That’s what a jury will have to decide after a subway rider killed a mentally ill homeless man with a chokehold.
The victim was Jordan Neely, a 30-year-old black man who, according to his aunt, suffered from schizophrenic, PTSD, and depression after his mother’s “brutal murder” 16 years ago (see story here). The subway rider is Daniel Penny (photo, left), 24, a white Marine veteran.
Public opinion is fracturing along society’s familiar fault lines. One side is outraged that a white man killed a mentally ill black man (see story here). The other side sees a hero protecting subway riders from a street criminal.
All parties agree Neely acted erratically after boarding the subway, but he wasn’t armed and witnesses say he didn’t threaten or attack anyone before Penny tackled him from behind and held his neck in a chokehold for over three minutes.
Neely had a police record. It included “42 arrests on charges including petty larceny, jumping subway turnstiles, theft, and three unprovoked assaults on women in the subway between 2019 and 2021,” according to CNN (see story here). But Penny had no way of knowing that; he acted on the basis of what he saw, which was behavior annoying to other riders, but not in itself threatening or dangerous.
What was that behavior? He was flailing his arms, screaming he had no food, didn’t care if he went to jail, and wanted to die. A lot of people probably would assume someone acting that way was high on drugs, whether or not he was.
The overwhelming majority of subway riders are ordinary commuters. Ensuring their safety is the responsibility of the police, not vigilantes, but cops can’t be everywhere. Citizens, when threatened, have a right to defend themselves. The New York subway system has experienced, among other things, innocent passengers being pushed off platforms to their deaths on the tracks.
There’s a fine line between annoying and frightening. One often morphs into the other. Clearly, some riders were nervous about what Neely might do next; they moved away, seeking to distance themselves from him.
But Penny doesn’t strike me as someone who frightens easily. His lawyer claims he was defending himself. From what? A question for the jury will be whether a reasonable person would perceive Neely’s behavior as threatening, as opposed to only annoying (see story here). Prosecutors also will question why Penny kept choking Neely after he went limp.
Two other male riders pinned Neely’s arms and legs while Penny choked him. That strengthens the case for prosecution.With three people restraining him, how is it that Neely was such a threat that choking him was necessary (see story here)? One warned Penny he was choking Neely too long, but Penny kept choking him anyway. Prosecutors could argue his intent wasn’t to subdue Neely, but take him out.
Good Samaritan, or vigilante? Why was someone with 42 arrests still on the streets? The answers are blowing in the wind.
Update (5/11/23): The D.A., after reviewing the case, decided to charge Penny with manslaughter (see story here).
