The killing of Jordan Neely has become one of those cases where mythology has swiftly consumed the unpleasant task of actual thought. While the unduly passionate inexplicably decided that standing on subway tracks chanting about lynchings would somehow help Neely, the district attorney of New York County, Alvin Bragg, has announced that Penny will be charged with Manslaughter in the Second Degree.
There are four crimes with which Penny could have potentially been charged. The first two fall under Murder in the Second Degree, whether under an intentional murder theory or a “depraved indifference” theory. There was no evidence that Penny intended to kill Neely, and the crux of “depraved indifference” murder is conduct that is so clearly deadly that the perpetrator knew it created a “grave risk of death.” The classic example is shooting into a crowd, where the shooter may not intend to kill any particular individual, but recognizes that his actions would almost certainly result in someone being killed. That wasn’t the case here either.
Manslaughter in the Second Degree is the charge for reckless killing.
A person is guilty of manslaughter in the second degree when:
1. He recklessly causes the death of another person;
Reckless is defined by Penal Law § 15.05(3).
A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.
Key to the definition of recklessness is that the perpetrator “is aware and consciously disregards” the risk. Penny had his arm around Neely’s neck. Whether he was aware that he held Neely in a chokehold or thought it was merely some harmless restraint is a fair question.
As Penny was a former Marine, some assume he was trained in chokeholds and was thus conscious of the fact that his arm around Neely’s neck presented a “substantial and unjustifiable” risk of death, even if that wasn’t his intention. In the heat of the moment, it could be that he either failed to appreciate the danger of restraining Neely by his arm around his neck, or that he didn’t believe his restraint was a chokehold and therefore was neither aware of, nor consciously disregarded, the risk.
As an aside, that his use of force was excessive under the circumstances presents little question. While Neely may have said things that suggested he might use physical force, he had not used physical force before he was restrained by Penny. While the threat of imminent use of force may provide justification for the use of force, the use of deadly force is more circumscribed.
2. A person may not use deadly physical force upon another person under circumstances specified in subdivision one unless:
(a) The actor reasonably believes that such other person is using or about to use deadly physical force. Even in such case, however, the actor may not use deadly physical force if he or she knows that with complete personal safety, to oneself and others he or she may avoid the necessity of so doing by retreating;
There was no basis upon which to form a reasonable belief that Neely was about to use deadly physical force. While Penny could arguably justify his use of force to the extent of restraining Neely based upon his statements that he was not afraid of arrest or to die, that did not extend to the use of a deadly restraint of a chokehold. Further, the claim that Neely had previously been arrested and used unlawful physical force to harm others does not enter into the analysis since Penny had no knowledge of Neely’s prior conduct. One cannot claim that physical force was justified based upon facts unknown at the time.
Lastly, there is the crime of Criminally Negligent Homicide.
A person is guilty of criminally negligent homicide when, with criminal negligence, he causes the death of another person.
Criminal negligence differs from recklessness by the failure to perceive a risk.
A person acts with criminal negligence with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.
The distinction here is that the risk was so obvious that failure to perceive it “constitutes a gross deviation” from what an objectively reasonable person would realize. There’s rarely a reason to charge criminally negligent homicide as its utility is largely as a lesser included of Manslaughter 2 if the defense is that he was unaware of the risk.
More than a week elapsed between the killing of Jordan Neely and Bragg’s announcement that Penny would be charged with Manslaughter 2. Why is a mystery, as it appeared obvious that Penny’s actions, regardless of how intended, exceeded the level of force that could reasonably be applied based upon the fact that it resulted in Neely’s death. If you’re going to restrain someone by putting an arm around his neck, then the law requires you to do so with a level of care that does not cause the person’s death.
Some have argued that had Penny been black, he would have been arrested and charged immediately. Anecdotal evidence suggests that’s historically true. Bragg, however, is both a black man and a reform district attorney, suggesting that race should not have entered into his decision making. Still, the more than a week delay between the killing of Jordan Neely and the announcement of an obvious charge against Daniel Penny is hard to explain.
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Could it be that he was trying to appease the mob and trying to find more evidence to be used to charge him with murder over manslaughter?
You’ve drawn a distinction that almost everyone else has taken for granted. Penny put his arm around Neely’s neck to restrain him, which most take for granted was the dreaded “chokehold.” Was it a chokehold or just a headlock? Was it intended to be a chokehold? Did it start out as a chokehold or become a chokehod because of Neely’s efforts to break free?
I’m no chokehold expert (obviously), but at least it shouldn’t be taken for granted that it was a deadly chokehold.
Except someone died. We know it was “deadly.”
And all headlocks are chokeholds. They work to immobilize people by applying pressure to circulatory or breathing systems. If you hold them for too long, you will injure or kill someone.
This is wrong and stupid, and you are wrong and stupid for saying this.
I hope this story deters others from considering vigilantism.
Stand there and do nothing is the new cool thing to do?
It really wouldn’t interest
Anybody
Outside of a small circle of friends
I hope this story deters others from considering violence as a strategy for dealing with fellow humans whose only transgression is being disruptive in public.
Is punching a woman in the face and threatening to push people onto the tracks “being disruptive”.
I’m not saying whether the charge is the correct course of action or not, but I’d be careful minimizing the victim’s behavior without knowing.
I haven’t seen a peep from any of the dozens of witnesses who were there when this was happening. That makes me suspicious that the angry mob and/or the progressive nature of our media is suppressing justification for what happened.
I don’t know so I won’t say anything conclusive but I just pray that this guy isn’t being railroaded just to appease the mob.
