# Bronx man charged with assault after beating wife's would-be rapist to death with tire iron **URL:** \ **Category:** The BBQ Pit\ **Created:** [June 1, 2016, 2:14pm UTC](https://boards.straightdope.com/t/bronx-man-charged-with-assault-after-beating-wifes-would-be-rapist-to-death-with-tire-iron/756233 "2016-06-01T14:14:08Z")\ **Posts on this page:** 20\ **Page:** 4
**Author:** ![Fotheringay-Phipps](https://avatars.discourse-cdn.com/v4/letter/f/d9b06d/32.png) [@Fotheringay-Phipps](https://boards.straightdope.com/u/Fotheringay-Phipps)\ **Post date:** [June 2, 2016, 7:54pm UTC](https://boards.straightdope.com/t/bronx-man-charged-with-assault-after-beating-wifes-would-be-rapist-to-death-with-tire-iron/756233/61 "2016-06-02T19:54:16Z")
> [@Tom\_Tildrum](#): > > If your initial use of force was consistent with self-defense, then the subsequent violence probably is too. There comes a point where hitting a defenseless person can no longer be considered self-defense, however. Right. But it looks to me like the initial use of force was not self-defense. But it wasn’t an attempted murder either. The thing is that let’s say the initial use of force is something that might be a simple assault and battery. But the subsequent use of force is due to the victim fighting back and you responding in kind, not due to a desire to beat the guy into a pulp, even though that’s what you ended up doing. So my question is whether the fact that at the later point you were part of a mutual fight legally different as a result of the fact that you initiated the fight by assaulting the other guy? Do you say “we can prosecute the guy for the initial assault, but after that he was just defending himself”, or does the fact that the guy started by assaulting the victim mean that everything after that is treated as part of one unjustified assault? [It looks to me from seeing the video that Diallo clearly initiated the exchange, but that once he did, the other guy fought back - you can’t see the guy in the elevator but you see Diallo backing out of the elevator at some point, so it’s not like the other guy was just lying there.] ---
**Author:** ![Zyanthia](https://avatars.discourse-cdn.com/v4/letter/z/d6d6ee/32.png) [@Zyanthia](https://boards.straightdope.com/u/Zyanthia)\ **Post date:** [June 2, 2016, 8:53pm UTC](https://boards.straightdope.com/t/bronx-man-charged-with-assault-after-beating-wifes-would-be-rapist-to-death-with-tire-iron/756233/62 "2016-06-02T20:53:20Z")
> [@](#): > > (b) Effect the arrest of a person **who has committed** murder, manslaughter in the first degree, robbery, forcible rape or forcible criminal sexual act and who is in immediate flight therefrom. Bolding mine. Since the guy only attempted forcible rape instead of actually succeeding, doesn’t that put the husband at even more of a danger of being successfully prosecuted? I would have no problem using jury nullification if I were on the jury, but I think based on the way the law is written, that the prosecution has a real case. ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [June 2, 2016, 9:00pm UTC](https://boards.straightdope.com/t/bronx-man-charged-with-assault-after-beating-wifes-would-be-rapist-to-death-with-tire-iron/756233/63 "2016-06-02T21:00:09Z")
The “forcible criminal sexual act” part has not been in question. ---
**Author:** ![Biggirl](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/biggirl/32/3294_2.png) [@Biggirl](https://boards.straightdope.com/u/Biggirl)\ **Post date:** [June 2, 2016, 9:11pm UTC](https://boards.straightdope.com/t/bronx-man-charged-with-assault-after-beating-wifes-would-be-rapist-to-death-with-tire-iron/756233/64 "2016-06-02T21:11:08Z")
> [@VinylTurnip](#): > > I’d dodge the blows as best I could while trying to take the tire iron away from him. I know this is on page one and I’m late but I laughed so hard, I had to give props. So, um, props! ---
