Manuel Pena v. Jeffrey Porter

Filing 920090313

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 07-1768

MANUEL PENA, Plaintiff - Appellee, v. JEFFREY RAY PORTER; JAMES BENNETT BARBOUR; JASON BARNES; THE TOWN OF CLAYTON, The Town of Clayton, NC, Defendants ­ Appellants. -------------------AMERICAN CIVIL LIBERTIES FOUNDATION, INCORPORATED, UNION OF NORTH CAROLINA LEGAL GLENN

Amicus Supporting Appellee.

No. 07-1891

MANUEL PENA, Plaintiff - Appellant, v. JEFFREY RAY PORTER; JAMES BENNETT BARBOUR; JASON BARNES; THE TOWN OF CLAYTON, The Town of Clayton, NC, Defendants ­ Appellees. -------------------GLENN

AMERICAN CIVIL LIBERTIES FOUNDATION, INCORPORATED,

UNION

OF

NORTH

CAROLINA

LEGAL

Amicus Supporting Appellant.

Appeals from the United States District Court for the Eastern District of North Carolina, at Raleigh. W. Earl Britt, Senior District Judge. (5:04-cv-00970-BR)

Argued:

September 24, 2008

Decided:

March 13, 2009

Before MICHAEL and TRAXLER, Circuit Judges, and Richard L. VOORHEES, United States District Judge for the Western District of North Carolina, sitting by designation.

Affirmed in part, reversed in part, dismissed in part without prejudice, and remanded by unpublished opinion. Judge Voorhees wrote the opinion, in which Judge Michael and Judge Traxler joined.

ARGUED: Dan McCord Hartzog, CRANFILL, SUMNER & HARTZOG, L.L.P., Raleigh, North Carolina, for Appellants/Cross-Appellees. Douglas Everette Kingsbery, THARRINGTON SMITH, L.L.P., Raleigh, North Carolina, for Appellee/Cross-Appellant. ON BRIEF: Kari R. Johnson, CRANFILL, SUMNER & HARTZOG, L.L.P., Raleigh, North Carolina; Brian E. Edes, CROSSLEY, MCINTOSH & COLLIER, Wilmington, North Carolina, for Appellants/Cross-Appellees. Wade M. Smith, Denise Walker, THARRINGTON SMITH, L.L.P., Raleigh, North Carolina, for Appellee/Cross-Appellant. Katherine Lewis Parker, Legal Director, AMERICAN CIVIL LIBERTIES UNION OF NORTH CAROLINA LEGAL FOUNDATION, INCORPORATED, Raleigh, North Carolina, for Amicus Supporting Appellee/Cross-Appellant.

Unpublished opinions are not binding precedent in this circuit.

2

VOORHEES, District Judge: This case stems from a police shooting. Plaintiff filed

suit in federal district court alleging, inter alia, excessive force, illegal search of his curtilage, racial discrimination in both the search of his curtilage and the use of force, and various state law claims. The district court issued an order

granting summary judgment in part to both sides and granting and denying qualified immunity in part, and each side now appeals certain aspects of this decision. we affirm in part, reverse in For the reasons stated below, part, and remand for further

proceedings consistent with this opinion.

I. Around 10:00 p.m. on a cold February 2, 2004, two probation officers attempted for to arrest Rudolpho Gonzales After (hereinafter the probation

"Gonzales")

probation

violations.

officers handcuffed Gonzales, he escaped by simply running away. Unable to find him, the probation officers called the Clayton, North Carolina Police Department for assistance. Officer Jeffrey Porter (hereinafter "Officer Porter," or

collectively "Officers") responded to the call around 10:25 p.m. After conferring to with the probation with officers, K-9. Officer Officer Porter Porter

attempted

track

Gonzales

his

followed the K-9 north to an American Legion hall, which is 3

across the street from Gonzales's home. stopped tracking.

At this point, the K-9

Officer Porter and the probation officers

decided to terminate their search, but Officer Porter promised to remain vigilant. The probation officers returned to search

Gonzales's home again but ultimately ended their search for the night. At approximately 10:45 p.m., Officer Porter and his partner decided to search the area south of the Gonzales home.

Unsuccessful, Officer Porter then met Officers James Barbour and Jason Barnes to discuss the situation. Together, the Officers

decided to reconstitute their search for Gonzales in the area south of Gonzales's trailer. Gonzales around Main While Officer Porter searched for Officers Barbour and Barnes

Street,

searched near the local train tracks. When suggested this to search proved that fruitless, Gonzales Officer might have Barbour sought

Officer

Barnes

shelter because of the snow and proposed searching the property of Hector Pena, which was roughly 500 feet from the American Legion hall. A wood-line ran behind the American Legion hall to According to the

the rear of the Pena property and beyond.

Officers, this wood-line offered the path of least resistance for an escapee, thus making it a likely route for Gonzales. As

Officers Barbour and Barnes headed toward the Pena property, Officer Porter decided to join them. 4

Although

there

were

approximately

forty

other

homes

or

trailers in the same general area, Officer Barbour was already familiar previous with the Pena to property, having a been there death on two a

occasions

investigate

suspicious

and

domestic disturbance.

As a result of these encounters, Officer

Barbour felt that Hector Pena was "a little crooked" and might be inclined to assist Gonzales. Officer Barbour also knew that Based on his prior experiences, the Pena property contained

several uninhabited structures which could shelter Gonzales from the cold and construction equipment which might be useful for cutting handcuffs. Additionally, Officers Porter and Barbour

thought that Hector Pena would be more likely to assist Gonzales since the two men were both Hispanic and shared a common

language.

As Officer Porter explained, "It's been my experience

in dealing with the Hispanic community that they tend to help one another more so than what Americans do." J.A. 471.

