The instruction given by the magistrate used the language of substantive due process,
see Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205, 209, 96 L.Ed. 183 (1952) (suspects protected from police conduct that “shocks the conscience”);
Johnson v. Glick, 481 F.2d at 1033 (inquiry whether force applied in good faith or maliciously for purpose of causing harm), and required the jury to find for the defendants unless the plaintiff proved that the officers acted with malice. The consideration of such subjective factors is inconsistent with the Fourth Amendment balancing test articulated in
Garner. The proper standard requires that a jury consider whether the officers acted reasonably, under the totality of the circumstances, in using deadly force to effect the arrest,
471 U.S. at 7–11, 105 S.Ct. at 1699–1701 see Davis v. Little, at 609 (“ ‘balancing the infringement of the individual's interest caused by the police action against the governmental interest served by that action’ ”) (quoting
Martin v. Malhoyt, 830 F.2d at 261). While the Fourth Amendment test does take into account the officer's knowledge, e.g., whether an officer is aware that the suspect is armed or dangerous, or knows whether the alleged felony involved violence, its primary focus is on the attendant circumstances and the objective reasonableness of the officer's actions. There is no room for consideration of the officer's motives or intent under this standard, at least not in this case,
and no requirement that an officer have acted with an improper motive in order to have acted unreasonably.