Federal judge rules on whether WNC man shot shot by EBCI police can continue lawsuit
ASHEVILLE - A Cherokee County man's lawsuit against police who shot him in his home with his hands up can proceed, a federal judge said.
Seventeen defendants, including Cherokee County Sheriff Dustin Smith, the Eastern Band of Cherokee Indians tribal Police Chief Carla Neadeau and officers who Jason Kloepfer said shot him Dec. 13, 2022, inflicting serious injuries, had filed motions calling for Kloepfer's suit to be dismissed.
But Judge Max Cogburn ruled earlier this month the suit, filed June 20, could continue, though parts of the case would be dismissed. Dismissals included all claims against sheriff's department attorney Daryl Brown and the sheriff's department as a whole ― though the sheriff and individual deputies remain defendants, Coburn said in his Dec. 4 ruling in U.S. District Court for the Western District of North Carolina in Asheville.
"As to the punitive damages claim against defendants in their individual capacities, the court denies the motion to dismiss because the court is allowing some substantive claims to go forward," Cogburn said.
Kloepfer's attorney Ellis Boyle in Dec. 12 comments to the Citizen Times noted that aspect of the ruling, which could allow Kloepfer to seek a potentially large sum of money.
"The punitive damages survived. I think that was consequential," Boyle said.
Kloepfer, 44, has not yet stated how much he is seeking, but some similar claims have reached millions of dollars. In 2019 a federal jury in Raleigh awarded Mike Morgan of Apex $8.3 million after he was beaten and shot by Wake County sheriff's deputies on his property.
The Citizen Times reached out Dec. 12 to attorneys for the defendants.
The next phase of the trial will be discovery, the formal requests for exchange of information between the attorneys. No date has yet been set.
Deputies were called last year by a neighbor about a loud disturbance at Kloepfer's home outside Murphy. They had received calls multiple times before about disturbances there. But in this instance, deputies said they determined there was a potential hostage situation. Though Kloepfer lives outside the Cherokee tribal area, Cherokee County deputies called the tribal police's SWAT team for assistance.
Kloepfer said he was struck at least twice and nearly died after three tribal officers ― Lt. Neil Ferguson, Special Operations Officer Nathan Messer and Patrol Officer Chris Harris ― shot "about 15 times."
He was initially charged with communicating threats and resisting a public officer. But after returning from the hospital, Kloepfer posted in-home security video of him standing with his hands up in the doorway next to his wife Alison Mahler as police opened fire. District Attorney Ashley Hornsby Welch dismissed the charges.
Welch recused herself in the 11-month criminal probe against police which was finished in November by the State Bureau of Investigation and is still being reviewed by Special prosecutor Lance Sigmon, N.C. Conference of District Attorneys Director Kimberly Spahos told the Citizen Times Dec. 12.
More: Cherokee police who shot man at home say sheriff, other defendants negligent
EBCI Chief signs law making Cherokee Indian Police bodycam videos not open to public
Joel Burgess has lived in WNC for more than 20 years, covering politics, government and other news. He's written award-winning stories on topics ranging from gerrymandering to police use of force. Got a tip? Contact Burgess at jburgess@citizentimes.com, 828-713-1095 or on Twitter @AVLreporter. Please help support this type of journalism with a subscription to the Citizen Times.
This article originally appeared on Asheville Citizen Times: Western NC man's suit not dismissed; video shows police shoot him