The Officers arrived at the Pena property around 11:18 p.m. A house, two trailers, and several uninhabited equipment storage in sheds, Hector

chicken

coops,

construction

utilized

Pena's concrete pouring business occupied the property, which was fronted by Liberty Lane, a public road. A private driveway

bisected the Pena property and provided access from the public road to the rear of the property. To the left of the driveway,

5

Hector Pena lived with his family in a house facing Liberty Lane. Manuel Pena (hereinafter "Pena"), Hector Pena's father,

lived further back from the street in a trailer that was located behind Hector Pena's house and likewise sat to the left of the driveway. Pena's trailer was positioned with its front door and A six-foot

access porch facing the rear of the Pena property.

tall privacy fence screened the trailer from Hector Pena's house and the public road beyond. This fence ran along the back side

of the trailer (opposite from the front door), parallel to both the length of the trailer and the public road. The three foot

wide area between the trailer and the privacy fence was enclosed on one end by a camper shell and potted plants and on the other end by storage barrels and crates. Within this space, Pena Nearby housed

stored toys for his grandchildren and other supplies. were several chicken coops kept by Pena, which

approximately 80 chickens. 1 Slightly farther back from the road and on the right side of the driveway sat another trailer, which housed some of Hector Pena's trailer
1

employees. were

Scattered storage

around sheds,

this

trailer

and

Pena's

several

construction

equipment,

Although Hector Pena had legal title to all of the land herein described as the "Pena property," Manuel Pena had exclusive use and control of the property on which his trailer was sited.

6

cars, and a goat pen, in addition to the aforementioned chicken coops. The Officers state that they approached the Pena property intending to canvass of the area and to to investigate Officers, the they

disappearance

Gonzales.

According

the

planned to knock on doors and hoped to find someone who had relevant information. When the Officers arrived, there were no After turning down the

lights on in any of the residences.

driveway, Officer Barbour first approached the trailer on the right and knocked, but he received no answer. then proceeded to knock on Pena's trailer door. response there either. Officer Porter There was no

Officer Porter also peered into this

trailer's window, but he did not see anyone at this time. After receiving no answer, Officer Porter instructed the other officers to continue looking around. The Officers began

walking around the area, shining their flashlights and searching for Gonzales. along the The Officers checked vehicles, outbuildings, and coops to see if Gonzales might be hiding

chicken

anywhere.

The Officers also searched the three foot wide space During this time,

between Pena's trailer and the privacy fence.

the Officers became suspicious because they discovered burning candles, indicated raw to meat, the beer cans, that and a smoldering had fire, which the

Officers

people

recently

left

property in a hurry. 7

Before leaving, Officer Porter decided to return to the porch of Pena's trailer. Officer Porter shined his flashlight

through the window next to the door and this time observed Pena asleep on his bed, and Officer Barbour joined Porter on the porch and on confirmed the door this of observation. Pena's trailer Officer a second Barbour time, then while

knocked

Barnes and Porter stood off of the porch on either side of the door. As he knocked on the door and window, Officer Barbour

stated "mucho panucho," 2 which, translated loosely, is Spanish slang for "a lot of vagina." Pena came to the door. When Pena opened the door, he was holding a rifle in one hand. Upon observing this, Officer Porter shouted that Pena had At the At some point shortly after this,

a gun, and Officer Barbour jumped off of the porch.

same time or shortly thereafter, Officer Porter fired two shots that struck Pena in the Porter upper and torso Officer and right fired arm. an

Subsequently,

Officer

Barbour

additional fourteen shots into the trailer.

This is the spelling used in the transcripts of the depositions given by the Officers. In Pena's complaint, the word is rendered "penucho." The correct spelling may in fact be "panocha." Regardless, the court will use the spelling "panucho" throughout this opinion. Since this is the spelling provided in the transcript of the Officers' depositions, it probably resembles what was said by Officer Barbour on the night in question most closely.

2

8

Other than these few general facts, the parties dispute the details of the shooting. Pena admits that he drank at least

eight beers while having a cookout with friends earlier in the evening and then fell asleep "hard." 3 Pena asserts that he was

not aroused by the knocking on the door and window but rather by the sound of his dogs and chickens. grabbed his rifle fearing that a fox According to Pena, he or other predator was

raiding his chicken coops.

Although Pena acknowledges going to

the door with the rifle, he claims that he held it lowered and in his right hand as he opened the door with his left hand. Pena states that he observed the Officers and their badges, but he avers that the Officers or never he identified came to the themselves door. fire on as Pena him,

police, contends

either that

before the

after

Officers

immediately

opened

without giving any warning or instructions.

Pena denies staring

or looking at any one officer prior to being shot. After being struck by the first two bullets fired by

Officer Porter, Pena asserts that he fell back inside and that the spring-hinged door closed automatically. As the door began

to close, Pena alleges that Officers Porter and Barbour fired the subsequent fourteen shots into the trailer and through the trailer door.
3

Pena says that he avoided the subsequent fourteen

When measured at the hospital after the shooting, Pena's blood alcohol level was .204 mg/dL.

9

shots only because the first two shots had knocked him to the floor. recall In contrast with the Officers' testimony, Pena does not opening the door and threatening the Officers again.

However, Pena remembers little after he fell to the floor. For their part, the Officers state that after Officer

Porter identified the gun to the others, Officers Barbour and Barnes sought refuge behind a car and another trailer,

respectively.

Officer Porter remained in his original position,

which was in the open about ten to fifteen feet from Pena's trailer. Officer Porter contends that all three Officers ordered

Pena to drop the gun and to put his hands up. 4

Throughout the

confrontation, Officer Porter claims that Pena was uneasy on his feet. Officer Porter also claims that upon coming to the door,

Pena began to look around and that Pena's eyes then appeared to lock onto him. According to Officer Porter, at this point Pena Fearing for his safety, Officer

began to shoulder his gun.

The testimony of the other officers is similar to the testimony of Officer Porter. Officer Barbour testified that Officer Porter said "drop your weapon" twice before opening fire and that numerous other commands were given in Spanish and English as the events unfolded. Officer Barnes's statement to the SBI after the shooting recounted that both Officer Barbour and Officer Porter commanded Pena to put the gun down repeatedly and that Officer Barbour was also saying "put your hands up" in Spanish, although the timing of these commands is not entirely clear from Officer Barnes's statement.

