                            UNPUBLISHED

                 UNITED STATES COURT OF APPEALS
                     FOR THE FOURTH CIRCUIT


                            No. 07-1768


MANUEL PENA,

               Plaintiff - Appellee,

          v.

JEFFREY RAY PORTER; JAMES BENNETT BARBOUR; JASON             GLENN
BARNES; THE TOWN OF CLAYTON, The Town of Clayton, NC,

               Defendants – Appellants.

--------------------

AMERICAN CIVIL LIBERTIES    UNION   OF    NORTH   CAROLINA   LEGAL
FOUNDATION, INCORPORATED,

               Amicus Supporting Appellee.




                            No. 07-1891


MANUEL PENA,

               Plaintiff - Appellant,

          v.

JEFFREY RAY PORTER; JAMES BENNETT BARBOUR; JASON             GLENN
BARNES; THE TOWN OF CLAYTON, The Town of Clayton, NC,

               Defendants – Appellees.

--------------------
AMERICAN CIVIL LIBERTIES       UNION   OF   NORTH   CAROLINA   LEGAL
FOUNDATION, INCORPORATED,

                Amicus Supporting Appellant.



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


Argued:   September 24, 2008                 Decided:   March 13, 2009


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


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prejudice, and remanded by unpublished opinion.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


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


Unpublished opinions are not binding precedent in this circuit.




                                   2
VOORHEES, District Judge:

        This case stems from a police shooting.                         Plaintiff filed

suit in federal district court alleging, inter alia, excessive

force, illegal search of his curtilage, racial discrimination in

both the search of his curtilage and the use of force, and

various state law claims.                The district court issued an order

granting summary judgment in part to both sides and granting and

denying qualified immunity in part, and each side now appeals

certain aspects of this decision.                  For the reasons stated below,

we   affirm    in    part,    reverse     in     part,    and    remand    for    further

proceedings consistent with this opinion.



                                            I.

        Around 10:00 p.m. on a cold February 2, 2004, two probation

officers      attempted       to   arrest      Rudolpho     Gonzales       (hereinafter

“Gonzales”)        for   probation       violations.            After    the   probation

officers handcuffed Gonzales, he escaped by simply running away.

Unable to find him, the probation officers called the Clayton,

North Carolina Police Department for assistance.

        Officer     Jeffrey    Porter     (hereinafter       “Officer      Porter,”   or

collectively “Officers”) responded to the call around 10:25 p.m.

After    conferring      with      the   probation       officers,      Officer   Porter

attempted     to     track    Gonzales      with    his    K-9.         Officer    Porter

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

                                            3
across the street from Gonzales’s home.                      At this point, the K-9

stopped tracking.          Officer Porter and the probation officers

decided to terminate their search, but Officer Porter promised

to remain vigilant.          The probation officers returned to search

Gonzales’s home again but ultimately ended their search for the

night.

     At approximately 10:45 p.m., Officer Porter and his partner

decided     to    search     the     area        south   of    the    Gonzales     home.

Unsuccessful, Officer Porter then met Officers James Barbour and

Jason Barnes to discuss the situation.                       Together, the Officers

decided to reconstitute their search for Gonzales in the area

south of Gonzales’s trailer.                While Officer Porter searched for

Gonzales     around     Main       Street,        Officers     Barbour    and     Barnes

searched near the local train tracks.

     When        this   search       proved        fruitless,        Officer     Barbour

suggested    to    Officer     Barnes       that    Gonzales     might    have    sought

shelter because of the snow and proposed searching the property

of Hector Pena, which was roughly 500 feet from the American

Legion hall.       A wood-line ran behind the American Legion hall to

the rear of the Pena property and beyond.                            According to the

Officers, this wood-line offered the path of least resistance

for an escapee, thus making it a likely route for Gonzales.                          As

Officers Barbour and Barnes headed toward the Pena property,

Officer Porter decided to join them.

                                             4
        Although     there    were    approximately        forty    other   homes       or

trailers in the same general area, Officer Barbour was already

familiar     with    the     Pena    property,      having     been    there     on   two

previous     occasions       to    investigate      a   suspicious      death     and    a

domestic disturbance.             As a result of these encounters, Officer

Barbour felt that Hector Pena was “a little crooked” and might

be inclined to assist Gonzales.                 Based on his prior experiences,

Officer    Barbour     also       knew   that    the    Pena   property     contained

several uninhabited structures which could shelter Gonzales from

the cold and construction equipment which might be useful for

cutting handcuffs.            Additionally, Officers Porter and Barbour

thought that Hector Pena would be more likely to assist Gonzales

since    the   two    men    were    both       Hispanic   and     shared   a    common

language.      As Officer Porter explained, “It’s been my experience

in dealing with the Hispanic community that they tend to help

one another more so than what Americans do.”                   J.A. 471.

     The Officers arrived at the Pena property around 11:18 p.m.

A   house,     two    trailers,       several      uninhabited        storage    sheds,

chicken    coops,     and    construction        equipment     utilized     in   Hector

Pena’s concrete pouring business occupied the property, which

was fronted by Liberty Lane, a public road.                      A private driveway

bisected the Pena property and provided access from the public

road to the rear of the property.                 To the left of the driveway,



                                            5
Hector Pena lived with his family in a house facing Liberty

Lane.

       Manuel    Pena    (hereinafter     “Pena”),       Hector    Pena’s    father,

lived further back from the street in a trailer that was located

behind Hector Pena’s house and likewise sat to the left of the

driveway.       Pena’s trailer was positioned with its front door and

access porch facing the rear of the Pena property.                     A six-foot

tall privacy fence screened the trailer from Hector Pena’s house

and the public road beyond.          This fence ran along the back side

of the trailer (opposite from the front door), parallel to both

the length of the trailer and the public road.                     The three foot

wide area between the trailer and the privacy fence was enclosed

on one end by a camper shell and potted plants and on the other

end by storage barrels and crates.                  Within this space, Pena

stored toys for his grandchildren and other supplies.                        Nearby

were       several    chicken    coops     kept     by     Pena,    which     housed

approximately 80 chickens. 1

       Slightly farther back from the road and on the right side

of the driveway sat another trailer, which housed some of Hector

Pena’s      employees.     Scattered      around    this    trailer    and    Pena’s

trailer      were    several    storage    sheds,    construction      equipment,
       1
       Although Hector Pena had legal title to all of the land
herein described as the “Pena property,” Manuel Pena had
exclusive use and control of the property on which his trailer
was sited.


