UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 18-1742

TAMARA EPPERSON; JAMES EPPERSON; MASON N. EPPERSON; KYLE EPPERSON,

Plaintiffs - Appellees,

v.

DAN SMITH, The Sheriff of Patrick County; ROB COLEMAN, a lieutenant for Patrick County Sheriff Dan Smith,

Defendants - Appellants,

v.

BRIAN HUBBARD, an investigator for Patrick County Sheriff Dan Smith; DANNY MARTIN, an investigator for Patrick County Sheriff Dan Smith; TERRY MIKELS, an investigator for Patrick County Sheriff Dan Smith; STEPHANIE BRINEGAR- VIPPERMAN, The Commonwealth’s Attorney for Patrick County; CALVIN L. COTTON PAYNE; VICKIE PAYNE,

Defendants.

Appeal from the United States District Court for the Western District of Virginia, at Danville. Jackson L. Kiser, Senior District Judge. (4:16-cv-00050-JLK-RSB)

Submitted: September 30, 2020 Decided: November 10, 2020

Before NIEMEYER, DIAZ, and QUATTLEBAUM, Circuit Judges. Affirmed in part, dismissed in part, vacated in part, and remanded by unpublished per curiam opinion.

Jim H. Guynn, Jr., Julian F. Harf, GUYNN, WADDELL, CARROLL & LOCKABY, P.C., Salem, Virginia, for Appellants. Melvin E. Williams, Meghan A. Strickler, MEL WILLIAMS PLC, Roanoke, Virginia, for Appellees.

Unpublished opinions are not binding precedent in this circuit.

2 PER CURIAM:

James and Tamara Epperson and their children filed an action, pursuant to

, for violation of their constitutional rights and state law after Patrick County,

Virginia, law enforcement officers entered a property the Eppersons occupied, searched

the premises, arrested James, handcuffed his son, and dispossessed the Eppersons of their

home and personal belongings. As pertinent on appeal, the Eppersons specifically alleged

that Dan Smith, the Sheriff for Patrick County, Virginia, and Lieutenant Rob Coleman

(1) ordered officers to initiate the taking of the Eppersons’ house and personal property

without due process (Count 1), and (2) violated the Eppersons’ right against unreasonable

searches and seizures by directing officers to search the home and arrest any occupants

(Count 2). Smith and Coleman moved for summary judgment, asserting that they were

entitled to qualified immunity, but the district court partially denied their motion as to

Count 1, with respect to the Eppersons’ house, and Count 2.

Smith and Coleman appeal the denial of qualified immunity, raising three

arguments. First, Smith and Coleman claim that the district court erroneously found that

it was for a jury to determine who altered the Commonwealth Attorney’s guidance and

why, as there was no appreciable difference between the guidance received and the

directives Smith and Coleman gave to the officers. Second, Smith and Coleman assert that

it is a question of law, not one of fact, whether they made a reasonable mistake when

instructing the officers because the qualified immunity determination depends on this

finding. In their final argument, Smith and Coleman contend that it was not clearly

3 established under Virginia law that the Eppersons had a cognizable property interest in the

home after it was sold at a foreclosure auction.

I

The Eppersons move to dismiss the appeal. The Eppersons argue that this court

lacks jurisdiction to review Smith’s and Coleman’s arguments because they involve a

disputed material fact, namely who altered the Commonwealth Attorney’s advice and what

was the purpose in doing so. We may exercise jurisdiction only over final decisions,

, and certain interlocutory and collateral orders,

; Fed. R.

Civ. P. 54(b); Cohen v. Beneficial Indus. Loan Corp.,

(1949). “[A] district

court’s order denying summary judgment based on qualified immunity [can be]

immediately appeal[ed] under the collateral order doctrine.” Yates v. Terry,

(4th Cir. 2016). But, not all orders denying claims for qualified immunity at the

summary judgment stage are immediately appealable.

We have jurisdiction over an

appeal from the denial of qualified immunity at the summary judgment stage only if that

appeal “turns on an issue of law.”

(emphasis and internal quotation marks omitted).

Consequently, “when a district court denies a claim of qualified immunity based on the

insufficiency of the facts then that determination is not immediately appealable.”

(citing

Johnson v. Jones,

(1995)). Thus,

We possess no jurisdiction over a claim that a plaintiff has not presented enough evidence to prove that the plaintiff’s version of the events actually occurred, but we have jurisdiction over a claim that there was no violation of clearly established law accepting the facts as the district court viewed them.

4 Winfield v. Bass,

, 530 (4th Cir. 1997) (en banc); see Cooper v. Sheehan,

, 157 n.8 (4th Cir. 2013) (“As long as the appellants do not argue the sufficiency

or validity of the facts on appeal, but rather . . . seek to apply clearly established law to a

given set of facts, we are properly vested with jurisdiction.”); Iko v. Shreve,

(4th Cir. 2008) (discussing analysis of qualified immunity on appeal).

