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Raising Self-Defense Claims in North Dakota

Over the weekend, my boys and I watched one of my father’s favorite movies, Roadhouse, with Patrick Swayze.  In the movie, there’s this scene where Swayze, the “cooler,” notices a bad guy with a knife blade on his boot.  He knew the bad guy was there to get into a fight, so he asked everyone to “take it outside,” where an all-out brawl ensued and the good guys, Swayze and his bouncers, beat up all the bad guys.  This got me thinking about what kind of legal justifications Swayze might be able to assert if he was charged by the local prosecutor with an assault.  It got me thinking about the right to self-defense. 

As an experienced North Dakota criminal defense lawyer, I have handled hundreds of assault cases.  I often hear something to the effect of: he started it, he hit me first, he had it coming, or I had to.  Any time I hear something like that, I start exploring whether self-defense might be the best defense for my client.  Self-defense is an awesome, powerful defense if the facts fit the strict legal requirements.  Even when the facts do not exactly fit a self-defense claim, it can be used as a tool for negotiating with the prosecutor or used as a sentencing mitigation factor.  This blog will outline the legal requirements for self-defense in North Dakota.


A self-defense claim is usually raised in the context of some sort of assault.  The government may prosecute an assault if there is evidence a person willfully caused bodily injury (simple assault), substantial bodily injury (assault), or serious bodily injury (aggravated assault).  The manner in which the person causes the bodily injury is not important.  An assault can happen from a punch, slap, pinch, push, shove, kick; any way you can think of that causes someone to say, “OWWW!” or worse.  The physical damage caused changes the offense level or gradation of the assault from simple assault, usually a misdemeanor, to aggravated assault, a felony.  As long as it is not an accident (i.e., a person having a seizure who flails their arms and strikes another), the prosecutor can charge out an assault offense. 


When a person produces enough evidence of a self-defense claim to raise the issue, burden of DISPROVING self-defense shifts to the prosecutor.  In other words, if a person can raise facts relating to self-defense in North Dakota, it ADDS an element to the crime that the State has to disprove beyond a reasonable doubt.  The jury instructions require the State to prove that the defendant willfully caused some form of bodily injury, but did NOT act in self-defense.  The practical effect of raising the defense, though, is that a defendant concedes the assault conduct occurred, but claims his or her actions were justified.  A justification can be a very strong defense to a criminal charge. 


Self-defense law is a complicated, fact-specific defense.  In general, a person can use force to defend himself against “imminent unlawful bodily injury, sexual assault, or detention.  The defendant’s conduct is supposed to be judged by what the Defendant in good faith honestly believed at the time.  There are three exceptions to the general rule, self-defense claimed against a police officer, self-defense after provoking a fight, and self-defense used in mutual combat.  Each exception will be discussed below. 

  1. Self-Defense Limited Against Police Officers

The first exception is not common.  A person cannot use self-defense against a police officer to resist arrest, service of process, or performance of a public duty; however, a person can use force to resist “excessive force.”  Since law enforcement officers are trained to escalate their use of force when a person is resisting arrest and “excessive force” is a legal determination, the end result is that self-defense is almost always inapplicable against a police officer. 

  1. Provocation

A person cannot claim self-defense if he “intentionally provokes unlawful action by another person to cause bodily injury or death to such other person.”  In other words, you cannot start a fight and later claim self-defense.  Going back to the Double Deuce from Roadhouse, the bad guys could probably not claim self-defense because they intentionally provoked the fight that resulted in them being beaten up.  After provoking a fight, the only way to claim self-defense is if the person clearly withdraws from the encounter and has indicated to the other person of the withdrawal, and then the other person nevertheless continues to use force.  So they might be able to claim self-defense if they started the fight with Swayze, then said, “We don’t want to fight you,” ran away, and Swazye’s men continued to chase them and beat them up.   

  1. Mutual Combat/Initial Aggressor

A person cannot claim self-defense if he engaged in “mutual combat” or was the “initial aggressor unless he is resisting force which is clearly excessive. In the circumstances.”  This is where a good portion of my self-defense cases run into difficulties.  When two or more people agree to engage in a fight—think of a bar fight where one says, “let’s take this outside and settle it like men”—the parties are engaging in mutual combat and neither can claim they acted in self-defense. 


Even when self-defense is viable, there are several other considerations to keep in mind.  The law states an individual is not justified in using more force than is necessary and appropriate under the circumstances. Each of those terms carry with it some baggage that needs to be unpacked. 

  1. Necessary force.

Necessary force is essentially the force required to repel an attack.  Especially when raised in conjunction with the use of deadly force, the “necessary” limitation potentially imposes a duty to retreat.  In fact, deadly force cannot be used if it can be safely avoided.  Unless a person is a public servant, a person at home or occupied motor home/travel trailer, or a person is at work, the person using deadly force must run away and retreat unless retreat is not safely possible (i.e., if the attacking person has a gun, retreat is not safe – you might be fast but unlike Superman, you are not faster than a speeding bullet).  If a person is inside their home, the law presumes the use of deadly force is appropriate to repel a burglar or kidnapper. 