4

10

Porter says that only then did he fire the first two shots at Pena. After the first two shots were fired, the Officers state that Pena stumbled back inside, and the door closed. The

Officers further state that seconds later, the door reopened and Pena was still holding the gun in a threatening manner. The

Officers assert that they again ordered Pena to drop the gun and that Pena again locked his eyes onto Officer Porter. Officers

Porter and Barbour then directed a total of fourteen subsequent shots at Pena, none of which struck their intended target.

Officer Barnes lacked a clear line of fire and never discharged his weapon. At this point, the Officers testify that Pena again

retreated into his trailer, whereupon Officer Porter ordered the Officers to cease fire. After the Officers radioed for

assistance, they state that Pena opened the door a third time, stepped out unarmed onto the trailer's small front porch, placed his hands on the porch railing, and collapsed. Pena filed a complaint on December 22, 2004 alleging, inter alia, violations of the federal and North Carolina constitutions for use of excessive force and illegal search and seizure, as well as state common law claims gross of invasion of privacy, damage to

trespass, property.

assault,

battery,

negligence,

and

The complaint was amended in January 2006 to include

a claim for punitive damages and two additional claims brought 11

under

the

federal

constitution

and

42

U.S.C.

§ 1981,

which

alleged that both the Officers' search of Pena's property and the Officers' use of force against Pena were racially motivated and thus discriminatory. In March 2006, the Officers moved for

summary judgment as to all claims, and Pena moved for summary judgment on his claims regarding the search of his curtilage and his bedroom. The district court granted both motions in part This appeal was timely filed

and denied both motions in part.

by the Officers, and Pena subsequently and timely filed a crossappeal.

II. A. The Officers ask this court to review an order denying

qualified immunity.

Pursuant to 28 U.S.C. § 1291, this court "Because

may review any "final decisions" of a district court.

qualified immunity is an immunity from having to litigate . . . it is effectively lost if a case is erroneously permitted to go to trial." Gray-Hopkins v. Prince George's County, Md., 309 Thus, under court

F.3d 224, 229 (4th Cir. 2002) (quotation omitted). the collateral order doctrine, an order of a

district

rejecting the defense of qualified immunity is final for the purposes of § 1291. Id. However, our review of orders denying

summary judgment based on qualified immunity is limited to a 12

review

of

the

legal

issues,

such

as

whether

there

was

a

violation of law and whether this law was clearly established. Id. (citing Johnson v. Jones, 515 U.S. 304 (1995)). reviews such issues of law de novo. 407 F.3d 274, 281 (4th Cir. 2005). This court

See Washington v. Wilmore, In so doing, this court must

accept the facts as viewed by the district court, and this court may not review whether the non-moving party presented evidence sufficient to create a genuine question of material fact. Gray-Hopkins, 309 F.3d at 229. B. The parties also ask this court to review portions of the district court decision granting qualified immunity and granting or denying summary judgment. appealable as final orders Because these decisions are not under 28 U.S.C. § 1291 or as See

collateral orders under Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949), the parties ask this court to exercise pendent appellate jurisdiction to review these rulings. Pendent consider appealable appellate that the jurisdiction would not and allows otherwise legal issues this be court to

issues if

immediately involved are

factual

"inextricably intertwined" with the questions that are properly before this court on interlocutory appeal. See Swint v.

Chambers County Comm'n, 514 U.S. 35, 51 (1995); Rux v. Sudan, 461 F.3d 461, 474-75 (4th Cir. 13 2006). However, "[p]endent

appellate jurisdiction is an exception of limited and narrow application efficiency." driven Rux, by 461 considerations F.3d at 475. of As need, such, rather it is than not

sufficient for the exercise of pendent appellate jurisdiction that two legal issues must issues are arise from the same set only of facts. when

Instead, this

"inextricably a pendent

intertwined" issue to

(1)

court

decide

ensure

effective

review of the claims properly raised on interlocutory appeal or (2) when resolution of a properly appealed issue necessarily resolves the pendent issue. Id. at 476. Furthermore, the

decision to exercise pendent appellate jurisdiction is purely discretionary. 2002). Clem v. Corbeau, 284 F.3d 543, 549 n.2 (4th Cir.

When relevant, the availability of pendent appellate

jurisdiction will be discussed in our analysis of the specific claims presented on appeal.

III. A seizure accomplished with the use of excessive force is unreasonable and violates the Fourth Amendment. See Waterman,

393 F.3d at 476 (citing Jones v. Buchanan, 325 F.3d 520, 527 (4th Cir. 2003)). weigh the nature right In determining reasonableness, a court must and quality the of the intrusion on the

individual's interest.

against

countervailing

government A court

Graham v. Connor, 490 U.S. 386, 396 (1989). 14

reviewing an excessive use of force claim must determine whether the force employed was objectively reasonable under the

circumstances and at the moment of action. at 396-99.

See Graham, 490 U.S.

In so doing, a court must pay "careful attention to Id. at

the facts and circumstances of each particular case." 396. judged

"The `reasonableness' of a particular use of force must be from the perspective of a reasonable officer on the Id.

scene, rather than with the 20/20 vision of hindsight." (citation omitted).

The use of deadly force by a police officer is reasonable when the officer has "probable cause" to believe that the

suspect poses a threat of serious physical harm to the officer or to others. Tennessee v. Garner, 471 U.S. 1, 11 (1985).

Where a suspect poses no immediate threat, the use of deadly force is not justified. officer with a weapon However, "if the suspect threatens the . . . deadly force may be used if

necessary . . . and if, where feasible, some warning has been given." Id. at 11-12. A. The district court found that there were genuine issues of material fact precluding summary judgment on Pena's excessive force claim regarding these the first two be shots fired by Officer district

Porter.

Until

issues

could

resolved,

the

15

court held that it was unable to rule on the issue of qualified immunity with respect to this claim. Generally, government officials We agree. performing discretionary

functions are granted qualified immunity and are thus "shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional Harlow

rights of which a reasonable person would have known." v. Fitzgerald, 457 U.S. 800, 819 (1982).

