                                                    [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                                                                 FILED
                                                        U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                                              MAY 4, 2006
                               No. 05-16609
                                                           THOMAS K. KAHN
                           Non-Argument Calendar
                                                                CLERK


                 D. C. Docket No. 03-00227-CV-ORL-18-KRS

RAMON A. MERCADO,

                                                Plaintiff-Appellant,

                                   versus

CITY OF ORLANDO,
a municipal corporation and political subdivision
of the State of Florida,
RAMFIS PADILLA, Officer, individually and as an
agent and employee of the City of Orlando
and Orlando Police Department, et al.,

                                                Defendants-Appellees.



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


                                (May 4, 2006)

Before TJOFLAT, DUBINA and CARNES, Circuit Judges.
PER CURIAM:

      This is the second time we have considered an appeal of this case. In

Mercado v. City of Orlando, 407 F.3d 1152 (11th Cir. 2005) (Mercado I), we

affirmed the district court’s grant of summary judgment in favor of the defendants

City of Orlando and Police Officers Ramfis Padilla (“Padilla”) and Christina

Rouse (“Rouse”) on all claims except the issue of qualified immunity with respect

to Padilla. After remand, the case proceeded to trial on the sole remaining issue of

whether Padilla violated appellant Ramon A. Mercado’s (“Mercado”) rights under

the Fourth Amendment to the United States Constitution by shooting Mercado in

the head with a Sage SL6 launcher. The jury found in favor of Padilla.

      In this appeal, Mercado challenges the district court’s jury instruction

number 9 which instructed the jury as follows:

      The court instructs you as a matter of law that unless the defendant,
      Padilla, intended to aim and shoot the plaintiff, Mercado, in the head
      using the Sage launcher, then defendant Padilla’s acts did not violate
      plaintiff, Mercado’s rights under the Fourth Amendment of the
      Constitution.

A challenge to a jury instruction presents a question of law subject to de novo

review. United States v. Tokars, 95 F.3d 1520, 1531 (11th Cir. 1996).

      In this case, the record demonstrates that at the time of the incident in

question, Padilla found himself in the kitchen of Mercado’s apartment, which was

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a small confined area, faced with a person who had a telephone cord wrapped

around his neck while turning blue and holding a knife in both hands while

pointing it at his own chest. Padilla repeatedly told Mercado to put the knife down

but Mercado ignored his commands.

      Padilla was obviously confronted with an urgent and critical situation that

required an immediate response. Aside from the obvious and immediate threat of

suicide, Padilla had been trained to be aware that a person who is suicidal also

poses a threat to be homicidal by turning the weapon on others at a moment’s

notice. Padilla reasonably believed that unless immediate action was taken to

disarm Mercado and place him in custody, he would take his own life, or harm

others, including the officers who were present.

      Padilla had been trained in the use of the impact weapon known as the Sage

SL6 launcher. This weapon fires a rubber baton which makes impact with the

subject’s body causing less-than-lethal pain and affords the officers the

opportunity to move in and gain compliance and control over the subject. The

record demonstrates that at the time Padilla fired the Sage SL6, he did it not to

inflict deadly force, but to gain Mercado’s compliance. After Mercado was struck

with the rubber baton, he dropped the knife and the officers were able to restrain




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him and put handcuffs on him. He was then taken out of his apartment and

transported to a hospital by ambulance.

      After reviewing the record and reading the parties’ briefs, we conclude that

the district court properly instructed the jury in accordance with our ruling in

Mercado I. Moreover, the instruction was consistent with Supreme Court

precedent because the Supreme Court has long held that a federal cause of action

under 42 U.S.C. § 1983 does not extend to conduct that is merely negligent. See

Daniels v. Williams, 474 U.S. 327, 328, 106 S. Ct. 662, 663 (1986) (concluding

that the Due Process Clause is not implicated by a negligent act of an official

causing unintended loss of or injury to life, liberty, or property).

      For the above-stated reasons, we affirm the district court’s judgment entered

on the jury’s verdict in favor of Padilla.

      AFFIRMED.




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