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Old September 22, 2017, 01:13 PM   #33
OldMarksman
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Join Date: June 8, 2008
Posts: 3,915
California use of force law specifically states what has been the case in law in most jurisdictions for centuries: the defendant may use "only the amount of force that was reasonably necessary to protect [himself/herself/or other person]]".

Who decides that? It is not what what the defendant may have thought:
“When an alleged act of self-defense . . . is at issue, the question of what force was reasonable and justified is peculiarly one for determination by the trier of fact.” (Burton v. Sanner (2012) 207 Cal.App.4th 12, 14 [142 Cal.Rptr.3d 782],original italics.)
That means the jury.

The standard of proof in a civil trial is much lower for the plaintiff than it would be for the state in a criminal trial:
• “Self-defense being an affirmative defense, it must, in a civil action, be established by the defendant by a preponderance of the evidence.” (Bartosh v.Banning (1967) 251 Cal.App.2d 378, 386 [59 Cal.Rptr. 382].)• “In a suit for assault and battery, the defendant is not liable if that defendan treasonably believed, in view of all the circumstances of the case, that theplaintiff was going to harm him or her and the defendant used only the amount of force reasonably necessary to protect himself or herself.” (J.J. v. M.F. (2014)223 Cal.App.4th 968, 976 [167 Cal.Rptr.3d 670] [citing this instruction].)• “The right to use force against another has long been limited by the condition that the force be no more than ‘ “that which reasonably appears necessary, in view of all the circumstances of the case, to prevent the impending injury.”‘When the amount of force used is justifiable under the circumstances, it is not willful and the actor may escape liability for intentionally injurious conduct that is otherwise actionable. But if force is applied in excess of that which is justified, the actor remains subject to liability for the damages resulting from the excessive use of force. . . . When an alleged act of self-defense or defense of property is at issue, the question of what force was reasonable and justified is peculiarly one for determination by the trier of fact.” (Calvillo-Silva v. HomeGrocery (1998) 19 Cal.4th 714, 730–731 [80 Cal.Rptr.2d 506, 968 P.2d 65],internal citations omitted
Emphasis added.

In other words, what is excessive is decided by someone else after the fact.

Should it come to that, the triers of fact would have the opportunity to view the video repeatedly, stab after stab after stab.

Several attorneys have opined that a suit in this case would be an "uphill battle". I so not know the basis for their belief--the video shows one stab wound after another meted out to an unarmed man who is on the ground and who had been heading for the exit.

It is the comparatively low threshold tor a standard of proof in a civil case, combined with the unpredictable nature of juries, the leads to the vast majority of civil suits being settled out of court.

If that is what happens here, I would consider Mr. Jerri quite lucky to have not been prosecuted in criminal court.

And that, of course, can still happen.

Mr. Jerri has two years for the sand in the egg timer to run out for a civil case; for criminal charges, its three years.

Should the man die as a direct result of the stab funs, there is no time limit.
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