Recently, the news has been focusing on a case that happened in New York City. A homeless man with a criminal history and arrest warrant entered a subway. The early reports claimed that he attacked riders and threw garbage at them. This prompted Daniel Penny,24 and a veteran of the Marines to put him in a chokehold. Other riders joined in holding down Neely. Neely eventually passed away.
The coroner ruled his death a homicide. Penny was interrogated by police and was then released. This brought many to protest calling on the arrest of Daniel Penny and others involved. The Manhattan district attorney is investigating and will bring everything before a grand jury to see if charges are warranted.
The case has divided Americans with some believing Daniel Penny is a hero and others saying Jordan Neely did not deserve to be killed. Those that argue that Penny is a hero are mostly from the right-wing conservative faction in American politics. They view Penny's action as self-defense and claim Neely was violent and a threat to people in New York City and deserved what he got. Those who support Neely say that he was homeless and simply asking for food and water. He had mental illness and often had outbursts due to a lack of medication and overall treatment. The city failed in helping him. They claim he is also a victim.
We are now in a situation where people are bringing in politics and race. On social media, we are already seeing people attack blacks claiming they are the cause of violence and focus on Neely's criminal record assassinating his character in order to deflect from his mental illness, homelessness situation, and the lack of help from the city of New York. We also see people attack Daniel Penny because he is Caucasian calling his chokehold move on Neely a "lynching." It is sad that it has come to this. The racism is in fact clear as day. We are seeing a white vs back narrative subliminally presented in the arguments on both sides. People are forgetting the facts of the story. Did Neely deserve to be chokehold to death? Did Daniel Penny and others do the right thing and did they act in self-defense?
Based on what we know, the answer to these are not so easy, but the law can help. In New York and 14 other states there is a duty to retreat clause. This means that citizens have a duty to escape or get away from a violent situation if the opportunity is there. If there is no option to retreat, then citizens can use force, even kill the assailant. The duty to retreat does not apply to citizens when they are at home in New York and at home, place of work and car in other states. The law varies from state to state. This is why it is important for people to educate themselves. Many times people, particularly conservatives, think that it is okay to kill someone who attacks you. They claim it is a "right" to self-defense. This is not true. One cannot just kill an attacker and claim self-defense. Since this case between Neely and Penny happened in New York City, we will focus on the law in New York State. You can read more about laws in other states here (https://reason.com/volokh/2020/12/21/duty-to-retreat-35-states-vs-stand-your-ground-15-states/).
In New York state, Artcile 35 of the penal code states:
(c) The physical force involved is the product of a combat by
agreement not specifically authorized by law.
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; except that the actor is under no
duty to retreat if he or she is:
(i) in his or her dwelling and not the initial aggressor; or
(ii) a police officer or peace officer or a person assisting a police
officer or a peace officer at the latter`s direction, acting pursuant to
section 35.30; or
(b) He or she reasonably believes that such other person is committing
or attempting to commit a kidnapping, forcible rape, forcible criminal
sexual act or robbery; or
(c) He or she reasonably believes that such other person is committing
or attempting to commit a burglary, and the circumstances are such that
the use of deadly physical force is authorized by subdivision three of
section 35.20.
- https://ypdcrime.com/penal.law/article35.php
So, as you read, there is a duty to retreat. Daniel and the others had to retreat and not engage Neely unless there was no option to retreat. In light of this, Daniel Penny and the riders involved need to be charged for killing Jordan Neely. He broke the law (duty to retreat clause) of NY state. Screaming out for food, and water, or even throwing garbage does not warrant being choked to death. Nor does having a criminal record. Citizens cannot take the law into their own hands. This is not self-defense. Daniel and others had a duty to retreat.