                                          6
cars, and a goat pen, in addition to the aforementioned chicken

coops.

     The Officers state that they approached the Pena property

intending       to    canvass        the    area       and     to    investigate         the

disappearance        of    Gonzales.       According         to    the    Officers,      they

planned to knock on doors and hoped to find someone who had

relevant information.           When the Officers arrived, there were no

lights on in any of the residences.                          After turning down the

driveway, Officer Barbour first approached the trailer on the

right and knocked, but he received no answer.                             Officer Porter

then proceeded to knock on Pena’s trailer door.                             There was no

response there either.               Officer Porter also peered into this

trailer’s window, but he did not see anyone at this time.

     After receiving no answer, Officer Porter instructed the

other officers to continue looking around.                          The Officers began

walking around the area, shining their flashlights and searching

for Gonzales.         The Officers checked vehicles, outbuildings, and

along    the    chicken      coops   to    see    if   Gonzales          might   be   hiding

anywhere.       The Officers also searched the three foot wide space

between Pena’s trailer and the privacy fence.                        During this time,

the Officers became suspicious because they discovered burning

candles,       raw   meat,    beer    cans,      and   a     smoldering      fire,    which

indicated      to    the   Officers    that      people      had    recently      left   the

property in a hurry.

                                            7
       Before leaving, Officer Porter decided to return to the

porch of Pena’s trailer.               Officer Porter shined his flashlight

through the window next to the door and this time observed Pena

asleep on his bed, and Officer Barbour joined Porter on the

porch      and    confirmed    this    observation.        Officer       Barbour    then

knocked      on   the   door   of     Pena’s     trailer   a    second    time,    while

Barnes and Porter stood off of the porch on either side of the

door.       As he knocked on the door and window, Officer Barbour

stated “mucho panucho,” 2 which, translated loosely, is Spanish

slang for “a lot of vagina.”                 At some point shortly after this,

Pena came to the door.

       When Pena opened the door, he was holding a rifle in one

hand.      Upon observing this, Officer Porter shouted that Pena had

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

same time or shortly thereafter, Officer Porter fired two shots

that       struck    Pena      in     the     upper     torso     and     right     arm.

Subsequently,        Officer        Porter    and     Officer    Barbour    fired     an

additional fourteen shots into the trailer.



       2
       This is the spelling used in the transcripts of the
depositions given by the Officers.     In Pena’s complaint, the
word is rendered “penucho.” The correct spelling may in fact be
“panocha.”     Regardless, the court will use the spelling
“panucho” throughout this opinion.   Since this is the spelling
provided in the transcript of the Officers’ depositions, it
probably resembles what was said by Officer Barbour on the night
in question most closely.


                                             8
     Other than these few general facts, the parties dispute the

details of the shooting.                 Pena admits that he drank at least

eight beers while having a cookout with friends earlier in the

evening and then fell asleep “hard.” 3                         Pena asserts that he was

not aroused by the knocking on the door and window but rather by

the sound of his dogs and chickens.                             According to Pena, he

grabbed    his    rifle        fearing       that   a    fox    or     other     predator      was

raiding his chicken coops.                   Although Pena acknowledges going to

the door with the rifle, he claims that he held it lowered and

in his right hand as he opened the door with his left hand.

Pena states that he observed the Officers and their badges, but

he   avers    that       the    Officers        never     identified            themselves     as

police,    either     before       or    after      he    came       to   the    door.       Pena

contends     that    the       Officers       immediately         opened        fire    on   him,

without giving any warning or instructions.                            Pena denies staring

or looking at any one officer prior to being shot.

     After       being     struck       by    the   first        two      bullets      fired   by

Officer Porter, Pena asserts that he fell back inside and that

the spring-hinged door closed automatically.                              As the door began

to close, Pena alleges that Officers Porter and Barbour fired

the subsequent fourteen shots into the trailer and through the

trailer door.        Pena says that he avoided the subsequent fourteen
      3
       When measured at the hospital after the shooting, Pena’s
blood alcohol level was .204 mg/dL.


                                                9
shots only because the first two shots had knocked him to the

floor.        In contrast with the Officers’ testimony, Pena does not

recall      opening     the   door     and   threatening     the    Officers    again.

However, Pena remembers little after he fell to the floor.

        For    their    part,    the    Officers     state   that     after    Officer

Porter identified the gun to the others, Officers Barbour and

Barnes        sought    refuge    behind       a    car   and      another    trailer,

respectively.          Officer Porter remained in his original position,

which was in the open about ten to fifteen feet from Pena’s

trailer.

        Officer    Porter     contends       that   all   three    Officers    ordered

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

confrontation, Officer Porter claims that Pena was uneasy on his

feet.       Officer Porter also claims that upon coming to the door,

Pena began to look around and that Pena’s eyes then appeared to

lock onto him.          According to Officer Porter, at this point Pena

began to shoulder his gun.                   Fearing for his safety, Officer



        4
       The testimony of the other officers is similar to the
testimony of Officer Porter.     Officer Barbour testified that
Officer Porter said “drop your weapon” twice before opening fire
and that numerous other commands were given in Spanish and
English as the events unfolded.    Officer Barnes’s statement to
the SBI after the shooting recounted that both Officer Barbour
and Officer Porter commanded Pena to put the gun down repeatedly
and that Officer Barbour was also saying “put your hands up” in
Spanish, although the timing of these commands is not entirely
clear from Officer Barnes’s statement.


                                             10
Porter says that only then did he fire the first two shots at

Pena.

       After the first two shots were fired, the Officers state

that    Pena    stumbled       back    inside,      and    the   door    closed.        The

Officers further state that seconds later, the door reopened and

Pena was still holding the gun in a threatening manner.                                 The

Officers assert that they again ordered Pena to drop the gun and

that Pena again locked his eyes onto Officer Porter.                            Officers

Porter and Barbour then directed a total of fourteen subsequent

shots   at     Pena,    none    of     which     struck    their   intended      target.

Officer Barnes lacked a clear line of fire and never discharged

his weapon.         At this point, the Officers testify that Pena again

retreated into his trailer, whereupon Officer Porter ordered the

Officers       to   cease      fire.        After    the    Officers      radioed       for

assistance, they state that Pena opened the door a third time,

stepped out unarmed onto the trailer’s small front porch, placed

his hands on the porch railing, and collapsed.

