A former marine who risked his own safety to protect other more vulnerable passengers from threats from a mentally unstable man, with a criminal record for violent assaults including several on the subway, has been labeled a vigilante and a murderer.
He is neither.
Penny is certainly no vigilante — which the Merriam Webster dictionary defines as “a member of a volunteer committee organized to suppress and punish crime summarily” — since he is not a member of any organized group, and certainly was not involved with any vigilante organization which goes looking for alleged criminals.
Indeed, the former marine did not seek out trouble — like the protagonist of the movie “Death Wish” who deliberately rode the subway with a gun hoping for a situation in which he could use it — nor even to punish Jordan Neely once he began to threaten the other more vulnerable passengers, but rather only to hold him back until lawful authorities could arrive.
And, contrary to other definitions of “vigilante,” Penny was certainly not seeking to take the law into his own hands since the law of New York [§ 35.15], like the law of virtually all states, seeks to encourage citizens to go to the defense of others less capable of protecting themselves.
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.”
The latter term includes virtually any wrongful touching, including mere groping (sexual or otherwise), a touching of the clothing or possessions such as a purse of another passenger, or removal of something from a third party’s pocket.
Many of the other passengers said they felt threatened by Neely.
Two fellow passengers jumped in to join Penny in restraining Neely, thereby showing that Penny’s belief in the need to restrain Neely, and the means Penny was employing, were reasonable under the circumstances, which is the legal test.
What we know about NYC subway choking victim Jordan Neely
Who was Neely?
Jordan Neely, 30, a homeless man, was strangled aboard a northbound F train just before 2:30 p.m. May 1, according to police.
He reportedly started acting erratically on the train and harassing other passengers before being restrained and ultimately choked by a straphanger, identified as Daniel Penny, a 24-year-old former Marine from Queens.
Penny, who was seen on video applying the chokehold, was taken into custody and later released. He was eventually charged with second-degree manslaughter.
Why is there fallout over Neely’s death?
The city medical examiner ruled Neely’s death a homicide, noting he died due to “compression of neck (chokehold).”
Neely’s aunt told The Post that he became a “complete mess” following the brutal murder of his mother in 2007. She noted he was schizophrenic and suffered from PTSD and depression.
“The whole system just failed him. He fell through the cracks of the system,” Carolyn Neely said.
Who is Penny?
24-year-old former Marine Daniel Penny served as an infantry squad leader and an instructor in water survival while in the Marines Corps from 2017 to 2021, according to his online resume. Penny graduated from high school in West Islip, NY.
He surrendered to authorities 11 days after he placed Neely in a fatal chokehold on an F train.
Also, unlike with the Eric Garner situation, few if any passengers were yelling to let him up — which they presumably would have if they deemed the restraint not reasonably necessary, and/or unreasonably dangerous to Neely.
Finally, the fact that Penny asked other passengers to call the police, and remained (rather than fleeing) once they arrived, certainly shows that he did not act with any criminal intent, and certainly not with a criminal intent to kill Neely.
Those who argue that Penny’s use of a neck hold to restrain Neely constituted deadly force are also wrong.
New York law [§10.00(11)] defines that term narrowly to mean only “physical force which, under the circumstances in which it is used, is readily capable of causing death or other serious physical injury.”
But while a neck hold might in some cases possibly cause death, so also can the use of a Taser, tear gas, a blow from a police baton or “nightstick,” throwing a perp to the ground and then landing upon him, or even a punch to the face or body — all of which are frequently and lawfully used in self defense as well as in defense of others, by both police and by private citizens defending themselves or others.
That any of these tactics might in some circumstances cause a death does not mean that they are “readily capable of causing death.”
Without handcuffs or plastic ties, how else could Penny effectively restrain Neely in a swaying subway car?
Penny’s belief that other passengers were being threatened with at least a physical touching — if not something far more serious — from Neely, and Penny’s decision to utilize a hold to restrain someone threatening others, are not unreasonable, and therefore not only expressly permitted by New York law but also clearly not a serious crime.
This also seems to be the overwhelming consensus among most of the public, since they have so far contributed over $2 million to an online fund page for Penny.
A fair minded jury could not find to the contrary, especially not beyond a reasonable doubt.
John F. Banzhaf III is a professor of public interest law emeritus at George Washington University Law School.
This story originally appeared on NYPost