**Author:** ![Tom\_Tildrum](https://avatars.discourse-cdn.com/v4/letter/t/e95f7d/32.png) [@Tom\_Tildrum](https://boards.straightdope.com/u/Tom_Tildrum)\ **Post date:** [June 2, 2016, 9:15pm UTC](https://boards.straightdope.com/t/bronx-man-charged-with-assault-after-beating-wifes-would-be-rapist-to-death-with-tire-iron/756233/65 "2016-06-02T21:15:52Z")
> [@Fotheringay-Phipps](#): > > Right. But it looks to me like the initial use of force was not self-defense. But it wasn’t an attempted murder either. > > The thing is that let’s say the initial use of force is something that might be a simple assault and battery. But the subsequent use of force is due to the victim fighting back and you responding in kind, not due to a desire to beat the guy into a pulp, even though that’s what you ended up doing. > > So my question is whether the fact that at the later point you were part of a mutual fight legally different as a result of the fact that you initiated the fight by assaulting the other guy? Do you say “we can prosecute the guy for the initial assault, but after that he was just defending himself”, or does the fact that the guy started by assaulting the victim mean that everything after that is treated as part of one unjustified assault? I’m a little out of my comfort zone here, but some use of force to restrain a fleeing felony suspect would be justified if there is probable cause to make an arrest. I further think that the standard for use of force in that situation is the same for a citizen’s arrest. If the arrest is justified, then I don’t think the arrestee can justifiably resist, and some level of force to oppose the resistance would be justified. Whether deadly force is justified is another level of fact-specific inquiry. If the private citizen is wrong about the existence of probable cause and the arrest is unjustified, then I think he may be guilty of a crime and subject to a civil suit by the would-be arrestee (whereas a police officer would have some level of immunity). I don’t know whether an honest but unreasonable belief that one’s use of force is justified would reduce manslaughter to negligent homicide or not. It seems to me that an honestly-held belief might still be objectively reckless. And in the latter situation, I don’t think you can separate the initial assault from the subsequent fight. If the initial assault was unjustified, then the would-be arrestee is presumably justified in using force to resist it, and to continue using force until he’s no longer under threat. In that situation, it’s not a mutual fight; it’s one person committing an assault and the other defending himself. ---
**Author:** ![Fotheringay-Phipps](https://avatars.discourse-cdn.com/v4/letter/f/d9b06d/32.png) [@Fotheringay-Phipps](https://boards.straightdope.com/u/Fotheringay-Phipps)\ **Post date:** [June 2, 2016, 10:10pm UTC](https://boards.straightdope.com/t/bronx-man-charged-with-assault-after-beating-wifes-would-be-rapist-to-death-with-tire-iron/756233/66 "2016-06-02T22:10:13Z")
OK, thanks. FWIW, it doesn’t look to me like the guy was trying to make a citizen’s arrest, and I think he was trying to whack him with the tire iron from the start. But not necessarily to kill him. It’s a shame if the guy ended up with a serious consequence from this, of course, and as others have speculated, I would guess he’ll get a wrist slap plea bargain (assuming the facts hold up). But I’m curious as to the law as well. Thanks again. ---
**Author:** ![Zyanthia](https://avatars.discourse-cdn.com/v4/letter/z/d6d6ee/32.png) [@Zyanthia](https://boards.straightdope.com/u/Zyanthia)\ **Post date:** [June 3, 2016, 11:25am UTC](https://boards.straightdope.com/t/bronx-man-charged-with-assault-after-beating-wifes-would-be-rapist-to-death-with-tire-iron/756233/67 "2016-06-03T11:25:25Z")
Thanks. So even though the news story said “attempted”, in the eyes of the law that is enough to satisfy the committed clause of the law enabling the husband to use lethal force. ---
