N.C.P.I.—Crim. 208.81

NOTE WELL: This instruction is to be used as a model

instruction for this offense. It incorporates all of the

scenarios found in the N.C.P.I. 208.81 series of

instructions.

The defendant is charged with assault on a law enforcement officer

while the officer was performing or attempting to perform a duty of the

officer’s office.

For you to find the defendant guilty of this offense, the State must

prove four things beyond a reasonable doubt.

First, that the defendant assaulted (name officer) by intentionally

(describe assault, e.g., striking him).

Second, that (name officer) was a law enforcement officer and the

defendant knew or had reasonable grounds to know that (name officer)

was a law enforcement officer. A (state alleged victim’s position, e.g., a

city police officer) is a law enforcement officer. A person was a law

enforcement officer even though the officer was out of uniform and [off

duty]1 [working under cover] [(state other reason for being out of

uniform)]. Whether the defendant knew or had reasonable grounds to

know that (name officer) was a law enforcement officer is a fact to be

determined by you from all the facts and circumstances surrounding the

encounter between (name officer) and the defendant.

Third, that the defendant (describe conduct, e.g., struck) (name

officer), while (name officer) was making or attempting to make an

arrest. An officer makes or attempts to make an arrest when the officer

indicates by words or conduct that the officer is taking a person into

custody to answer a criminal charge.2

NOTE WELL: Choose whichever fourth element is

applicable.

(And Fourth, that (name officer) had in the officer’s possession a

[warrant] [order] for arrest [[naming] [describing]] [the defendant] [name

other person being arrested].)

NOTE WELL: Use the following paragraphs only if the

officer made an arrest without a warrant in the officer’s

possession.

(And Fourth, that (name officer) made a lawful arrest without a

warrant3. The arrest would be lawful if, at the time (name officer) made

it, the officer [had knowledge that a warrant has been issued and may

arrest the person named in the warrant]4 [had probable cause to believe

that (name defendant or other person being arrested) had

[a. committed a felony. (Name felony) is a felony.]5

[b. committed any criminal offense in his presence. (Name criminal

offense) is a criminal offense.]6

[c. committed a misdemeanor and would not be apprehended or

might cause [physical injury to [himself] [herself] [others]]

[damage to property] unless immediately arrested. (Name

misdemeanor) is a misdemeanor.]7

[d. violated a pretrial release order]8.]

Such probable cause9 would exist if the facts and circumstances

within the officer’s knowledge or of which the officer had reasonably

trustworthy information which was sufficient to cause a prudent person to

believe that the suspect had committed or was committing (name

offense).10)

NOTE WELL: Give the following paragraph regardless of

which fourth element applies.

If you find from the evidence (name officer) was making or

attempting to make a lawful arrest, then the defendant had a duty to

submit to that arrest. If you find from the evidence the defendant

(describe conduct, e.g., struck) (name officer) while (name officer) was

making the arrest, the defendant would be guilty of an assault upon a

law enforcement officer while the officer was discharging or attempting to

discharge a duty of the officer’s office.

NOTE WELL: Give the following paragraphs only when

there is an issue to whether the arrest was lawful.11

(If the arrest was not a lawful arrest, then the defendant had a

right to resist the unlawful arrest. In doing so the defendant was justified

in using such force as reasonably appeared to the defendant to be

necessary under the circumstances to prevent the unlawful restraint of

the defendant’s liberty. The resisting force by the defendant cannot have

been excessive. In making this determination, you should consider the

circumstances as you find them to have existed from the evidence. You

should also include in your consideration ((the size, age and strength of

the defendant as compared to (name officer)), (the fierceness of the

assault, if any, upon the defendant), (the number of officers involved),

(whether or not (name officer) had a weapon in (name officer’s)

possession), (and the reputation, if any, of (name officer) for danger and

violence)). You, the jury, determine the reasonableness of the

defendant’s belief from the circumstances then appearing to defendant.)

NOTE WELL: Give the following paragraphs only when

there is an issue to whether the officer used

reasonable or excessive force to effect the arrest, and

if the officer used excessive force, whether the

defendant acted within the defendant’s right of self

defense.

(A law enforcement officer is justified in using force against another

person when the officer reasonably believes that the Defendant has

committed a criminal offense12 and the force is necessary to effect the

arrest. If the officer uses more force than reasonably appears necessary

at the time to effect the arrest, that is excessive force, and the

defendant has a right to defend [himself] [herself]. You, the jury,

determine the reasonableness of the officer’s force from the

circumstances then appearing to the officer.

