In other times, Daniel Penny would likely be celebrated as a hero. There would be a movie about him and children would dress as Penny for Halloween. But not at this time, as Penny stands trial for the killing of Jordan Neely on a New York City subway. As Andrew Fleischman explains, the law in New York leaves Penny exposed to conviction as the law regarding the use of force, and deadly force, makes clear.
Daniel Penny killed Jordan Neely with a chokehold. Some feel that this was not a crime, or that it was so heavily mitigated by the circumstances that we should not treat it as a crime. But it looks like the law applied to the facts is clear. Under New York law you’re not justified using force unless it’s to prevent the imminent unlawful use of force against you or someone else. “Imminent” is an important word here. Somebody who has pulled back their hand to punch you in the face is threatening imminent force.
But it wasn’t just that force was used, but that the force used, a chokehold, resulted in death. That arguably raises the stakes by making it the use of deadly force.
Even if Penny was justified in restraining Neely, though, he couldn’t be justified choking the man unless Neely posed a deadly threat. “Deadly physical force” means physical force which, under the circumstances in which it is used, is readily capable of causing death or other serious physical injury.” N.Y. Penal Law § 10.00. Chokeholds and even punches have been held to be deadly force in New York, and it would be hard to argue that choking can’t kill a person when it definitively did.
While Neely, who suffered from severe mental illness and made statements suggesting that his actions were not constrained by fear of death, was certainly behaving badly and could potentially lash out in a way that would cause harm, if not death, to someone, it hadn’t happened at the time he was grabbed by Penny and it surely hadn’t happened at the time Penny’s chokehold killed Neely.
So, emotions aside, there is little doubt that his actions raise a colorable claim of criminally negligent homicide. There is nothing legally “wrong” with prosecuting Daniel Penny. But that’s not necessarily the end of the question. Penny didn’t board the subway that day with the intention of killing Neely or anyone else. He wasn’t out to become a hero, a la Bernhard Goetz, but just to get from here to there, when he saw a crazy man threatening people on the train. Being a decent person, he came to their defense and acted.
Maybe he went too far, but in the heat of the moment, there wasn’t much time for the nuanced parsing of a post-hoc review from either the district attorney’s desk or the jury box. Had Penny done nothing and Neely harmed or killed someone, the cries would have been for someone to do something. Why didn’t anyone stop Neely? What kind of men were on that subway who let this crazy person do harm to others while watching and doing nothing?
In New York, there is something called a Clayton motion for “dismissal in furtherance of justice.” The criteria are set forth in the statute.
(a) the seriousness and circumstances of the offense;
(b) the extent of harm caused by the offense;
(c) the evidence of guilt, whether admissible or inadmissible at trial;
(d) the history, character and condition of the defendant;
(e) any exceptionally serious misconduct of law enforcement personnel in the investigation, arrest and prosecution of the defendant;
(f) the purpose and effect of imposing upon the defendant a sentence authorized for the offense;
(g) the impact of a dismissal upon the confidence of the public in the criminal justice system;
(h) the impact of a dismissal on the safety or welfare of the community;
(i) where the court deems it appropriate, the attitude of the complainant or victim with respect to the motion;
(j) any other relevant fact indicating that a judgment of conviction would serve no useful purpose.
Given these criteria, is there any purpose in prosecuting Penny? Is there any useful purpose to a conviction? Would a dismissal increase confidence in the legal system, or would it create the appearance that it’s open season on the mentally ill? What was Daniel Penny to do on that subway train that day? Even if his use of force exceeded what was necessary or reasonable in the heat of the moment, does it serve society to prosecute someone for imperfectly coming to the defense of others?
*Tuesday Talk rules apply.
Legal nuance or even basic legal knowledge is outside my wheelhouse. On this topic I’m triggered to engage in cheap rants. So, here goes.
Does “it serve society to prosecute someone for imperfectly coming to the defense of others?” No, but it perfectly serves the self-serving, chaos-enabling, debased motivations of leftist NY politicians.
An old southern aphorism: all that’s necessary for evil to prevail is for good folk to stand by and do nothing.
Until a decade ago, I traveled to NYC twice or more every year. I stopped going and have not returned. The idea of becoming collateral damage in NYC does not appeal to me.