       Pena filed a complaint on December 22, 2004 alleging, inter

alia, violations of the federal and North Carolina constitutions

for use of excessive force and illegal search and seizure, as

well    as     state    common        law   claims    of    invasion      of    privacy,

trespass,      assault,     battery,        gross    negligence,        and    damage    to

property.       The complaint was amended in January 2006 to include

a claim for punitive damages and two additional claims brought

                                            11
under    the    federal    constitution        and      42   U.S.C.    § 1981,     which

alleged that both the Officers’ search of Pena’s property and

the Officers’ use of force against Pena were racially motivated

and thus discriminatory.           In March 2006, the Officers moved for

summary judgment as to all claims, and Pena moved for summary

judgment on his claims regarding the search of his curtilage and

his bedroom.       The district court granted both motions in part

and denied both motions in part.                   This appeal was timely filed

by the Officers, and Pena subsequently and timely filed a cross-

appeal.



                                         II.

                                         A.

        The   Officers    ask    this   court      to   review    an    order    denying

qualified immunity.         Pursuant to 28 U.S.C. § 1291, this court

may review any “final decisions” of a district court.                           “Because

qualified immunity is an immunity from having to litigate . . .

it is effectively lost if a case is erroneously permitted to go

to trial.”        Gray-Hopkins v. Prince George’s County, Md., 309

F.3d 224, 229 (4th Cir. 2002) (quotation omitted).                        Thus, under

the   collateral    order       doctrine,     an    order    of   a    district   court

rejecting the defense of qualified immunity is final for the

purposes of § 1291.         Id.     However, our review of orders denying

summary judgment based on qualified immunity is limited to a

                                         12
review   of     the    legal      issues,     such    as   whether       there   was    a

violation of law and whether this law was clearly established.

Id. (citing Johnson v. Jones, 515 U.S. 304 (1995)).                         This court

reviews such issues of law de novo.                  See Washington v. Wilmore,

407 F.3d 274, 281 (4th Cir. 2005).                  In so doing, this court must

accept the facts as viewed by the district court, and this court

may not review whether the non-moving party presented evidence

sufficient to create a genuine question of material fact.                             See

Gray-Hopkins, 309 F.3d at 229.

                                            B.

      The parties also ask this court to review portions of the

district court decision granting qualified immunity and granting

or denying summary judgment.                 Because these decisions are not

appealable      as    final       orders    under    28    U.S.C.    § 1291      or    as

collateral orders under Cohen v. Beneficial Indus. Loan Corp.,

337 U.S. 541 (1949), the parties ask this court to exercise

pendent appellate jurisdiction to review these rulings.

      Pendent        appellate      jurisdiction       allows       this    court      to

consider      issues     that      would     not     otherwise      be     immediately

appealable      if     the    factual       and    legal   issues        involved     are

“inextricably intertwined” with the questions that are properly

before   this    court       on    interlocutory       appeal.        See    Swint     v.

Chambers County Comm’n, 514 U.S. 35, 51 (1995); Rux v. Sudan,

461   F.3d    461,    474-75      (4th     Cir.   2006).     However,       “[p]endent

                                            13
appellate jurisdiction is an exception of limited and narrow

application         driven     by    considerations       of        need,    rather       than

efficiency.”          Rux,     461   F.3d    at    475.        As    such,      it   is    not

sufficient for the exercise of pendent appellate jurisdiction

that    two     legal    issues      arise    from      the     same    set     of    facts.

Instead,      issues     are   “inextricably       intertwined”          only    (1)      when

this    court    must     decide     a   pendent     issue      to     ensure    effective

review of the claims properly raised on interlocutory appeal or

(2) when resolution of a properly appealed issue necessarily

resolves      the    pendent    issue.       Id.     at   476.         Furthermore,        the

decision to exercise pendent appellate jurisdiction is purely

discretionary.          Clem v. Corbeau, 284 F.3d 543, 549 n.2 (4th Cir.

2002).        When relevant, the availability of pendent appellate

jurisdiction will be discussed in our analysis of the specific

claims presented on appeal.



                                            III.

       A seizure accomplished with the use of excessive force is

unreasonable and violates the Fourth Amendment.                             See Waterman,

393 F.3d at 476 (citing Jones v. Buchanan, 325 F.3d 520, 527

(4th Cir. 2003)).            In determining reasonableness, a court must

weigh    the        nature     and    quality      of     the       intrusion        on    the

individual’s         right      against      the     countervailing             government

interest.       Graham v. Connor, 490 U.S. 386, 396 (1989).                          A court

                                             14
reviewing an excessive use of force claim must determine whether

the     force     employed       was    objectively           reasonable        under      the

circumstances and at the moment of action.                       See Graham, 490 U.S.

at 396-99.       In so doing, a court must pay “careful attention to

the facts and circumstances of each particular case.”                                Id. at

396.     “The ‘reasonableness’ of a particular use of force must be

judged    from    the     perspective       of    a    reasonable       officer      on    the

scene, rather than with the 20/20 vision of hindsight.”                                    Id.

(citation omitted).

       The use of deadly force by a police officer is reasonable

when    the     officer    has    “probable       cause”       to     believe      that    the

suspect poses a threat of serious physical harm to the officer

or to others.           Tennessee v. Garner, 471 U.S. 1, 11 (1985).

Where a suspect poses no immediate threat, the use of deadly

force is not justified.            However, “if the suspect threatens the

officer    with    a    weapon     .    .   .    deadly       force    may    be    used    if

necessary . . . and if, where feasible, some warning has been

given.”       Id. at 11-12.

                                            A.

       The district court found that there were genuine issues of

material fact precluding summary judgment on Pena’s excessive

force    claim    regarding       the   first         two    shots    fired   by    Officer

Porter.        Until    these    issues     could       be    resolved,      the   district



                                            15
court held that it was unable to rule on the issue of qualified

immunity with respect to this claim.     We agree.

      Generally,   government   officials   performing    discretionary

functions are granted qualified immunity and are thus “shielded

from liability for civil damages insofar as their conduct does

not   violate   clearly   established   statutory    or   constitutional

rights of which a reasonable person would have known.”            Harlow

v. Fitzgerald, 457 U.S. 800, 819 (1982).      A defense of qualified

immunity “protects ‘all but the plainly incompetent or those who

knowingly violate the law’,” and it “protects law enforcement

officers from ‘bad guesses in gray areas’ and ensures that they

are liable only ‘for transgressing bright lines’.”          Waterman v.

