Daniel Penny, Jordan Neely, and the Perils of Riding the New York City Subway

Two weeks ago, Jordan Neely, a homeless and mentally disturbed 30 year-old black man acting erratically on a New York City subway car, was tackled and placed in a choke hold by Daniel Penny, a 24 year-old white Marine veteran. Reports say that Penny held Neely in that position for about 15 minutes, and was helped in restraining Neely by other passengers. Neely died, and Penny has now been charged with second degree manslaughter by Manhattan DA Alvin Bragg, best known until now for having charged Donald Trump with nearly three dozen felonies as a result of what are alleged to be campaign finance violations. Bragg brought the charges against Penny without having taken the case to a grand jury, although a grand jury investigation is likely before the case proceeds much farther.

What to make of this?

Much of the commentary about it has treated it as a symbol rather than a case. I understand its symbolic valence, on both sides, and I’m going to say something about it, but I think it best to start where my instincts lead me — law. In all the commentary I’ve seen about this episode, seldom have I seen a straightforward statement of the governing law.

It’s not that hard, and has been the law for centuries. A person may use deadly force in self-defense or defense of another if he has an objectively reasonable, even if mistaken, fear of imminent grave bodily harm or death. Note the critical parts: You have to fear, not that the person against whom you use force is crazy or even threatening, but that he presents an extremely serious, and imminent, threat. Your fear has to be objectively reasonable. In other words, that you may be an especially fearful or wary person is not going to help you out. On the other hand, your assessment of the danger does not have to be correct when seen with the luxury of hindsight or extrinsic information you didn’t have. If your fear of imminent grave danger was objectively reasonable viewed as a person of normal intelligence and caution would view it at the time, you have met the legal requirement.

Given the legal standard, what should happen to Penny, who in the developing lore is either (a) a courageous good Samaritan of the kind you hope and pray is riding in the car with you if you happen to be foolish or needy enough to be on the NYC subway, or (b) a quick-trigger military type who might conceivably have been justified in confronting Neely, or even restraining him momentarily, but went so far, and for so long beyond reasonably justifiable force, as to become the second coming of Derek Chauvin?

It’s kind of a trick question. The legal standard doesn’t concern itself with lore. The MSM does that (as I’m sure you’ve noticed), and has pretty much settled on (b) — with a big helping of the now-conventional wailing about racism, absolutely none of which has been shown.

In my view, we simply don’t know enough yet to decide on the correct legal outcome. The most important things we don’t know are what Neely was doing in the moments before Penny tackled him, why other passengers helped Penny continue the restraint, and why Penny thought he had to keep a choke hold for 15 minutes, which his combat training must have taught him is long enough to produce death.

One thing we do know is that DA Bragg filed a homicide charge before taking the case to a grand jury. This seems pretty quick-trigger to me. With so many important facts unknown, why the rush? We don’t know for sure, but the appearances are not promising. We do know that Bragg is a Soros-brand prosecutor; that he alone (so far) has taken the previously unprecedented step of indicting a former President (very uncoincidentally of the reviled opposing party); and that there were boisterous BLM-type protests — the kind that get attention in NYC — demanding immediate action.

Because there are reasons to fear that Bragg is untrustworthy, and will use the power of his office for purposes excessively influenced by political ends, I have contributed to Penny’s defense fund. If you care to as well, it’s here. I want to emphasize that my contribution is not because I’m convinced Penny has no legal liability. What I am convinced of is that (1) he deserves the same fair shake, and the same diligent defense, I would want in his shoes, and (2) he’s facing a treacherous, politicized environment that puts (1) in jeopardy. Jordan Neely was a human being and he’s now dead. That matters. Daniel Penny is a citizen of the United States entitled to the presumption of innocence, and that matters too.

That said, I want to turn to one of the two broader issues this case has raised. One issue is the care, or lack of it, given mentally disturbed people like Neely. In short, it’s a scandal. Indeed, it’s a scandal whether viewed through either a liberal or conservative lens, as even the New York Times reports (“Jordan Neely Was on New York’s ‘Top 50’ List of Homeless People at Risk”). But what to do about the mentally ill is a subject about which my lack of knowledge is vast, so modesty counsels leaving that topic to others.

The other broad issue the Neely/Penny case brings into focus is the condition of the New York City subway system. Not to put too fine a point on it, it too is a scandal. What’s going on beneath the “sidewalks of New York” is more like a jungle than a train, but a jungle without the trees or the view of the sky.

I’m no expert on that either, so I’ll defer to NYT columnist John McWhorter, a black man of moderate temperament who has a better view of the problem. His column does not pull many punches, and is worth quoting at length:

[T]he conversation among political leaders in the news and on social media has largely ignored the experience of legions of subway-riding New Yorkers. It implies that Neely was merely a desperate human being who should not have been detained in any way short of the intervention of a trained professional — an opportunity vanishingly unavailable in a subway car at any given moment.

I have been riding the New York City subways almost daily for over 20 years now, other than for about a year during the pandemic. And I can testify that these days, about once every week one can expect to be in a car with a person, almost always male, who is actively menacing other passengers. I know these men can’t help it. Many are without homes and not in full control of their faculties. I suspect that they are often lonely and part of what they are doing is seeking some kind of human connection — to be mentally ill can be to find even negative attention a kind of solace compared to no attention at all.

But the problem is that in seeking this negative attention, these men are often not plangent but furious. They walk up and down the subway car yelling into individual faces. They stomp. They ball their fists. They curse. These are not just troubled supplicants who occasionally get a little pushy. They are men who make you genuinely afraid that you are about to be assaulted. And in my experience these men are most likely to be directly confrontational with women. It’s worth noting that while the majority of Neely’s more than 40 arrests by the N.Y.P.D. were for minor infractions, three were for assaulting women in the subway system.

Men in a state of potentially violent agitation are now so common on the subway that I am wary of having my daughters, ages 8 and 11, ride with me, especially after an incident when one such man singled us out and I had to quietly instruct my girls to keep their eyes down and not move….

As to the pairs of cops now so common in the subways, I have never seen them do a thing about these men. This includes an instance when I explicitly asked a couple of police officers to intervene when a man was trawling the cars threatening to beat up one person after another, each potential victim looking up helplessly, wondering whether he meant it. It was especially hard to watch when he got to a Latina mother with two small kids.

When the police will not protect you, you’re going to protect yourself. Either that or pray to God that some ex-Marine will protect you. That’s not what Tucker Carlson thinks. That’s what anyone would think.

How we grapple with what to do in response to people like Neely also requires hard conversations and frank language. I’ve heard this past week that we should tolerate the reality that these men make us “uncomfortable” on the subway. But this word vastly understates how one feels in such circumstances. A more accurate word is “terrified.” Your guts clench, especially if you’re on a long stretch between stations or you’re with kids. New Yorkers these days have read stories of people being pushed onto the tracks or stabbed by troubled individuals in subway stations. To suggest in this context that subway riders should exert a kind of aggressive enlightenment and get used to being made “uncomfortable” because men like these are the product of an unjust system beyond their control is to expect far too much.

The episode two weeks ago was waiting to happen. Unless the people running NYC come to their senses and unapologetically provide the public safety that is their first obligation, vigilantism far more florid than anything Mr. Penny could be accused of is on the way.

UPDATE: In my initial email of this entry, I misspelled “Alvin Bragg” as “Alvin Briggs.” I apologize for my error.