A defense of qualified

immunity "protects `all but the plainly incompetent or those who knowingly violate the law'," and it "protects law enforcement officers from `bad guesses in gray areas' and ensures that they are liable only `for transgressing bright lines'." Waterman v.

Batton, 393 F.3d 471, 476 (4th Cir. 2005) (citations omitted). A court evaluating a defense of qualified immunity first must determine whether the plaintiff was deprived of a constitutional right. If this is the case, the court then looks to see if that See

right was clearly established at the time of the violation. Wilson v. Layne, 526 U.S. 603, 609 (1999).

Only when both of

these questions are answered in the affirmative is the defense of qualified immunity unavailable. 5

Although this sequential, two-step procedure is no longer mandatory in light of the recent Supreme Court decision in Pearson v. Callahan, __ U.S. __, __ S. Ct. __ (2009), it may still be followed where appropriate, as in the present case.

5

16

Regarding the first two shots, the district court found these few undisputed facts: Pena was asleep inside his trailer, he awoke and came to the door carrying a rifle, he opened the door, and Officer Porter shot him twice in the upper body. For

the remaining factual issues, the district court accepted, as it was required to do, the facts as described by Pena. According

to Pena's testimony, Pena opened his door with his rifle pointed down; he did or not threaten were the Officers and in any was that manner; shot no

warnings

commands The

given; court

Pena

almost this

immediately.

district

concluded

under

version of the events there was sufficient evidence to overcome qualified Porter. immunity We agree. and to support a claim against Officer

If this version of the facts is accepted,

Pena would pose no immediate threat unless and until he aimed his gun at the Officers, and thus Officer Porter's use of deadly force in this situation would be unreasonable and in violation of clearly established law. The Officers argue, however, that any disputed facts are irrelevant when deciding the issue of qualified immunity.

Regardless of how the events in this case unfolded, the Officers assert that the initial use of force was reasonable simply

because Pena was carrying a gun.

As support for this claim, the

Officers point to several cases from this circuit holding that deadly force was justified in part because the shooting victim 17

was armed. broad as

However, these cases do not stand for a principle as the one articulated by the Officers. The

reasonableness of deadly force must always be adjudged in light of all of the circumstances surrounding the use of force.

Although the presence of a weapon (or the reasonable belief that the victim possesses a weapon) is an important factor when

determining reasonableness, it is not the only factor. to the Officers' interpretation, the police do not

Contrary have the

unfettered authority to shoot any member of the public carrying a gun or other weapon. In all of in the cases to cited the by fact the that Officers, the other was

circumstances,

addition

suspect

armed, were present which gave police the necessary "probable cause to believe that the suspect pose[d] a threat of physical harm, either to the officer or others." Garner, 471 U.S. at 11.

For instance, in Elliot v. Leavitt, 99 F.3d 640 (4th Cir. 1996), the suspect and subsequent shooting victim was arrested, Despite

handcuffed, and placed in the back of a police car.

this, the suspect still managed to point a gun at the police officers before being shot. In Slattery v. Rizzo, 939 F.2d 213

(4th Cir. 1991), the suspect was stopped as part of a narcotics sting and refused to follow the officer's directions to place his hands where they could be seen. Similarly, in Anderson v.

Russell, 247 F.3d 125 (4th Cir. 2001), the officers ordered a 18

man suspected of carrying a gun inside a shopping mall to get on his hands and knees. The man initially complied, but he was

shot by a police officer after he lowered his hands and reached behind his back towards a bulge under his clothing. 6 Id. at 128.

In McLenagan v. Karnes, 27 F.3d 1002 (4th Cir. 1994), the victim was shot as he was running towards a police officer in the confusing moments immediately after the officer had been warned that an arrestee was loose and had gained access to a

magistrate's firearm.

Finally, in Sigman v. Chapel Hill, 161

F.3d 782 (4th Cir. 1998), the police knew at the time of the shooting that the victim was drunk and enraged, had just lost his job, had been cutting himself, and had previously threatened -- with a large chef's knife -- his own life, his girlfriend's life, and the police present on the scene. In contrast, in the present case, accepting Pena's version of events as true, the Officers had no probable cause to believe that Pena was dangerous other than the fact that he possessed a weapon. Pena did not threaten the Officers with the gun, and The

the Officers did not witness Pena threatening anyone else. Officers could not have believed that Pena was a

violent

The bulge was attempting to silence.

6

in

fact

a

radio

that

the

suspect

was

19

criminal. 7

Furthermore, Pena was not under arrest at the time of

the confrontation, and Pena was unaware that police officers were outside his trailer when he opened his front door to make sure that his chickens were safe. 8 Thus, Pena's decision to

bring his gun when he went outside in the middle of the night after being awoken by the sound of his dogs barking and the squawking emanating from his chicken coops was perfectly

reasonable, and this should have been apparent to the Officers at the time of the shooting. This is not a situation, as in Elliot, where the shooting victim effort had to already access a been arrested an by the at police, violent making any

weapon

attempt

resistance.

Instead, accepting the truth of Pena's statement, Pena did not know that anyone was outside his trailer when he opened his door.
7

In addition, this is not a case where the shooting victim

This is true even if the Officers mistakenly believed that Pena was Gonzales. Gonzales's offenses were all minor and nonviolent. Although the crucial fact is not what Pena subjectively believed but what the Officers reasonably perceived in light of the circumstances known to them at the time, there is evidence in the record that the Officers did not identify themselves when knocking on Pena's door, thus making it unreasonable for the Officers to believe that Pena's decision to arm himself was a sign of hostility to the police. In addition, the time of night and the fact that Pena had been sleeping also made it more reasonable for him to bring a gun to the door, which in turn made it less objectively reasonable for the Officers to consider this an act of aggression.
8

20

refused to obey police commands in a tense situation, as in Slattery and Anderson, because according to Pena the Officers did not give any commands or warnings prior to the shooting. Nor is this a case where the shooting victim was threatening another person, as in Sigman. Absent any additional factors

which would give the Officers probable cause to fear for their safety or for the safety of others, the mere presence of a weapon is not sufficient to justify the use of deadly force. Viewing the facts in the light most favorable to Pena as found by the district court, we cannot say as a matter of law that Officer Porter's If of Pena's his use of force are was true, to constitutionally Officer be Porter from

reasonable. deprived Pena

accusations constitutional

right

free

unreasonable seizure, and this right is amply established by past decisions of both the Supreme Court and this court. Thus,

we affirm the district court's denial of qualified immunity as to this claim. 9 B. Although the district court refused to grant summary

judgment on the first two shots, the district court did grant the Officers' motion for summary judgment as to the subsequent
9

However, qualified immunity may still be available to Officer Porter on this claim if the facts are later determined to support it.