Here, the district court made both findings of fact and conclusions of law. Factually,

the court determined that summary judgment was inappropriate on Count 1, with respect

to the Eppersons’ house, and Count 2 because the evidence was unclear as to who altered

the Commonwealth Attorney’s advice and why. The court concluded, as a matter of law,

that the rights protecting the Eppersons’ interests were clearly established and that a jury

would need to determine whether the alteration of the Commonwealth Attorney’s advice

was purposeful or a reasonable mistake. As such, we have jurisdiction to review those

issues. Additionally, we lack jurisdiction to decide whether the alteration of the

Commonwealth Attorney’s advice was reasonable because such a determination would

require us to resolve the threshold factual question of whether there was an appreciable

difference between the advice received and the direction given before reaching a legal

question of reasonableness. Accordingly, we grant in part the Eppersons’ motion to

dismiss Smith’s and Coleman’s interlocutory appeal as to the reasonableness of any

alteration to Commonwealth Attorney’s advice and deny in part the motion to dismiss with

respect to Smith’s and Coleman’s due process and jury-question claims.

5 II

Turning to Smith and Coleman’s jury-question claim, “[w]e review de novo a

district court’s grant or denial of a motion for summary judgment, construing all facts and

reasonable inferences therefrom in favor of the nonmoving party.” Gen. Ins. Co. of Am. v.

U.S. Fire Ins. Co.,

(4th Cir. 2018). A moving party is entitled to

summary judgment if “there is no genuine dispute as to any material fact and the movant

is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “Credibility

determinations, the weighing of the evidence, and the drawing of legitimate inferences

from the facts are jury functions, not those of a judge . . . ruling on a motion for summary

judgment.” Anderson v. Liberty Lobby, Inc.,

(1986).

Smith and Coleman argue that the district court was obligated to determine whether

any alteration of Commonwealth Attorney’s advice was deliberate or a reasonable mistake,

rather than reserving that question for the jury. However, determining who altered the

pertinent advice and the person’s purpose, or lack thereof, in doing so would require a

factfinder to make credibility determinations and draw legitimate inferences from the facts

presented. Furthermore, as the district court explained, the question of who altered the

advice and why is outcome-determinative because the person who altered the advice would

be entitled to qualified immunity if the alteration was a reasonable mistake. Accordingly,

we affirm the court’s order as it pertains to which matters are reserved for the jury.

III

“To prevail on a procedural due process claim, [the Eppersons] must show (1) a

cognizable liberty or property interest; (2) the deprivation of that interest by some form of

6 state action; and (3) that the procedures employed were constitutionally inadequate.”

Accident, Inj. & Rehab., PC v. Azar,

(4th Cir. 2019). The district court

relied on Minnesota v. Olson,

(1990) (“conclud[ing] . . . that

[respondent’s] status as an overnight guest is alone enough to show that he had an

expectation of privacy in the home that society is prepared to recognize as reasonable”), to

conclude that the Eppersons had a cognizable interest in their recently sold home. The

court specifically reasoned that, when the Eppersons received permission from the new

homeowner to remain in the home for an additional day, the Eppersons retained, to some

extent, a property interest in the home.

This court has held, however, that courts determine the scope of a plaintiff’s

property interest not by reference to the Constitution, but by looking to other sources, such

as state law. Rockville Cars, LLC v. City of Rockville, Maryland,

(4th

Cir. 2018). The Eppersons’ reasonable expectation of privacy in the home for Fourth

Amendment purposes under Olson is therefore immaterial to the due process inquiry. We

must look instead to Virginia law, which is inconsistent with the district court’s ruling. See

McLaughlin v. Commonwealth,

(Va. App. 2015) (a person “can have

control and access to the premises without having a property interest in the house”).

Indeed, “[o]nce the auctioneer’s hammer falls and he signs a memorandum of sale, the

[d]ebtor no longer possesses a legal or equitable interest in the property.” City of Roanoke

v. Whitlow,

(Bankr. W.D. Va. 2009). Even if the auction sale “fails due

to the buyer’s default or other cause, the owner’s rights are in effect reinstated and become

property of the [bankruptcy] estate, but if the sale closes, the debtor’s rights are

7 irretrievably gone.”

As the Eppersons’ property rights were extinguished once their

home was sold at the foreclosure auction, we conclude that their due process claim could

not survive summary judgment. Accordingly, we vacate the district court’s order with

respect to the Eppersons’ due process claim and remand for further proceedings.

We dispense with oral argument because the facts and legal contentions are

adequately presented in the materials before this court and argument would not aid the

decisional process.

AFFIRMED IN PART, DISMISSED IN PART, VACATED IN PART, AND REMANDED

8