Filed: Mar. 13, 2009
Latest Update: Mar. 28, 2017
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-1768 MANUEL PENA, Plaintiff - Appellee, v. JEFFREY RAY PORTER; JAMES BENNETT BARBOUR; JASON GLENN BARNES; THE TOWN OF CLAYTON, The Town of Clayton, NC, Defendants – Appellants. - AMERICAN CIVIL LIBERTIES UNION OF NORTH CAROLINA LEGAL FOUNDATION, INCORPORATED, Amicus Supporting Appellee. No. 07-1891 MANUEL PENA, Plaintiff - Appellant, v. JEFFREY RAY PORTER; JAMES BENNETT BARBOUR; JASON GLENN BARNES; THE TOWN OF CLAYTON, The
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-1768 MANUEL PENA, Plaintiff - Appellee, v. JEFFREY RAY PORTER; JAMES BENNETT BARBOUR; JASON GLENN BARNES; THE TOWN OF CLAYTON, The Town of Clayton, NC, Defendants – Appellants. - AMERICAN CIVIL LIBERTIES UNION OF NORTH CAROLINA LEGAL FOUNDATION, INCORPORATED, Amicus Supporting Appellee. No. 07-1891 MANUEL PENA, Plaintiff - Appellant, v. JEFFREY RAY PORTER; JAMES BENNETT BARBOUR; JASON GLENN BARNES; THE TOWN OF CLAYTON, The T..
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UNPUBLISHED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 GLENN
BARNES; THE TOWN OF CLAYTON, The Town of Clayton, NC,
Defendants – Appellants.
--------------------
AMERICAN CIVIL LIBERTIES UNION OF NORTH CAROLINA LEGAL
FOUNDATION, INCORPORATED,
Amicus Supporting Appellee.
No. 07-1891
MANUEL PENA,
Plaintiff - Appellant,
v.
JEFFREY RAY PORTER; JAMES BENNETT BARBOUR; JASON GLENN
BARNES; THE TOWN OF CLAYTON, The Town of Clayton, NC,
Defendants – Appellees.
--------------------
AMERICAN CIVIL LIBERTIES UNION OF NORTH CAROLINA LEGAL
FOUNDATION, INCORPORATED,
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prejudice, and remanded by unpublished opinion.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. For the reasons stated below,
we affirm in part, reverse in 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 to arrest Rudolpho Gonzales (hereinafter
“Gonzales”) for probation violations. After the probation
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 with the probation officers, Officer Porter
attempted to track Gonzales with his K-9. Officer Porter
followed the K-9 north to an American Legion hall, which is
3
across the street from Gonzales’s home. At this point, the K-9
stopped tracking. 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. While Officer Porter searched for
Gonzales around Main Street, Officers Barbour and Barnes
searched near the local train tracks.
When this search proved fruitless, Officer Barbour
suggested to Officer Barnes that Gonzales might have sought
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
the rear of the Pena property and beyond. According to the
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 with the Pena property, having been there on two
previous occasions to investigate a suspicious death and a
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. Based on his prior experiences,
Officer Barbour also knew that 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, several uninhabited storage sheds,
chicken coops, and construction equipment utilized in Hector
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
access porch facing the rear of the Pena property. A six-foot
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
stored toys for his grandchildren and other supplies. Nearby
were several chicken coops kept by Pena, which housed
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 employees. Scattered around this trailer and Pena’s
trailer were several storage sheds, construction equipment,
1
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 the area and to investigate the
disappearance of Gonzales. According to the Officers, they
planned to knock on doors and hoped to find someone who had
relevant information. When the Officers arrived, there were no
lights on in any of the residences. After turning down the
driveway, Officer Barbour first approached the trailer on the
right and knocked, but he received no answer. Officer Porter
then proceeded to knock on Pena’s trailer door. There was no
response there either. 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. The Officers checked vehicles, outbuildings, and
along the chicken coops to see if Gonzales might be hiding
anywhere. The Officers also searched the three foot wide space
between Pena’s trailer and the privacy fence. During this time,
the Officers became suspicious because they discovered burning
candles, raw meat, beer cans, and a smoldering fire, which
indicated to the Officers that people had recently left the
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 confirmed this observation. Officer Barbour then
knocked on the door of Pena’s trailer a second time, while
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.” At some point shortly after this,
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
a gun, and Officer Barbour jumped off of the porch. At the
same time or shortly thereafter, Officer Porter fired two shots
that struck Pena in the upper torso and right arm.