Subway cars have end doors where people can move between cars. They have emergency brakes that stop a moving train, allowing for exiting. Attached are photos. Moreover, cars have emergency windows that can be removed to exit. There is no excuse. The MTA offers guidelines here mentioning the emergency windows and how to exit a subway car, see:
http://new.mta.info/document/76901. If not charged, this will empower people to kill others for any outburst, whether mental illness related or not. Even autistic people will be in danger depending on where on the spectrum they are on and if this causes them to behave violently. People will kill others just for being bumped on a train, bus, or sidewalk. We cannot have this in a civilized society where the rule of law supersedes. Jordan Neely had mental illness and was not helped. He could not help how he behaved due to it. He did not deserve to be killed. Attacking his character does nothing but turn the attacker into a despicable human being lacking morals and compassion. Justice must be served. The rule of law must matter.
In 2017, I served on a trial where a young man killed an elderly man with a metal pipe in the South Bronx. In the video, we saw both men arguing. The young man walks out of the store and the elderly man goes to the back of the bodega and grabs a pipe going after the young man. We see another cell video of both arguing outside and the young man hitting the elderly man with a pipe. Many of the jurors thought the younger guy was defending himself. However, I brought up the duty to retreat clause and before deliberation, the judge told us the law.
I remember this when studying paralegal in high school. We did internships at the Bronx Court House on the Grand Concourse and 161st. Like conservatives on social media, the jury I was with assumed the young guy was legitimately defending himself. However, this was not the case. He had a duty to retreat. The elderly man was really no threat. He easily took the pipe away from him. Therefore, the young man could have left with the pipe, tossed it aside and left, or simply just called 911 while holding the pipe and not engaging the elderly man. Instead, he took the pipe away and began to beat the elderly man with him fracturing his cheekbone and skull overall. A few of the jurors got upset with me because I took the case seriously. They just wanted to issue a verdict and go back to their jobs. They were worried about not getting a paycheck. I was more concerned about justice.
Two young Dominican guys were even making snarky remarks causing the older jurors to shake their heads in disbelief and call them out for their immaturity. Anyhow, me delay of the deliberation worked and the right decision was made that even the judge, district attorney, and court officers applauded us.
The other jurors pointed me out as the reason for delaying deliberations. We ended up deciding a guilty verdict for manslaughter against the young man. He may have thought he was defending himself because the elderly man went after him with a pipe, but that was not self-defense. He had a duty to retreat. Similarly, Neely was not truly a threat. Screaming and crying out for food is not a threat. It is a disturbance of the peace.
UPDATE May 12, 2023:
Daniel Penny was charged and arrested. He was released on a 100k bond. New details came in. According to the DA, Neely entered the subway car and slammed his hand on the door in frustration. He cried out that he was hungry, and thirsty, and was not afraid to die. He kept shouting and slammed his jacket on the floor. This was when Penny came from behind and grabbed him in a chokehold taking him down. As this was going on, the train was pulling into the station. These details are significant because they show that there was no self-defense here. Penny grabbed him from behind. Neely was just shouting making a scene.
Moreover, some claim that a moving train is impossible to retreat from, however, the train was pulling into the station which would have allowed people to exit immediately onto the platform and notify 911, MTA workers, or any police that may be around. So, it makes sense for Penny to face charges. The other riders were also complicit in the death of Neely and need to be charged as well.
A crowdfunding for Daniel Penny has also raised over 2 million dollars while one for Neely's funeral cost raises almost $150,000. We can see here the discrepancy. Many people simply do not understand how self-defense works and attack people with mental illness and/or criminal records. We are a nation of law. Nobody can take the law into their own hands. We cannot have vigilantes running around. Those with mental illness and/or criminal records cannot be set aside like pariahs and sentenced to death merely on the aforementioned. People have dignity and equal protection under the law. Having a mental illness and/or a criminal record does not devalue a human being. We all make mistakes. We all sin. The real culprit here is New York City, a city that does nothing to help the disenfranchised. Daniel Penny and others should not be placed in a position to choose to police the subways or streets. No amount of money raised can undo what the law states nor erase what videos show and what witnesses state. Penny's lawyer claims there is more video and that his client rendered aid. These will most likely not be enough to sway a jury of people who will most likely be liberal and conscious of how Black, mentally ill people and the homeless have been neglected in this nation.
