Patrick County Sheriff Dan Smith and Lt. Rob Coleman appealed a May, 2018 decision by U.S. District Court Judge Jackson L. Kiser that a jury trial is needed in a civil case.

Initially filed in October 2016, the civil suit alleges violations of the due process clause, supervisory liability, unlawful eviction, trespass and conversion of certain property.

A statement of facts contained in a Memorandum Opinion written by Kiser stated that either Smith or Coleman “altered the advice given by the Commonwealth Attorney and instructed deputies under their command to enter a home in derogation of plaintiffs’ rights.

“A jury must determine who made that fateful decision and why,” Kiser wrote in a memorandum that was in answer to motions to dismiss filed by several of the defendants.

In addition to Smith and Coleman, the suit also named Commonwealth’s Attorney Stephanie Brinegar-Vipperman, Patrick sheriff’s deputies Brian Hubbard, Danny Martin and Terry Mickels; and two local residents Calvin “Cotton” and Vickie Payne.

Kiser dismissed several from the suit, including Brinegar-Vipperman and three sheriff’s deputies, records showed.

Tamara and James Epperson and others filed the suit which states that the Eppersons owned and lived in a home in Ararat for more than 20 years.

The Paynes bought the home at a foreclosure sale on October 19, 2015, and after the purchase, signed a contract with the trustee that stated the Eppersons would vacate the property by November 19, 2015, according to court documents.

After the sale, the suit alleges Vickie Payne and James Epperson engaged in “an amicable conversation,” and agreed they would at some point in the suture finalize a date for the Epperson family to vacate the home.

Vickie Payne called Smith after that conversation and told Smith she had bought the property on the courthouse steps and was worried someone might steal or damage a generator on the property. She asked Smith whether she could get into the house, Kiser wrote in the 30-page memorandum.

Smith told Payne that he did not know and would consult with Brinegar-Vipperman, Kiser wrote, adding that Smith “did no independent investigation to confirm anything Vickie Payne told him.”

When Smith called Brinegar-Vipperman, he relayed what Vickie Payne had told him, Kiser wrote. Brinegar-Vipperman advised Smith that the house belonged to the Paynes and that they could go in.

Brinegar-Vipperman “recalls assuming that the bank ‘had done the writ’ of possession on the property” and understood Smith to be asking whether deputies could go to the home with the Paynes “just to be the peacemaker,” Kiser wrote.

When Smith called Vickie Payne to relay Brinegar-Vipperman’s advice, she asked if a deputy could go with her to access the property, according to court documents. Smith agreed and called Deputy Dustin Foley and directed him to assist Vickie Payne. Foley said Smith told him “the commonwealth attorney said for him to go up there and pretty much gain access to the house,” according to Kiser’s opinion.

Although Payne said she wanted to wait until the next day, the Paynes went with Foley to the property that night around 10:30 p.m., according to court documents, which stated that “they knocked on the doors and windows, no one answered” and they decided to return the next day.

Around 6 a.m. on Oct. 20, Foley called Coleman, who then talked to Smith, according to Kiser. Smith told Coleman that he talked to Vipperman and that “the Paynes had every right to be there on the property and that we could go with them to make sure that there was nobody else on the property,” according to court documents.

Around 8:30 a.m., Coleman and Deputy Lewis Carroll met at the home and attempted to gain entry. They were unsuccessful and were due in court at 9:30 a.m. As a result, Coleman called Hubbard and asked him to bring breaching tools to the property, according to Kiser’s memorandum.

Coleman met with Hubbard and Mikels at the Ararat Volunteer Fire Department. He also spoke to Martin on the radio, according to court documents.

The officers then went to the property, and according to the facts presented in the case, James Epperson heard a commotion near the garage of the home as he had done the night before. He feared that whoever had been on the property the night before had returned, court records stated.

Armed with a shotgun, he went to the garage to investigate. There, court documents stated that Epperson saw about five people in the garage or near the exterior door to the garage, including Hubbard, Martin, Mikels and the Paynes.

The investigators ordered Epperson to put down the gun, according to the suit. Epperson complied and was then placed in handcuffs and patted down. His keys were removed from his pockets and given to the Paynes, according to court records.

After learning an underage family member was in the home, deputies allegedly donned tactical gear/body armor and proceeded to search the home, documents stated.

Law enforcement officers told James Epperson the home no longer belonged to him and that he was no longer permitted to enter or be in the home. The Paynes were permitted to go enter the home, court documents stated.

Warrants were obtained for James Epperson, charging him with three counts of brandishing a firearm, according to court documents. A condition of his bond required him to “refrain from going on the premises” of the Ararat home, court documents stated.

At a Jan. 12, 2016 hearing in Patrick County General District Court, Brinegar-Vipperman opted to not prosecute the charges against James Epperson, according to court documents.

On the copy of her arrest warrant, Bringer-Vipperman wrote “Bank hadn’t completed foreclosure so (Epperson) had legal right to be there and police didn’t,” according to court records.

The Eppersons were permitted to retrieve personal property from the home on three or four occasions, but they were not permitted to take various items that included clothing, furniture, tools and other items, valued cumulatively at thousands of dollars, according to court records.

The suit seeks compensatory and punitive damages, payment of attorney’s fees and other relief the court deems appropriate.

In addition to Brinegar-Vipperman, Martin, Mikels and Hubbard were dismissed from certain portions of the suit because they were acting on the direction of their supervisors, according to court documents.

However, they “cannot rely on the directions of their superiors to justify their actions” when converting property or exerting dominion of the property, Kiser wrote.

“We feel that our officers acted with the best intentions based on the information we had at the time,” Smith said.

He added that the sheriff’s office is being represented by the Division of Risk Management, a state agency, at no cost to the county.

Smith said “it is not uncommon for lawsuits to be filed against law enforcement agencies due to the high liability of the job.”

He declined to comment further.

The Epperson’s attorney, Melvin E. Williams of Mel Williams PLC in Roanoke, could not immediately be reached for comment.

Another suit, filed by Brian Clark which alleges his civil rights were violated, is set for a jury trial on July 15-17 in Danville, in the U.S. District Court for the Western District of Virginia, records showed.