Subsequently, Officer Porter and Officer Barbour fired an
additional fourteen shots into the trailer.
2
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.
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. According to Pena, he
grabbed his rifle fearing that a fox 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 never identified themselves as
police, either before or after he came to the door. Pena
contends that the Officers immediately opened fire on him,
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. Pena says that he avoided the subsequent fourteen
3
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. In contrast with the Officers’ testimony, Pena does not
recall 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
began to shoulder his gun. Fearing for his safety, Officer
4
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.
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 of invasion of privacy,
trespass, assault, battery, gross negligence, and damage to
property. 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
and denied both motions in part. This appeal was timely filed
by the Officers, and Pena subsequently and timely filed a cross-
appeal.
II.
A.
The Officers ask this court to review an order denying
qualified immunity. Pursuant to 28 U.S.C. § 1291, this court
may review any “final decisions” of a district court. “Because
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
F.3d 224, 229 (4th Cir. 2002) (quotation omitted). Thus, under
the collateral order doctrine, an order of a district court
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)). This court
reviews such issues of law de novo. See Washington v. Wilmore,
407 F.3d 274, 281 (4th Cir. 2005). 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. See
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. Because these decisions are not
appealable as final orders under 28 U.S.C. § 1291 or as
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 appellate jurisdiction allows this court to
consider issues that would not otherwise be immediately
appealable if the factual and legal issues involved are
“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. 2006). However, “[p]endent
13
appellate jurisdiction is an exception of limited and narrow
application driven by considerations of need, rather than
efficiency.” Rux, 461 F.3d at 475. As such, it is not
sufficient for the exercise of pendent appellate jurisdiction
that two legal issues arise from the same set of facts.
Instead, issues are “inextricably intertwined” only (1) when
this court must decide a pendent issue to 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. Clem v. Corbeau, 284 F.3d 543, 549 n.2 (4th Cir.
2002). 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)). In determining reasonableness, a court must
weigh the nature and quality of the intrusion on the
individual’s right against the countervailing government
interest. Graham v. Connor,
490 U.S. 386, 396 (1989). A court
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. See Graham, 490 U.S.
at 396-99. In so doing, a court must pay “careful attention to
the facts and circumstances of each particular case.” Id. at
396. “The ‘reasonableness’ of a particular use of force must be
judged from the perspective of a reasonable officer on the
scene, rather than with the 20/20 vision of hindsight.” Id.
(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. However, “if the suspect threatens the
officer with a weapon . . . 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 the first two shots fired by Officer
Porter. Until these issues could be resolved, the district
15
court held that it was unable to rule on the issue of qualified
immunity with respect to this claim. We agree.
Generally, government officials 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
rights of which a reasonable person would have known.” Harlow
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
right was clearly established at the time of the violation. See
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
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.
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 not threaten the Officers in any manner; no
warnings or commands were given; and Pena was shot almost
immediately. The district court concluded that under this
version of the events there was sufficient evidence to overcome
qualified immunity and to support a claim against Officer
Porter. We agree. 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. However, these cases do not stand for a principle as
broad 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. Contrary
to the Officers’ interpretation, the police do not have the
unfettered authority to shoot any member of the public carrying
a gun or other weapon.
In all of the cases cited by the Officers, other
circumstances, in addition to the fact that the suspect was
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,
handcuffed, and placed in the back of a police car. Despite
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 Officers did not witness Pena threatening anyone else. The
Officers could not have believed that Pena was a violent
6
The bulge was in fact a radio that the suspect was
attempting to silence.
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 had already been arrested by the police, making any
effort to access a weapon an attempt at violent resistance.
Instead, accepting the truth of Pena’s statement, Pena did not
know that anyone was outside his trailer when he opened his
door. In addition, this is not a case where the shooting victim
7
This is true even if the Officers mistakenly believed that
Pena was Gonzales. Gonzales’s offenses were all minor and
nonviolent.
8
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.
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 use of force was constitutionally
reasonable. If Pena’s accusations are true, Officer Porter
deprived Pena of his constitutional right to be free from
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 discussed previously, pendent appellate jurisdiction
only allows this court to review otherwise unappealable
decisions if the factual and legal issues involved are
“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
10
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.
