N.C.P.I.—Crim. 208.81F

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 the officer was NOT in

uniform, and there is conflicting evidence as to all the

following issues:

(1) whether the defendant knew or had reasonable

grounds to know that the officer was a law

enforcement officer;

(2) whether the officer was making an arrest;

(3) whether that arrest was a lawful arrest without a

warrant;

(4) if the defendant knew the officer was a law

enforcement officer making an arrest and 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 consistently with the defendant’s right

of self-defense; and

(5) if the defendant did not know the victim was an

officer making an arrest, or if the arrest was not lawful,

whether the defendant acted consistently with the

defendant’s right of self-defense or the defendant’s

right to resist an unlawful, warrantless arrest.

This instruction is appropriate for an arrest by an

undercover narcotics agent when a struggle occurs

before the arrest is effected.

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 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 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 the officer was a

law enforcement officer. A (state officer's position, e.g., a member of the

police vice squad) is a law enforcement officer. A person remains a law

enforcement officer for purposes of the crime of assault upon a law

enforcement officer even though the officer is out of uniform2 and [off

duty]3 [working under cover] [(state other reason for being out of

uniform)]. If the defendant did not know or have reasonable grounds to

know that (name officer) was a law enforcement officer, the defendant

would not be guilty of an assault upon a law enforcement officer.4

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 of the encounter between

(name officer) and the defendant.

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

(name officer), (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.5

And Fourth, that this arrest was a lawful arrest.6 The arrest would

be lawful if, at the time (name officer) made it, (name 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).7

If (name officer) was a law enforcement officer and the defendant

knew or had reasonable grounds to know this, and if (name officer) was

making or attempting to make an arrest, and if the arrest was lawful,

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 the force that the

officer reasonably believes is necessary to arrest a person whom the

officer reasonably believes has committed a criminal offense.8 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].9 You, the jury, to determine the

reasonableness of any force used by (name officer) from the

circumstances then appearing to the officer.

If the circumstances were such that would create in the mind of a

person of ordinary firmness a reasonable belief that the person’s action

was necessary or apparently necessary to protect the person from the

officer's excessive force, and if the circumstances did create such a belief

in the defendant's mind at the time the defendant acted, the defendant

would be justified in using force to defend [himself] [herself].

Nevertheless, the force used by the defendant cannot have been

excessive. The defendant had the right to use only such force that

reasonably appeared to the defendant to be necessary 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 to have existed from the evidence, (including

(the size, age, and strength of the defendant as compared to (name

officer). You should 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 (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 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, 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 did not

reasonably believe 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 that the

defendant 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 defendant knew or had

reasonable grounds to know that (name officer) was a law enforcement

officer, or do not find that (name officer) was making or attempting to

make an arrest, or do not find that the arrest was a lawful arrest, then

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 defendant did not know and had no reasonable grounds to

know that (name officer) was a law enforcement officer, or if (name

officer) was not making an arrest, then the defendant had a right of self-defense. Even if the defendant knew or had reasonable grounds to know

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

making an arrest, the defendant had a right to resist the arrest if it was

not a lawful arrest.10

If the circumstances were such that would create in the mind of a

person of ordinary firmness a reasonable belief that the person’s action

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

bodily injury or offensive physical contact or to prevent the unlawful

restraint of the person’s liberty, and if the circumstances did create such

a belief in the defendant's mind at the time the defendant acted, the

defendant would be justified in using force in self-defense to resist the

unlawful arrest.

The force used by the defendant cannot have been excessive. 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 bodily injury or offensive physical contact or to prevent the

unlawful restraint of the defendant’s liberty. In making this

determination, you should consider the circumstances that you find 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

(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.

(Finally,11 the defendant must not [himself] [herself] have been the

aggressor in bringing on the encounter with (name officer). If the

defendant voluntarily entered into a fight with (name officer), the

defendant was the aggressor unless the defendant thereafter attempted

to abandon the fight and gave notice to (name officer) that the

defendant was doing so.)

If the State proves beyond a reasonable doubt that the defendant

did not reasonably believe that the defendant’s action was necessary or

apparently necessary to protect [himself] [herself] from bodily injury or

offensive physical contact or to prevent the unlawful restraint of the

defendant’s liberty, or if the State proves that the defendant used

excessive force (or was the aggressor) the defendant would be guilty of

simple assault. If the State does not prove at least one of the foregoing

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 member of the police vice squad) and that

(describe the facts which would give defendant reason to know that the

officer was an officer, e.g., (name officer) stated that the officer was a

member of the vice squad and attempted to show the defendant the

officer’s credentials) and that the defendant knew or had reasonable

grounds to know that (name officer) was a law enforcement officer and

that (name officer) was making or attempting to make an arrest when the

defendant (describe assault, 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, e.g., and attempt to sell

or deliver a controlled substance) ([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]),12 and that

the defendant acted without justification or excuse, it would be your duty

to return a verdict of 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 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 as to this, you would find that the defendant

acted without justification or excuse if the State has satisfied you beyond

a reasonable doubt either

(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 do not find that the defendant knew or had reasonable

grounds to know that (name officer) was a law enforcement officer, or

that (name officer) was making an arrest, or that the arrest was 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 protect [himself]

[herself] from bodily injury or offensive physical contact or 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.