                                                        [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                                                                FILED
                                                       U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                                                            MARCH 2, 2010
                               No. 09-11962
                                                              JOHN LEY
                                                               CLERK

                   D. C. Docket No. 07-14276-CV-DLG

ANTONIA FLORES HERNANDEZ,

                                               Plaintiff-Appellant,

                                  versus

ST. LUCIE COUNTY SHERIFF KEN J. MASCARA,
as an individual and in his official capacity as
Sheriff of St. Lucie County,
SHAWN MASTERS,
St. Lucie County Deputy Sheriff, individually,

                                               Defendants-Appellees.



                Appeal from the United States District Court
                    for the Southern District of Florida


                             (March 2, 2010)
Before DUBINA, Chief Judge, KRAVITCH, Circuit Judge, and EDENFIELD,*
District Judge.

PER CURIAM:

       This is an appeal in a §1983 excessive force case brought by Appellant

Antonia Flores Hernandez against Appellee Shawn Masters, a Deputy Sheriff in

St. Lucie County, Florida, in his individual capacity. After a jury found in Deputy

Masters’s favor, Hernandez appealed, arguing that Eleventh Circuit Pattern Jury

Instruction 2.2, which the district court used in instructing the jury on her

excessive force claim pursuant to the Fourth Amendment, no longer accurately

reflects the law, after the Supreme Court’s decision in Graham v. Connor, 490

U.S. 386, 109 S. Ct. 1865 (1989).

       We review jury instructions de novo to determine whether they misstate the

law or mislead the jury to the prejudice of the objecting party. Palmer v. Bd. of

Regents of the Univ. Sys. of Georgia, 208 F.3d 969, 973 (11th Cir. 2000).

       Appellant Hernandez argues that the district court erred in using Eleventh

Circuit Pattern Jury Instruction 2.2 because it has been superceded by the Supreme

Court’s holding in Graham v. Connor, 490 U.S. at 397, 109 S. Ct. at 1872. In

Graham, the district court had granted summary judgment to the defendant, on the


       *
        Honorable B. Avant Edenfield, United States District Judge for the Southern District of
Georgia, sitting by designation.

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ground that the police officers had not acted maliciously or sadistically for the

purpose of causing harm, and the Fourth Circuit affirmed. Id. at 390-91, 109 S.

Ct. at 1869. The Supreme Court reversed, holding that a §1983 claim for

excessive force should be analyzed under the Fourth Amendment’s “objective

reasonableness” standard, rather than under a substantive due process standard.

Id. at 393-94, 109 S. Ct. at 1870-71. The Court stated that 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. at 396,

109 S. Ct. at 1872. The Court held that the subjective intent or motivation of an

officer does not affect the existence of a Fourth Amendment violation. Id. at 397,

109 S. Ct. at 1872 (explaining that “[a]n officer’s evil intentions will not make a

Fourth Amendment violation out of an objectively reasonable use of force; nor

will an officer’s good intentions make an objectively unreasonable use of force

constitutional”). In reaching this conclusion, the Court rejected the fourth part of

a four-part test that many courts of appeal, including this court, had used in

analyzing excessive force claims. That part was the consideration of whether the

officer acted in good faith as opposed to maliciously or sadistically. See id.

      Thus Hernandez’s argument is that Instruction 2.2 still reflects the law as it

was before Graham v. Connor – that to find for the plaintiff the jury must find that

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the defendant subjectively intended to violate the plaintiff’s constitutional rights.

She contends that under the district court’s instructions to the jury, the jury could

have believed Hernandez’s version of the events that transpired, and yet ruled for

Deputy Masters on the ground that he was not shown to have subjectively

intended to violate her Fourth Amendment rights.

      When we review Instruction 2.2 as a whole, along with the jury verdict

form, we cannot conclude that the district court’s instruction did not properly

express the law applicable to this case. Nowhere in the instruction is the jury

explicitly advised that Hernandez had to prove a subjective component of Deputy

Masters’s intentions, such as malice. Indeed, the word “subjective” is not in the

instruction. Instead, the great weight of the instruction focuses on the mere

requirement that Masters had to use force by means intentionally applied, instead

of as the result of an accident. Specifically, the jury was instructed that it must

decide what force a “reasonable and prudent law enforcement officer would have

applied in detaining the plaintiff under the circumstances disclosed in this case,”

which accords with the Supreme Court’s holding in Graham that a

“reasonableness” standard applies. 490 U.S. at 397, 109 S. Ct. at 1872. Because




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we conclude that Instruction 2.2, viewed in its entirety,1 is not in conflict with the

Supreme Court’s holding in Graham v. Conner, we affirm the judgment entered on

the jury’s verdict.

       AFFIRMED.




       1
         We must consider the jury instructions as a whole. Palmer, 208 F.3d at 973. No reversible
error occurs as long as the instructions accurately state the law, “even if an isolated clause may be
inaccurate, ambiguous, incomplete, or otherwise subject to criticism.” Watkins v. Bowden, 105 F.3d
1344, 1356 (11th Cir. 1997). We conclude that Instruction 2.2, viewed in its entirety, did not
mislead the jury in this case. However, as counsel for Deputy Masters noted during oral argument,
the Committee on Pattern Jury Instructions of the Judicial Council of the Eleventh Circuit could
improve upon several isolated clauses in Instruction 2.2 so that the instruction more clearly reflects
the holding in Graham v. Connor. For instance, the Committee could add the phrase “without regard
to the officer’s underlying intent or motivation” to the end of the following instruction: “You must
decide whether the force used in detaining the plaintiff was excessive or unreasonable on the basis
of that degree of force, that a reasonable and prudent law enforcement officer would have applied
in detaining the plaintiff under the circumstances disclosed in this case.” Additionally, the
Committee could modify the instances where the jury is instructed that it must find that the defendant
“intentionally deprived” the plaintiff of her constitutional rights and “intentionally violated” the
plaintiff’s constitutional rights, so that the jury is instructed that it must find that the defendant
“intentionally committed acts that violated” the plaintiff’s constitutional rights.

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