Batton, 393 F.3d 471, 476 (4th Cir. 2005) (citations omitted).

A court evaluating a defense of qualified immunity first must

determine whether the plaintiff was deprived of a constitutional

right.    If this is the case, the court then looks to see if that

right was clearly established at the time of the violation.          See

Wilson v. Layne, 526 U.S. 603, 609 (1999).           Only when both of

these questions are answered in the affirmative is the defense

of qualified immunity unavailable. 5



      5
       Although this sequential, two-step procedure is no longer
mandatory in light of the recent Supreme Court decision in
Pearson v. Callahan, __ U.S. __, __ S. Ct. __ (2009), it may
still be followed where appropriate, as in the present case.


                                  16
     Regarding the first two shots, the district court found

these few undisputed facts: Pena was asleep inside his trailer,

he awoke and came to the door carrying a rifle, he opened the

door, and Officer Porter shot him twice in the upper body.                                 For

the remaining factual issues, the district court accepted, as it

was required to do, the facts as described by Pena.                                 According

to Pena’s testimony, Pena opened his door with his rifle pointed

down;    he    did    not   threaten       the       Officers        in   any    manner;     no

warnings      or    commands    were      given;       and       Pena     was    shot    almost

immediately.          The   district       court       concluded          that    under    this

version of the events there was sufficient evidence to overcome

qualified      immunity     and     to    support           a    claim    against       Officer

Porter.       We agree.        If this version of the facts is accepted,

Pena would pose no immediate threat unless and until he aimed

his gun at the Officers, and thus Officer Porter’s use of deadly

force in this situation would be unreasonable and in violation

of clearly established law.

     The Officers argue, however, that any disputed facts are

irrelevant         when   deciding       the        issue       of   qualified     immunity.

Regardless of how the events in this case unfolded, the Officers

assert    that      the   initial    use       of     force      was     reasonable     simply

because Pena was carrying a gun.                     As support for this claim, the

Officers point to several cases from this circuit holding that

deadly force was justified in part because the shooting victim

                                               17
was armed.        However, these cases do not stand for a principle as

broad       as     the        one    articulated          by     the     Officers.             The

reasonableness of deadly force must always be adjudged in light

of    all    of    the    circumstances         surrounding            the    use    of    force.

Although the presence of a weapon (or the reasonable belief that

the    victim      possesses         a   weapon)     is    an    important         factor     when

determining reasonableness, it is not the only factor.                                 Contrary

to    the   Officers’         interpretation,        the       police    do    not    have     the

unfettered authority to shoot any member of the public carrying

a gun or other weapon.

       In    all     of        the   cases      cited      by     the        Officers,      other

circumstances,           in    addition    to    the      fact    that       the    suspect    was

armed, were present which gave police the necessary “probable

cause to believe that the suspect pose[d] a threat of physical

harm, either to the officer or others.”                          Garner, 471 U.S. at 11.

For instance, in Elliot v. Leavitt, 99 F.3d 640 (4th Cir. 1996),

the     suspect      and       subsequent       shooting         victim        was    arrested,

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

this, the suspect still managed to point a gun at the police

officers before being shot.                  In Slattery v. Rizzo, 939 F.2d 213

(4th Cir. 1991), the suspect was stopped as part of a narcotics

sting and refused to follow the officer’s directions to place

his hands where they could be seen.                        Similarly, in Anderson v.

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

                                                18
man suspected of carrying a gun inside a shopping mall to get on

his hands and knees.                The man initially complied, but he was

shot by a police officer after he lowered his hands and reached

behind his back towards a bulge under his clothing. 6                          Id. at 128.

In McLenagan v. Karnes, 27 F.3d 1002 (4th Cir. 1994), the victim

was shot as he was running towards a police officer in the

confusing moments immediately after the officer had been warned

that       an   arrestee      was        loose    and   had    gained        access    to     a

magistrate’s firearm.               Finally, in Sigman v. Chapel Hill, 161

F.3d 782 (4th Cir. 1998), the police knew at the time of the

shooting that the victim was drunk and enraged, had just lost

his job, had been cutting himself, and had previously threatened

-- with a large chef’s knife -- his own life, his girlfriend’s

life, and the police present on the scene.

       In contrast, in the present case, accepting Pena’s version

of events as true, the Officers had no probable cause to believe

that Pena was dangerous other than the fact that he possessed a

weapon.         Pena did not threaten the Officers with the gun, and

the Officers did not witness Pena threatening anyone else.                                  The

Officers        could   not    have        believed     that    Pena    was     a     violent




       6
       The bulge was                in    fact    a   radio    that    the    suspect       was
attempting to silence.


                                                 19
criminal. 7    Furthermore, Pena was not under arrest at the time of

the confrontation, and Pena was unaware that police officers

were outside his trailer when he opened his front door to make

sure that his chickens were safe. 8                    Thus, Pena’s decision to

bring his gun when he went outside in the middle of the night

after being awoken by the sound of his dogs barking and the

squawking      emanating     from    his        chicken    coops    was     perfectly

reasonable, and this should have been apparent to the Officers

at the time of the shooting.

     This is not a situation, as in Elliot, where the shooting

victim   had    already     been    arrested      by    the    police,    making   any

effort   to    access   a   weapon    an    attempt       at   violent    resistance.

Instead, accepting the truth of Pena’s statement, Pena did not

know that anyone was outside his trailer when he opened his

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


     7
       This is true even if the Officers mistakenly believed that
Pena was Gonzales.     Gonzales’s offenses were all minor and
nonviolent.
     8
       Although the crucial fact is not what Pena subjectively
believed but what the Officers reasonably perceived in light of
the circumstances known to them at the time, there is evidence
in the record that the Officers did not identify themselves when
knocking on Pena’s door, thus making it unreasonable for the
Officers to believe that Pena’s decision to arm himself was a
sign of hostility to the police. In addition, the time of night
and the fact that Pena had been sleeping also made it more
reasonable for him to bring a gun to the door, which in turn
made it less objectively reasonable for the Officers to consider
this an act of aggression.


                                           20
refused to obey police commands in a tense situation, as in

Slattery and Anderson, because according to Pena the Officers

did not give any commands or warnings prior to the shooting.

Nor is this a case where the shooting victim was threatening

another person, as in Sigman.                    Absent any additional factors

which would give the Officers probable cause to fear for their

safety or for the safety of others, the mere presence of a

weapon is not sufficient to justify the use of deadly force.