21

fourteen

shots

fired

by

Officers

Barbour

and

Porter.

This

decision is not appealable under the collateral order doctrine, and it is not appealable as a final judgment at this time. Thus, this court can only consider Pena's appeal if the district court's ruling is the proper subject of pendent appellate

jurisdiction. As only discussed this the previously, court factual to pendent review legal appellate otherwise issues jurisdiction unappealable involved are

allows if

decisions

and

"inextricably intertwined" with the questions that are properly before the court on appeal. See Swint, 514 U.S. at 51. When

considering whether this court may review the district court's decision regarding the subsequent fourteen shots, the

appropriate criteria for determining the availability of pendent appellate jurisdiction is whether resolution of the properly

appealed issue (the first two shots) necessarily resolves this issue as well. 10 Rux, 461 F.3d at 476. Crucially, our

discussion of the factual and legal issues surrounding the first two shots does not answer the central question presented by

Pena's appeal concerning the subsequent fourteen shots: namely, does the firing of the subsequent fourteen shots constitute a Pendent appellate jurisdiction is also available when resolution of a pendent issue is necessary for the disposition of an issue properly before the court on appeal. Rux, 461 F.3d at 476. However, that circumstance is inapplicable here.
10

22

seizure

when

Pena

was

not

struck

by

any

of

these

bullets?

Because any ruling on the issue of the subsequent fourteen shots would require us to consider this question, and because this legal issue is not necessarily resolved by our review of the firing of the first two shots, Pena's appeal regarding the

subsequent fourteen shots must be dismissed at this time.

IV. The Officers also appeal the district court's denial of qualified immunity and grant of summary judgment in favor of Pena on his claim that the Officers' search of the area behind his trailer violated the Fourth and Fourteenth Amendments. In

ruling on this issue, the district court found that the Officers did in fact search Pena's curtilage without probable cause plus either district a warrant court or exigent that the circumstances. Officers Although the

found

lawfully

approached

Pena's trailer to "knock and talk," the district court held that the Officers' subsequent search of the curtilage after receiving no response exceeded any non-search related purpose for

remaining on the curtilage and was thus illegal.

We agree.

As this court has previously stated, the curtilage of a home "is entitled to the same level of Fourth Amendment

protection extended to the home, so that, as with the home, probable cause . . . is the appropriate standard for searches of 23

curtilage." 2001). certain conduct with a

Rogers v. Pendleton, 249 F.3d 279, 287 (4th Cir.

A police officer may enter the curtilage of a home for purposes thereafter search of unconnected exceeds the with a search, but if police

any

legitimate

reason the

unconnected officer's Although

curtilage

justifying

presence, a Fourth Amendment violation has occurred. 11

police officers have the same right as any private citizen to approach a residence to "knock and talk" with the inhabitants, this right does not confer authority on police officers to make a general investigation of the curtilage. Id. at 289-90.

In the present case, the Officers do not deny that they entered the curtilage of Pena's property and looked around and behind Pena's trailer without a search warrant. However, the

Officers argue that this behavior did not violate the Fourth Amendment because they were allowed to proceed to the rear of the trailer in an attempt to contact Pena when he did not

respond to the knocking on the trailer's front door. In Alvarez v. Montgomery County, 147 F.3d 354, 356 (4th Cir. 1998), in this court that aligned "[t]he to itself Fourth with with several does other not from

circuits prohibit
11

holding

Amendment a

police,

attempting

speak

homeowner,

For example, in Rogers, the police exceeded their legitimate purpose for entering the curtilage (contacting the homeowner) when the officers attempted to search the backyard of a home after speaking with the owner and being asked to leave.

24

entering

the

backyard

when

circumstances

indicate

they

might

find him there."

In that case, the police received a 911 call Upon arriving at

reporting underage drinking at a house party.

the home, the police officers saw a sign in the front yard stating "Party in Back" with an arrow pointing to the backyard. In an effort to contact the homeowner, the officers then

proceeded to the backyard where they observed underage drinking. In affirming summary judgment in favor of the police officers, this court held that the officers did not violate the Fourth Amendment since the officers had a "legitimate reason" for

entering the property unconnected with a search of the premises and since their conduct comported with that purpose. 358-59. The decision in Alvarez relied in part on this court's Id. at

earlier decision in United States v. Bradshaw, 490 F.2d 1097 (4th Cir. 1974). investigating After the In that case, federal and state agents were defendant the aroma for of the production of moonshine. from an

detecting

moonshine

emanating

apparently abandoned vehicle which lay beyond the limits of the defendant's property, the agents were spotted by the defendant as he returned by car to his home. Fearing that the defendant

would remove any contraband on his property if they left, one of the agents approached the front door of the defendant's house to question him. The defendant did not answer, and so the agent 25

decided to try the back door of the home.

