I will now define Culpable Negligence for you. Each of us has a duty to act reasonable [sic] towards others. If there is a violation of that duty, without any conscious intent to harm, that violation is negligence. But Culpable Negligence is more than a failure to use ordinary care for others. For negligence to be called culpable it must be gross and flagrant. The negligence must be committed with an utter disregard for the safety of others. Culpable Negligence is consciously doing an act or following a course of conduct that the Defendant must have known or reasonably should have known was likely to cause death or great bodily harm.
Mr. Vazquez was justified in the use of deadly force if he reasonably believed that it's [sic] use was necessary to prevent imminent death or great bodily harm to himself or another at the hands of the [police]. In deciding whether the Defendant was justified in the use of force likely to cause death or great bodily harm, you must judge him by the circumstances with which he was surrounded at the time the force was used, the danger facing the Defendant need not have been actual, however, to justify the use of force likely to cause death or great bodily harm, the appearance of danger must have been so real that a reasonably cautious and prudent person under the circumstances would have believed that the danger could be avoided only through the use of force. The Defendant must have actually believed that the danger was real. The defendant cannot justify his use of force likely to cause death or great bodily harm unless he used every reasonable means within his power and consistent with his safety to avoid the danger before resorting to that force.
When an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim.
If issues are determined but the judgment is not dependent upon the determinations, relitigation of those issues in a subsequent action between the parties is not precluded. Such determinations have the characteristics of dicta, and may not ordinarily be the subject of an appeal by the party against whom they were made. In these circumstances, the *1108 interest in providing an opportunity for a considered determination, which if adverse may be the subject of an appeal, outweighs the interest in avoiding the burden of relitigation.
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