       Viewing the facts in the light most favorable to Pena as

found by the district court, we cannot say as a matter of law

that       Officer    Porter’s       use    of     force   was        constitutionally

reasonable.          If    Pena’s    accusations     are   true,       Officer    Porter

deprived      Pena    of    his     constitutional     right     to     be   free   from

unreasonable seizure, and this right is amply established by

past decisions of both the Supreme Court and this court.                            Thus,

we affirm the district court’s denial of qualified immunity as

to this claim. 9

                                            B.

       Although      the     district      court    refused      to    grant     summary

judgment on the first two shots, the district court did grant

the Officers’ motion for summary judgment as to the subsequent

       9
       However, qualified immunity may still be available to
Officer Porter on this claim if the facts are later determined
to support it.


                                            21
fourteen         shots    fired    by       Officers      Barbour       and   Porter.      This

decision is not appealable under the collateral order doctrine,

and it is not appealable as a final judgment at this time.

Thus, this court can only consider Pena’s appeal if the district

court’s          ruling    is    the    proper          subject    of    pendent      appellate

jurisdiction.

       As        discussed      previously,         pendent       appellate     jurisdiction

only        allows       this    court       to     review        otherwise     unappealable

decisions          if     the    factual          and    legal     issues      involved     are

“inextricably intertwined” with the questions that are properly

before the court on appeal.                       See Swint, 514 U.S. at 51.               When

considering whether this court may review the district court’s

decision           regarding       the       subsequent           fourteen      shots,      the

appropriate criteria for determining the availability of pendent

appellate         jurisdiction         is    whether      resolution      of    the    properly

appealed issue (the first two shots) necessarily resolves this

issue       as    well. 10       Rux,       461    F.3d     at    476.        Crucially,    our

discussion of the factual and legal issues surrounding the first

two    shots       does    not    answer      the       central    question     presented    by

Pena’s appeal concerning the subsequent fourteen shots: namely,

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


                                                   22
seizure    when       Pena   was     not   struck      by   any     of   these    bullets?

Because any ruling on the issue of the subsequent fourteen shots

would require us to consider this question, and because this

legal issue is not necessarily resolved by our review of the

firing    of    the    first      two   shots,       Pena’s    appeal     regarding    the

subsequent fourteen shots must be dismissed at this time.



                                            IV.

       The Officers also appeal the district court’s denial of

qualified immunity and grant of summary judgment in favor of

Pena on his claim that the Officers’ search of the area behind

his trailer violated the Fourth and Fourteenth Amendments.                              In

ruling on this issue, the district court found that the Officers

did in fact search Pena’s curtilage without probable cause plus

either     a    warrant      or     exigent        circumstances.         Although     the

district       court    found       that   the      Officers      lawfully    approached

Pena’s trailer to “knock and talk,” the district court held that

the Officers’ subsequent search of the curtilage after receiving

no     response       exceeded       any   non-search          related     purpose     for

remaining on the curtilage and was thus illegal.                         We agree.

       As this court has previously stated, the curtilage of a

home     “is    entitled       to    the   same       level    of    Fourth      Amendment

protection extended to the home, so that, as with the home,

probable cause . . . is the appropriate standard for searches of

                                              23
curtilage.”        Rogers v. Pendleton, 249 F.3d 279, 287 (4th Cir.

2001).       A police officer may enter the curtilage of a home for

certain      purposes     unconnected        with    a   search,       but    if    police

conduct      thereafter      exceeds    any    legitimate        reason      unconnected

with     a   search     of    the     curtilage      justifying        the        officer’s

presence, a Fourth Amendment violation has occurred. 11                            Although

police officers have the same right as any private citizen to

approach a residence to “knock and talk” with the inhabitants,

this right does not confer authority on police officers to make

a general investigation of the curtilage.                    Id. at 289-90.

       In the present case, the Officers do not deny that they

entered the curtilage of Pena’s property and looked around and

behind Pena’s trailer without a search warrant.                             However, the

Officers argue that this behavior did not violate the Fourth

Amendment because they were allowed to proceed to the rear of

the    trailer     in   an   attempt    to    contact     Pena       when    he    did    not

respond to the knocking on the trailer’s front door.

       In Alvarez v. Montgomery County, 147 F.3d 354, 356 (4th

Cir.     1998),    this      court    aligned       itself    with      several          other

circuits      in   holding     that    “[t]he       Fourth      Amendment         does    not

prohibit      police,     attempting     to    speak     with    a    homeowner,          from
       11
        For example, in Rogers, the police exceeded their
legitimate purpose for entering the curtilage (contacting the
homeowner) when the officers attempted to search the backyard of
a home after speaking with the owner and being asked to leave.


                                          24
entering    the     backyard     when   circumstances         indicate        they    might

find him there.”           In that case, the police received a 911 call

reporting underage drinking at a house party.                       Upon arriving at

the home, the police officers saw a sign in the front yard

stating “Party in Back” with an arrow pointing to the backyard.

In   an    effort    to     contact     the     homeowner,     the       officers       then

proceeded to the backyard where they observed underage drinking.

In affirming summary judgment in favor of the police officers,

this court held that the officers did not violate the Fourth

Amendment    since        the   officers      had   a   “legitimate        reason”       for

entering the property unconnected with a search of the premises

and since their conduct comported with that purpose.                                 Id. at

358-59.

     The    decision       in   Alvarez    relied       in   part   on    this    court’s

earlier decision in United States v. Bradshaw, 490 F.2d 1097

(4th Cir. 1974).           In that case, federal and state agents were

investigating       the    defendant      for   the     production       of   moonshine.

After     detecting       the   aroma     of    moonshine      emanating         from     an

apparently abandoned vehicle which lay beyond the limits of the

defendant’s property, the agents were spotted by the defendant

as he returned by car to his home.                    Fearing that the defendant

would remove any contraband on his property if they left, one of

the agents approached the front door of the defendant’s house to

question him.        The defendant did not answer, and so the agent

                                           25
decided to try the back door of the home.                    On the way to the

rear door, the agent passed another truck parked near the house,

which also “exuded a strong odor of moonshine whiskey.”                     Id. at

1099.     The agent then deviated from his intended path to examine

the truck.       Upon peering through a crack in the rear door, the

agent    spotted    moonshine,      which      he   subsequently   seized.      In

overturning the defendant’s conviction, this court held that:

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

Id. at 1100-01.

