1 Bender was subsequently convicted of first degree murder and sentenced to life imprisonment

without the possibility of probation, parole, or pardon. United States Court of Appeals,

Fifth Circuit.

No. 91-4884.

Raymond Louis BENDER, Plaintiff-Appellant,

v.

James A. BRUMLEY, et al., Defendants-Appellees.

July 12, 1993.

Appeal from the United States District Court for the Western District of Louisiana.

Before REYNALDO G. GARZA, WILLIAMS, and JONES, Circuit Judges.

JERRE S. WILLIAMS, Circuit Judge:

This 42 U.S.C. § 1983 case asserts the police used excessive force in dealing with a pre-trial

detainee. The critical, narrow issue before us is whether it was reversible error for the district court

to instruct the jury that it must find that Raymond Bender suffered "significant injury" before it could

return a verdict in his favor? We conclude that the jury was inescapably misguided by the instruction,

which ran afoul of the Supreme Court's recent decision in Hudson v. McMillian, --- U.S. ----, 112

S.Ct. 995, 117 L.Ed.2d 156 (1992), as explicated by this Circuit in Valencia v. Wiggins, 981 F.2d

1440, 1443-47 (5th Cir.1993), cert. denied, 1993 WL 137474,

--- U.S.

----, --- S.Ct.

----, --- L.Ed.2d

---- (June 21, 1993). Accordingly, we remand Bender's excessive force claims to the district court

for a new trial. We affirm the judgments entered against his other claims.

I. FACTS AND PRIOR PROCEEDINGS

On February 20, 1989, Raymond Louis Bender surrendered himself as a suspect in the killing

of Deputy Jimmy Kinney of the Sabine Parish Sheriff's Department. Deputy Kinney had been killed

by a single shotgun blast to the chest as he sat in his patrol car a few hours earlier. 1

Later that day, Bender was taken from his cell at the Sabine Parish jail and escorted by Deputy

Jack Staton to the interrogation room where they were met by Staton's fellow defendants, Deputies2 Later the same day, Officer Remedies telephoned the then-assistant district attorney to modify

his earlier statement. Remedies stated that a scuffle occurred, but he was not certain that Staton

had struck Bender. James McComic and Joe Byles, and Officer David Remedies of the Zwolle Police Department. What

transpired inside the interrogation room is vigorously disputed. The officers maintain that Bender

grew erratic at various times during the questioning and began flailing his arms; a brief scuffle

ensued , and the officers used minimal force to restrain him. The Defendants acknowledge that

everyone in the room was upset, but they emphatically deny that unreasonable force was used or that

a beating took place. The officers urge that Bender's claims of physical abuse are belied by his failure

to s eek medical attention until May 1990, more than fifteen months following the alleged

mistreatment, and then for an ailment wholly unrelated to the alleged beating.

Bender asserts, on the other hand, that upon his invocation of his Fifth Amendment right to

remain silent, Deputy McComic threw hot coffee in his face to compel him to speak and hit him on

the head, knocking him to the floor. While on the floor, Bender claims that Deputy Staton managed

several blows and kicks before dragging him out of the room by his hair. Outside the room, Bender

contends the beating continued—Staton smacked him between the eyes, knocking him again to the

floor, and Officer Remedies hit and kicked Bender's head and rear. At this point, says Bender,

McComic admonished Staton and Officer Remedies to stop striking Bender with closed fists because

that might cause severe injuries. Staton then stomped on Bender's back before he was taken back into

the interrogation room where Deputy Byles saw Bender's bloody nose and asked what had happened.

Bender claims that McComic responded that Bender had fallen off the stairs, whereupon Byles called

Bender a nigger and threatened to shoot him if he tried to run away.

Bender also m a intains that Remedies made a statement that he saw Staton hit Bender, and

emphasizes that a Louisiana state court judge testified at trial that when she, as an assistant district

attorney for Sabine Parish, questioned Remedies about the incident, he told her that Staton struck

Bender "once or twice." 2 Moreover, Bender insists, wit nesses can verify that he "looked kind of

roughed up" after his trip to the interrogation room

. He claims that his nose bled profusely and felt

as if it were broken, that he lost complete feeling in his legs, and that two officers had to hold him up3 The issue of qualified immunity, which the district court elected to carry with the case to trial,

is not before us on appeal.

