North Dakota Pattern Jury Instructions – Criminal
NORTH DAKOTA PATTERN JURY INSTRUCTIONS-CRIMINAL
Defenses
§ K – 3.55. Limits on Use of Excessive or Deadly Force 2011
Current as of 2019
A person is not justified in using more force than is necessary and appropriate under the circumstances.
Deadly force is justified:
[If it is expressly authorized by law or occurs in the lawful conduct of war.]
[If it is used in lawful self-defense, or in lawful defense of others and the force is necessary to protect the actor or anyone else against death, serious bodily injury, or the commission of a felony involving violence.
The use of deadly force is not justified if it can be avoided, with safety to the actor and others, by retreat or other conduct involving minimal interference with the freedom of the person menaced. The use of deadly force is not justified unless the person honestly and reasonably believed that safe retreat from the attacker was not possible.
A person seeking to protect someone else must try to cause that person to retreat or otherwise comply with the requirements of this provision before using deadly force, if safety can be obtained thereby. But, 1) a public servant justified in using force in the performance of duties or a person justified in using force in a public servant’s assistance need not desist from the efforts because of resistance or threatened resistance by or on behalf of the person against whom the action is directed, and 2) no person must retreat within or from one’s dwelling or place of work unless the person was the original aggressor or is assailed by someone known to also dwell or work there. If the facts and circumstances attending a person’s use of deadly force against an assailant who is a cohabitant are sufficient to create an honest and reasonable belief that safe retreat from the assailant is not possible, use of deadly force is justified, and a failure to retreat is of no consequence.]
[if it is used by a person in possession or control of a dwelling or place of work, or a person who is licensed or privileged to be there, if the force is necessary to prevent commission of arson, burglary, robbery, or a felony involving violence upon or in the dwelling or place of work, and the use of force other than deadly force for those purposes would expose anyone to substantial danger of serious bodily injury.]
[If it is used by a public servant authorized to effect arrests or prevent escapes, if the force is necessary to effect an arrest or to prevent an escape from custody of a person who has committed or attempted to commit a felony involving violence, or is attempting to escape by the use of a deadly weapon, or has otherwise indicated the person is likely to endanger human life or to inflict serious bodily injury unless apprehended without delay.]
[If it is used by a guard or other public servant and the force is necessary to prevent the escape of a prisoner from a detention facility, unless the guard or other public servant knows that the prisoner is not a person who has committed or attempted to commit a felony involving violence, or is attempting to escape by the use of a deadly weapon, or has otherwise indicated a likelihood to endanger human life or inflict serious bodily injury unless apprehended without delay.
A detention facility is any place used, pursuant to Court Order, for the confinement of a person 1) charged with or convicted of an offense, 2) charged with being or adjudicated a juvenile delinquent, 3) held for extradition, or 4) otherwise confined pursuant to Court Order.]
[If it is used by a duly licensed physician, or a person acting at a physician’s direction, if the force is necessary to administer a recognized form of treatment to promote the physical or mental health of a patient and the treatment is administered 1) in an emergency; 2) with the consent of the patient, or, if the patient is a minor or an incompetent person, with the consent of the patient’s parent, guardian, or other person entrusted with the patient’s care and supervision; or 3) by order of a Court of competent jurisdiction.]
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NDCC 12.1-05-07
State v. Leidholm 334 NW2d 811, 818, 820-21 (ND 1983)
NOTE: See NDJI K – 3.34, Reasonableness of Accused’s Belief.
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