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 attempted to exercise 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 purposely[5]
attempted to exercise unlawful control over that firearm [or the weapon].
A
person exercises unlawful control over an item when he/she does anything to either take
possession of that item, or remove from the possession of the person who has
possession of it, without permission or authority.
In
order to prove the defendant attempted to exercise unlawful control over the
firearm [or weapon], the State must prove beyond a reasonable doubt that the
defendant purposely attempted to exercise unlawful control over the firearm [or
weapon].]
The
State alleges that the defendant attempted to exercise unlawful control over
that firearm [or other weapon] in the possession of a law enforcement [or
corrections officer]. Therefore, the
State must prove beyond a reasonable doubt that it was the specific purpose of
the defendant to exercise unlawful control over the firearm [or weapon]. Although it is possible to commit the crime
of taking unlawful control of a firearm or weapon from a law enforcement [or
corrections officer] with knowledge, to be guilty of an attempt to exercise
unlawful control of the firearm [or weapon], the defendant must act with
purpose. In other words, the defendant
must have the purpose to exercise unlawful control over the firearm [or
weapon]].
A
person acts purposely with respect to the nature of his/her conduct or a result thereof if it is his/her conscious object to engage in conduct of that nature or to cause such a
result. A person acts purposely with
respect to attendant circumstances if he/she is aware of the existence of such
circumstances or he/she believes or hopes that they exist.
The
indictment charges the defendant with purposely attempting to exercise unlawful
control over the firearm [or weapon].
The State must prove that the defendant purposely did anything, under
the circumstances as a reasonable person would likely believe them to be, to
exercise control over the firearm [or weapon].
However, the step taken must strongly show the substantial[6]
and not just a very remote preparatory act, and must show that the accused had
a firmness of criminal purpose.
The
nature of the purpose with which the defendant acted toward the officer is a
question of fact for you the jury to decide.
Purpose 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/her 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 guilt 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[7]
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. [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.
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.
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.[8]
“Bodily
injury”[9]
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 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; 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.
[1] For
definition of “Law Enforcement Officer” see N.J.S.A. 2C:25-19c.
[2] For
definition of “Corrections Officer” see N.J.S.A. 2A:154-4.
[3] N.J.S.A.
2C:39-1f.
[4] N.J.S.A.
2C:39-1r.
[5] N.J.S.A.
2C:2-2(b)(1).
[6] For
alternative definitions of attempt, see N.J.S.A. 2C:5-1.
[7] N.J.S.A.
2C:12-11(b)(1)(2) & (3).
[8] N.J.S.A.
2C:11-1b.
[9] N.J.S.A.
2C:11-1a.
