Pena v. Porter, 031309 FED4, 07-1768

Docket Nº:07-1768, 07-1891
Opinion Judge:VOORHEES, District Judge:
Party Name: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. MANUEL PENA, Plaintiff - Appellant, v. JEFFREY RAY PORTER; JAMES BENN
Attorney: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. Kari R. Johnson, CRANFILL, SUMNER & HARTZOG, L.L.P., Raleigh, North Caroli...
Judge Panel:Before MICHAEL and TRAXLER, Circuit Judges, and Richard L. VOORHEES, United States District Judge for the Western District of North Carolina, sitting by designation.
Case Date:March 13, 2009
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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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.

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.

Nos. 07-1768, 07-1891

United States Court of Appeals, Fourth Circuit

March 13, 2009

UNPUBLISHED

Argued: September 24, 2008.

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

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.

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.

Unpublished opinions are not binding precedent in this circuit.

VOORHEES, District Judge:

This case stems from a police shooting. Plaintiff filed suit in federal district court alleging, inter alia, excessive force, illegal search of his curtilage, racial discrimination in both the search of his curtilage and the use of force, and various state law claims. The district court issued an order granting summary judgment in part to both sides and granting and denying qualified immunity in part, and each side now appeals certain aspects of this decision. For the reasons stated below, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

I.

Around 10:00 p.m. on a cold February 2, 2004, two probation officers attempted to arrest Rudolpho Gonzales (hereinafter "Gonzales") for probation violations. After the probation officers handcuffed Gonzales, he escaped by simply running away. Unable to find him, the probation officers called the Clayton, North Carolina Police Department for assistance.

Officer Jeffrey Porter (hereinafter "Officer Porter, " or collectively "Officers") responded to the call around 10:25 p.m. After conferring with the probation officers, Officer Porter attempted to track Gonzales with his K-9. Officer Porter followed the K-9 north to an American Legion hall, which is across the street from Gonzales's home. At this point, the K-9 stopped tracking. Officer Porter and the probation officers decided to terminate their search, but Officer Porter promised to remain vigilant. The probation officers returned to search Gonzales's home again but ultimately ended their search for the night.

At approximately 10:45 p.m., Officer Porter and his partner decided to search the area south of the Gonzales home. Unsuccessful, Officer Porter then met Officers James Barbour and Jason Barnes to discuss the situation. Together, the Officers decided to reconstitute their search for Gonzales in the area south of Gonzales's trailer. While Officer Porter searched for Gonzales around Main Street, Officers Barbour and Barnes searched near the local train tracks.

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.

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, 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, 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.

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.

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