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In a Manhattan courtroom recently, a jury heard opening arguments in the trial of Daniel Penny, the Marine veteran who is charged with manslaughter in the death last year of Jordan Neely.
Whether Penny, who is white, is a hero or a villain has been debated since the lethal incident occurred on May 1, 2023. Neely, who was Black, had boarded a crowded subway in Manhattan and begun yelling and throwing things at other passengers; he didn't attack anyone with a weapon, but several passengers reported fearing for their lives. According to eyewitnesses, reported The New York Times, Neely was screaming, "I don't mind going to jail and getting life in prison. I'm ready to die." Another passenger heard him say: "Someone is going to die today."
Though Penny and his fellow passengers didn't know it at the time, Neely had a lengthy criminal record — at least 42 arrests on charges including petty larceny, theft, and unprovoked assaults on women in the subways. When he appeared to be moving menacingly toward a mother and her small child, Penny came up from behind and put him in a chokehold in order to immobilize him. Two other passengers on the train independently joined in helping to restrain Neely as he kicked and thrashed. Eventually Neely stopped struggling and went limp. Penny asked passengers to call the police, and when they arrived, Neely was unconscious. He was given first aid, but was later pronounced dead at a hospital.
Some politicians, including Governor Kathy Hochul of New York, instantly denounced the young veteran. Hochul pronounced it "horrific" that someone could be "killed for being a passenger on the subway trains" — as if Penny had committed a lynching. The city's public advocate, Jumaane Williams, claimed that Neely "was unjustly killed, and charges must be immediately brought against the person who killed him."
Given that political rush to judgment, it was inevitable that Penny — who had initially been questioned, then released without charges — would be arrested after all and indicted by a grand jury.
But while the racial politics of the case has dominated much of the news coverage and commentary, the legal case for Penny's defense is virtually unassailable.
So says John Banzhaf, a professor of law emeritus at George Washington University, who argues compellingly in a recent release that Penny should be regarded as "a good Samaritan and not a vigilante," and that he acted exactly as New York state law wants citizens in such situations to behave.
Under Section 35.15 of the state's penal code, private citizens are encouraged to step up to the defense of others who are less capable of protecting themselves from danger.
"The law permits them to use reasonable force not only against perceived threats of death or serious injury, but rather against any perceived threats of any use of ‘unlawful physical force,' " Banzhaf notes. And what the law means by "unlawful physical force," he explains, is
virtually any wrongful touching, including mere groping (sexual or otherwise), a touching of the clothing or possessions … of another passenger, or removal of something from a third party's pocket.
Moreover, so that people need not fear arrest or a lawsuit if they make an honest mistake about the need to use force to protect others, the statute requires only that their belief in the need to use force be a "reasonable" one; not necessarily the best or only one, or even the one many other people might claim they would have employed under the circumstances.
As Supreme Court Justice Oliver Wendell Holmes Jr. remarked in a 1921 case about the law of self-defense, "detached reflection cannot be demanded in the presence of an uplifted knife."
News accounts of the deadly subway encounter quoted multiple witnesses who used terms like "insanely threatening" and "satanic" to describe Neely's demeanor. There is no evidence of bystanders urging Penny and the two men aiding him to release Neely. Nor was there any indication that Penny had any wrongful intent. "The undisputed facts that Penny asked other passengers to call the police, and remained … once they arrived," argues Banzhaf, "shows that he did not act with any criminal intent, and certainly not with a criminal intent to kill Neely."
The point Banzhaf raises is important: The law wants courageous individuals to come to the aid of threatened fellow citizens and does not expect them to fine-tune their response with the clarity that only comes with hindsight. The New York statute permits someone in Penny's situation to use force against another when "he or she reasonably believes such to be necessary to defend himself, herself, or a third person from what he or she reasonably believes to be the use or imminent use of unlawful physical force by such other person." (Emphasis added)
The jury will make the final decision. But given everything known so far about what happened on the train that day, it is hard to imagine that at least some members of the jury — most of whom told the court they too have had firsthand experience of seeing erratic or intimidating riders on the subway — won't vote to acquit Penny. The prosecution will do its best to blacken his name and motive, but the public has already rallied to his support. As of Monday, more than $3.1 million had been contributed to his defense fund, including from individuals giving just $5 or $10. New York politicians may not recognize a good Samaritan when they see one, but ordinary New Yorkers do.
Jeff Jacoby is a columnist for The Boston Globe, from which this is reprinted with permission.
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