NORH DAKOTA CRIMINAL CODE
CHAPTER 12.1-05.
JUSTIFICATION -- EXCUSE -- AFFIRMATIVE DEFENSES
12.1-05-01. Justification.
1. Except as otherwise expressly provided, justification or excuse under this chapter is a defense.
2. If a person
is justified or excused in using force against another, but he recklessly
or negligently injures or creates a risk of injury to other persons, the
justifications
afforded by this chapter are unavailable in a prosecution for such recklessness
or negligence.
3. That conduct
may be justified or excused within the meaning of this chapter does not
abolish or impair any remedy for such conduct which is
available in
any civil action.
12.1-05-02. Execution of public duty.
1. Conduct engaged in by a public servant in the course of his official duties is justified when it is required or authorized by law.
2. A person who
has been directed by a public servant to assist that public servant is
justified in using force to carry out the public servant's direction,
unless the action
directed by the public servant is plainly unlawful.
3. A person is
justified in using force upon another to effect his arrest or prevent his
escape when a public servant authorized to make the arrest or
prevent the
escape is not available if the other person has committed, in the presence
of the actor, any crime which the actor is justified in using force to
prevent, or
if the other person has committed a felony involving force or violence.
12.1-05-03. Self-defense.
A person is justified in using force upon another person to defend himself
against danger of imminent unlawful bodily injury, sexual assault, or detention
by such other
person, except that:
1. A person is
not justified in using force for the purpose of resisting arrest, execution
of process, or other performance of duty by a public servant
under color
of law, but excessive force may be resisted.
2. A person is
not justified in using force if:
a. He intentionally provokes unlawful action by another person to cause
bodily injury or death to such other person; or
b. He has entered into a mutual combat with another person or is the initial
aggressor unless he is resisting force which is clearly excessive
in the circumstances. A person's use of defensive force after he withdraws
from an encounter and indicates to the other person that he has
done so is justified if the latter nevertheless continues or menaces unlawful
action.
12.1-05-04. Defense of others.
A person is justified in using force upon another person in order to defend anyone else if:
1. The person defended would be justified in defending himself; and
2. The person
coming to the defense has not, by provocation or otherwise, forfeited the
right of self-defense.
12.1-05-05. Use of force by persons with parental, custodial, or similar responsibilities.
The use of force upon another person is justified under any of the following circumstances:
1. Except as
provided in section 15-47-47, a parent, guardian, or other person responsible
for the care and supervision of a minor, or other person
responsible
for the care and supervision of such a minor for a special purpose, or
a person acting at the direction of any of the foregoing persons, may
use reasonable
force upon the minor for the purpose of safeguarding or promoting his welfare,
including prevention and punishment of his misconduct,
and the maintenance
of proper discipline. The force may be used for this purpose, whether or
not it is "necessary" as required by subsection 1 of
section 12.1-05-07.
The force used must not create a substantial risk of death, serious bodily
injury, disfigurement, or gross degradation.
2. A guardian
or other person responsible for the care and supervision of an incompetent
person, or a person acting at the direction of the guardian or
responsible
person, may use reasonable force upon the incompetent person for the purpose
of safeguarding or promoting his welfare, including the
prevention of
his misconduct or, when he is in a hospital or other institution for care
and custody, for the purpose of maintaining reasonable discipline in
the institution.
The force may be used for these purposes, whether or not it is "necessary"
as required by subsection 1 of section 12.1-05-07. The force
used must not
create a substantial risk of death, serious bodily injury, disfigurement,
or gross degradation.
3. A person responsible
for the maintenance of order in a vehicle, train, vessel, aircraft, or
other carrier, or in a place where others are assembled, or a
person acting
at the responsible person's direction, may use force to maintain order.
4. A duly licensed
physician, or a person acting at his direction, may use force in order
to administer a recognized form of treatment to promote the
physical or
mental health of a patient if the treatment is administered:
a. In an emergency;
b. With the consent of the patient, or, if the patient is a minor or an
incompetent person, with the consent of his parent, guardian, or other
person entrusted with his care and supervision; or
c. By order of a court of competent jurisdiction.
5. A person
may use force upon another person, about to commit suicide or suffer serious
bodily injury, to prevent the death or serious bodily injury of
such other person.
12.1-05-06. Use of force in defense of premises and property.
Force is justified if it is used to prevent or terminate an unlawful
entry or other trespass in or upon premises, or to prevent an unlawful
carrying away or damaging of
property, if the person using such force first requests the person
against whom such force is to be used to desist from his interference with
the premises or property,
except that a request is not necessary if it would be useless or dangerous
to make the request or substantial damage would be done to the property
sought to be
protected before the request could effectively be made.