My rant ends here.
“Southern aphorism”?
As in southern Scotland?
[Ed. Note: Hal.]
You’re right. That was snarky.
Sometimes stuff that seems funny in my head… isn’t really.
Apologies to you, Mssr. Joyner, and all those enjoying themselves in the hotel lounge.
There are good Sam laws. There are marches for men to intervene when they feel a woman is being improperly treated. We want good, decent people to stand up and help others. Would you do so if something unintentionally goes awry, someone dies (and it could happen a great many ways) and you end up on trial and possibly destroying your life all because you tried to be a decent person?
The incentive system here needs some tweaking.
Agree 100%. In fact, those creating the current incentives would probably agree with us too, but just disagree about who is “decent.”
Hopefully, the $3.1 million raised for defending Mr. Penny will be enough, with plenty of spare change left for him to restart his life. (Then again, as Edmund Burke also didn’t say, “you can beat the rap but not the ride”.)
One of my enduring gripes about blawgs and lawyers that I have heretofore not posted seems apropos here:
Reading these blawgs the underlying theme is constantly that the law is nuanced and hard to understand and non-lawyers should shut up and let the lawyers tell you what the law is, says, and how it should be interpreted. But how the fuck am I, as a non-lawyer supposed to know what the fuck is legal and how the fuck am I supposed to obey the law if it takes a fucking lawyer to tell me what the law is. I guess I will have to bring a lawyer with me every time I ride the subway so they can explain the nuances of self defense law before I intervene. Oh shit. Too late, that lady just got stabbed to death while we were discussing the possible implications of taking action.
Obviously this is more a critique of overcomplicated laws and overzealous prosecutors than it is the blawgers themselves.
As a Navy Master Chief, my mantra to future leaders was, “Clear, Unambiguous Direction! Sailors will do what you want them to if they know what you want!” Obviously, much more difficult to apply to law, but it would be a fucking start.
I think the laws in NYC are often intentionally written ambiguously, or are applied ambiguously, because it gives the state the maximum amount of leeway to sanction behavior that the state finds threatening. And it clearly feels threatened by citizens challenging its monopoly on violence.
Yes, Penny’s actions don’t strictly meet the requirements of self-defense, but there were certainly people in the car who felt seriously threatened by Neely. And Neely has a long record of criminal and violent behavior. And he had been identified by NYC authorities as one of their most dangerous homeless residents. All of which would weigh against prosecuting him in most jurisdictions, IMO. But, hey, it’s New York City.
In a society that clings to its category errors, this is one more attempt to punish an individual for actions against a demographic. Change the demographics, change the calculus and the moral attitudes on display, to the point of affirming some very unprogressive historical paradigms.
I screwed that up. As with other viral examples, changing the demographics requires changing the calculus and moral attitudes to *avoid* affirming some very unprogressive historical paradigms. If more “progressives” considered a deranged skinhead as a baseline “imperfect victim,” they’d kick the hell out of the tires on their progressive reform principles.
“[T]his is one more attempt to punish an individual for actions against a demographic.” Let’s be a little more specific, for those who may not be entirely familiar with the incident: This is one more attempt to punish a white person who killed a black man. Sadly, that’s enough for some people who don’t care about any other facts — such as protecting the safety of others — that might be relevant to reasonable people.
The value of not being more specific is that you can leverage the principles involved, instead of playing to or against the fever swamp of contemporary biases. And map those principles onto other historical contexts, while considering other “intersectional” factors. The outrage over specific identity dynamics will bring out competing toxicities on both fronts.
Oregon is on its third (might be fourth, I lost track) iteration of a law punishing cell phone use while driving. And there are STILL more than a few loopholes one could drive a truck through (while chatting on a cell phone).
I have also lost track of the number of judges IRT that law that I’ve argued with whose position is “I KNOW what the Legislature MEANT!!!” and who have no sympathy for my position of “Isn’t it more important to go with what the Legislature WROTE?”
So yes, laws can be differently interpreted by different minds, and even reasonably so – presuming they agree with me, of course.
Sidebar: Thank Ghu for drugs, otherwise traffic law cases would never get to the Supreme Court to have some of those laws clarified.
ANYway, to the matter and question at (phoneless) hand.