**Author:** ![Colibri](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/colibri/32/1841_2.png) [@Colibri](https://boards.straightdope.com/u/Colibri)\ **Post date:** [June 3, 2016, 3:23pm UTC](https://boards.straightdope.com/t/bronx-man-charged-with-assault-after-beating-wifes-would-be-rapist-to-death-with-tire-iron/756233/68 "2016-06-03T15:23:04Z")
> [@Bone](#): > > The video is not going to help Diallo’s position, IMO. Though the reason he notices Nash allegedly because his wife was in the hall and identified him and told Diallo to not let him get away. > > The fact pattern of a citizen’s arrest could be met if Diallo told Nash to stop and Nash refused. From the video, Diallo did attack Nash immediately without apparently a threat from Nash. However, he probably wasn’t attempting to kill him outright since Nash was still alive after the attack. Once Nash was on the ground, it would have been easy for Diallo to kill him if that’s what he wanted to do. While Nash may not have attacked Diallo, he was attempting to flee the scene by getting in the elevator. Since he was much smaller than Nash, Diallo’s only option to prevent that would seem to be to subdue him by force. Diallo couldn’t have gotten in the elevator and held Nash at bay with the tire iron. And it appears that Nash continued to fight back rather than surrendering. It would seem Diallo was justified in using deadly force to detain Nash if he reasonably believed him to have committed forcible rape. At that point, he might not have known that Nash had been unsuccessful. ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [June 3, 2016, 3:35pm UTC](https://boards.straightdope.com/t/bronx-man-charged-with-assault-after-beating-wifes-would-be-rapist-to-death-with-tire-iron/756233/69 "2016-06-03T15:35:00Z")
> [@Zyanthia](#): > > Thanks. So even though the news story said “attempted”, in the eyes of the law that is enough to satisfy the committed clause of the law enabling the husband to use lethal force. I think that’s a question of fact for a jury to answer. The term “criminal sexual act” is defined in [NY in section 130.40 - 130.50](http://ypdcrime.com/penal.law/article130.htm). It talks about oral or anal sexual conduct. Both of those terms are defined in section 130.00. Separately within the definition of sexual conduct is included sexual contact. Sexual contact is fairly broad in scope. Whether or not the actions by Nash are consistent with those contemplated in in section 35.30 are for a jury to decide. > [@Colibri](#): > > From the video, Diallo did attack Nash immediately without apparently a threat from Nash. However, he probably wasn’t attempting to kill him outright since Nash was still alive after the attack. Once Nash was on the ground, it would have been easy for Diallo to kill him if that’s what he wanted to do. I think this is a reasonable interpretation from the video alone. I think alternatively because Nash is offscreen when Diallo’s first swing makes contact, he could raise the argument that Nash was attempting to resist or attack him. If he said that and I was on the jury, absent conflicting evidence I would believe it. ---
**Author:** ![CarnalK](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/carnalk/32/486_2.png) [@CarnalK](https://boards.straightdope.com/u/CarnalK)\ **Post date:** [June 3, 2016, 3:55pm UTC](https://boards.straightdope.com/t/bronx-man-charged-with-assault-after-beating-wifes-would-be-rapist-to-death-with-tire-iron/756233/70 "2016-06-03T15:55:18Z")
The guy has my sympathies but watching that video I have a hard time believing he had any intentions of anything other than smashing the would be rapist’s head in. ---
**Author:** ![eschereal](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/eschereal/32/18939_2.png) [@eschereal](https://boards.straightdope.com/u/eschereal)\ **Post date:** [June 3, 2016, 4:12pm UTC](https://boards.straightdope.com/t/bronx-man-charged-with-assault-after-beating-wifes-would-be-rapist-to-death-with-tire-iron/756233/71 "2016-06-03T16:12:27Z")
The thing I wonder about is, Nash was apparently a dark-skinned thug: would the story be spun differently if he was some other type of person? Like a clean-cut college quarterback? ---
**Author:** ![VinylTurnip](https://avatars.discourse-cdn.com/v4/letter/v/b2d939/32.png) [@VinylTurnip](https://boards.straightdope.com/u/VinylTurnip)\ **Post date:** [June 3, 2016, 4:18pm UTC](https://boards.straightdope.com/t/bronx-man-charged-with-assault-after-beating-wifes-would-be-rapist-to-death-with-tire-iron/756233/72 "2016-06-03T16:18:37Z")
Clean-cut college quarterbacks don’t generally go door-to-door raping. That’s what parties are for. ---