        The   Officers’   conduct    in     this    case   violated   the   Fourth

Amendment.      The Officers admitted that their reason for entering

the curtilage of Pena’s property was to conduct a search for

Gonzales.       Even though the Officers had the right to approach

Pena’s trailer to knock and talk, when Pena did not answer the

knocking at the front door, unlike in Alvarez or Bradshaw there


                                          26
was   no   reason    to   expect    that    knocking   on   a    backdoor    would

produce a different result.            Pena’s trailer was less than 10

feet wide, so there was no reason to believe that a knock at the

back door would be heard by an occupant when a knock at the

front door had produced no response.               In addition, the Officers

had not witnessed anyone enter the trailer, and there were no

lights on in the trailer to show that anyone was home, much less

awake.     Finally, there was no sign directing people to the rear

of the trailer, and there were no noises coming from the rear of

the trailer indicating the presence of the homeowner.                   For all

of these reasons, we agree with the finding of the district

court that the evidence “does not suggest that the [O]fficers

had reason to believe that any resident might be in the backyard

of plaintiff’s camper or that they were going to a back door.”

J.A. 183.

      Furthermore, even if the Officers’ decision to walk to the

back of the trailer was reasonable as part of an effort to speak

with the trailer’s owner, the Officers nonetheless exceeded this

legitimate purpose by searching the private, enclosed storage

area abutting Pena’s trailer and by continuing to search the

curtilage after it quickly became apparent that Pena’s trailer

lacked a rear door.         Although the Officers were suspicious of

the   scene   they    discovered      upon    their    arrival    at   the   Pena

residence,    no    evidence   of    any    kind   linked   Gonzales    to   this

                                       27
particular property.            Thus, these suspicions fell far short of

the       probable     cause   necessary       to   support   a   search,   and   the

Officers also lacked both a warrant and exigent circumstances. 12

          The Officers also claim that their actions were justified

as    a        protective   sweep   of   the    area.     Police    may   conduct   a

protective sweep when they have a reasonable belief, based on

specific and articulable facts, that there is an imminent threat

to their safety.             Maryland v. Buie, 494 U.S. 325, 327 (1990).

However, “[p]rotective sweeps are not justified as a matter of

course.”          Fishbein v. Glenwood Springs, 469 F.3d 957, 962 (10th

Cir. 2006) (citation omitted).                  A protective sweep is “not a

full search of the premises, but may extend only to a cursory

inspection of those spaces where a person may be found.”                      Buie,

494 U.S. at 335.               As such, a protective sweep may not last

longer than is necessary to ensure the officers’ safety.                     Id. at

335-36.           Although Buie allowed for a protective sweep in the

specific context of an arrest, several circuits have since held

that a protective sweep is reasonable in other situations as

well.          See e.g., United States v. Gould, 364 F.3d 578 (5th Cir.

2004) (allowing protective sweep after deputy sheriffs entered a

trailer home with occupant’s consent); United States v. Taylor,
          12
         Although exigent circumstances might exist if the
Officers had probable cause to believe that Gonzales was on the
property, a vague “hunch” that Gonzales might be present
certainly does not satisfy this requirement.


                                           28
248 F.3d 506 (6th Cir. 2001) (approving protective sweep after

consent entry of home); United States v. Garcia, 997 F.2d 1273

(9th Cir. 1993) (same). 13

     Most cases to consider the constitutionality of protective

sweeps arise from police sweeps within personal homes.                     Outside

of   a    home,     the   risk   of    danger    to      police    officers       is

substantially diminished.        See United States v. Carter, 360 F.3d

1235,     1242-43    (10th   Cir.     2004).     However,     in     a    pre-Buie

decision, this court held that a protective sweep of curtilage

contemporaneous to an arrest was constitutional where the police

officers had a reasonable fear for their safety.                   United States

v. Bernard, 757 F.2d 1439 (4th Cir. 1985).

     In    the    present    case,    the    Officers’    conduct        cannot   be

condoned as a protective sweep because the Officers have failed

to articulate specific facts demonstrating that they reasonably

feared for their safety.         The Officers point to the raw chicken,

empty beer cans, and smoldering fire as evidence that people had

only recently left the property, and Officer Barbour opined,

“It’s always an uneasy feeling when you got somebody on the run

and you could be standing on top of that somebody and not know

     13
         This    circuit   has   not   squarely  addressed   the
constitutionality of a protective sweep made in circumstances
other than an arrest. Since we hold that a protective sweep was
not justified on the facts of this case for other reasons, we do
not need to decide this issue at present.


                                        29
it.”      J.A.          824.      However,      nothing     in    these    facts    suggests

danger.       Only an unsubstantiated “hunch” connected Gonzales -- a

nonviolent offender -- with the Pena property.                             The scene that

greeted the Officers upon their arrival showed no evidence of

unlawful activity, and there was no reason to believe that the

people who had recently been grilling chicken would pose any

threat        to        the    police.         Although     the    Officers        may     have

subjectively believed that the atmosphere that night was eerie,

this    is     not       a    specific,    articulable      fact    that    indicates      the

Officers reasonably feared for their own safety.

       Thus,        the       Officers’    attempts    to    explain       their    presence

within Pena’s curtilage as something other than a search are

unconvincing.                 Because the Officers searched the curtilage of

Pena’s property without probable cause plus either a warrant or

exigent       circumstances,             the   Officers      violated      Pena’s        Fourth

Amendment right to be free from unreasonable searches, and this

right is clearly established.                    Our decisions in both Rogers and

Alvarez make plain that the curtilage of a home is afforded the

same Fourth Amendment protection as the home itself.                              Therefore,

we affirm the district court’s denial of qualified immunity on

this claim.

       We likewise affirm the grant of summary judgment in favor

of     Pena        on    this     claim.        In   their       briefs,    the     Officers

acknowledge that “there are no factual disputes” regarding the

                                                30
search of Pena’s curtilage.               Br. Appellant 38.           In fact, Pena

was asleep as these events unfolded, and all relevant facts were

furnished by the Officers’ testimony.                   Thus, our resolution of

the qualified immunity issue necessarily resolves this issue as

well.



                                           V.