On the way to the

rear door, the agent passed another truck parked near the house, which also "exuded a strong odor of moonshine whiskey." 1099. Id. at

The agent then deviated from his intended path to examine Upon peering through a crack in the rear door, the moonshine, which he subsequently seized. In

the truck. agent

spotted

overturning the defendant's conviction, this court held that: [The agent was] clearly entitled to go onto defendant's premises in order to question him concerning the abandoned vehicle near his property. Furthermore, we cannot say that [the agent] exceeded the scope of his legitimate purpose for being there by walking around to the back door when he was unable to get an answer at the front door. It follows that [the agent] got within smelling range of the truck in which the liquor was found without unjustifiably intruding into defendant's fourth amendment zone of privacy . . . . However, [the agent] did not `discover' the liquor until he actually saw it through the crack between the rear doors of the truck . . . . It was not possible for [the agent] to make this confirmatory observation without exceeding the original purpose of his intrusion, which had justified his presence on defendant's property up to that point, and making a further intrusion into an area of protected privacy. Id. at 1100-01. The Officers' conduct in this case violated the Fourth

Amendment.

The Officers admitted that their reason for entering

the curtilage of Pena's property was to conduct a search for Gonzales. Even though the Officers had the right to approach

Pena's trailer to knock and talk, when Pena did not answer the knocking at the front door, unlike in Alvarez or Bradshaw there

26

was

no

reason

to

expect

that

knocking

on

a

backdoor

would

produce a different result.

Pena's trailer was less than 10

feet wide, so there was no reason to believe that a knock at the back door would be heard by an occupant when a knock at the front door had produced no response. In addition, the Officers

had not witnessed anyone enter the trailer, and there were no lights on in the trailer to show that anyone was home, much less awake. Finally, there was no sign directing people to the rear

of the trailer, and there were no noises coming from the rear of the trailer indicating the presence of the homeowner. For all

of these reasons, we agree with the finding of the district court that the evidence "does not suggest that the [O]fficers had reason to believe that any resident might be in the backyard of plaintiff's camper or that they were going to a back door." J.A. 183. Furthermore, even if the Officers' decision to walk to the back of the trailer was reasonable as part of an effort to speak with the trailer's owner, the Officers nonetheless exceeded this legitimate purpose by searching the private, enclosed storage area abutting Pena's trailer and by continuing to search the curtilage after it quickly became apparent that Pena's trailer lacked a rear door. the scene they no Although the Officers were suspicious of upon any 27 their arrival at the to Pena this

discovered of

residence,

evidence

kind

linked

Gonzales

particular property. the probable cause

Thus, these suspicions fell far short of necessary to support a search, and the

Officers also lacked both a warrant and exigent circumstances. 12 The Officers also claim that their actions were justified as a protective sweep of the area. Police may conduct a

protective sweep when they have a reasonable belief, based on specific and articulable facts, that there is an imminent threat to their safety. Maryland v. Buie, 494 U.S. 325, 327 (1990).

However, "[p]rotective sweeps are not justified as a matter of course." Fishbein v. Glenwood Springs, 469 F.3d 957, 962 (10th A protective sweep is "not a

Cir. 2006) (citation omitted).

full search of the premises, but may extend only to a cursory inspection of those spaces where a person may be found." 494 U.S. at 335. Buie,

As such, a protective sweep may not last Id. at

longer than is necessary to ensure the officers' safety. 335-36.

Although Buie allowed for a protective sweep in the

specific context of an arrest, several circuits have since held that a protective sweep is reasonable in other situations as well. See e.g., United States v. Gould, 364 F.3d 578 (5th Cir.

2004) (allowing protective sweep after deputy sheriffs entered a trailer home with occupant's consent); United States v. Taylor, Although exigent circumstances might exist if the Officers had probable cause to believe that Gonzales was on the property, a vague "hunch" that Gonzales might be present certainly does not satisfy this requirement.
12

28

248 F.3d 506 (6th Cir. 2001) (approving protective sweep after consent entry of home); United States v. Garcia, 997 F.2d 1273 (9th Cir. 1993) (same). 13 Most cases to consider the constitutionality of protective sweeps arise from police sweeps within personal homes. of a home, the risk of danger to police Outside is

officers

substantially diminished. 1235, 1242-43 (10th

See United States v. Carter, 360 F.3d 2004). However, in a pre-Buie

Cir.

decision, this court held that a protective sweep of curtilage contemporaneous to an arrest was constitutional where the police officers had a reasonable fear for their safety. v. Bernard, 757 F.2d 1439 (4th Cir. 1985). In the present case, the Officers' conduct cannot be United States

condoned as a protective sweep because the Officers have failed to articulate specific facts demonstrating that they reasonably feared for their safety. The Officers point to the raw chicken,

empty beer cans, and smoldering fire as evidence that people had only recently left the property, and Officer Barbour opined, "It's always an uneasy feeling when you got somebody on the run and you could be standing on top of that somebody and not know
13

This circuit has not squarely addressed the constitutionality of a protective sweep made in circumstances other than an arrest. Since we hold that a protective sweep was not justified on the facts of this case for other reasons, we do not need to decide this issue at present.

29

it." danger.

J.A.

824.

However,

nothing

in

these

facts

suggests

Only an unsubstantiated "hunch" connected Gonzales -- a The scene that

nonviolent offender -- with the Pena property.

greeted the Officers upon their arrival showed no evidence of unlawful activity, and there was no reason to believe that the people who had recently been grilling chicken would pose any threat to the police. Although the Officers may have

subjectively believed that the atmosphere that night was eerie, this is not a specific, articulable fact that indicates the

Officers reasonably feared for their own safety. Thus, the Officers' attempts to explain their presence

within Pena's curtilage as something other than a search are unconvincing. Because the Officers searched the curtilage of

Pena's property without probable cause plus either a warrant or exigent circumstances, the Officers violated Pena's Fourth

Amendment right to be free from unreasonable searches, and this right is clearly established. Our decisions in both Rogers and

Alvarez make plain that the curtilage of a home is afforded the same Fourth Amendment protection as the home itself. Therefore,

we affirm the district court's denial of qualified immunity on this claim. We likewise affirm the grant of summary judgment in favor of Pena on this claim. In their briefs, the Officers

acknowledge that "there are no factual disputes" regarding the 30

search of Pena's curtilage.

Br. Appellant 38.

In fact, Pena

was asleep as these events unfolded, and all relevant facts were furnished by the Officers' testimony. Thus, our resolution of

the qualified immunity issue necessarily resolves this issue as well.