The defendant would be justified in using force to defend

[himself] [herself] if, when the defendant acted, the circumstances would

have created in the mind of a person of ordinary firmness a reasonable

belief that the defendant’s action was necessary or apparently necessary

to protect [himself] [herself] from the officer’s excessive force and if the

circumstances did create such a belief in the defendant’s mind.

Nevertheless, the defendant cannot have used excessive

force. The defendant had the right to use only such force as reasonably

appeared necessary to the defendant under the circumstances to protect

[himself] [herself] from the officer’s excessive force. In making this

determination, you should consider the circumstances as you find them to

have existed from the evidence. You should also consider (the size,

fierceness of the assault, if any, upon the defendant), (the number of

officers involved), (whether or not (name officer) had a weapon in the

officer’s possession), (and the reputation, if any, of (name officer) for

danger and violence)). You, the jury, determine the reasonableness of the

defendant’s belief from the circumstances then appearing to the

defendant.)

NOTE WELL: Give the following paragraph only when

the evidence suggests that the defendant used or

threatened to use force before the officer attempted to

arrest the defendant, or before the officer used any

force to effect the arrest.

(Finally, the defendant’s actions would be justified only if the

defendant was not the aggressor. If the defendant used or threatened to

use force against the officer before the officer [attempted to arrest the

defendant] [used any force to effect the arrest], the defendant would be

the aggressor. The defendant’s force or threat of force would itself

constitute an unjustified assault upon the officer. Additionally, if the

defendant’s initial use or threat of force provoked the officer to use

excessive force, the defendant would still be the aggressor. As the

aggressor, the defendant would not be justified in defending [himself]

[herself], even against that excessive force, unless the defendant first

withdrew and gave notice that the defendant would submit to the arrest.

If the defendant did not withdraw, however, and the officer continued to

use excessive force, the defendant would be entitled to defend [himself]

[herself] against that excessive force.

If the state proves beyond a reasonable doubt that (name officer)

used only reasonable force to effect the arrest, the defendant would be

guilty of an assault upon a law enforcement officer while the officer was

discharging or attempting to discharge a duty of the officer’s office. If the

state proves beyond a reasonable doubt that the defendant was not

reasonable in the defendant’s belief that the defendant’s action was

necessary or apparently necessary to protect [himself] [herself] from the

officer’s excessive force, or that the defendant used excessive force (or

was the aggressor), the defendant would be guilty of assault upon a law

enforcement officer while the officer was discharging or attempting to

discharge a duty of the officer’s office. If the State fails to prove at least

one of these elements, the defendant would be not guilty.)

MANDATE

If you find from the evidence beyond a reasonable doubt that on or

about the alleged date the defendant intentionally (describe assault,

e.g., struck) (name officer) and that (name officer) was a (describe

officer’s position, e.g., a city police officer) and that the defendant knew

or had reasonable grounds to know that (name officer) was a (describe

officer’s position), and that (name officer) was making or attempting to

make an arrest when the defendant (describe conduct, e.g., struck)

(name officer), and that (name officer) [had in (name officer’s)

possession a [warrant] [order] for arrest [naming] [describing] (name

defendant or other person being arrested),] [made a lawful arrest without

a warrant], it would be your duty to return a verdict of guilty. If you do

not so find or have a reasonable doubt as to one or more of these things,

it would be your duty to return a verdict of not guilty.

NOTE WELL: Only give the following additional

mandate if self-defense is applicable.

SELF-DEFENSE MANDATE

(If the State has satisfied you beyond a reasonable doubt that

(name officer) used reasonable force to effect the arrest, you would find

that the defendant acted without justification or excuse. Even if the State

has not satisfied you that the officer used reasonable force, you would

find that the defendant acted without justification or excuse if the State

has satisfied you beyond a reasonable doubt that the defendant did not

act in self-defense. Therefore, if [the defendant did not reasonably

believe that (describe assault, e.g., striking) (name officer) [was

necessary] [appeared to be necessary] to protect the defendant from

(name officer’s) (describe force, e.g. spraying him with pepper spray)]

[the defendant used excessive force] [the defendant was the aggressor],

the defendant’s acts would not be excused or justified in defense of the

defendant.

If you do not so find or have a reasonable doubt that the State has

proven any of these things, then the defendant’s action would be

justified by self-defense and it would be your duty to return a verdict of

not guilty.)