If a transgender person was being screamed at, threatening potential violence, by a skinhead with Nazi tattoos, I’m sure Jake would condemn a vigilante from intervening to grab the skinhead before he beat the transgender person because Jake would never be a hypocrite, unprincipled and generally a smug idiot about such things.
As I’ve said prev’ly, I have a hard time seeing how maintaining a choke hold, for the length of time it’s been reported Penny did, can be considered self defense. I’ve choked people out and one can tell when they lose consciousness, they go limp in a way that would be very hard to fake.
OTOH, I’m wary about the rush to judgment before the facts are in.
To normal people, McNeel’s history of arrest is relevant because it contextualizes his behavior. The defendant will presumably argue that McNeely’s behavior was assault, and put others in fear of harm, justifying a measure of defense. Whether the defendants interpretation of McNeely’s behavior was reasonable or not will probably be at issue. None of us were there. To normal people, if similar behavior by McNeely was followed by McNeely attacking people, it’s more likely that his behavior on this date was the sort of behavior that a reasonable person would interpret as threatening, and that the defendants response was justified.
It’s no different than information about whether a suspect who reached into his pocket and got shot for it really had a gun. That information may not have been known by the officer who shot the suspect. But it has at least some probative value with respect to whether we should view as reasonable the officers interpretation of how the defendant was reaching and what response was therefore justified.
Or imagine a woman who feels that a man is following her in a threatening way, and who flees. Is she a racist Karen? If he’s got no criminal record then maybe we might think she over reacted. If he’s followed and then sexually assaulted women in the past then maybe in the moment she validly picked up on contextual cues that are hard to put into words, and we should praise her for her excellent situational awareness and judgment.
If you want to flip it around, let’s say, just hypothetically, you’re a cop chasing a suspect through a dark field after a high speed chase during which he short at you. He spins around, and you open fire in the alleged belief that he was turning to shoot again. Unknown to you, he had thrown his gun away several minutes ago during the chase. That’s unknown to you, but is it really irrelevant as a result? It provides at least some information on whether your interpretation of his motion as threatening was reasonable. Maybe not dispositive, but at least now you have to argue that you made a reasonable misinterpretation given overall context, instead of a very possibly accurate interpretation.
That’s how normal people see it. Lawyers have this extra thing about evidence that is prejudicial. And there’s often conceptual slide between “relevant but prejudicial and on balance more prejudicial than is worth it” to “not relevant at all.” Loads of things unknown to people in the moment are relevant.
My view on McNeely is that I wasn’t there, but 1) in most cases where a situation has escalated to the point that someone is shouting that they’re not afraid to die, I think it is very likely that their behavior is assaultive and self defense is warranted, 2) choke holds aren’t automatically lethal and might be a valid response to assaultive behavior, 3) continuing to choke someone after they’re slumped is plausibly murder if that did indeed happen and they die from it but I’m not sure I trust the people claiming that it did because they seem to have fibbed on a few other details. Hopefully the system will work this out instead of sacrificing the defendant on the altar of avoiding riots.
I’m sure all the normal people at reddit would be fascinated by your reasoning. Lawyers are not.
I’ve been wondering how long you could go without replying to some of these moronic comments. I see you hit the wall today. It’s about time.
“Contextualizes his behavior”? What a steaming pile of bullshit.
If he didn’t know about it, it could not possibly have served as a reason for his actions because HE DIDN’T FUCKING KNOW ABOUT IT.
Mr. Penny has one hand locked in the other arm’s elbow pit and the other hand behind Mr. Neely’s head. This is the classic position for a no-gi choke from behind in judo and jiu jitsu.
So he was more likely than not aware it was a choke.
I don’t know if it’s so likely it fills the space between that and ‘beyond a reasonable doubt’.
It’s amazing that you know what Penny was aware of. I lack the capacity to know what happens in other people’s brains.
C’mon Scott, play fair. If someone executes a technique in the same manner that a skilled practitioner would, it’s not unreasonable to assume they know what they’re doing.
[Please note that I remembered to use the “Reply” button. TIA]
If Penny goes to trial I wonder how significant and how much his marine training ( hand to hand etc) will play in the trial.
That may well be an issue at trial. He is not yet on trial. Focus.
The important thing is that the subways of the Utopian metropolis are once again safe for the starving, homeless, mentally ill. Problem solved. God is in his heaven and all is right with the world.
Well, maybe a tad less unsafe. Don’t know that the NYC subways will ever be “safe”.
I’m not a lawyer but this case looks even simpler. Perception isn’t always reality and the past isn’t prologue. What matters the action of people in that subway car. Everybody else avoided Neely. Why didn’t Penny? And why didn’t anyone call the police if they were felt threatened? There was an active warrant for Neely’s arrest. This is looking more like a Agatha Christie plot than a self-defence case.
I want to defend Penny, because I rode NYC subways every day for years, and I had my share of encounters with aggressive homeless panhandlers who come up close, look you in the eye, and demand money, implying (and sometimes carrying out) a threat of violence if you don’t pay them off. Fortunately the ones I encountered were weak and didn’t know how to fight, and I was able to fend off their attacks without much effort. The most common bum attack is spitting in your face, which is annoying and disgusting, but not life threatening. If I had encountered a genuinely scary one, I might have felt compelled to throw him on the ground and hold him down while asking people to call 911, but there are plenty of ways to disable an attacker without choking them, especially for a combat-trained marine. Choking anyone is hard to defend, especially as a preemptive measure.