V. Pena next contends that the Officers' search of his

property and the Officers' allegedly excessive use of force were racially motivated and thus violated 42 U.S.C. § 1981. To bring

a claim under § 1981, a plaintiff must demonstrate (1) that he is a member of a racial minority, (2) that defendants had the intent to discriminate against him on the basis of his race, and (3) that the defendants' discrimination concerned one of the statute's enumerated activities. F.3d 329, 339 (2d Cir. 2000). Pena also asserts a cause of action under the Fourth and Fourteenth Amendments based on the same facts. However, Brown v. City of Oneonta, 221

"subjective motives are irrelevant to a proper Fourth Amendment analysis," and thus Pena's constitutional claims of racial

discrimination are properly analyzed under the equal protection clause of the Fourteenth Amendment, not the Fourth Amendment. United States v. Bullock, 94 F.3d 896, 899 (4th Cir. 1996)

(citing Whren v. United States, 517 U.S. 806, 812-13 (1996)). 31

In order to establish a violation of the equal protection clause, and to satisfy the second element of a § 1981 claim, a plaintiff must be able to show purposeful discrimination. Bldg. Contractors This Ass'n v. has Pennsylvania, never 458 U.S. 375, Gen. 390

(1982).

circuit

decided

whether

racially

motivated searches and seizures fall within § 1981's enumerated activities and thus satisfy the third prong of a § 1981 claim. However, assuming without deciding that these claims are viable under § 1981, Pena's statutory and constitutional claims still fail because he has not established that the Officers' conduct was the result of purposeful discrimination. Thus, the Officers

did not violate a statutory or constitutional right, and they are entitled to qualified immunity. A. Pena's evidence of racial discrimination relating to the search of his trailer's curtilage is insufficient to establish a violation of either his constitutional rights or 42 U.S.C. § 1981. 14 to show Although Pena correctly asserts that he is not required that racial animus was the sole motivation for the

allegedly discriminatory conduct, Pena must at a minimum be able
14

Because the district court did not fully set forth the facts on which its decision was based, this court assumes the facts that may reasonably be inferred from the record when viewed in the light most favorable to Pena. Waterman, 393 F.3d at 473.

32

to show that he was treated differently because of his race. See Farm Labor Org. v. Ohio State Highway Patrol, 308 F.3d 523, 536 (6th Cir. 2002). Because the Officers have articulated their not

multiple decision

credible, to

race-neutral the

criteria

supporting Pena does

investigate

property,

which

dispute, Pena is unable to meet this burden. Several race-neutral factors led the Officers to the Pena property. First, the Pena property lies in close proximity to

the American Legion Post where the police canine lost Gonzalez's scent, and the Officers felt that the wood line near the Pena property offered the path of least resistance for an escapee. Although other trailer homes are in the same general vicinity, the Officers focused on the Pena property as a result of

additional reasons peculiar to that property. property contains multiple residences,

For one, Pena's unoccupied

several

structures including two sheds, and numerous large pieces of equipment related to Pena's business as a cement layer. Having

been to the Pena property previously, Officer Barbour was aware of these conditions and felt that they would afford a good place for Gonzalez to hide. Officer Barbour also believed that the

tools necessary for cutting handcuffs could be found among this construction equipment. The circumstances surrounding Officer Barbour's prior

contact with the Pena property were an additional race-neutral 33

factor

supporting

the

decision

to

investigate

this

specific

location.

On two separate occasions, Officer Barbour had been

called to the Pena property to investigate possibly criminal incidents. A suspicious death had occurred on the property, and

Barbour had also responded to a report of a domestic dispute. 15 For all of these reasons, Pena's property was distinct in

Barbour's mind and stood out from the other nearby residences. In light of this location-specific information, the Pena

property was a logical place for the Officers to inquire about Gonzalez, especially when considered in light of its close

proximity to the last place where the police canine indicated. In the face of this evidence, Pena argues that the

Officers' racial animus is shown by (1) the Officers' use of shared language as a justification for their investigation of the Pena property, (2) Officer Barbour's use of the crude slang phrase "mucho panucho" in an attempt to rouse Pena and have him answer the door, and (3) the Officers' testimony that in their experience Hispanics. the Hispanic community tended to help other

The court will address each of these facts in turn.

First, the use of shared language as a justification for a search is not per se racially discriminatory.
15

See Hernandez v.

In fact, more than one domestic dispute had been reported to the police, but it appears from the record that Officer Barbour only responded to one of these disturbances. See J.A. 793, 1087

34

New York, 500 U.S. 352, 363 (1991); United States v. Ortiz, 422 U.S. 891, 897 (1975) (listing ability to speak English as

relevant for establishing probable cause to search vehicles near the Mexican-American border). In Hernandez, the Supreme Court

recognized that a prosecutor's exercise of peremptory challenges based on the ability of jurors to speak Spanish "raised a

plausible, though not a necessary, inference that language might be a pretext for in what that in fact the were race-based Court peremptory refused was to no

challenges," overturn the

but

case

Supreme

trial

court's

decision

that

there

discriminatory intent.

500 U.S. at 363 (emphasis added).

Admittedly, the shared language of Gonzalez and Pena does not predispose Pena to aid Gonzalez. However, a shared language

does increase the likelihood that Pena could assist Gonzalez if he wished, whereas a language barrier would hinder effective communication and assistance. times serve as a post hoc, Although "shared language" may at race-neutral rationalization of

racially discriminatory motives, there is no evidence to support this conclusion in the present case. for The Officers did not

target refusing

Spanish-speaking to question

Hispanics

investigation speakers of

while

Spanish

language

different

races or ethnicities. the Officers knew of

In fact, the record does not show that any other Spanish speakers who lived

nearby. 35

By itself, shared language might not be enough to establish a race neutral justification for a search. However, in the

instant case, this factor was one of many leading the Officers to the Pena property. When viewed in conjunction with all of

the other reasons leading to the search of the Pena property, the presence of a shared language does have some tendency, if only slight, to increase the likelihood that Pena might have aided Gonzalez. Second, Officer Barbour's use of the phrase "mucho panucho" in attempting to have Pena answer the door of his trailer, while offensive, is likewise not indicative of racial animus. "Mucho

panucho" is not a racial slur, and Officer Barbour was not using the phrase to describe Pena. Instead, Officer Barbour was using

the phrase in an admittedly "childish" attempt to bond with Pena and to make Pena more receptive to answering the door. 16 847. J.A.

