Approved
6/20/97
DISARMING A LAW ENFORCEMENT OFFICER
N.J.S.A.
2C:12-11a. & b.
[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/she)
knowingly takes unlawful control over a
firearm [or other weapon] in the possession
of a law enforcement n[or corrections
officer], when that officer is acting in the
performance of (his/her) duties, and either
is in uniform or exhibits evidence of
(his/her) 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
[or corrections officer.
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 exercise intention
control or dominion 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”
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 is
applicable]
A
“weapon”
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
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
and not just a very remote preparator 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 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
is 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
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 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.
“Bodily injury”
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.
For definition
of “Law Enforcement Officer” see
N.J.S.A. 2C:25-19c
For definition
of “Corrections Officer” see
N.J.S.A. 2A:154-4
For alternative
definitions of attempt, see
N.J.S.A. 2C:5-1.
N.J.S.A.
2C:12-11(b) (1) (2) & (3)
