# Title 12.1 — 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 the person's 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 that person's arrest or
prevent that person's 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.
4. Conduct engaged in by an individual at the direction of a public servant, known by that
individual to be a law enforcement officer, to assist in the investigation of a criminal
offense is justified unless the individual knows or has a firm belief, unaccompanied by
substantial doubt, that the conduct is not within the law enforcement officer's official
duties or authority. For purposes of this subsection, conduct "not within the law
enforcement officer's official duties or authority" is conduct in which the law
enforcement officer alone could not lawfully engage in that officer's official capacity.
When practicable, permission must be obtained from a parent or guardian of a minor
who is under the age of eighteen years and is neither married nor in the military
service of the United States before the minor may engage in conduct, other than the
providing of information, to assist in a criminal investigation under the direct
supervision of a public servant.
5. A member of the armed forces is justified in using deadly force when it reasonably
appears to be necessary to prevent the loss, theft, destruction, sabotage, or
unauthorized control of a nuclear weapon, critical nuclear component, or nuclear
explosive device.
### § 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 an individual is justified under any of the following circumstances:
1. Except as provided in section 15.1-19-02, 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 a minor for a special purpose, or 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 the minor's welfare, including prevention and
punishment of the minor's misconduct, and the maintenance of proper discipline.
a. If the person using reasonable force for the prevention and punishment of the
minor's misconduct or the maintenance of proper discipline is a paid caregiver,
that person must be acting under written direction of the parent or guardian of the
minor.
b. The reasonable force may be used for this purpose, regardless of whether the
reasonable force is "necessary" as required by subsection 1 of section
12.1-05-07.
c. The reasonable force used may 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 individual
who is incompetent, or a person acting at the direction of the guardian or responsible
person, may use reasonable force upon the individual for the purpose of safeguarding
or promoting the welfare of the individual, including the prevention of the individual's
misconduct or, if the individual is in a hospital or other institution for care and custody,
for the purpose of maintaining reasonable discipline in the institution.
a. The force may be used for these purposes, regardless of whether the force is
"necessary" as required by subsection 1 of section 12.1-05-07.
b. The force used may 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 in which 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 a duly licensed physician's 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 individual who is
incompetent, with the consent of the patient's parent, guardian, or other person
entrusted with the patient's care and supervision; or
c. By order of a court of competent jurisdiction.
5. A person may use force upon an individual about to commit suicide or suffer serious
bodily injury, to prevent the death or serious bodily injury of that individual.
### § 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.
### § 12.1-05-07. Limits on the use of force - Excessive force - Deadly force.

1. An individual 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 individual
menaced. An individual seeking to protect another individual must, before using
deadly force, try to cause the other individual to retreat, or otherwise comply with
the requirements of this provision, if safety can be obtained thereby. However, the
duty to retreat or avoid force does not apply under the following circumstances:
(1) A public servant justified in using force in the performance of the public
servant's duties or an individual justified in using force in assisting the public
servant need not desist from the public servant's or individual's efforts
because of resistance or threatened resistance by or on behalf of the other
individual against whom the public servant's or individual's action is directed;
and
(2) An individual who is not engaged in an unlawful activity that gives rise to the
need for the use of deadly force and has not provoked the individual against
whom the deadly force is used, unless the circumstances in subdivision b of
subsection 2 of section 12.1-05-03 apply, is not required to retreat within or
from any place the individual otherwise is legally allowed to be.
c. When used by an individual in possession or control of a dwelling, place of work,
motor vehicle, or an occupied motor home or travel trailer as defined in section
39-01-01, or by an individual 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, place of work, motor vehicle, or
occupied motor home or travel trailer, and the use of force other than deadly force
for these purposes would expose any individual to substantial danger of serious
bodily injury.
d. When used by a public servant authorized to effect arrests or prevent escapes, if
the force is necessary to effect an arrest or to prevent the escape from custody of
an individual 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 the individual 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 the force is necessary to prevent
the escape of a prisoner from a detention facility, unless the guard or public
servant knows that the prisoner is not an individual as described in subdivision d.
A detention facility is any place used for the confinement, pursuant to a court
order, of an individual charged with or convicted of an offense, charged with being
or adjudicated a juvenile delinquent, held for extradition, or otherwise confined
under court order.
f. When used by a duly licensed physician, or an individual acting at the 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 if the treatment is
administered in an emergency; 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 by
order of a court of competent jurisdiction.
g. When used by an individual who is directed or authorized by a public servant, and
who does not know that the public servant is not authorized to use deadly force
under the circumstances.