4 Mere allegations of verbal abuse do not present actionable claims under § 1983. "[A]s a rule,

"mere threatening language and gestures of a custodial officer do not, even if true, amount to a as he returned to his cell. Additionally, he asserts that he and/or his family repeatedly requested

medical attention, which was at all times refused. For their part, however, the Defendants presented

witnesses who refuted Bender's claims of threats and physical abuse.

Exactly one year from the date of Bender's arrest for Deputy Kinney's murder and the alleged

beating, Bender filed suit against the four officers and Sheriff James Brumley asserting various causes

of action arising under the U.S. Constitution, 42 U.S.C. §§ 1983 and 1985(3), and Louisiana state

law. At trial's end, the jury was asked a series of questions. Regarding Bender's federal claims, the

jury was asked whether McComic, Staton, and Remedies used excessive force and whether Sheriff

Brumley wit hheld medical care. Regarding Bender's pendent state law claims, the jury was asked

whether any of the five defendants used excessive force as defined under Louisiana law or

intentionally inflict

ed emotional distress. The jury rejected Bender's plea for compensat ory and

punitive damages and returned a verdict completely exonerating the officers. 3 Judgment was entered,

and Bender t imely appeals the dismissal. He claims three principal grounds. He argues that the

district court erred in (1) denying his motions for summ ary judgment and directed verdict, (2)

admitting potentially prejudicial testimony concerning Deputy Kinney's murder, and (3) instructing

the jury that proof of significant injury was necessary to support a valid § 1983 claim. We address

these contentions in turn.

II. DISCUSSION

A. The Denial of Bender's Motions

Prior to trial, Bender filed a motion for summary judgment on his federal claims of excessive

force and deprivation of medical attention. Noting that "[t]he testimony of both camps is

diametrically opposed," the district court denied the motion, but partially granted Defendants' Moti on

for Dismissal or Alternatively for Summary Judgment by dismissing all claims for verbal threats and

harassment. 4 At the close of the officers' evidence at trial, Bender sought a directed verdict as to hisconstitutional violation.' " McFadden v. Lucas, 713 F.2d 143, 146 (5th Cir.), cert. denied, 464

U.S. 998, 104 S.Ct. 499, 78 L.Ed.2d 691 (1983) (quoting Coyle v. Hughs, 436 F.Supp. 591, 593

(W.D.Okla.1977)). pendent state law claims of excessive forc e and intentional infliction of emotional distress. This

motion, too, was denied.

On appeal, Bender persists that the savage beating he endured was supported by "concrete

proof" and that th e t rial court's refusal to grant his motions was error in the face of "the objective

physical evidence." Bender argues strenuously that a review of the entire record shows that,

any reasonable jury could have found that Appellees in an act of vengeance maliciously and

sadistically used excessive force against him in the guise of coercing a confession; Appellant

suffered physical pain, emotional distress, and mental anguish; Appellant was denied medical

treatment for a period of fifteen (15) months following the assault; and the acti ons of the

Appellees violated both state and federal laws. (emphasis added)

Bender concedes, however, that conflicting evidence was presented from which contradic tory

inferences could have been drawn. The district court properly denied both motions.

As to the motion for summary judgment, the governing standard is well settled. Summary

judgment is proper when no genuine issue of material fact exists and the moving party is entitled to

judgment as a matter of law. F E D .R.C IV .P. 56(c); s ee also, e.g., Celotex v. Catrett, 477 U.S. 317,

106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In determining whet her t he district court's denial was

proper, we review the court's decision de novo and consider al l o f t he record evidence and the

inferences drawn therefrom in the light most favorable to the non-movant officers. W alker v. Sears,

Roebuck & Co., 853 F.2d 355, 358 (5th Cir.1988).

In its memorandum ruling denying the summary judgment, the district court carefully assessed

Bender's evidence and recognized that testimony in the record squarely contradicted his claims.

Specifically, the court noted that Bender's motion itself included as exhibits from the prior criminal

prosecution the officers' sworn denials that a beating or other mistreatment took place. The district

court properly concluded that "[t]his testimony is more than sufficient to create a genuine issue of

material fact which must be resolved by the jury." This case obviously cannot be viewed as "so

one-sided that one party must prevail as a matter of law." A nderson v. Liberty Lobby, Inc., 477 U.S.

