FARGO — A man who was blinded in one eye after a Fargo police officer shot a pepperball at him during an October confrontation wants one of two charges against him dismissed, arguing that being suicidal is not a crime.

Defense attorney Richard Edinger filed a motion on Tuesday, Feb. 11, in Cass County District Court for a felony charge of terrorizing against 28-year-old Tyler Alexander Patel of Fargo, to be dismissed, asserting that probable cause doesn’t exist. Patel also was charged with preventing arrest for the Oct. 2 incident at the Dacotah Foundation Alternative Care Services building at 1322 Gateway Drive.

There are several components of the terrorizing charge, including that a suspect needs to threaten to commit an act of violence, Edinger said Thursday, Feb. 13, in court.

“A person who has the intent to commit suicide does not have the intent to threaten to commit a crime of violence because suicide is not a crime under the North Dakota Century Code,” Edinger wrote in the filing.

A court schedule said Edinger intended to argue the motion on Thursday during Patel’s preliminary hearing, but Judge Susan Bailey said the defense has to ask for a separate motion hearing to address the matter.

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That’s because prosecutors need time to file any documents opposing the motion, Bailey said. Both parties will have 30 days to file briefs regarding the motion to dismiss.

The preliminary hearing also was postponed until a future date.

According to court documents and an investigation report that cleared officers of wrongdoing:

Officers arrived shortly after 6 p.m. to the Dacotah building near 13th Avenue South and 25th Street, where they planned to treat Patel after hearing he cut himself.

Prosecutors allege Patel refused to obey officers' commands to drop a gun he claimed to have. He told officers he wanted them to shoot him, but he never threatened to shoot anyone.

Patel allegedly ran in and out of the building. After he exited the building with his hands in the air, he put his hands down near his waistband, where officers thought he had a gun, the report said.

Sgt. Travis Moser ordered Officer Jon Novacek to “give it to him.” And Novacek shot four pepperball rounds in rapid succession— three to the chest and one to Patel’s eye.

Sometimes used by law enforcement to subdue people, pepperballs are less-than-lethal ammunition that contains a chemical similar to pepper spray.

Officers did not find a weapon on Patel as they arrested him, police said.

The Fargo Police Department found officers acted within guidelines and policies during the confrontation. The agency said Patel forced officers to intervene, and allowing him to move about freely could have put others at risk.

“While it is unfortunate Patel was struck in the face, I do not believe that was Officer Novacek’s intention,” the report said.