12.1-05-07. Limits on the use of force -- Excessive force -- Deadly force.
1. A person is not justified in using more force than is necessary and appropriate under the circumstances.
2. Deadly force
is justified in the following instances:
a. When it is expressly authorized by law or occurs in the lawful conduct
of war.
b. When used in lawful self-defense, or in lawful defense of others, if
such 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. A
person seeking to protect someone else must, before using deadly force,
try to cause that person to retreat, or otherwise comply with the
requirements of this provision, if safety can be obtained thereby. But,
(1) a public servant justified in using force in the performance of his
duties or a person justified in using force in his assistance need not
desist from his efforts because of resistance or threatened resistance
by
or on behalf of the person against whom his action is directed; and (2)
no person is required to retreat from his dwelling, or place of work,
unless he was the original aggressor or is assailed by a person who he
knows also dwells or works there.
c. When 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
such 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 such purposes
would expose anyone to substantial danger of serious bodily
injury.
d. When used by a public servant authorized to effect arrests or prevent
escapes, if such force is necessary to effect an arrest or to
prevent the 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 that he
is likely to endanger human life or to inflict serious bodily injury
unless apprehended without delay.
e. When used by a guard or other public servant, if such force is necessary
to prevent the escape of a prisoner from a detention facility,
unless he knows that the prisoner is not such a person as described in
subdivision d above. A detention facility is any place used for the
confinement, pursuant to a court order, of a person (1) charged with or
convicted of an offense; or (2) charged with being or adjudicated
a juvenile delinquent; or (3) held for extradition; or (4) otherwise confined
pursuant to court order.
f. When used by a duly licensed physician, or a person acting at his direction,
if such force is necessary to administer a recognized form of
treatment to promote the physical or mental health of a patient and if
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 his parent, guardian, or other person
entrusted with his care and supervision; or (3) by order of a court of
competent jurisdiction.
g. When used by a person who is directed or authorized by a public servant,
and who does not know that, if such is the case, the public
servant is himself not authorized to use deadly force under the circumstances.
12.1-05-08. Excuse.
A person's conduct is excused if he believes that the facts are such
that his conduct is necessary and appropriate for any of the purposes which
would establish a justification or excuse under this chapter, even though
his belief is mistaken. However, if his belief is negligently or recklessly
held, it is not an excuse in a prosecution for an offense for which negligence
or recklessness, as the case may be, suffices to establish culpability.
Excuse under this section is a defense or affirmative defense according
to which type of defense would be established had the facts been as the
person believed them to be.
12.1-05-09. Mistake of law.
Except as otherwise expressly provided, a person's good faith belief that conduct does not constitute a crime is an affirmative defense if he acted in reasonable reliance upon a statement of the law contained in:
2. A judicial decision, opinion, order, or judgment.
3. An administrative order or grant of permission.
4. An official interpretation of the public servant or body charged
by law with responsibility for the interpretation, administration, or enforcement
of the law defining the crime.
2. The defense defined in this section is not available to a person
who, by voluntarily entering into a criminal enterprise, or otherwise,
willfully placed himself in a situation in which it was foreseeable that
he would be subjected to duress. The defense is also unavailable if he
was negligent in placing himself in such a situation, whenever negligence
suffices to establish culpability for the offense charged.
2. A law enforcement agent perpetrates an entrapment if, for the purpose of obtaining evidence of the commission of a crime, the law enforcement agent induces or encourages and, as a direct result, causes another person to engage in conduct constituting such a crime by employing methods of persuasion or inducement which create a substantial risk that such crime will be committed by a person other than one who is ready to commit it. Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment.
3. In this section "law enforcement agent" includes personnel of federal
and local law enforcement agencies as well as state agencies, and any person
cooperating with such an agency.
In this chapter:
1. "Deadly force"
means force which a person uses with the intent of causing, or which he
knows creates a substantial risk of causing, death or serious
bodily injury.
A threat to cause death or serious bodily injury, by the production of
a weapon or otherwise, so long as the actor's intent is limited to
creating an
apprehension that he will use deadly force if necessary, does not constitute
deadly force.
2. "Dwelling"
means any building or structure, though movable or temporary, or a portion
thereof, which is for the time being a person's home or place
of lodging.."Force"
means physical action, threat, or menace against another, and includes
confinement.
4. "Premises"
means all or any part of a building or real property, or any structure,
vehicle, or watercraft used for overnight lodging of persons, or used
by persons for
carrying on business therein.