We also have to do better. Black people are automatically seen as violent or the main source of crimes by some from every race. This is just wrong. The cries that Neely deserved it simply because he had a criminal record or was mentally ill are inhumane. It shows pure hate in these people. Racism is clearly alive and well in many people even in the 21st century. Those defending Daniel Perry must do so on reason and facts, not because he is a Marine or Caucasian. Everyone should know after Eric Gardner that not even cops can use a chokehold to restrain someone. If cops cannot use it what makes you think a Marine or civilian can use it? What we saw in the video was clearly a killing. Penny should have known what a chokehold does. Would Neely have received the same treatment and adulation if he was the Caucasian Marine and Penny was the deranged homeless man? It is disturbing to even ask after we have seen Caucasian perpetrators treated better than non-Caucasians even after being arrested. We must reflect on this. The law, facts, and evidence are what must matter, nothing else. We cannot have favoritism nor set aside the law for our misunderstanding of self-defense. If we do this, America will become a wild-wild-west with people settling things outside and killing each other.
This does not mean self-defense is wrong. The Catechism of the Catholic Church has this to say:
Legitimate defense
2263 The legitimate defense of persons and societies is not an exception to the prohibition against the murder of the innocent that constitutes intentional killing. "The act of self-defense can have a double effect: the preservation of one's own life; and the killing of the aggressor.... The one is intended, the other is not." 65
2264 Love toward oneself remains a fundamental principle of morality. Therefore it is legitimate to insist on respect for one's own right to life. Someone who defends his life is not guilty of murder even if he is forced to deal his aggressor a lethal blow:
If a man in self-defense uses more than necessary violence, it will be unlawful: whereas if he repels force with moderation, his defense will be lawful.... Nor is it necessary for salvation that a man omit the act of moderate self-defense to avoid killing the other man, since one is bound to take more care of one's own life than of another's. 66
2265 Legitimate defense can be not only a right but a grave duty for one who is responsible for the lives of others. The defense of the common good requires that an unjust aggressor be rendered unable to cause harm. For this reason, those who legitimately hold authority also have the right to use arms to repel aggressors against the civil community entrusted to their responsibility.
2266 The efforts of the state to curb the spread of behavior harmful to people's rights and to the basic rules of civil society correspond to the requirement of safeguarding the common good. Legitimate public authority has the right and the duty to inflict punishment proportionate to the gravity of the offense. Punishment has the primary aim of redressing the disorder introduced by the offense. When it is willingly accepted by the guilty party, it assumes the value of expiation. Punishment then, in addition to defending public order and protecting people's safety, has a medicinal purpose: as far as possible, it must contribute to the correction of the guilty party. 67
2267 Recourse to the death penalty on the part of legitimate authority, following a fair trial, was long considered an appropriate response to the gravity of certain crimes and an acceptable, albeit extreme, means of safeguarding the common good. Today, however, there is an increasing awareness that the dignity of the person is not lost even after the commission of very serious crimes. In addition, a new understanding has emerged of the significance of penal sanctions imposed by the state. Lastly, more effective systems of detention have been developed, which ensure the due protection of citizens but, at the same time, do not definitively deprive the guilty of the possibility of redemption. Consequently, the Church teaches, in the light of the Gospel, that "the death penalty is inadmissible because it is an attack on the inviolability and dignity of the person",68 and she works with determination for its abolition worldwide. [CatholicCulture.org Note: Pope Francis replaced the original Latin text with this paragraph in 2018.]
Notes:
65 St. Thomas Aquinas, STh II-II, 64, 7, corp. art.
66 St. Thomas Aquinas, STh II-II, 64, 7, corp. art.
67 Cf. Lk 23:40-43. NT John Paul II, Evangelium vitae 56.
English Translation of the Cathechism of the Catholic Church for the United States of America © 1997, United States Catholic Conference, Inc.
Self-defense is necessary to preserve one's life and that of others, however, it must be done within ethical parameters. We simply cannot kill someone who bumps into us, taps us, spits on us, throws something at us and so on.
