(concurring in part and dissenting in part).
Excessive force claims against law enforcement officers "are properly analyzed under the Fourth Amendment’s ‘objective reasonableness’ standard, rather than under [the Fourteenth ’Amendment’s] substantive due process standard.” Graham, 490 U.S. at 388, 109 S.Ct. at 1867, 104 L.Ed.2d at 450. And yet, the jury was instructed in Instruction No. 10 that:
[t]he Federal Civil Rights Act under which plaintiff brings this suit was enacted by Congress to enforce the Fourteenth Amendment to the United States Constitution.... You are instructed as a matter of law that under the constitution of the United States every citizen has the right to his liberty, that is, the right not to be arrested without due process of law. (Emphasis added.)
This inaccurate application of the Fourteenth Amendment to Darrow’s § 1983 excessive force claim was further compound*523ed by Instruction No. 11, which provided in part;
In order to prove his claim of violation of the Plaintiffs civil rights (federal claim), the burden is upon the Plaintiff to establish by a preponderance of the evidence each of the following elements:
First: That the Defendant knowingly and wilfully performed acts which operated to deprive the Plaintiff of one or more of his constitutional rights, as defined and explained in these instructions, by using excessive force against the Plaintiff during the course of his arrest. ...
and Instruction No. 12, which provided in part:
An act is done ‘knowingly’ if done voluntarily and intentionally, and not because of mistake or accident or other innocent reason_ As stated before, with respect to allegations such as made in this case, specific intent must be proved by a preponderance of the evidence before Plaintiff can prevail. (Emphasis added.)
These instructions, especially the latter underlined portion, are the antithesis of the Fourth Amendment’s “objective reasonableness” standard. An officer’s “underlying intent or motivation” has no place in an accurate analysis of an excessive force claim under 42 U.S.C. § 1983.
[T]he “reasonableness” inquiry in an excessive force case is ... whether the officers’ actions are “objectively reasonable” in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation .... An 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.
Robinson, 972 F.2d 974, 976 (citations omitted) (citing Graham, 490 U.S. at 397, 109 S.Ct. at 1872, 104 L.Ed.2d at 456).
“When reviewing jury instructions, we look at all the instructions as a whole and, if they provide a full and correct statement of the law applicable to the case, the instructions are not erroneous.” First Western Bank, Sturgis, v. Livestock Yards Co., 466 N.W.2d 853, 858 (S.D.1991) (emphasis added) (citation omitted). Even though jury instructions are viewed as a whole in determining whether prejudicial error resulted, they must still accurately state the law as a whole to find the error harmless. It is impossible to conclude that this erroneous specific intent instruction was harmless. In fact, it appears that proof of specific intent by a preponderance of the evidence was a condition precedent before there could be any recovery under any theory, not just under the § 1983 cause of action. Instruction 12 expressly provided: “As stated before, with respect to allegations such as made in this case, specific intent must be proved by a preponderance of the evidence before Plaintiff can prevail.” In other words, with respect to all allegations in this case, not just this theory.
How can we be sure the jury did not read this instruction in this manner? “Giving an incorrect instruction is not obviated by giving a correct one on the same issue since it is impossible to tell whether the jury followed the correct guide or the incorrect one.” Wheatley v. Heideman, 251 Iowa 695, 102 N.W.2d 343, 354 (1960) (citations omitted). It seems obvious to me that under these instructions, Darrow had to prove that Schumacher had specific intent to use excessive force before he could prevail. This is contrary to federal and state law. Graham, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443; Robinson, 972 F.2d 974; Frey v. Kouf, 484 N.W.2d 864, 867-68 (S.D.1992); State v. Balint, 426 N.W.2d 316, 317-18 (S.D.1988).
Darrow should not be required to prove that Schumacher had the specific intent to deprive him of one or more of his constitutional rights through the use of excessive force against him during the course of his arrest. At a minimum, we should reverse and remand the § 1983 cause of action per Graham, where the Supreme Court vacated and remanded for reconsideration under the proper Fourth Amendment standard.
*524Where the instructions are misleading and conflicting on a material issue, a new trial should ordinarily be granted unless the error is cured by withdrawal of the defective instruction. But an erroneous statement of the law clearly applicable to the facts of the case is not cured by subsequent correct instructions which do not spécifically correct the misstatement.
Lindstrom v. Yellow Taxi Co. of Minneapolis, 298 Minn. 224, 214 N.W.2d 672, 676 (1974) (citation omitted).