242, 252, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986).5 But even were we sufficiently persuaded by the similarities between the "genuine issue"

summary judgment standard and the "reasonable jury" directed verdict standard nonetheless to

review the court's denial of Bender's directed verdict motion, we would affirm the trial court's

decision. The well-established Boeing standard instructs us to "consider all of the evidence ... in

the light and with all reasonable inferences most favorable to the party opposed to the motion."

Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir.1969) (en banc) ("If the facts and inferences

point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable

men could not arrive at a contrary verdict, granting the motion[ ] is proper."). Applying the

substantive law of Louisiana, since Bender's directed verdict motion applied only to his pendent

state law claims, we are unable to say that a reasonable and fair-minded jury could not have made

credibility determinations and drawn inferences favoring the officers, and returned a verdict

clearing them of misconduct. See Kyle v. New Orleans, 353 So.2d 969, 972-73 (La.1977)

(articulating the elements of excessive force under Louisiana law); Marshall v. Circle K Corp.,

715 F.Supp. 1341, 1343 (M.D.La.1989) (discussing Louisiana's requirements for claims of

intentional infliction of emotional distress) (citations omitted), aff'd mem., 896 F.2d 550 (5th

Cir.1990). As to the motion for a directed verdict, Bender fails to discuss in his appellate brief the court's

denial of his d irect ed verdict motion. It is well settled that the failure to argue an issue posed for

consideration is deemed an abandonment of that issue. E .g., Harris v. Plastics Mfg. Co., 617 F.2d

438, 440 (5th Cir.1980) (per curiam); F ED .R.A PP .P. 28(a)(4). Accordingly, we do not review the

district court's directed verdict decision. 5

We also consider Bender's relat ed argument, listed separately in his brief, that the jury's

verdict "is against the law and the clear weight o f t he evidence." This is essentially an argument

contesting the sufficiency of the evidence, which we assess in the light most favorable to the jury's

verdict. Wilson v. Monarch Paper Co., 939 F.2d 1138, 1139 (5th Cir.1991). At the conclusion of

defendant's case, Bender moved for a directed verdict on his state law claims only. A cursory review

of the evidence rebutting Bender's state law claims supports the district court's decision to reject this

motion. As to Bender's federal claims, absent a motion for directed verdict in the district court our

inquiry is restricted to "whether there was any evidence to support the jury's verdict, irrespective of

its sufficiency, or whether plain error was committed which, if not noticed, would result in a "manifest

miscarriage o f justice.' " C oughlin v. Capitol Cement Co., 571 F.2d 290, 297 (5th Cir.1978)

(e mphasis in original). Measured against this arduous standard, the evidence submitted regarding

Bender's federal claims falls far short of requiring that the verdict be set aside on insufficiency of the

evidence.B. The Admission of Evidence About the Murder

Bender next complains that the district court erred in allowing the jury to hear highly

inflammatory and prejudicial testimony concerning the murder of Deputy Kinney. Specifically, the

judge allowed witnesses to discuss in graphic detail the circumstances surrounding Kinney's murder,

for which Bender had been convicted about six months earlier. Although he concedes that Federal

R ule of Evidence 609(a)(1) allows a witness to be impeached with evidence of prior convicti ons,

Bender contends that the probative value of the evidence was slight and easily outwe ighed by the

danger of unfair prejudice. Accordingly, he argues, it should have been excluded under Federal Rule

of Evidence 403, which cautions against the admission of otherwise-relevant evidence likely to induce

a purely emotional decision.

This argument also is without merit. Following its latest amendment in 1990, Federal Rule

of Evidence 609(a)(1), previously a source of considerable judicial and academic dissatisfaction, now

provides:

(a) General rule. For the purpose of attacking the credibility of a witness,

(1) evidence that the witness other than an accused has been convicted of a crime shall

be admitted , subject to Rule 403, if the crime was punishable by death or imprisonment in

excess of one year under the law under which the witness was convicted, and evidence that

an accused has been convicted of such a crime shall be admitted if the court determines that

the probative value of admitting this evidence outweighs its prejudicial effect to the accused[.]

This rule, as now amended, was applicable in this case. Nothing in the record indicates that

the district court engaged in prejudice/probativity weighing under Rule 403. That omissio n is

irrelevant in this case. Bender himself gave the first testimo ny about the underlying facts of his

murder conviction. On direct examination, Bender discussed in great detail the facts surrounding the

shooting o f Deput y Kinney. He also discussed his grand jury testimony underlying the criminal

proceedings. Bender's later objections to questions concerning the murder were properly overruled.