UPDATE June 12, 2023:
Daniel Penny released a video explaining what happened. In effect, he incriminated himself in the process.
UPDATE June 14, 2023:
Daniel Penny was just indicted by a grand jury. The charges are now official and he will face them in court.
UPDATE June 28, 2023
Daniel Penny appeared in court this morning and entered a NOT GUILTY plea. Here are the charges:
THE GRAND JURY OF THE COUNTY OF NEW YORK, by this indictment, accuses the
defendant of the crime of MANSLAUGHTER IN THE SECOND DEGREE, in violation of
Penal Law §125.15(1), committed as follows:
The defendant, in the County of New York, on or about May 1, 2023, recklessly caused the
death of Jordan Neely.
SECOND COUNT:
AND THE GRAND JURY AFORESAID, by this indictment, further accuses the defendant
of the crime of CRIMINALLY NEGLIGENT HOMICIDE, in violation of Penal Law §125.10,
committed as follows:
The defendant, in the County of New York, on or about May 1, 2023, with criminal
negligence, caused the death of Jordan Neely.
ALVIN L. BRAGG, JR
UPDATE January 17, 2024
Attorneys fo Daniel Penny filed a motion to get the case dismissed. The judge rejected that motion. Penny will have to face trial for killing Jordan Neely possibly in the fall of 2024. He is scheduled to appear in court again in March 2024.
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Source:
https://ypdcrime.com/penal.law/article35.php
https://reason.com/volokh/2020/12/21/duty-to-retreat-35-states-vs-stand-your-ground-15-states/
http://new.mta.info/document/76901
https://www.washingtonpost.com/nation/2023/05/13/daniel-penny-jordan-neely-conservatives/
https://www.nydailynews.com/opinion/ny-oped-greene-daniel-penny-arrest-jordan-neely-20230514-happ5mbvofghzih3xoiq5zzkla-story.html
https://www.independent.co.uk/news/world/americas/crime/daniel-penny-story-jordan-neely-republicans-b2339467.html
https://nypost.com/2023/05/15/legal-fund-for-accused-nyc-subway-choker-daniel-penny-tops-2m-with-kid-rock-chipping-in/
https://thehill.com/homenews/state-watch/4003104-jordan-neelys-chokehold-death-on-nyc-subway-what-has-happened-so-far/
https://news.yahoo.com/kid-rock-big-donor-legal-010406488.html
https://www.foxnews.com/us/jordan-neely-death-marine-vet-daniel-pennys-attorneys-raise-more-than-1-5m-for-legal-defense
https://www.nydailynews.com/news/politics/new-york-elections-government/ny-mayor-adams-jordan-neely-daniel-penny-f-train-chokehold-silence-20230516-7dvrqiuksrfudoa4tlkknmaomq-story.html
https://www.cnn.com/2023/05/12/us/jordan-neely-daniel-penny-new-york-subway-death-charge/index.html
https://www.usatoday.com/story/news/nation/2023/05/13/daniel-penny-jordan-neely-charges-update/70213559007/
https://www.nytimes.com/2023/05/14/nyregion/daniel-penny-jordan-neely-conservative.html
UPDATED Source June 28, 2023
Daniel Penny pleads not guilty to manslaughter, criminally negligent homicide charges | amNewYork (amny.com)
Daniel Penny pleads not guilty in Jordan Neely NYC subway chokehold death - The Washington Post
US Marine vet Daniel Penny pleads not guilty to manslaughter in chokehold death of Jordan Neely | Fox News
UPDATED Source January 17, 2024
https://www.foxnews.com/us/ny-judge-consider-marine-vet-daniel-pennys-motion-dismiss-case-jordan-neely-subway-chokehold-death
https://abc7ny.com/daniel-penny-jordan-neely-subway-chokehold-death-nyc/14331371/
https://www.nbcnewyork.com/news/local/daniel-penny-homicide-jordan-neely-chokehold-subway/5047919/
https://abcnews.go.com/US/daniel-penny-returns-court-dismissal-hearing-nyc-subway/story?id=106422808