     Pena    next    contends       that       the    Officers’     search      of    his

property and the Officers’ allegedly excessive use of force were

racially motivated and thus violated 42 U.S.C. § 1981.                       To bring

a claim under § 1981, a plaintiff must demonstrate (1) that he

is a member of a racial minority, (2) that defendants had the

intent to discriminate against him on the basis of his race, and

(3) that the defendants’ discrimination concerned one of the

statute’s enumerated activities.                Brown v. City of Oneonta, 221

F.3d 329, 339 (2d Cir. 2000).

     Pena also asserts a cause of action under the Fourth and

Fourteenth   Amendments       based       on    the    same   facts.            However,

“subjective motives are irrelevant to a proper Fourth Amendment

analysis,”   and     thus   Pena’s        constitutional          claims   of     racial

discrimination are properly analyzed under the equal protection

clause of the Fourteenth Amendment, not the Fourth Amendment.

United   States     v.   Bullock,    94     F.3d     896,   899    (4th    Cir.      1996)

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

                                           31
      In order to establish a violation of the equal protection

clause, and to satisfy the second element of a § 1981 claim, a

plaintiff must be able to show purposeful discrimination.                        Gen.

Bldg.      Contractors    Ass’n   v.    Pennsylvania,        458   U.S.   375,    390

(1982).        This     circuit   has    never       decided    whether   racially

motivated searches and seizures fall within § 1981’s enumerated

activities and thus satisfy the third prong of a § 1981 claim.

However, assuming without deciding that these claims are viable

under § 1981, Pena’s statutory and constitutional claims still

fail because he has not established that the Officers’ conduct

was the result of purposeful discrimination.                   Thus, the Officers

did not violate a statutory or constitutional right, and they

are entitled to qualified immunity.

                                              A.

      Pena’s evidence of racial discrimination relating to the

search of his trailer’s curtilage is insufficient to establish a

violation of either his constitutional rights or 42 U.S.C. §

1981. 14    Although Pena correctly asserts that he is not required

to   show    that     racial   animus   was    the    sole   motivation    for    the

allegedly discriminatory conduct, Pena must at a minimum be able

      14
        Because the district court did not fully set forth the
facts on which its decision was based, this court assumes the
facts that may reasonably be inferred from the record when
viewed in the light most favorable to Pena. Waterman, 393 F.3d
at 473.


                                         32
to show that he was treated differently because of his race.

See Farm Labor Org. v. Ohio State Highway Patrol, 308 F.3d 523,

536   (6th   Cir.    2002).      Because        the   Officers    have     articulated

multiple     credible,        race-neutral        criteria       supporting        their

decision     to   investigate        the   property,      which    Pena     does     not

dispute, Pena is unable to meet this burden.

      Several race-neutral factors led the Officers to the Pena

property.     First, the Pena property lies in close proximity to

the American Legion Post where the police canine lost Gonzalez’s

scent, and the Officers felt that the wood line near the Pena

property offered the path of least resistance for an escapee.

Although other trailer homes are in the same general vicinity,

the   Officers      focused    on    the   Pena       property    as   a    result    of

additional reasons peculiar to that property.                      For one, Pena’s

property     contains     multiple         residences,       several       unoccupied

structures including two sheds, and numerous large pieces of

equipment related to Pena’s business as a cement layer.                        Having

been to the Pena property previously, Officer Barbour was aware

of these conditions and felt that they would afford a good place

for Gonzalez to hide.           Officer Barbour also believed that the

tools necessary for cutting handcuffs could be found among this

construction equipment.

      The    circumstances          surrounding       Officer     Barbour’s        prior

contact with the Pena property were an additional race-neutral

                                           33
factor     supporting       the       decision      to   investigate      this    specific

location.      On two separate occasions, Officer Barbour had been

called to the Pena property to investigate possibly criminal

incidents.         A suspicious death had occurred on the property, and

Barbour had also responded to a report of a domestic dispute. 15

For   all     of    these       reasons,      Pena’s     property   was    distinct        in

Barbour’s mind and stood out from the other nearby residences.

In    light    of        this    location-specific          information,         the     Pena

property was a logical place for the Officers to inquire about

Gonzalez,      especially            when    considered    in   light     of    its     close

proximity to the last place where the police canine indicated.

      In    the      face       of    this    evidence,     Pena    argues       that     the

Officers’ racial animus is shown by (1) the Officers’ use of

shared language as a justification for their investigation of

the Pena property, (2) Officer Barbour’s use of the crude slang

phrase “mucho panucho” in an attempt to rouse Pena and have him

answer the door, and (3) the Officers’ testimony that in their

experience         the     Hispanic          community     tended    to        help     other

Hispanics.         The court will address each of these facts in turn.

      First, the use of shared language as a justification for a

search is not per se racially discriminatory.                       See Hernandez v.
      15
       In fact, more than one domestic dispute had been reported
to the police, but it appears from the record that Officer
Barbour only responded to one of these disturbances.    See J.A.
793, 1087


                                               34
New York, 500 U.S. 352, 363 (1991); United States v. Ortiz, 422

U.S.       891,    897       (1975)        (listing         ability       to    speak    English     as

relevant for establishing probable cause to search vehicles near

the Mexican-American border).                           In Hernandez, the Supreme Court

recognized that a prosecutor’s exercise of peremptory challenges

based       on    the    ability           of    jurors       to     speak     Spanish     “raised    a

plausible, though not a necessary, inference that language might

be     a    pretext          for    what        in     fact       were   race-based       peremptory

challenges,”            but    in     that       case       the    Supreme      Court     refused    to

overturn          the        trial       court’s         decision         that     there     was     no

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

       Admittedly, the shared language of Gonzalez and Pena does

not predispose Pena to aid Gonzalez.                               However, a shared language

does increase the likelihood that Pena could assist Gonzalez if

he wished, whereas a language barrier would hinder effective

communication and assistance.                          Although “shared language” may at

times       serve       as    a    post         hoc,    race-neutral           rationalization       of

racially discriminatory motives, there is no evidence to support

this       conclusion         in     the    present          case.       The     Officers    did    not

target       Spanish-speaking                   Hispanics          for     investigation         while

refusing         to     question         Spanish        language         speakers    of     different

races or ethnicities.                      In fact, the record does not show that

the    Officers          knew       of     any       other    Spanish        speakers      who   lived

nearby.

                                                       35
       By itself, shared language might not be enough to establish

a race neutral justification for a search.                     However, in the

instant case, this factor was one of many leading the Officers

to the Pena property.            When viewed in conjunction with all of

the other reasons leading to the search of the Pena property,

the presence of a shared language does have some tendency, if

only slight, to increase the likelihood that Pena might have

aided Gonzalez.

