The Limits of Self-Defense as a Legal Defense

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Robin L

The concept of self-defense seems so simple that even children have a basic understanding of it. After all, any time a kid tells a parent, “But he started it” or “She kicked me first!” what he’s essentially saying is that he was only defending himself and thus is innocent.

But in reality, the application of the self-defense argument to criminal charges is more complex and nuanced, and involves more factors than just who was the initial aggressor. A recent case in New York is a good example of some of the issues that can arise when someone claims self-defense.

Nenegale Diallo was in her Bronx, NY, apartment when there was a knock on the door. Thinking her son had returned, she opened it, allowing Earl Nash, a career criminal, to burst inside.

Nash bluntly told Nenegale that he was going to rape her as he locked the door and started removing his pants. He then struck her, knocked her to the floor and ripped her clothes off. At one point, he even threw a chair at her.

During the attack, Nenegale was able to get to her phone and dial her husband Mamadou, screaming at him to help her and to call the police.

By the time Mamadou arrived, Nash was in the hallway, pacing in front of the elevator. Nenegale told her husband that Nash was the one and not to let him go.

Mamadou, who was armed with a tire iron, swung the weapon at Nash and drove him into the elevator, where Mamadou continued to beat him for more than a minute. Nash fought back with a belt. (The incident was caught on video.)

Nash later died at the hospital from his injuries, which included a fractured skull.

Mamadou was initially charged with manslaughter but was instead arraigned on assault, harassment and weapons charges, likely due to the Bronx District Attorney’s Office consideration of the circumstances of the incident. The case has yet to be presented to a grand jury.

The defense of self-defense is usually codified in a state’s criminal law. Although there may be some differences among jurisdictions, the basic principles are generally the same or similar.

Despite the name, an individual has the right to defend both himself as well as someone else from a physical assault or imminent attack. For example, Sec. 35.15(1) of the New York State Penal Law says that, subject to certain conditions, a person may “use physical force upon another person when and to the extent he or she reasonably believes such to be necessary to defend himself, herself or a third person from what he or she reasonably believes to be the use or imminent use of unlawful physical force by such other person.”

The key elements of the defense are that the individual arguing self-defense must reasonably believe the use of physical force was necessary and that such force was needed to respond to an attack or imminent threat of an attack. So if the attacker has already been subdued or is running away, there’s no longer an imminent threat of an attack and thus the use of force wouldn’t be justified.

The use of deadly force in self-defense is more limited. Sec. 35.15(2) of the New York penal law says, “A person may not use deadly [emphasis added] physical force upon another person under circumstances specified in subdivision one unless the actor reasonably believes that such other person is using or about to use deadly [emphasis added] physical force.”

In other words, the force used must be proportional, i.e., you’re only justified in using deadly force to defend against deadly force. For instance, you can’t shoot someone for slapping you in the face.

Lastly, the law may include a duty to retreat rather than use force, especially deadly force. For instance, under New York law, a person may not use deadly physical force if he or she knows that, with complete personal safety to himself and others, he may avoid the necessity of using deadly force by retreating or leaving the threatening situation.

However, there are limits on the duty to retreat. For example, an individual generally doesn’t have to retreat if he’s in his home and wasn’t the initial aggressor. (Note that some states have so-called “stand your ground” laws, which negate the duty to retreat.)

Now let’s look at how these principles apply to the Mamadou Diallo case.

A husband may come to the defense of his wife. In fact, the law of self-defense also protects individuals who come to the aid of complete strangers. So Mamadou may be justified in using physical force to protect Nenegale from being assaulted or raped.

But the requirement of an imminent threat poses a significant hurdle.

When Mamadou encountered Nash, it was after Nash has attacked Nenegale and was trying to leave via the elevator. Nash was nowhere near Nenegale when Mamadou arrived on their floor. At that point, Nash’s assault and attempted rape of Nenegale was over.

When Mamadou struck Nash, his wife was neither being attacked nor under an immediate threat of attack. So regardless of his feelings in that awful moment when he came face-to-face with his wife’s attacker, strictly speaking, he wasn’t defending her in the eyes of the law.

In addition, based on the video of the encounter, it doesn’t appear that Nash hit or struck Mamadou first. Thus, Mamadou also can’t argue that he was trying to defend or protect himself when he hit Nash with the tire iron.

If Mamadou is able to get past the hurdle of imminent threat, he still faces the issue of whether he went too far. In other words, was his use of deadly force justified?

Mamadou rushed home to save his wife armed with a tire iron, which would be considered a weapon under the law. He encountered Nash in the building’s hallway, not in his apartment. So he can’t argue that he had no duty to retreat. And it appears that he could have safely avoided a confrontation with Nash, although doing so would likely have allowed Nash to escape.

Mamadou exercised deadly physical force by repeatedly striking Nash about the head and body with the tire iron, ultimately fracturing his skull and causing his death. Given that Nash was apparently armed only with a belt, was it reasonable for Mamadou to believe that Nash was about to use deadly physical force? Not likely.

So based on a logical, objective analysis of the law on self-defense and its application to the facts of this case as they’ve been reported in the media, Mamadou doesn’t seem to have a viable self-defense argument.

But it’s easy to play Monday-morning quarterback.

In the heat of the moment, it would have  been nearly impossible for Mamadou to turn his adrenalin off once he arrived in the hall outside his apartment and saw his wife.

Put yourself in Mamadou’s shoes. Your spouse has just called you. She’s hysterical, crying that she’s being attacked and begging for your help. You rush home to find your naked, sobbing wife in the hall. She yells to you that the man you just passed outside the elevator is the one who attacked her.

What would you do?

At a minimum, you’d likely try to keep him from escaping. But once he was subdued and not able to flee, would you be able to rein yourself in and stop beating him until the authorities arrived?

The people certainly have spoken. The public has shown overwhelming support for Mamadou’s actions, cheering for him when he was released after arraignment. Even a female state senator has said the charges against him should be dropped and he should get the keys to the city.

Of course, it helps that Nash had a lengthy and violent record, and isn’t a sympathetic “victim.”

So should the Bronx DA have charged Mamadou with those lesser charges or just dismissed the case against him? Is justice really served if Mamadou is prosecuted? Even if he’s indicted, prosecutors will be hard pressed to find unsympathetic jurors willing to convict him for his actions.

I understand the support for Mamadou—and I’m certainly not shedding any tears that Nash is dead.

But under a strict reading of New York criminal law, self-defense doesn’t apply. So the Bronx DA’s Office was right to file charges against Mamadou and follow the law. But the best-case scenario for everyone might be if Mamadou testifies in front of the grand jury, which then refuses to indict him.

Prosecutors will have enforced the law, a hero in the eyes of many will avoid a criminal record and the public will have been educated on what self-defense really means in a criminal law context.

Robin L. Barton, a legal journalist based in Brooklyn, NY, is a former assistant district attorney in the Manhattan District Attorney’s Office and a regular blogger for The Crime Report. She welcomes readers’ comments.

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