The danger of unfair prejudice was introduced not by the defendants, but by Bender himself. The

district judge noted as much when Bender's counsel broached the subject once more near the end of

the trial:

You took your clients through their whole murder scene on direct examination and you have

made it very difficult now to draw any line. You are no w going back into this. You keepobjecting when they talk about it but you bring it out when you want to.... [Bender] got up

there and told the jury I did not murder the deputy and he went through the whole scene.

Now, they're obviously entitled to impeach him by showing that's a lie.

Given that Bender opened the door to evidence regarding his underlying murder conviction,

his "substantial rights" were not jeopardized. See Fed.R.Civ.P. 61 (defining harmless error as "any

error or defect in the proceeding which does not affect the substantial rights of the parties").

C. The "Significant Injury" Requirement

The t rial judge erroneously instructed the jury that Bender could prevail on his federal

excessive force claim only if he pro ved a significant injury. We find that the mistaken instruction

warrants reversal.

We af fo rd t rial judges wide latitude in fashioning jury instructions and ignore technical

imperfections, see, e.g., Pierce v. Ramsey Winch Co., 753 F.2d 416, 425 (5th Cir.1985). But the trial

court must "instruct the jurors, fully and correctly, on the applicable law of the case, and ... guide,

direct, and assist them toward an intelligent understanding of the legal and factual issues involved in

their search for truth." 9 W R IGHT & M ILLER

, F EDERAL P RACTICE AND P ROCEDURE § 2556 (1971).

Reversal is therefor e appro priate whenever the charge "as a whole leaves us with substantial and

ineradicable doubt whether the jury has been properly guided in its deliberations." K yzar v. Vale Do

Ri Doce Navegacai, S.A., 464 F.2d 285, 290 (5th Cir.1972), cert. denied, 410 U.S. 929, 93 S.Ct.

1367, 35 L.Ed.2d 591 (1973); see also, e.g., McCullough v. Beech Aircraft Corp., 587 F.2d 754,

759 (5th Cir.1979).

We first address a threshold, procedural matter. Defendants argue strenuously that Bender

failed to preserve this issue for appeal because he did not lodge oral on-the-record objections to the

jury charge when invited to do so by the trial court. F E D .R.C IV .P. 51. This is immaterial, however,

since Bender had earlier filed written objections to the proffered jury instructions. We recognize that

error is preserved for appeal so long as the complaining party states his assertion to the trial court

prior to the time when the court invites on-the-record objections to the charge. E .g., Pierce, 753

F.2d at 424; L ang v. Texas & P. Ry., 624 F.2d 1275, 1279 (5th Cir.1980) ("the failure to object may

be disregarded if the party's position has previously been made clear to the court and it is plain thata further objection would have been unavailing"). The lack o f another in-court objection echoing

Bender's earlier written protest, although useful as are all on-the-record occurrences, does not defeat

his ability to challenge the instructions on appeal.

The officers voice an alternative argument, that even if we recognize Bender's earlier written

objections as t imely, they are nonetheless defective because they fail to satisfy Rule 51's demand for

specificity. We conclude that Bender's written objections were sufficiently explicit. The instructions

proffered by the trial court, as set out below, were gleaned almost verbatim from the factors set forth

in Huguet v. Barnett, 900 F.2d 838, 841 (5th Cir.1990). H uguet is an Eighth Amendment excessive

force case importing the significant injury requirement from Johnson v. Morel, 876 F.2d 477, 480

(5th Cir.1989) (en banc) (per curiam), a Fourth Amendment excessive force case holding that trivial

harms do not rise to constitutional import.

Bender's written objections clearly challenge the use of Johnson 's Fourth Amendment

standard:

Plaint iff object[s] to Jury Charge No. 3 for the reason that Johnson [v]. Morel

... was not the

clearly established law in the Fifth Circuit on February 20, 1989, hence the test enunciated in

Johnson is not applicable to the facts in this case.

* * * * * *

Plaintiff object[s] to Jury Charge No. 5 for the reason that Johnson [v]. Morel ... is not the

law of the case. Plaintiff's civil rights were violated after his arrest and [after he was] locked

in a jail cell. None of the officers involved in the arrest of Plaintiff participated in the beating

in the interroga t io n ro o m. Plaintiff's Fourteenth Amendment due process rights to be free

from punishment were violated by Staton, McComic, Byles and Remedies.

