UNPUBLISHED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prejudice, and remanded by unpublished opinion.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Unpublished opinions are not binding precedent in this circuit. 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 crossappeal. 

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 
41 

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