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. 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.
Nos. 07-1768, 07-1891
United States Court of Appeals, Fourth Circuit
March 13, 2009
316 Fed. Appx. 303
Argued: Sept. 24, 2008. American Civil Liberties Union of North Carolina Legal Foundation, Incorporated, Amicus Supporting Appellee. American Civil Liberties Union of North Carolina Legal Foundation, Incorporated, Amicus Supporting Appellant.
We conclude the district court accorded insufficient weight to the administrative finding that proper procedures called for Weatherholt to be asked to identify inmates involved in the theft from him by looking at photos. While it is correct, as noted by the court, that “failure to follow prison rules or regulations does not, without more, give rise to a constitutional violation,” Myers v. Klevenhagen, 97 F.3d 91, 94 (5th Cir.1996), it does not appear that the court adequately considered the rationale for the prison policy in question. Presumably, the administrative rule violated in this case was adopted out of recognition that in-person identification of inmates involved in an incident inherently creates a risk of retaliation. Accordingly, while we do not hold that Bradley‘s failure to follow proper procedures conclusively establishes her deliberate indifference to a substantial risk of serious injury, we believe that resolution of the claim on the present record was simply premature.
We make this finding recognizing that Bradley, in her affidavit attached to her motion for summary judgment, explains that she was not aware of any risk to Weatherholt‘s safety before taking him to identify the perpetrators he alleged forcibly entered his cell, held him against his will, and robbed him of his belongings. But Bradley‘s asserted lack of awareness of any risk of harm to Weatherholt from an in-person identification of the inmates involved in the incident is not dispositive. Given the violent nature of the incident Weatherholt described, the present record could permit a factfinder to rationally conclude that Bradley ignored an obvious risk of significant harm to Weatherholt of which a reasonable prison official would have been aware. Summary judgment in favor of Bradley, at least at this stage of the proceedings, was accordingly inappropriate.
For the reasons stated, we vacate the district court‘s judgment and remand for further proceedings. While Weatherholt‘s motion for appointment of counsel on appeal is denied, we leave the question of appointment of counsel on remand to the sound discretion of the district court. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
Judge Wilkinson dissents and would affirm the judgment for the reasons given by the district court. See Weatherholt v. Harvey, No. 2:08-cv-54, slip op. at 4-5 (E.D. Va. April 11, 2008); Weatherholt v. Bradley, No. 2:08-cv-54, slip op. at 8-9 (E.D. Va. June 20, 2008).
VACATED AND REMANDED.
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.
Unpublished opinions are not binding precedent in this circuit.
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 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.
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 equipment1 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, 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.
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, 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,
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.
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.
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.
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 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 under the federal constitution and
II.
A.
The Officers ask this court to review an order denying qualified immunity. Pursuant to
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
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, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995); Rux v. Sudan, 461 F.3d 461, 474-75 (4th Cir.2006). However, “[p]endent 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
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, 105 S.Ct. 1694, 85 L.Ed.2d 1 (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 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 thus5 “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, 102 S.Ct. 2727, 73 L.Ed.2d 396 (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, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999). Only when both of these questions are answered in the affirmative is the defense of qualified immunity unavailable.
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
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 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 Elliott 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 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 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
This is not a situation, as in Elliott, 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 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 deprived8 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 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,
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
As this court has previously stated, the curtilage of a home “is entitled to the same level of
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
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
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 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
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
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, 110 S.Ct. 1093, 108 L.Ed.2d 276 (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, 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 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
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
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 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
Pena also asserts a cause of action under the
In order to establish a violation of the equal protection clause, and to satisfy the second element of a
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
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 factor supporting the decision to investigate this specific location. On two separate occasions, Officer Barbour had been called to the Pena property to investigate
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. New York, 500 U.S. 352, 363, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991); United States v. Ortiz, 422 U.S. 891, 897, 95 S.Ct. 2585, 45 L.Ed.2d 623 (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
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.
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 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
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.
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.
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
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
Furthermore, we decline to entertain Pena‘s appeal of the district court‘s decision to grant summary judgment and 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.