• 2011 - Use of Deadly Force Presumption of Fear of Death or Serious Bodily Injury
  • K-3.52
    • Assault
    • Assault

  • 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]. 

  • Notes: 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.