Montana Criminal Jury Instructions
CHAPTER 3: JUSTIFIABLE USE OF FORCE

3-102 Use of Force in Defense of Occupied Structure

A person is justified in the use of force or threat to use force when and to the extent that the person reasonably believes that the use of force is necessary to [prevent] [terminate] another’s unlawful [entry into] [attack upon] an occupied structure.

However, a person is justified in the use of force likely to cause death or serious bodily harm only if:

[1] the entry is made or attempted and he/she reasonably believes that the force is necessary to prevent an [assault upon] himself/herself or another then in the occupied structure;

OR

[2] he/she reasonably believes that the force is necessary to prevent the commission of a forcible felony in the occupied structure.

GIVEN: ______________________________

DISTRICT JUDGE

SOURCE: MCJI 3-102 (2022)

Plaintiff’s Proposed Instruction No._____ Defendant’s Proposed Instruction No._____

Given as Instruction No.______ Refused ______ Withdrawn______ By _______

[Use of Force in Defense of Occupied Structure, No. 3-102, 2022, Source and Comment]

SOURCE: MCA § 45-3-103 (2021)

COMMENT: The second paragraph should be used only where there is some evidence that the force used by the Defendant was likely to cause death or serious bodily harm. Identical definitions of “forcible felony” are provided in MCA § 45-2-101 and § 45-3-101; see also definition instruction, MCJI 2-103.

The definition of “occupied structure” in MCA § 45-2-101 should be given if there is an issue about whether the structure qualifies as an occupied structure.

This instruction applies only where the entry to the occupied structure was unlawful. State v. Daniels, 2011 MT 278, 362 Mont. 426, 265 P.3d 623.

 

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