**Author:** ![The\_Other\_Waldo\_Pepper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/the_other_waldo_pepper/32/12370_2.png) [@The\_Other\_Waldo\_Pepper](https://boards.straightdope.com/u/The_Other_Waldo_Pepper)\ **Post date:** [June 3, 2016, 4:22pm UTC](https://boards.straightdope.com/t/bronx-man-charged-with-assault-after-beating-wifes-would-be-rapist-to-death-with-tire-iron/756233/73 "2016-06-03T16:22:24Z")
> [@eschereal](#): > > The thing I wonder about is, Nash was apparently a dark-skinned thug: would the story be spun differently if he was some other type of person? Like a clean-cut college quarterback? Hey, if Diallo were white, would Black Lives Matter be calling for his head? ---
**Author:** ![CarnalK](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/carnalk/32/486_2.png) [@CarnalK](https://boards.straightdope.com/u/CarnalK)\ **Post date:** [June 3, 2016, 4:23pm UTC](https://boards.straightdope.com/t/bronx-man-charged-with-assault-after-beating-wifes-would-be-rapist-to-death-with-tire-iron/756233/74 "2016-06-03T16:23:15Z")
> [@eschereal](#): > > The thing I wonder about is, Nash was apparently a dark-skinned thug: would the story be spun differently if he was some other type of person? Like a clean-cut college quarterback? The guy had an extensive criminal history including forcible confinement of a 17 yr old girl. How many “clean cut college quarterbacks” have that? Besides, football players date rape college girls, they don’t break into Bronx apartments. ---
**Author:** ![Tom\_Tildrum](https://avatars.discourse-cdn.com/v4/letter/t/e95f7d/32.png) [@Tom\_Tildrum](https://boards.straightdope.com/u/Tom_Tildrum)\ **Post date:** [June 3, 2016, 4:46pm UTC](https://boards.straightdope.com/t/bronx-man-charged-with-assault-after-beating-wifes-would-be-rapist-to-death-with-tire-iron/756233/75 "2016-06-03T16:46:33Z")
[Here](https://www.washingtonpost.com/news/morning-mix/wp/2016/06/03/he-mutilated-my-child-says-father-who-attacked-grinning-serial-killer-in-court/) is another case raising somewhat similar issues. The article says that “Prosecutors … are not sure if they will charge Terry for the courtroom incident.” My guess is no; no, they won’t. > [@Fotheringay-Phipps](#): > > FWIW, it doesn’t look to me like the guy was trying to make a citizen’s arrest, and I think he was trying to whack him with the tire iron from the start. But not necessarily to kill him. I kind of think he has to make the citizens’ arrest argument, because otherwise, the only possible justification for hitting him at all is self-defense, and that looks potentially difficult here. > [@Colibri](#): > > It would seem Diallo was justified in using deadly force to detain Nash if he reasonably believed him to have committed forcible rape. Force, yes, but deadly force? Think of it this way: would a police officer be justified in shooting a fleeing suspect, based only on a witness calling out that he had attempted a violent crime? ---
**Author:** ![Colibri](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/colibri/32/1841_2.png) [@Colibri](https://boards.straightdope.com/u/Colibri)\ **Post date:** [June 3, 2016, 4:59pm UTC](https://boards.straightdope.com/t/bronx-man-charged-with-assault-after-beating-wifes-would-be-rapist-to-death-with-tire-iron/756233/76 "2016-06-03T16:59:02Z")
> [@Tom\_Tildrum](#): > > Force, yes, but deadly force? Think of it this way: would a police officer be justified in shooting a fleeing suspect, based only on a witness calling out that he had attempted a violent crime? We know it was deadly force because Nash died. However, as I said it would appear that Diallo’s intention wasn’t to kill him, because he could easily have smashed Nash’s head after he was subdued. ---
