N.C.P.I.—Crim. 208.81A

NOTE WELL: See N.C.P.I. 208.80 for an index to other

factual situations involving assaults on arresting

officers.

NOTE WELL: N.C.P.I. 208.81 provides a model

instruction for the offense of assault on a law

enforcement officer in arrest situations. The instruction

incorporates all of the various scenarios presented in

the index set forth in N.C.P.I. 208.80 into one

instruction.

An assault on an officer can involve a variety of issues

depending on whether or not the officer is in uniform, acted

with or without a warrant, the lawfulness of the arrest, the

force used by the officer, or the force used by the defendant.

Use this instruction when it is undisputed that the officer in

uniform, making an arrest, [had a warrant in the officer’s

possession] [the arrest was a lawful arrest without a

warrant] and the issues are:

(1) Whether the officer used reasonable or excessive force

to effect the arrest, and

(2) If the officer used excessive force, whether the

defendant acted consistently with his right of self-defense.

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 intentionally1

and without justification or excuse (describe assault, e.g., striking)

(name officer).

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.2

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

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

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]] [made a lawful arrest without a warrant].

If (name officer) [had a warrant in the officer’s possession naming

or describing [the defendant] [name other person being arrested]3] [was

making a lawful arrest without a warrant] then [the defendant] [(name

arrestee)] had a duty to submit to the arrest.4 If the defendant (describe

conduct, e.g., struck) the alleged victim (name officer) while the alleged

victim (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.

A law enforcement officer is justified in using the force the officer

reasonably believes necessary to arrest a person the officer reasonably

believes has committed a criminal offense.5 If the officer uses more force

than reasonably appears necessary at the time to effect the arrest, that

is excessive force, the defendant has a right to defend [himself]

[herself].6 You, the jury, determine the reasonableness of (name

officer's) force from the circumstances then appearing to (name 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 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 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 excessive force, unless the defendant first

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

If the defendant did not withdraw, the defendant’s resistance to the

officer's excessive force would constitute a continuing assault. If the

defendant did withdraw, 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 not be 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),7] [made a lawful arrest

without a warrant] and that the defendant acted without justification or

excuse, your duty would be 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.

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

(1) that the defendant did not reasonably believe that (describe

assault, e.g., striking) (name officer) was necessary to protect [himself]

[herself] from (name officer)'s (describe force, e.g. hitting him with a

nightstick), or

(2) that the defendant used excessive force (,or

(3) that the defendant was the aggressor).

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

proved 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.