Was It Lawful For Daniel Penny To Kill Jordan Neely?

Photo by Adjoajo, CC BY-SA 4.0 <https://creativecommons.org/licenses/by-sa/4.0>, via Wikimedia Commons

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, by contrast, “[t]he mere display or brandishing of a pistol may, perhaps, create an insufficiently imminent threat to life to be considered the “use” of deadly physical force.” People v. Magliato, 68 N.Y.2d 24, 30 (N.Y. 1986). In other words, “imminent” means right this second, not five minutes from now. Here’s the jury instruction:

If Penny is charged, the jury will be instructed that abusive language will not be enough to justify any physical response unless Neely made a physical threat. At least one article claims that Neely was throwing garbage at other passengers, which, if true, might justify the restraint. But it will be up to Penny to show that Neely was hurting others right at the moment of restraint, rather than that he was worried what Neely would do next.

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.

Nor can Penny argue that Neely’s struggle to get away from him justified the deadly force. Neely wasn’t posing an imminent risk of killing or seriously hurting anyone, and even if Penny subjectively believed that deadly force was warranted, a jury would still have to decide whether an objectively reasonable person would think the same. You can’t shoot a man for holding a milk carton just
because you’re deathly afraid of milk.

It certainly doesn’t help that Penny had a bunch of non-choking options available to him. With the help of two other passengers, there were dozens of ways to restrain a slight, untrained man without killing him.

There’s been a lot of talk about Penny’s duty to retreat, but it winds up not being terribly relevant to the case. Under New York law, you don’t have to retreat before using non-deadly force. So if someone punches you in the face, you can punch them right back without trying to get to a back room. Deadly force requires retreat, but only if you know you can get away safely. If a jury thought Penny was justified in choking Neely, it would probably have to find that he couldn’t have just released him and ran. “There is no duty to retreat before using physical force but one may not use deadly physical force “if he knows that he can with complete safety as to himself and others avoid the necessity of doing so by retreating”” Matter of Y.K, 87 N.Y.2d 430, 433 (N.Y. 1996).

Some have argued that Neely had an extensive history of disorderly conduct and violence, and that this justified the restraint. But that history is irrelevant. Neely could be a professional baby-strangler or a nicer Mr. Rogers, and the jury would still be instructed not to give a damn unless Penny knew about the prior history. Here’s that instruction:

Even good people can rightfully be stopped from hurting others. And even bad people have a right not to be strangled. Courts often worry about what’s known as the “propensity” inference: the idea that someone who has done bad things in the past must be doing bad things now. This is a rule sometimes honored more in the breach than the observance—it is incredibly common for criminal defendants to have past crimes brought in under flimsy theories of motive or “intent.” But it’s hard to see what evidence of Neely’s past tells us that the testimony of witnesses and four minutes of video don’t tell us already.

How serious this crime was depends on Daniel Penny’s intent. If a jury found that Penny meant to kill Neely—that he felt the man loosen in his grip and kept squeezing to finish the job, that would be second degree murder. If instead a jury found that he knew about the risks of chokeholds, and used them anyway, killing Neely, he’d be guilty of criminally negligent homicide, or manslaughter in the second degree. Depending on what level of intent the jury found, Penny could be
convicted and never spend a day in jail.

And it’s on this point, punishment, that I want to talk about the difference between justification and mitigation. A justified homicide is one that is reasonably necessary to save your life, or someone else’s. When we say a crime is justified we say that you were correct to commit the crime. This was not a justified crime. But there are many elements that mitigate the crime. There’s no evidence that Penny set out that day to hurt someone. Neely was acting erratically. Penny acted in the spur of the moment, and other passengers assisted, without knowing that the intervention would be deadly. It might very well be true that there is no public safety benefit in having Penny spend a single day in jail. But this is distinct from saying that he did the right thing.

Many people have taken this case as an opportunity to talk about our insufficient mental health services. That’s laudable. But the thing is, Jordan Neely wasn’t even the victim of bad mental health services or an insufficient social safety net. The city was tracking him. Having social workers talk to him. Trying to get him into housing. And he was resistant at every step. Mentally ill people still have agency, and it is difficult, within constitutional bounds, to force them into treatment. Which is to say, until we figure out a way to blow dart people into sanity or do away with civil liberties, we are probably going to encounter scary, disruptive people in public, no matter how good our social services are.

All we can do is strive to treat each person in our system with as much compassion as we are able. Neely, for being a mentally ill man with a life full of tragedy. Penny, for finding his instinct to help and to protect leading instead to tragedy. To the passengers, who will likely spend the rest of their lives wondering whether they should have done something more. And to the people
who disagree with us about the right outcome in this case. A little grace can go a long way.