**Author:** ![CarnalK](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/carnalk/32/486_2.png) [@CarnalK](https://boards.straightdope.com/u/CarnalK)\ **Post date:** [June 3, 2016, 5:03pm UTC](https://boards.straightdope.com/t/bronx-man-charged-with-assault-after-beating-wifes-would-be-rapist-to-death-with-tire-iron/756233/77 "2016-06-03T17:03:06Z")
> [@Colibri](#): > > We know it was deadly force because Nash died. However, as I said it would appear that Diallo’s intention wasn’t to kill him, because he could easily have smashed Nash’s head after he was subdued. That’s kinda weak. A guy dies in hospital after being stabbed a few times in the stomach, but we should assume death wasn’t intended unless the attacker leans down and slits the guy’s throat? ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [June 3, 2016, 5:21pm UTC](https://boards.straightdope.com/t/bronx-man-charged-with-assault-after-beating-wifes-would-be-rapist-to-death-with-tire-iron/756233/78 "2016-06-03T17:21:09Z")
> [@Tom\_Tildrum](#): > > Force, yes, but deadly force? Think of it this way: would a police officer be justified in shooting a fleeing suspect, based only on a witness calling out that he had attempted a violent crime? Police are treated differently than non-police in many scenario. And I think it’s more than just a witness calling out a perpetrator - it was Diallo’s wife, immediately after the incident. Presumably he could see her, after speaking with her on the phone, in a state of undress, wounded, and in the hallway. In some jurisdictions (not NY), a citizen can use deadly force to defend property even with no threat to a person under the right fact pattern. A police officer would not have that latitude. In any event, even in [Tennessee vs. Garner](http://caselaw.findlaw.com/us-supreme-court/471/1.html), Police may shoot a fleeing felon if necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others. A suspect who is known to have just committed murder (or rape) and is fleeing and about to enter a crowd may meet this hurdle. > [@](#): > > Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force. Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where [471 U.S. 1, 12] feasible, some warning has been given. Imagine the scenario - Wife calls out identifying Nash. Nash in the elevator says something or indicates something hostile to Diallo. Diallo hears his wife, and Nash simultaneously and interprets Nash’s actions as either hostile, or as an attempt to flee. Diallo then proceeds to take swings at Nash. That fits 35.30. Acquit. ---
**Author:** ![Colibri](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/colibri/32/1841_2.png) [@Colibri](https://boards.straightdope.com/u/Colibri)\ **Post date:** [June 3, 2016, 5:29pm UTC](https://boards.straightdope.com/t/bronx-man-charged-with-assault-after-beating-wifes-would-be-rapist-to-death-with-tire-iron/756233/79 "2016-06-03T17:29:09Z")
> [@CarnalK](#): > > That’s kinda weak. A guy dies in hospital after being stabbed a few times in the stomach, but we should assume death wasn’t intended unless the attacker leans down and slits the guy’s throat? Diallo didn’t mind killing Nash, since he hit him in the head, but he didn’t finish him off when he had the chance. The same argument could be made if the only weapon he had had was a knife. ---
**Author:** ![CarnalK](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/carnalk/32/486_2.png) [@CarnalK](https://boards.straightdope.com/u/CarnalK)\ **Post date:** [June 3, 2016, 5:35pm UTC](https://boards.straightdope.com/t/bronx-man-charged-with-assault-after-beating-wifes-would-be-rapist-to-death-with-tire-iron/756233/80 "2016-06-03T17:35:31Z")
> [@Colibri](#): > > Diallo didn’t mind killing Nash, since he hit him in the head, but he didn’t finish him off when he had the chance. The same argument could be made if the only weapon he had had was a knife. Delivering a _coup de grace_ is a cold blooded thing that is not required to show death was intended during the attack. [Previous page](https://boards.straightdope.com/t/bronx-man-charged-with-assault-after-beating-wifes-would-be-rapist-to-death-with-tire-iron/756233.md?page=3) [Next page](https://boards.straightdope.com/t/bronx-man-charged-with-assault-after-beating-wifes-would-be-rapist-to-death-with-tire-iron/756233.md?page=5)