### § 12.1-05-07.1. Use of deadly force - Presumption of fear of death or serious bodily

injury.
1. An individual is presumed to have held a reasonable fear of imminent peril of death or
serious bodily injury to that individual or another when using deadly force if:
a. The individual against whom the deadly force was used was in the process of
unlawfully and forcibly entering, or had unlawfully and forcibly entered and
remains within a dwelling, place of work, or occupied motor home or travel trailer
as defined in section 39-01-01, or if the individual had removed or was attempting
to remove another against that individual's will from the dwelling, place of work, or
occupied motor home or travel trailer as defined in section 39-01-01; and
b. The individual 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.
2. The presumption in subsection 1 may be rebutted by proof beyond a reasonable doubt
that the individual who used the deadly force did not have a reasonable fear of
imminent peril of death or serious bodily injury to that individual or another.
3. The presumption in subsection 1 does not apply if the court finds that any of the
following have occurred:
a. The individual against whom the deadly force is used has the right to be in or is a
lawful resident of the dwelling, place of work, or occupied motor home or travel
trailer as defined in section 39-01-01, 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 that individual;
b. The individual removed or sought to be removed is a child or grandchild, or is
otherwise in the lawful custody or under the lawful guardianship of, the individual
against whom the deadly force is used;
c. The individual who uses deadly force is engaged in the commission of a crime or
is using the dwelling, place of work, or occupied motor home or travel trailer as
defined in section 39-01-01 to further the commission of a crime; or
d. The individual against whom the deadly force is used is a law enforcement officer
who enters or attempts to enter a dwelling, place of work, or occupied motor
home or travel trailer as defined in section 39-01-01 in the performance of official
duties and the officer provided identification, if required, in accordance with any
applicable law or warrant from a court, or if the individual using force knew or
reasonably should have known that the individual entering or attempting to enter
was a law enforcement officer.
### § 12.1-05-07.2. Immunity from civil liability for justifiable use of force.

1. An individual who uses force as permitted under this chapter is immune from civil
liability for the use of the force to the individual against whom force was used or to that
individual's estate unless that individual is a law enforcement officer who was acting in
the performance of official duties and the officer provided identification, if required, in
accordance with any applicable law or warrant from a court, or if the individual using
force knew or reasonably should have known that the individual was a law
enforcement officer.
2. The court shall award loss of income, reasonable attorney's fees, court costs, and
disbursements incurred by the defendant in defense of any civil action brought by a
plaintiff if the court finds that the defendant is immune from civil liability as provided in
subsection 1.
### § 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:
1. A statute or other enactment.
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.
### § 12.1-05-10. Duress.

1. In a prosecution for any offense, it is an affirmative defense that the actor engaged in
the proscribed conduct because he was compelled to do so by threat of imminent
death or serious bodily injury to himself or to another. In a prosecution for an offense
which does not constitute a felony, it is an affirmative defense that the actor engaged
in the proscribed conduct because he was compelled to do so by force or threat of
force. Compulsion within the meaning of this section exists only if the force, threat, or
circumstances are such as would render a person of reasonable firmness incapable of
resisting the pressure.
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.
### § 12.1-05-11. Entrapment.

1. It is an affirmative defense that the defendant was entrapped into committing the
offense.
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.
### § 12.1-05-12. Definitions.

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.
3. "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.
