North Dakota Pattern Jury Instructions – Criminal
NORTH DAKOTA PATTERN JURY INSTRUCTIONS-CRIMINAL
Defenses

§ K – 3.52. Use of Deadly Force Presumption of Fear of Death or Serious Bodily Injury 2011

Current as of 2019

A person is presumed to have held a reasonable fear of imminent death or serious bodily injury to [him/her]self or another when using deadly force if:

a. The person against whom the deadly force was used [was in the process of unlawfully and forcibly entering] [had unlawfully and forcibly entered and remains within] [or] [had removed or was attempting to remove another against his/her will from] a [dwelling] [place of work] [or] [occupied motor home or travel trailer]; and

b. The person who uses deadly force knew or had reason to believe that an [unlawful and forcible entry] [or] [unlawful and forcible act] was occurring or had occurred.

This presumption may be rebutted by proof beyond a reasonable doubt that the person who used the deadly force did not have a reasonable fear of imminent death or serious bodily injury to [him/her]self or another.

[This presumption does not apply if:]

[The person against whom the deadly force was used had the right to be in or is a lawful resident of the [dwelling] [place of work] [or] [occupied motor home or travel trailer], including an owner, lessee, or titleholder, and there is not a temporary or permanent domestic violence protection order or any other order of no contact against the person against whom deadly force was used.

[The person removed or sought to be removed is [a child] [a grandchild] [or] [is otherwise in the lawful custody or under the lawful guardianship of] of the person against whom deadly force was used.]

[The person who uses deadly force was [engaged in the commission of a crime] [or] [using the [dwelling] [place of work] [or] [occupied motor home or travel trailer] to further the commission of a crime.]

[The person against whom deadly force was used was a law enforcement officer who entered or attempted to enter a [dwelling] [place of work] [or] [occupied motor home or travel trailer] in the performance of official duties [and provided identification, if required, in accordance with any applicable law or warrant from a court] [or] [if the person using force knew or reasonably should have known that the person against whom the deadly force was used was a law enforcement officer].

* * * *

NDCC 12.1-05-07.1

See also: K – 3.34, Reasonableness of Accused’s Belief; K – 3.55, Limits on Use of Excessive or Deadly Force; K – 3.80, Excuse (Necessary and Appropriate Conduct); K – 3.40, Defense of Others; K – 5.18, Presumption.

NOTE: Subsection (3) of NDCC 12.1-05-07.1 indicates the presumption does not apply if the court makes certain findings. The commission takes no position on whether the word “court” in subsection (3) of section 12.1-05-07.1 means the judge or the jury.

 

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