  1. Appropriate Force.

Appropriate force raises issues of proportionality.  A jury will always be asked to determine whether the force used in self-defense was appropriate under the circumstances.  Ever hear “don’t bring a knife to a gunfight?”  That relates to the amount of force that is appropriate under the circumstances.  If a person threatens to beat another up with their fists, using a knife or a gun in self-defense is probably not “appropriate” under the circumstances.  Tricky questions of appropriateness arise when the odds are not even.  For example, is using a knife okay when it’s not a one-on-one fight but rather a four-on-one fight?  What about if it’s a one-on-one fight, but one of the fighters was spouting off in the bar about being a black belt in Brazilian Ju-Jitsu or a professional MMA fighter?  An experienced criminal defense lawyer can help sort these issues out. 


As you can see, self-defense is an extremely powerful defense IF the facts support it.  It is complex and very fact specific.  The bottom line is that if the facts fit, a defendant usually can convince a prosecutor not to proceed or if they do, convince a jury the defendant using self-defense is not guilty. 

That said, the facts of most of these self-defense cases are not clear.  There are often differing versions of events.  One witness says this, while another witness says that.  Alcohol or drug intoxication, or simply an adrenaline surge may affect the witnesses’ perceptions, memories, and credibility.  As an all-or-nothing proposition at trial, the matter often comes down to whose story does the jury believe?  Nobody likes to lose, and self-defense cases are risky for both sides to try.  Because of these uncertainties, many of these cases are resolved through plea negotiation.  An experienced North Dakota Criminal Defense Lawyer can use self-defense facts to help negotiate a favorable outcome. 

Even when it is not possible to negotiate a favorable outcome with the prosecutor, self-defense facts can be used with the Judge to argue for a favorable sentencing outcome if a person is convicted.  The law requires the judge to consider whether the defendant acted under strong provocation, whether there were substantial grounds which, although insufficient to form a defense, tend to excuse or justify the conduct, the victim’s behavior induced or caused the defendant’s conduct, and the defendant’s conduct was a result of circumstances unlikely to reoccur.  Therefore, even if a self-defense claim is unsuccessful, an experienced North Dakota Criminal Defense Lawyer can use those facts to argue on your behalf. 


As I mentioned before, self-defense is a complicated area of the law.  If you find yourself in the unfortunate position where you have had to defend yourself or defend another person, you need to take actions to protect yourself. 

  1. Get to a safe place.

Your number one priority should be getting yourself to a safe, secure place. Depending on where that occurred, it may mean leaving the scene.  It may mean going back inside where others are present.  It may mean locking yourself inside your bedroom.  Get to a safe place and stay there until help arrives. 

  1. Call the Police Immediately.

Report that you were attacked and frightened, but do not give many specific details.  Identify yourself, your present location, and the location where the incident occurred.  Describe your attacker to the best of your ability, but do not discuss the facts any further than that.  You will want to talk with a lawyer before you say something that may be used to limit your ability to use self-defense. 

  1. Call an Experienced Criminal Defense Lawyer.

If you can, try to speak with an experienced criminal defense lawyer as soon as possible, preferably before saying ANYTHING to law enforcement.  Unfortunately, most of these incidents occur at night when law offices are closed.  You may or may not be successful in communicating with a lawyer before talking to the police.  Nevertheless, understand that if you used force, you may be charged with a crime.  You have the right to remain silent.  Anything you say can and will be used against you.  Your lawyer will want you to remain silent until he or she can get the facts and decide how best to use them to your advantage. 

  1. Limit Conversations with Police.

When the police arrive, give them a basic outline of what happened.  Your name, location, possible witnesses.  Limit your conversation like this: “That person attacked me.  I was afraid for my safety and the safety of others. I defended myself.  I will not talk with you any further without a lawyer present.”  And then stop talking!   Cops will often try to say something like “I’m just trying to get to the bottom of this” or “I’m just here to get your side of the story,” or “I’m here to help you if you’d just tell me what happened.”  That is NOT TRUE.  They are there to gather evidence of a crime.  Remember, self-defense is incredibly fact specific.  If you say something like “I should have just ran away,” or “I didn’t mean to hit him,” those statements will be turned against you to argue the force you used was not necessary and appropriate under the circumstances.  If you remain silent, an Experienced Criminal Defense Lawyer can help you articulate your self-defense claim in the most favorable way. 

If you or a loved one used self-defense, call an experienced criminal defense lawyer like Nick Thornton at the Fremstad Law Firm now.  He can be reached at (701) 478-7620 and