N.C.P.I.—Crim. 208.81C

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 was making an arrest without a warrant, and the issues

are:

(1) Whether the arrest was a lawful arrest without a

warrant;

(2) If the arrest was lawful, whether

(a) the officer used reasonable or excessive

force to effect the arrest, and

(b) if the officer used excessive force, whether

the defendant acted within the defendant’s

right of self defense, and

(3) if the arrest was not lawful, whether the

defendant acted within the defendant’s right

to resist an unlawful, warrantless arrest.

This instruction is appropriate for situations such as the

road side arrest of an impaired driver who struggles before

being taken into custody by a uniformed state trooper.

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.

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 the officer’s 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

the officer’s 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 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 [the defendant] [(name 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] [(name arrestee)] had a 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.

A law enforcement officer is justified in using force against another

person when the officer reasonably believes it necessary to effect the arrest

of a person whom 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 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 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 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,

the defendant’s resistance to the officer's excessive force would constitute a

continuing assault. If the defendant did 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

officer’s belief that the officer’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.

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

struck) (name officer) but do not find that the arrest was a lawful arrest, you

must determine whether the defendant is guilty of simple assault.

For you 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 so doing, the defendant was justified in using

such force as reasonably appeared to the defendant to be necessary under

the circumstances to prevent the defendant’s unlawful restraint. 7 The

resisting force cannot have been excessive. In making this determination,

you should consider the circumstances as you find them to have existed

from the evidence, (including (the size, age and strength of the defendant as

compared to (name officer). You should also consider (the 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.

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 one or the other 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), that (name officer) was a (describe officer's position,

e.g., a 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 (name

defendant) (describe conduct, e.g., struck) the officer, 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]),8 and

that, in (describe conduct, e.g., striking) (name officer), the defendant acted

without justification or excuse, 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 these

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 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 the defendant

with a nightstick), or

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

(3) that the defendant was the aggressor).

If you do not find at least one of these elements, or if you have a

reasonable doubt as to all of them, your duty would be to return a verdict of

not guilty.

If you find that the arrest was not lawful, 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 these

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 his 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.