DISARMING A LAW ENFORCEMENT OFFICER
N.J.S.A.
2C:12-11(a) & (b) model jury charge
[This charge is to be used where the allegation is
that the defendant took unlawful control over the firearm or other weapon]
The
defendant is charged by County _________ of the indictment with committing the
crime of disarming a law enforcement officer.
The indictment is based on a New Jersey statute, the pertinent parts of
which read as follows:
A person is guilty of a
crime if he knowingly takes unlawful control over a firearm [or other weapon]
in the possession of a law enforcement [or corrections officer], when that
officer is acting in the performance of his duties, and either is in uniform or
exhibits evidence of his authority.
In
order for you to find the defendant guilty of the crime of disarming a law
enforcement officer, the State is required to prove each of the following
elements beyond a reasonable doubt:
[Insert appropriate word or words]
(1) There was a firearm [or other weapon] in the
possession of a law enforcement officer
[or corrections officer].
(2)
The defendant, knowingly took unlawful
control over that firearm [or other weapon].
(3) The officer was acting in the
performance of (his/her) duties, and was either in uniform or exhibited
evidence of (his/her) authority.
The
first element that the State must prove beyond a reasonable doubt was that
there was a firearm [or other weapon] in the possession of a law enforcement
officer[1] [or
corrections officer[2].
The
word “possess” as used in criminal statutes signified a knowing, intentional
control over a designated thing, accompanies by a knowledge of its
character. The possession of the firearm
[or other weapon] by the law enforcement officer [or corrections officer] may
be either actual possession or constructive possession.
A law enforcement officer [or corrections officer] is in
actual possession of a firearm [or other weapon] when (he/she) knows what it
is: that is (he/she) has knowledge of its character and knowingly has it on (his/her)
person at a given time.
A
law enforcement officer [or corrections officer] is in constructive possession
of a firearm [or other weapon] even though (he/she) does not have the firearm
[or other weapon] on (his/her) person at a given time, if (he/she) is aware of
the presence of the firearm [or other weapon] and is able to and has the
intention to exercise control over it.
A law enforcement office [or corrections officer],
although not in actual possession, who has knowledge of the firearm [or the
weapon], and the intention at a given time to exercise control over that
firearm [or other weapon], either directly or through another person or
persons, is then in constructive possession of the firearm [or other weapon].
A
“firearm”[3] means
any handgun, rifle, shotgun, machine gun, automatic or semi-automatic rifle or
any gun, device or instrument in the nature of a weapon from which may be fired
or ejected any solid projectable ball, slug, pellet, missile or bullet, or any
gas, vapor or other noxious thing, by means of a cartridge or shell or by the
action of an explosive or the igniting of flammable or explosive substances. It shall also include, without limitation,
any firearm which is in the nature of an air gun, spring gun or pistol or other
weapon of a similar nature in which the propelling force is a spring, elastic
band, carbon dioxide, compressed or other gas or vapor, air or compressed air,
or is ignited by compressed air, and ejecting a bullet or missile smaller than
three-eights of an inch in diameter, with sufficient force to injure a person.
[Charge if applicable]
A
“weapon”[4] means
anything readily capable of lethal use or of inflicting serious bodily
injury. The term includes, but is not
limited to, all (1) firearms, even though not loaded or lacking a clip or other
component to render them immediately operable; (2) components which can be
readily assembled into a weapon; (3) gravity knives, switchblade knives,
daggers, dirks, stilettos, or other dangerous knives, billies, blackjacks,
bludgeons, metal knuckles, sandclubs, slingshots, cesti or similar leather
bands studded with metal filings or razor blades imbedded, in wood; and (4)
stun guns; and any weapon or other device which projects, releases, or emits
tear gas or any other substance intended to produce temporary physical
discomfort or permanent injury though being vaporized or otherwise dispensed in
the air.
The
second element that the State must prove beyond a reasonable doubt is that the
defendant knowingly[5]
took unlawful control over that firearm [or other weapon]. A person exercises unlawful control over an
item when he/she does anything to either take
possession of that item, or remove it from the possession of the person who has
possession of it, without permission or authority. In order to prove the defendant exercised
unlawful control over the firearm [or weapon], the State must prove beyond a
reasonable doubt that the defendant acted knowingly.