We now turn to the critical issue. Was it correct to instruct the jury that proof of significant

injury was necessary to support Bender's federal claim? If not, was the error harmless? Two recent

cases control our decision. The first is the Supreme Court's decision in H udson v. McMill ian,

---

U.S.

----, 112 S.Ct. 995, 117 L.Ed.2d 156 (199 2). In H udson, the Supreme Court abandoned its

prior insistence on an objectively serious deprivation to hold th at a prisoner need not demonstrate

significant injury where the force used was malicious and wanton. It reversed a decision of this Court

t hat had applied our established precedent emphasizing the requirement of significant injury in

excessive force cases. The Supreme Court held that "the core judicial inquiry is ... whether force was6 Admittedly, such intent is often undiscernible, and the trier of fact must base its determination

on relevant objective factors suggestive of intent. Our recent decision on remand in Hudson

summarized some of the pertinent factors:

1. the extent of the injury suffered;

2. the need for the application of force;

3. the relationship between the need and the amount of force used;

4. the threat reasonably perceived by the responsible officials; and

5. any efforts made to temper the severity of the forceful response.

Hudson v. McMillian, 962 F.2d 522, 523 (5th Cir.1992). applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause

harm." I d. at ----, 112 S.Ct. at 999 (citing Whitley v. Albers, 475 U.S. 312, 320-21, 106 S.Ct. 1078,

1084-85, 89 L.Ed.2d 251 (1986)).

Subsequently, in Valencia v. Wiggins, 981 F.2d at 1440, 1446 (5th Cir.1993), cert. denied,

--- U.S.

----, --- S.Ct.

----, --- L.Ed.2d

---- (June 21, 1993), we held that it was obviously proper to

extend the analysis announced in Hudson and Whitley to pre-trial detainees under the due process

clause of the Fourteenth Amendment. S ee also Jackson v. Culbertson, 984 F.2d 699, 700 (5th

Cir.1993) (per curiam). In short, when determining what standard applies to excessive force claims

brought by pre-trial detainees, the proper due process inquiry does not probe the extent of the injury

sustained, although that is one factor that can evince wantonness. Rather, it probes the subjective

intent of the detaining officers. 6

The t iming of this case adds an unusual facet; it was tried while H udson was pending before

the Supreme Co urt . Ant icipating that the Supreme Court might abrogate our Circuit's significant

injury requirement, the trial court attempted to word the jury interrogatories in such a manner as to

avoid the effect of a reversal. Focusing on the federal claims, the court first asked, "Do you find that

the following defendants used excessive force against Raymond Bend er which was objectively

unreasonable?" Then, the court asked separately whether Bender "has proven a significant injury

resulting directly from excessive force[.]" The jury answered "no" to both inquiries. The jury was

plainly required to find significant injury before answering "yes" to the second question. Whether the7 Whether Johnson has in fact been overturned remains unresolved. At first look, the

abrogation of significant injury appears settled no matter what standard under § 1983 is being

applied. See Knight v. Caldw ell, 970 F.2d 1430, 1432 (5th Cir.1992) (stating in dictum that "we

can no longer require persons to prove "significant injury,' ... under section 1983"). But other

recent Fifth Circuit cases, while recognizing the tension between Johnson and Hudson, have

expressly refused to decide whether Johnson 's vitality has been impaired by Hudson in the Fourth

Amendment context. See Mouille v. City of Live Oak, Tex., 977 F.2d 924, 929 and n. 7 (5th

Cir.1992), cert. denied, --- U.S. ----, 13 S.Ct. 2443, --- L.Ed.2d ----, (1993); King v. Chide, 974

F.2d 653, 657 n. 2 (5th Cir.1992). Thus, it remains an open question in this Circuit whether

Johnson 's significant injury requirement survives in situations involving arresting, as opposed to

custodial, officers. same can be said of the first question turns on how the jury was instructed.

It is clear that the jury was specifically instructed to deny Bender's federal claim unless he

proved that he sustained a significant injury. In instructing the jury about these claims, the trial judge

quoted almost verbatim from Johnson, now arguably overruled, 7 and stated repeatedly that significant

injury was a vital, necessary component of Bender's case:

In order to prove that the defendants used excessive force, Mr. Bender must prove by a preponderance of the evidence:

1. a significant injury, which

2. resulted directly and only from the use of force that was clearly excessive to the need; the

excessiveness of which was

3. objectively unreasonable.