       Second, Officer Barbour’s use of the phrase “mucho panucho”

in attempting to have Pena answer the door of his trailer, while

offensive, is likewise not indicative of racial animus.                    “Mucho

panucho” is not a racial slur, and Officer Barbour was not using

the phrase to describe Pena.             Instead, Officer Barbour was using

the phrase in an admittedly “childish” attempt to bond with Pena

and to make Pena more receptive to answering the door. 16                   J.A.

847.        Although Officer Barbour stated that he would not use a

similar       phrase   when    dealing    with   Caucasians,    this   hesitancy

likely stemmed not from racial bias but from his inability to

transpose the cultural context of this slang phrase.                      Removed

from    this    cultural      context    slang   lacks   meaning,   and   even   a

       16
       According to Officer Barbour’s uncontradicted testimony,
this phrase is used widely among Hispanic males in the area.
Officer Barbour felt that employing the phrase would make him
sound like “one of the guys” and thus less threatening.    J.A.
847.


                                          36
direct    translation            of    a    slang     phrase    will      be    inaccurate     or

incomplete.       See J.A. 846-48.                  If Officer Barbour believed the

phrase    was    a     racial          insult,      he     would    not     have      felt   that

employing the phrase would increase Pena’s inclination to open

the door.

     Finally,         the    Officers’         belief        that    Hispanics        were   more

likely    to    aid    other          Hispanics      is    perhaps    the      most    troubling

explanation       offered             for    their        investigation         of    the    Pena

property.       However, considering all of the other circumstances

surrounding the Officers’ decision to target the Pena property,

Pena has not presented sufficient evidence to establish racial

animus or to show that the Officers’ decision would have been

different if Pena was not Hispanic. 17

     Since there was no violation of Pena’s constitutional or

statutory      rights       as    alleged      in     this     claim,     the    Officers     are




     17
        Pena points to the case of Lankford v. Gelston as
factually similar to the instant case.    364 F.2d 197 (4th Cir.
1966).   In that case, the Baltimore, Maryland police targeted
the homes of black residents for warrantless searches after a
police shooting, based solely on the Police Department’s belief
that black residents would be more likely to aid the suspects in
the shooting, who were also black.     More than 300 homes were
searched over a period of 19 days.        However, that case is
clearly distinguishable from the case at bar.     In the instant
case, the Officers did not target the Pena residence on the sole
basis of Pena’s race, and the Officers did not indiscriminately
target other Hispanic residences in the nearby area, much less
in the community at large as in Lankford.


                                                 37
entitled       to    qualified     immunity.            Accordingly,         the     district

court’s denial of qualified immunity on this claim is reversed.

                                             B.

       We     affirm     the     dismissal        of    Pena’s       claim     for     racial

discrimination in the use of the allegedly excessive force for

the    same    reasons    enunciated        above.         Because     the     factual    and

legal       issues    surrounding     both        claims      of     discrimination       are

identical, our decision that the search of Pena’s curtilage was

not discriminatory necessarily entails the same result on the

claim    for    discriminatory        use    of    force,       and    the     exercise      of

pendent appellate jurisdiction is appropriate.

       Furthermore, this court notes that the evidence of racial

discrimination in the use of force is even more tenuous than in

the Officers’ initial decision to investigate the Pena property.

None    of    the     evidence     offered    by       Pena    demonstrates        that   the

Officers were more likely to use force against him because of

his    race.         Undeniably,    Pena     answered         his    door    armed    with   a

rifle.        Although the Officers’ subsequent use of force may or

may     not    have     been     reasonable,       nothing          suggests    that      this

decision to use force was motivated by anything other than the

Officers’ genuine fear for their own safety.




                                             38
                                                 VI.

       Pena also alleges numerous violations of state law arising

out of the same encounter with the police.                                The Officers appeal

the district court’s decision to deny summary judgment on Pena’s

claims       for        assault,     battery,             gross     negligence,       damage     to

property, and state and federal law claims of punitive damages.

Pena    appeals         the     district       court’s          decision    to    grant     summary

judgment in favor of the Officers on Pena’s state law claims for

trespass and invasion of privacy.

       The    Officers’           appeal        regarding          the     denial    of     summary

judgment on Pena’s state law claims for assault and battery is

meritless.              These    claims        are        “subsumed      within      the    federal

excessive force claim and so go forward as well.”                                     Rowland v.

Perry, 41 F.3d 167, 174 (4th Cir. 1994).                                As to the other state

law issues (and the federal claim for punitive damages) appealed

by     the    Officers,            they        are        not     the    proper      subject    of

interlocutory review.               Because these claims raise separate legal

issues from the claims properly presented to us on appeal, the

exercise           of      pendent         appellate              jurisdiction         is      also

inappropriate.            Therefore, these appeals will be dismissed.

       Likewise, neither state law claim Pena asks us to review is

the    proper       subject        of     an    immediate          appeal.          Although    the

trespass      claim       arises        from    the        same    facts    as    Pena’s    Fourth

Amendment claim for an illegal search of his curtilage, Pena

                                                     39
appeals    the   district    court’s    decision       to    dismiss    this   claim

based on public official immunity.                Because this argument raises

distinct legal issues that are not intertwined with any issue

properly before us on appeal, pendent appellate jurisdiction is

unavailable to allow for a review of this ruling at this time.

Similarly, the state law claim for invasion of privacy requires

resolution of unique legal issues unconnected with the denial of

qualified immunity, and therefore we must also decline to review

this claim.      Accordingly, these appeals are dismissed as well.



                                       VII.

      In sum, we affirm the district court’s denial of qualified

immunity as to the first two shots fired by Officer Porter, we

affirm the district court’s denial of qualified immunity and

grant of summary judgment on Pena’s claim for an illegal search

of   his   curtilage,   we   reverse        the   district    court’s    denial   of

qualified immunity as to Pena’s claim that the search of his

curtilage was racially motivated, we affirm the district court’s

decision to dismiss Pena’s claim of racial discrimination in the

Officers’ use of allegedly excessive force, and we affirm the

district court’s decision denying summary judgment in favor of

the Officers on Pena’s state law claims for assault and battery.

      Furthermore, we decline to entertain Pena’s appeal of the

district     court’s    decision       to     grant    summary     judgment       and

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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




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