A person acts knowingly with respect to the nature of his/her conduct or attendant circumstances, if he/she is
aware that his/her
conduct is of that nature, or that such circumstances exist, or he/she is
aware of a high probably of their existence.
A person acts knowingly with respect to a result of his/her conduct if he/she is
aware that it is practically certain that his/her conduct will cause such a result.
The
nature of the knowledge with which the defendant acted toward the officer is a
question of fact for you the jury to decide.
Knowledge is a condition of the mind which cannot be seen and can only
be determined by inferences from conduct, words or acts. It is not necessary for the State to produce
a witness or witnesses who could testify that the defendant stated, for
example, that he/she knew that his conduct would cause
the disarming of the law enforcement officer or take unlawful control over the
firearm (or weapon)].
It is within your power to find that proof of knowledge
has been furnished beyond a reasonable doubt by inferences which may arise from
the nature of the acts and the surrounding circumstances. Such things as the place where the acts
occurred, the weapon involved, and all that was done or said by the defendant
preceding, connected with, and immediately succeeding the events are among the
circumstances to be considered.
In
order to prove the defendant took unlawful control of the firearm [or weapon],
the State need not prove that the firearm [or weapon]] was carried away from
the officer or away from the place in which it was kept, but only that the
defendant took unlawful control over it.
The
third element the State must prove beyond a reasonable doubt is that the
officer at the time was acting in the performance of (his/her) duties and was
either in uniform or (he/she) exhibited evidence of (his/her) authority.
[Charge
if crime charged is only the second degree offense. If the indictment charges the first degree
crime, skip this paragraph and continue the charge.]
If
you find the State has proved beyond a reasonable doubt all three of the
elements as explained to you by the court, you must find the defendant guilty
of disarming a law enforcement officer.
However, if you find the State has failed to prove any one of the
elements beyond a reasonable doubt, then you must find the defendant not
guilty.
[Charge if appropriate]
A
section of our statutes provides[6] that
disarming a law enforcement officer is a crime of the second degree, except
that it is a crime of the first degree if the defendant:
[Charge appropriate paragraph(s)]
1. Fires or discharges the firearm; [or]
2. Uses or
threatens to use the firearm [or weapon] against the officer or any other
person; [or]
3. The officer or another person suffers serious
bodily injury.
The
State must also prove to you beyond a reasonable doubt an additional element to
raise the degree of this crime.
[Charge appropriate paragraph(s)]
The
additional element the State must prove beyond a reasonable doubt, is that in
the course of committing the crime of disarming a law enforcement officer, the
defendant knowingly fired or discharged the firearm. The definition of “Knowingly” has already
been explained to you. [or]
The
additional element the State must prove is that the defendant knowingly used or
threatened to use the firearm [or weapon] against the officer or any other
person. [or]
The
additional element the State must prove is that the officer or other person
suffered serious bodily injury.
In order for you to determine whether the officer or
other person suffered serious bodily injury as a result of the defendant’s
actions, you must understand what constitutes serious bodily injury.
“Serious
bodily injury” means bodily injury which creates a substantial risk of death or
which causes serious, permanent disfigurement, or protracted loss or impairment
of the function of any bodily member or organ.[7]
“Bodily
injury”[8] means
physical pain, illness or impairment of physical condition.
If
you find the State has not proven beyond a reasonable doubt each element of
disarming a law enforcement officer as I have defined that crime to you, you
must find the defendant not guilty.
If
you find the State has proved beyond a reasonable doubt that the defendant has
committed the crime of disarming a law enforcement officer, but you have a
reasonable doubt as to whether:
[Charge appropriate paragraph(s)]
1. The defendant fired or discharged the
firearm: [or]
2.
The defendant used to threatened to use the firearm [or weapon] against
the officer or
any other person; [or]
3. The officer or other person suffered serious bodily
injury; at the time of the commission of the crime of disarming of the law
enforcement officer, then you find the defendant guilty of disarming a law
enforcement officer in the second degree.
If you find the State has proved beyond a reasonable
doubt that the defendant committed the crime of disarming a law enforcement
officer and you also find that the State has proved beyond a reasonable doubt
that:
[Charge appropriate paragraph(s)]
1. The defendant fired or discharged the
firearm; [or]
2.
The defendant used or threatened to use the firearm [or weapon] against
the officer or
any other person; [or]
3. The officer or other
person suffered serious bodily injury; then you must find the
defendant guilty of disarming a law
enforcement in the first degree.