Bear Paw – If taken at face value, answers to a lawsuit filed by an Upper Bear Paw Road couple targeted by a SWAT raid in December 2022 reveal that just three members of the SWAT team actually fired their weapons.
In addition, the three SWAT team members say Cherokee County Sheriff Dustin Smith, whose deputies called for help from the Cherokee Tribal Police SWAT team, was at a briefing before the raid and was at the raid as it took place. The three also say the SWAT team was not under Smith’s command.
The federal lawsuit was filed in Asheville by Jason Harley Kloepfer and his partner, Alison Mahler, against the Cherokee County Sheriff’s Office and many of its officers, then-sheriff’s office attorney Darryl Brown, Ohio Casualty Insurance Co., the Eastern Band of Cherokee Indians and numerous members of the Cherokee Tribal Police, including Police Chief Carla Neadeau and SWAT team members.
The three SWAT team members who actually fired their weapons are represented by a separate legal team from the remainder of the EBCI defendants in the case. They are Nathan Messer, Neil Ferguson and Chris Harris.
The three say if they are in any way found liable, which they deny, it is because co-defendants were negligent, and their negligence was active and primary and the true cause of any damages or injuries.
Messer was a special operations and SWAT team member, Ferguson was a patrol lieutenant and SWAT team member, and Harris was a patrol officer and SWAT team member. All three were members of the Eastern Band of Cherokee Indians police force.
Between their answers and those submitted by remaining tribal police named in the lawsuit, details emerge from law enforcement’s side of the story.
The tribal police members who deny firing their weapons are Eastern Band of Cherokee Indians Police Chief Carla Neadeau, Joshua Taylor, Roger Neadeau Jr., Scott Buttery, Jesse Ramirez, Jeff Smith, Dustin Wolfe, Cody McKinney and Andrew Sampson.
Scott Buttery was tribal SWAT commander at the time. Cody McKinney was a detective, Jeff Smith was a special operations sergeant, Nathan Messer was a special operations and SWAT team member, Andrew Sampson was a special operations and SWAT team member, and Chris Harris was a patrol officer and SWAT team member.
In their answers to the lawsuit, they admit that a neighbor called 911 around 11 p.m. Dec. 12, 2022, and that three Cherokee County sheriff’s deputies responded.
The neighbor reported a disturbance at Kloepfer’s property, including fireworks, gunfire and shouted threats. The deputies who responded to the initial call were unable to make contact with occupants of a travel trailer they found on the property.
The Cherokee County 911 dispatcher called tribal police to request that they send the SWAT team to assist the sheriff’s office in the early morning hours of Dec. 13, 2022. Buttery received the call.
They said when Cherokee County sheriff’s Lt. Milton Teasdale briefed SWAT team members, Sheriff Smith was present. They said SWAT team members were told that a neighbor reported there were shots fired on the neighboring property, and that an individual may have been barricaded inside with a hostage. SWAT team members were informed that Kloepfer had a criminal history and was making threats against police officers.
They said Buttery assumed control over all SWAT team officers. Law enforcement announced their presence on multiple occasions before the SWAT team approached the property.
They said once the SWAT team was in position, a member walked up to the door of the travel trailer and tossed a surveillance drone into the home without knocking. The drone had wheels, a flashlight and a camera that sent real-time video footage from inside the home to the SWAT team outside.
They said a SWAT team member actively monitored a screen that showed real-time video footage from the drone transmitted from inside the home to the screen outside. SWAT team members wore intercom devices, which included ear pieces and a microphone.
They said Cherokee County sheriff’s Sgt. Dennis Dore was on the PA system and issuing instructions to Kloepfer. Dore was not a member of the SWAT team.
The original complaint alleges that SWAT team members monitoring the drone video saw Kloepfer sit on the edge of the bed, pull on his shoes, light a cigarette and walk through the home to the front door after picking up the drone.
Filings admit some SWAT team members saw Kloepfer’s actions on the surveillance video, and a SWAT team member described some of the actions taken by Kloepfer over the microphone, but denied that all members heard the description.
They admitted Kloepfer opened the front door of his home and walked outside with his hands up and out in front of him and Mahler was standing behind him. Except for Messer, Ferguson and Harris, all remaining tribal police defendants denied firing any shots at Kloepfer or Mahler.
Two bullets struck Kloepfer. One bullet struck his chest, while the other struck his arm above his elbow.
Kloepfer fell backward after being struck by the bullets. Kloepfer and Mahler were yelling after the shooting.
SWAT team members performed a cursory sweep of the home, and one of them said to get to work on Kloepfer’s injuries. A SWAT team member dragged Kloepfer down the ramp from his doorway outside so they could provide emergency aid.
SWAT team members came to learn there was a camera inside Kloepfer’s home. Meanwhile, Emergency Medical Services took Kloepfer to a medical center in Chattanooga, Tenn., by ambulance.
The Eastern Band of Cherokee Indians Police Department exercised its right to not voluntarily produce some requested information prior to the filing of the lawsuit.
The shooters
Messer admits that on Dec. 13, 2022, he was a tribal special operations and SWAT team member. He was not a resident of the Cherokee reservation.
Harris admits he was a tribal patrol officer and SWAT member. He was also not a resident of the Cherokee reservation.
Ferguson admits he was a tribal patrol lieutenant and SWAT member. He was a resident of the Cherokee reservation.
They admit they met with Sheriff Smith at the Cherokee County Sheriff’s Office prior to the SWAT’s deployment on Dec. 13, 2022.
They admit they were informed of a situation requiring SWAT involvement prior to deployment on Dec. 13, 2022, by Teasdale and Sheriff Smith at the sheriff’s office in Murphy.