While I’ve read some about the incident, I’d like to be on the jury and hear a lot more facts about the case than have been presented in the media. Was the decedent a clear and present danger? Was he just talking trash, with extreme prejudice? How heated was the heat of the moment? Could he have been subdued by other means short of rendering him necrotic? Coming to a conclusion off what the media have reported is one of those “fraught with peril” things.
Here is the letter I wrote to the New York Law Journal in May, 2023:
Re: The Dilemma of Balancing Civil Rights & Criminal Defense: The Complex Case of Daniel Penny
NYLJ May 19, 2023
Dear Editor:
With due respect to Cary London, I am amazed and dismayed by his erroneous assertion that “Penny’s actions were justified under our current law-given the circumstances.”[The Dilemma of Balancing Civil Rights & Criminal Defense: The Complex Case of Daniel Penny; NYLJ May 19, 2023]. Mr. London’s commentary ignores the basic principles of the use of force in self defense and misses a point that should be obvious to anyone who took an introductory course in criminal law and viewed the video of Jordan Neely’s killing.
I watched a three minute fifty two second video of a helpless victim on his back being restrained by three men while one of them choked the victim to death for two minutes and fifty five seconds. The victim posed no threat to the men killing him or to anyone else during the nearly three minutes of the video while he was being choked to death and at least one bystander urged the choker to release his grip.
Lethal force can only be used in self defense if a person reasonably believes that lethal force is necessary to protect that person or another person from an imminent threat of grave harm. Lethal force must be discontinued when the threat abates. Assuming that Jordan Neely did something that justified a choke hold restraint, the video conclusively shows that for the last three minutes it took to kill him, he was helpless, on his back and under restraint. Continuing to use deadly force when Neely was under restraint and helpless was unreasonable.
It is unfortunate that the DA did not charge depraved indifference homicide (P.L. 125[2]) as well as second degree manslaughter (P.L. 125.15[1]). A jury should have an opportunity to decide whether the defendant acted with depraved indifference to human life or mere recklessness. But no reasonable person could watch the three minutes of the video of Jordan Neely being strangled and conclude that Mr. Neely posed an imminent threat of grave harm to anyone during the last three minutes of his life while he was under restraint and being choked to death.
I agree with Mr. London that the two men assisting Daniel Penny while he killed Jordan Neely should be charged as aiders and abetters. (P.L. 20.00). All three men should have an opportunity to explain their actions and decisions in court.
I urge readers to view the video of Mr. Neely’s killing. It demolishes any claim that Mr. Neely posed any risk of grave harm to anyone during the last three minutes that he was helpless and dying in agony while being strangled.
Very truly yours,
Skywalker
An excellent example to think about when a prosecutor arguing for the application of a vague law answers vagueness objections with “There’s prosecutorial discretion. Trust us.”
I actually won a Clayton motion almost 30 years ago. Ironically, my client was a Marine reservist. I use Clayton motions to introduce exculpatory but inadmissible evidence, like a polygraph test result. Even if the motion gets denied, I want the judge to know about a good polygraph test by a credible investigator with a career in law enforcement or a prosecutor’s office. But Penny should be tried. I agree with you that Penny had no intention of killing someone when he got on the subway. But that does not weigh heavily for me. Same could be said about the enraged motorist who shoots the guy who stole his parking space. Conrad got it right in Heart of Darkness. The savage lives in all of us. The criminal law is based on the idea that we punish people who don’t control the antisocial urges we all have from time to time. The law should encourage strong men to protect women in distress. But the law must deter angry or frightened men from acting as vigilante executioners. Lethal force must always be a response to the imminent threat of serious physical harm and must be discontinued when the threat abates.
Jordan Neely had no weapon and none of the witness statements I read alleged that he made physical contact with anyone. Some witnesses said that after he threw down his jacket everyone walked away from him in the subway car and he was standing alone when Penny took him down from behind. Some witnesses said they felt menaced by Neely. This is exactly the type of situation where Penny and his lawyer should have an opportunity to explain Penny’s actions to a jury. Same for the other two guys who helped Penny hold Neely down If I had my way, they would be charged as aiders and abettors. This case should be tried because we could use some clarification as a community regarding the line between Good Sam and antisocial vigilante justice.