If Bender fails t o pro ve any of these elements, you must find for the defendants.

These three elements are objective focusing on the injury, the amount of force used, and the

amount of force necessary.

To determine whether a "significant injury" has been inflicted, you must consider only

the injuries resulting directly from the constitutional wrong. There can be a constitutional

violation only if a significant injury resulted from the officer's use of excessive force.

Defendants counter on multiple fronts. First, they argue that even if we determine that the

court issued erroneous instructions, "such instruction was harmless error as the jury specifically found

that none of the defendants used excessive force which was objectively unrea sonable." The

defendants thus maintain that the precise language of the special verdict form "cured" any defect in

the instructions a nd pro vides a basis to sustain the verdict even though H udson abolished the

significant injury requirement. This argument must fail. As illustrated above, before even reaching

the question of whether the officers' actions were objectively unreasonable, the jury was first requiredto agree that Bender had suffered a significant injury: "There can be a constitutional violation only

if a significant injury resulted from the officer's use of excessive force."

Second, the officers point out that when the trial judge advised the jury concerning Bender's

excessive force claim arising under state law, he specifically stated that significant injury was not a

necessary element under Louisiana law. Thus, since the jury found for the officers on Bender's state

claim as well, the officers insist it would be futile to try the entire case again, particularly the state law

component. For at least two reasons, we cannot agree. First, despite the accuracy of the Louisiana

instructions standing alone, the court's earlier remarks caution against rescuing the state law verdict.

In our view, the court 's repeated references to the necessity of significant injury under federal law

permeated the entire charge. Second, even if we were inclined to salvage the state law verdict, that

is an invalid basis upon which to deny Bender's federal claim. Although the relevant objective factors

are similar, compare Kyle v. New Orleans, 353 So.2d 969, 973 (La.1977), with Hudson, 962 F.2d

at 523, a finding of "no excessive force" under Louisiana law cannot mandate a parallel verdict under

§ 1983, which is based upon the constitutional requirements of the Fourteenth Amendment.

The Supreme Co urt has advised that "if one cannot say, with fair assurance, ... that the

judgment was not substan t ially swayed by the error, it is impossible to conclude that [Bender's]

substantial rights were not affected." K otteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239,

1248, 90 L.Ed. 1557 (1946). Because we are left in "grave doubt" whether the trial court's erroneous

instruction exerted "substantial influence" over the outcom e o f t he case, the jury's verdict cannot

stand. Id.

The case must be retried to submit properly the question: "whether force was applied in a

good-faith effort to maintain or res t o re discipline, or maliciously and sadistically to cause harm."

Hudson, --- U.S. at ----, 112 S.Ct. at 999; see Wiggins, 981 F.2d at 1446-47, 1449.

III. CONCLUSION

The judgments entered on Bender's federal and state excessive force claims are REVERSED,

and those causes of action are REMANDED to the district court for a new trial. Our decision today

does not affect the denial of Bender's federal claim of deprivation of medical treatment or his stateclaim of intentional inflict ion of emotional distress. Upon careful examination of the record evidence,

the judgments entered on those issues are AFFIRMED.

AFFIRMED IN PART. REVERSED AND REMANDED IN PART.

EDITH H. JONES, Circuit Judge, concurring in part and dissenting in part:

Judge Williams's opinion is persuasive and I readily concur in all but one aspect o f it s

reasoning, with which I must cordially disagree. I dissent only from that portion of his opinion which

remand s Bender's case for a new trial on whether the police officers used excessive force under

federal constitutional standards. Although the district court heroically attempted to apply then-extant

law on the constitutional standard for excessive force against pretrial detainees, I agree that in light

of Hudson and Valencia, supra, his instructions were wrong. Unlike my colleagues, I would hold

this a harmless error. The court carefully instructed the jury that Louisiana law does not require a

finding of significant injury as a predicate to state tort law liabilit y of the officers, and the jury found

against Bender. I do not agree that simply because the same instruction will now be given as to

federal standards of recovery, a new jury could or should reach a different factual conclusion. The

officers, I would contend, have been effectively exonerated by the jury's refusal to find that—even

without a significant injury requirement—Bender was not the victim of excessive force. I therefore

dissent from this portion of the panel opinion.