The three admit they assembled with the SWAT team at a church off of N.C. 294 near Kloepfer’s property. They said Teasdale and Sheriff Smith were present at the church as well as Kloepfer’s property, but deny that the two rode in the same vehicle as SWAT members.
The three said Cherokee County Sheriff’s Office personnel had knocked and announced their presence and purpose prior to SWAT arrival. They said their presence and purpose was also announced on a PA system while the three were present at the property.
Messer and Harris admit they were wearing intercom devices, which included earpieces and a microphone connected to the inside of their helmets. Messer and Harris also admit that certain transmissions by other SWAT team members were passed via the intercom device.
They deny direct observation of the drone robot video footage. The three do admit that they observed Kloepfer emerge from the interior of the property appearing to hold a weapon in his right hand.
They admitted that Ferguson, Harris, and Messer discharged their respective firearms when they observed Kloepfer emerge from the interior of the property appearing to hold a weapon in his right hand.
They said that after they discharged their weapons, from their perspectives, it looked as though Kloepfer went back into the camper to take up a secure position inside. Ferguson admits that, consistent with his training, he continued to discharge his firearm after it appeared that Kloepfer went back into the camper to take up a secure position inside.
Messer admits he removed Kloepfer from the camper so SWAT members and EMS personnel could immediately begin administering medical assistance to him.
They expressly deny allegations that they shot “an unarmed man for no reason and without legal justification” and that Kloepfer was “gunned down by the SWAT team.”
They admit that they returned to the Cherokee County Sheriff’s Office building in Murphy after leaving Kloepfer’s property on Dec. 13, 2022. Ferguson, although a patrol lieutenant, expressly denied he was acting in a supervisory role on Dec. 13, 2022.
Cherokee County Sheriff’s Office
In a partial motion to dismiss, lawyers for sheriff’s office defendants provided additional details.
They said that on Dec. 12, 2022, Kloepfer’s neighbor called 911 and stated that Kloepfer was shooting off fireworks and yelling that he was going to kill the entire neighborhood. The neighbor also said Kloepfer fired 10 rounds from a gun.
The neighbor also reported that Kloepfer and his girlfriend, Alison Mahler, were arguing. After the gunshots were fired, the neighbor did not hear anyone argue.
Sheriff’s Deputies Dore, Adam Erickson and Cody Williams were dispatched to the scene and arrived around 11:18 p.m. The deputies knocked on the door around 11:20 p.m. and several other times, without announcing the purpose of their visit, but did not receive a response.
At 11:55 p.m., Dore, Erickson and Williams contacted sheriff’s Lt. Mitch Morgan about their observations. Shortly thereafter, Dore began obstructing surveillance cameras on the property by “bagging” them with cloth.
At 11:58 p.m., Morgan informed dispatch that the subject was barricaded and requested that the tribal SWAT team be called. Morgan also requested that the dispatcher contact the on-call investigator to start a search warrant “to justify CCSD presence” on Kloepfer’s property.
Sheriff’s Capt. David Williams contacted Sheriff Smith and asked if they should get the tribal SWAT team to assist. Smith agreed.
Sheriff’s Lt. Drew Payne arrived at the scene at 12:45 a.m., while Morgan arrived at 1:03 a.m. SWAT team commander Buttery was contacted at 12:33 a.m.
Buttery contacted dispatch around 1:03 a.m. to discuss getting a new Mutual Aid Agreement (“MAA”) signed between tribal police and the sheriff’s office. This agreement allows cooperation between law enforcement agencies in different jurisdictions.
At 1:09 a.m., Capt. Williams arrived at the scene. Morgan instructed Erickson to walk to the neighbor’s house to verify her accusations.
The neighbor played video she recorded earlier for Erickson around 2 a.m. Plaintiffs contend that this video showed that the neighbor’s initial story – that Kloepfer threatened to kill his neighbors, and shots had been fired – was false. However, after Erickson viewed the video, Teasdale applied for a search warrant to search Kloepfer’s property to see if anyone was injured.
Teasdale’s affidavit in support of his search warrant was based upon allegedly false information that Kloepfer was threatening his neighbors. Around 3 a.m., Sheriff Smith and tribal police officer Roger Neadeau Jr. executed the Mutual Aid Agreement.
The tribal SWAT team arrived at the scene and tossed a drone robot through the door of the home at 4:54 a.m. At 4:57 a.m., the robot woke up Kloepfer and Mahler, who could hear Dore instructing Kloepfer to come out his house with his hands up.
Kloepfer picked up the drone, lit a cigarette and opened the door, at which time tribal SWAT officers Messer, Harris and Ferguson fired 15 shots, including two that struck Kloepfer. Mahler was not hit.
Sheriff’s deputies yelled at Mahler to walk down the ramp, where they handcuffed her and put her in the back of a patrol vehicle. Mahler was transported to the sheriff’s office, where she was kept for hours in a small room under locked guard.
After answering questions, she was released several hours later.
After the shooting, Teasdale and Dore entered the home. Teasdale dropped the search warrant on the table and stated “search warrant.”
Sheriff Smith issued a press release that he was not present at the scene, and that Kloepfer argued with officers prior to the shooting. After the shooting, deputies charged Kloepfer with communicating threats and resisting a public officer. Both charges were dismissed on March 1.
On Jan. 18, Kloepfer released videos from this home surveillance camera that showed that sheriff’s and tribal police statements were allegedly false.
After the release of this video, Sheriff Smith issued a new release, saying the initial press release relied upon the information from tribal police.