Although Officer Barbour stated that he would not use a phrase when dealing with Caucasians, this hesitancy

similar

likely stemmed not from racial bias but from his inability to transpose the cultural context of this slang phrase. from this
16

Removed even a

cultural

context

slang

lacks

meaning,

and

According to Officer Barbour's uncontradicted testimony, this phrase is used widely among Hispanic males in the area. Officer Barbour felt that employing the phrase would make him sound like "one of the guys" and thus less threatening. J.A. 847.

36

direct

translation

of

a

slang

phrase

will

be

inaccurate

or

incomplete. phrase was

See J.A. 846-48. a racial insult,

If Officer Barbour believed the he would not have felt that

employing the phrase would increase Pena's inclination to open the door. Finally, likely to aid the Officers' belief is that perhaps Hispanics the most of were more

other

Hispanics for their

troubling the Pena

explanation property.

offered

investigation

However, considering all of the other circumstances

surrounding the Officers' decision to target the Pena property, Pena has not presented sufficient evidence to establish racial animus or to show that the Officers' decision would have been different if Pena was not Hispanic. 17 Since there was no violation of Pena's constitutional or statutory rights as alleged in this claim, the Officers are

Pena points to the case of Lankford v. Gelston as factually similar to the instant case. 364 F.2d 197 (4th Cir. 1966). In that case, the Baltimore, Maryland police targeted the homes of black residents for warrantless searches after a police shooting, based solely on the Police Department's belief that black residents would be more likely to aid the suspects in the shooting, who were also black. More than 300 homes were searched over a period of 19 days. However, that case is clearly distinguishable from the case at bar. In the instant case, the Officers did not target the Pena residence on the sole basis of Pena's race, and the Officers did not indiscriminately target other Hispanic residences in the nearby area, much less in the community at large as in Lankford.

17

37

entitled

to

qualified

immunity.

Accordingly,

the

district

court's denial of qualified immunity on this claim is reversed. B. We affirm the dismissal of Pena's claim for racial

discrimination in the use of the allegedly excessive force for the same reasons enunciated above. claims Because of the factual and are

legal

issues

surrounding

both

discrimination

identical, our decision that the search of Pena's curtilage was not discriminatory necessarily entails the same result on the claim for discriminatory use of force, and the exercise of

pendent appellate jurisdiction is appropriate. Furthermore, this court notes that the evidence of racial discrimination in the use of force is even more tenuous than in the Officers' initial decision to investigate the Pena property. None of the evidence offered by Pena demonstrates that the

Officers were more likely to use force against him because of his race. Undeniably, Pena answered his door armed with a

rifle. may not

Although the Officers' subsequent use of force may or have been reasonable, nothing suggests that this

decision to use force was motivated by anything other than the Officers' genuine fear for their own safety.

38

VI. Pena also alleges numerous violations of state law arising out of the same encounter with the police. The Officers appeal

the district court's decision to deny summary judgment on Pena's claims for assault, battery, gross negligence, damage to

property, and state and federal law claims of punitive damages. Pena appeals the district court's decision to grant summary

judgment in favor of the Officers on Pena's state law claims for trespass and invasion of privacy. The Officers' appeal regarding the denial of summary

judgment on Pena's state law claims for assault and battery is meritless. These claims are "subsumed within the federal

excessive force claim and so go forward as well." Perry, 41 F.3d 167, 174 (4th Cir. 1994).

Rowland v.

As to the other state

law issues (and the federal claim for punitive damages) appealed by the Officers, they are not the proper subject of

interlocutory review.

Because these claims raise separate legal

issues from the claims properly presented to us on appeal, the exercise of pendent appellate jurisdiction is also

inappropriate.

Therefore, these appeals will be dismissed.

Likewise, neither state law claim Pena asks us to review is the proper subject of an from immediate the same appeal. facts as Although Pena's the

trespass

claim

arises

Fourth

Amendment claim for an illegal search of his curtilage, Pena 39

appeals

the

district

court's

decision

to

dismiss

this

claim

based on public official immunity.

Because this argument raises

distinct legal issues that are not intertwined with any issue properly before us on appeal, pendent appellate jurisdiction is unavailable to allow for a review of this ruling at this time. Similarly, the state law claim for invasion of privacy requires resolution of unique legal issues unconnected with the denial of qualified immunity, and therefore we must also decline to review this claim. Accordingly, these appeals are dismissed as well.

VII. In sum, we affirm the district court's denial of qualified immunity as to the first two shots fired by Officer Porter, we affirm the district court's denial of qualified immunity and grant of summary judgment on Pena's claim for an illegal search of his curtilage, we reverse the district court's denial of

qualified immunity as to Pena's claim that the search of his curtilage was racially motivated, we affirm the district court's decision to dismiss Pena's claim of racial discrimination in the Officers' use of allegedly excessive force, and we affirm the district court's decision denying summary judgment in favor of the Officers on Pena's state law claims for assault and battery. Furthermore, we decline to entertain Pena's appeal of the district court's decision to 40 grant summary judgment and

qualified fourteen

immunity shots.

to We

the

Officers

regarding to

the

subsequent all other

likewise

refuse

review

remaining appeals of both parties concerning Pena's state law claims and federal claim for punitive damages. None of these

issues are properly before us on appeal at this time, and none are subject to the exercise of pendent appellate jurisdiction. Accordingly, these appeals are dismissed without prejudice. This case is remanded to the district court for further proceedings consistent with this opinion.

AFFIRMED IN PART, REVERSED IN PART, DISMISSED IN PART WITHOUT PREJUDICE, AND REMANDED

41