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 a warrant or exigent circumstances. Although the
district court found that the Officers 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.” Rogers v. Pendleton, 249 F.3d 279, 287 (4th Cir.
2001). A police officer may enter the curtilage of a home for
certain purposes unconnected with a search, but if police
conduct thereafter exceeds any legitimate reason unconnected
with a search of the curtilage justifying the officer’s
presence, a Fourth Amendment violation has occurred. 11 Although
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), this court aligned itself with several other
circuits in holding that “[t]he Fourth Amendment does not
prohibit police, attempting to speak with a homeowner, from
11
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
reporting underage drinking at a house party. Upon arriving at
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. Id. at
358-59.
The decision in Alvarez relied in part on this court’s
earlier decision in United States v. Bradshaw, 490 F.2d 1097
(4th Cir. 1974). In that case, federal and state agents were
investigating the defendant for the production of moonshine.
After detecting the aroma of moonshine emanating from an
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.” Id. at
1099. The agent then deviated from his intended path to examine
the truck. Upon peering through a crack in the rear door, the
agent spotted moonshine, which he subsequently seized. In
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. Although the Officers were suspicious of
the scene they discovered upon their arrival at the Pena
residence, no evidence of any kind linked Gonzales to this
27
particular property. Thus, these suspicions fell far short of
the probable cause 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
Cir. 2006) (citation omitted). A protective sweep is “not a
full search of the premises, but may extend only to a cursory
inspection of those spaces where a person may be found.” Buie,
494 U.S. at 335. As such, a protective sweep may not last
longer than is necessary to ensure the officers’ safety. Id. at
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,
12
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.
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. Outside
of a home, the risk of danger to police officers is
substantially diminished. See United States v. Carter, 360 F.3d
1235, 1242-43 (10th Cir. 2004). However, in a pre-Buie
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. United States
v. Bernard,
757 F.2d 1439 (4th Cir. 1985).
In the present case, the Officers’ conduct cannot be
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.” J.A. 824. However, nothing in these facts suggests
danger. Only an unsubstantiated “hunch” connected Gonzales -- a
nonviolent offender -- with the Pena property. The scene that
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. Brown v. City of Oneonta, 221
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,
“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. Gen.
Bldg. Contractors Ass’n v. Pennsylvania, 458 U.S. 375, 390
(1982). This circuit has never 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 Although Pena correctly asserts that he is not required
to show 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
multiple credible, race-neutral criteria supporting their
decision to investigate the property, which Pena does not
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. For one, Pena’s
property contains multiple residences, several unoccupied
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 the Hispanic community tended to help other
Hispanics. 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. See Hernandez v.
15
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 what in fact were race-based peremptory
challenges,” but in that case the Supreme Court refused to
overturn the trial court’s decision that there was no
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. Although “shared language” may at
times serve as a post hoc, race-neutral rationalization of
racially discriminatory motives, there is no evidence to support
this conclusion in the present case. The Officers did not
target Spanish-speaking Hispanics for investigation while
refusing to question Spanish language speakers of different
races or ethnicities. In fact, the record does not show that
the Officers knew of 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 J.A.
847. Although Officer Barbour stated that he would not use a
similar phrase when dealing with Caucasians, this hesitancy
likely stemmed not from racial bias but from his inability to
transpose the cultural context of this slang phrase. Removed
from this cultural context slang lacks meaning, and even a
16
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. See J.A. 846-48. If Officer Barbour believed the
phrase was a racial insult, he would not have felt that
employing the phrase would increase Pena’s inclination to open
the door.
Finally, the Officers’ belief that Hispanics were more
likely to aid other Hispanics is perhaps the most troubling
explanation offered for their investigation of the Pena
property. 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
17
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.
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. Because the factual and
legal issues surrounding both claims of discrimination are
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. Although the Officers’ subsequent use of force may or
may not 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.” Rowland v.
Perry, 41 F.3d 167, 174 (4th Cir. 1994). 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 immediate appeal. Although the
trespass claim arises from the same facts as Pena’s 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 grant summary judgment and
40
qualified immunity to the Officers regarding the subsequent
fourteen shots. We likewise refuse to review all other
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
