N.C.P.I.—Crim. 208.81B

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

was in uniform, made an arrest without a warrant, used

reasonable force to do so, and the issues are:

(1) Was the arrest a lawful arrest without a warrant;

and

(2) If not, did the defendant act within his right to

resist an unlawful, warrantless arrest.

The defendant is charged with assault on a law enforcement officer

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

office.

Your duty is to return one of the following verdicts:

(1) Guilty of assault upon a law enforcement officer while the

officer was discharging or attempting to discharge a duty of his office,

(2) Guilty of simple assault, or

(3) Not guilty.

For you to find the defendant guilty of assault upon a law

enforcement officer while the officer was discharging or attempting to

discharge a duty of his office, the State must prove four elements 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 officer's position, e.g., a

highway patrolman) is a law enforcement officer.

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

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

arrest. A (state officer's position, e.g., a highway patrolman) 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

And Fourth, that this arrest was a lawful arrest.3 The arrest would

be lawful if, at the time (name officer) made it, the officer had probable

cause to believe that (name defendant or other person being arrested)

had committed

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

b. [a criminal offense in the officer’s presence. (Name criminal

offense) is a criminal offense.]

c. [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.]

Such probable cause would exist if (describe facts which would

constitute probable cause).4

If (name officer) was making or attempting to make a lawful arrest,

then the defendant to had the duty to submit to that arrest. If 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.

If you find that the defendant intentionally (describe conduct, e.g.,

struck) (name officer), and the arrest was unlawful, you then determine if

the defendant is guilty of a simple assault.

To find the defendant guilty of simple assault, the State must prove

two elements beyond a reasonable doubt:

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

(describe conduct, e.g., striking) (name officer).

And Second, that the defendant acted without justification or

excuse.

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.5 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 the

defendant.

If the State proves beyond a reasonable doubt that the defendant

used excessive force or did not reasonably believe that the defendant’s

action was necessary or apparently necessary to prevent the defendant’s

unlawful restraint, the defendant would be guilty of simple assault. If

the State fails to prove excessive force or absence of reasonable belief by

the defendant, you would return a verdict of not guilty.

MANDATE

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

about the alleged date the defendant intentionally and without

justification or excuse (describe assault, e.g., struck) (name officer), that

(name officer) was a (describe officer's position, e.g., highway

patrolman), that the defendant knew or had reasonable grounds to know

that (name officer) was a (describe officer's position), that (name officer)

was making or attempting to make an arrest when the defendant

(describe conduct, e.g., struck) the officer, and that (name officer) had

probable cause to believe that the defendant had committed (name

felony, criminal offense or misdemeanor) ([in the officer’s presence] [and

would not be apprehended or might cause [physical injury to [himself]

[herself] [others]] [damage to property] unless immediately arrested]),6

your duty would be to return a verdict of guilty of assault on a law

enforcement officer while the officer was discharging or attempting to

discharge a duty of the officer’s office. If you do not so find, or have a

reasonable doubt as to one or more of the elements, you would not

return a verdict of guilty of assault on a law enforcement officer while the

officer was discharging or attempting to discharge a duty of the officer’s

office.

If you find the arrest was unlawful, you must determine whether

the defendant is guilty of simple assault.

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

about the alleged date the defendant intentionally (describe conduct,

e.g., struck) (name officer), and that the defendant did so without

justification or excuse, your duty would be to return a verdict of guilty of

simple assault. If you do not so find or have a reasonable doubt as to

one or more of the elements, your duty would be to return a verdict of

not guilty.

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

conduct, e.g., striking) (name officer) was necessary to prevent the

unlawful restraint of the defendant’s liberty, 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.