As you know, Daniel Penny is the retired marine (the blond man) who is seen in the video holding Jordan Neely (which we previously posted here).
Now, we are getting word that he is going to be charged in relation to this incident.
BREAKING: Marine veteran who put Jordan Neely in fatal chokehold on NYC subway expected to be charged as soon as Friday, two sources say. https://t.co/PATAjMvoLj
— Breaking News (@BreakingNews) May 11, 2023
From the article:
The 24-year-old subway rider who was seen in a video putting a homeless man in a fatal chokehold on a New York City train will be charged Friday with second-degree manslaughter, officials said.
Previously, we examined the law of self-defense and the defense of others in New York State, and then wrote the following:
Any competent lawyer recognizes there are several avenues of defense. First, was any force justified (as a matter of law)? Second, was deadly force justified? Certainly, if no force was justified then the video definitely shows a crime, but that’s the rub, isn’t it?
However, suppose force is justified, but not deadly force? First, his lawyer could argue that while the force he used caused death, it wasn’t technically ‘deadly force’ as defined by the law. Second, his lawyer could argue that even if it is deadly force, his client didn’t intend to use deadly force. Of course, then we might talk about whether his conduct is reckless, or criminal negligence.
However, the overarching point is that there are a lot of questions no one knows the answers to. What happened before the men used force against Mr. Neely? Did he make threats? Did he engage in violence? We don’t know, so the only rational answer is to reserve judgment[.]
We still don’t know the answers to these questions, but if he is charged with second degree manslaughter, that requires only a showing of recklessness. The state won’t have to show he intended to kill Neely.
Previously, Penny’s lawyer put out a statement indicating that Mr. Penny was acting in self-defense and that he had no intention to harm Mr. Neely:
NEW: first statement from Thomas Kenniff, lawyer for Daniel Penny, claiming his client was threatened along with other passengers and “never intended to harm” Jordan Neely, who died at Penny’s hands: pic.twitter.com/dWmCr6Kwhw
— Trevor Boyer (@trevormail) May 6, 2023
At this point, we are not sure what to make of the charges. First, it’s not like D.A. Alvin Bragg has a history of crossing his t’s and dotting his i’s, when it comes to legal filings:
Trump-indicting D.A. Bragg faceplants in federal courthttps://t.co/6kksMDyKgD
— Twitchy Team (@TwitchyTeam) April 17, 2023
Trump-indicting D.A. Alvin Bragg has a terrible, horrible, no good, very bad day in federal courthttps://t.co/m48JTnANYo
— Twitchy Team (@TwitchyTeam) April 20, 2023
So, we have very little confidence in his office’s basic competency, and we have no confidence that he would do the right thing, if he was getting political pressure from the left to do the wrong thing. However, we do not have enough information to tell us what the right thing is, at this time. It may be that when the facts are all known, we will find ourselves agreeing with the charge—or not.
This passage in the NBC article is also interesting:
Juan Alberto Vazquez, who was on the subway, told NBC New York that Neely was being aggressive before he was restrained.
‘The man got on the subway car and began to say a somewhat aggressive speech, saying he was hungry, he was thirsty, that he didn’t care about anything, he didn’t care about going to jail, he didn’t care that he gets a big life sentence,’ Vazquez said in Spanish. ‘That it doesn’t even matter if I died.’‘
Neely was held in the chokehold for about 15 minutes, said Vazquez, who recorded the video. The video showed two other subway riders appearing to help restrain Neely.
Of course, that is one person’s account and some of this suggests a possible language barrier for Mr. Vazquez (at the very least, Mr. Vazquez seems to be more comfortable speaking in Spanish). We don’t know what other people (including Mr. Penny) saw and heard. Indeed, there might be video we haven’t seen yet. Not everyone immediately runs to the press or to social media with this kind of thing. In short, we are left withholding judgment and will see how this plays out.
But this fundraiser might be of interest.
Donate to his legal defense fund ⬇️. Woke prosecutors plan to charge him and frame him as a racist for protecting other passengers from a deadly threat named Jordan Neely who had previously attacked children and the elderly. https://t.co/JrbNAbyTJ4
— Robby Starbuck (@robbystarbuck) May 11, 2023
We will also take a moment to rebut something that Alexandria Occasional-Cortex Ocasio-Cortez said:
Despite what Fox News wants you to believe, being afraid of an unarmed person is not a reason to kill them.
We should never accept a society where such rationale becomes normal.
Especially when powerful incentives exist in politics + media to keep people afraid of each other.
— Alexandria Ocasio-Cortez (@AOC) May 6, 2023
This is not legal advice, but contrary to what Ms. Ocasio-Cortez thinks, fear can justify deadly force in New York—and we believe this is the law in every American jurisdiction.
For instance, the New York law states that
A person may not use deadly physical force upon another person under circumstances specified in subdivision one unless … the actor reasonably believes that such other person is using or about to use deadly physical force.
In other words, you can use deadly force if you reasonably believe they are using deadly force or are about to. A classic example of a person reasonably believing someone is about to use deadly force is discussed in the movie Die Hard, when Sgt. Al Powell tells John McClaine why he no longer walks the street as a cop:
I shot a kid. He was 13 years old. Oh, it was dark, I couldn’t see him, he had a ray gun, it looked real enough.
You know when you’re a rookie they can teach you everything about being a cop, except how to live with a mistake. Anyway, I just couldn’t bring myself to draw my gun on anyone again.
(It was a nice piece of acting by Reginald VelJohnson.)
Al was not telling him this from prison, because even though he shot an unarmed kid, the killing was a lawful act of self-defense, because what is relevant is not whether the kid was actually armed, but whether Al reasonably believed the kid was armed. It was dark and the gun looked real enough.
Of course, Die Hard is a fictional Christmas movie, but this element is in line with the law.
Why does the law allow for one to kill someone who isn’t actually presenting a danger? Because if a person thinks they are about to die, or that a person is about to use lethal force against another, we can’t really expect a law-abiding citizen not to act.
However, at the same time your fear has to be reasonable. A person afraid because they are high on LSD and hallucinating a dangerous situation that doesn’t exist, or a person who is afraid because they are inherently terrified of black people, is not reasonable.
So, contrary to what Ms. Ocasio-Cortez said, fear—if reasonably based—can justify even deadly force under her state’s statutes. And rightly so.
But it is funny to see her come out against the killing of Ashli Babbitt.
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