 a motion to quash the News Capital's open record request.

Legal representatives for the News-Capital filed a response to Sullivan's motion, stating the attempt was a "'nullity' and not a valid use of the phrase in any event."

Sullivan withdrew the motion during a Jan. 20 court hearing.

The News-Capital's legal counsel sent a follow-up letter to city of McAlester on Feb. 13 — stating no statue was cited by the city in its denial and that the city was "obligated to provide the requested information, even if the requested video is redacted" as permitted by state law.

City officials did not respond.

A city representative said in a Wednesday email an assistant for the city's attorney was reviewing the records. State law permits the redaction of personal information and any images or video that depicts a dead body.

The News-Capital did not receive any of the requested records at press time Wednesday.

"It is still our contention that these records should be made available to the public so we are bewildered and disappointed that any agency would still deny our Open Records Act request," MN-C Editor Adrian O'Hanlon III said. "We understand and maintain that investigations and the legal process must be fair and accurate. But Oklahoma law clearly states public records shall not be denied because they're part of an investigation file. We have taken several steps to gain access and we will continue pursuing these records for the public's benefit in knowing what happened when government took a person's life."

DECISION

Sullivan said he made the decision after reviewing footage from police body cameras and an OSBI report.

McAlester and Krebs Police Departments requested assistance from the OSBI to investigate the shooting, and the FBI requested the OSBI lead the federal investigation.

Sullivan's Wednesday press release stated dispatchers received a 911 call for a welfare check after Klembara "had been shooting up his home with a rifle."

An audio recording the News-Capital obtained through Broadcastify states officers were dispatched to the residence to conduct a welfare check on Klembara.

"Unknown weapons; he is sober. His mother is saying he is having a mental breakdown," a dispatcher told officers.

An officer requested another unit to assist because "he is not too fond of us," according to the audio. Dispatch then called for a Krebs unit to assist. A second McAlester unit told dispatch moments later he would take over for the Krebs officer. The Krebs officer then said he would continue on to the call.

Sullivan's report states the three officers arrived and found Klembara "in a highly agitated state" and he was "extremely non-cooperative and verbally abusive with the officers."

"Within a few moments of encountering Mr. Klembara, the officers discovered that he was holding a rifle in his right hand," Sullivan wrote.

The Krebs officer told dispatchers they had "one at gunpoint in the door" and dispatchers requested all available units to respond to the residence, according to the audio.

Sullivan wrote that officers tried to get Klembara to put down the rifle and speak with them, but he refused and fired his rifle into the ground.

"Shots fired, shots fired. He shot as us," officers told dispatchers about 30 seconds later, according to the audio.

An officer told dispatch additional shots were fired with "one down" and requested an ambulance.

"Unfortunately, Mr. Klembara continued to escalate, raised his rifle with his right hand, grabbed the foregrip with his left hand and pointed the rifle at the officers," Sullivan wrote.

Sullivan said all three officers fired at Klembara.

He wrote the officers made "life-saving efforts" and called medics after the scene was secured.

Audio shows medics arrived at the scene about three minutes later with Klembara transported to the McAlester Regional Health Center, where he was pronounced dead.