In other times, Daniel Penny would likely be celebrated as a hero. There would be a movie about him and children would dress as Penny for Halloween. But not at this time, as Penny stands trial for the killing of Jordan Neely on a New York City subway. As Andrew Fleischman explains, the law in New York leaves Penny exposed to conviction as the law regarding the use of force, and deadly force, makes clear.
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 it wasn’t just that force was used, but that the force used, a chokehold, resulted in death. That arguably raises the stakes by making it the use of deadly force.
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.
While Neely, who suffered from severe mental illness and made statements suggesting that his actions were not constrained by fear of death, was certainly behaving badly and could potentially lash out in a way that would cause harm, if not death, to someone, it hadn’t happened at the time he was grabbed by Penny and it surely hadn’t happened at the time Penny’s chokehold killed Neely.
So, emotions aside, there is little doubt that his actions raise a colorable claim of criminally negligent homicide. There is nothing legally “wrong” with prosecuting Daniel Penny. But that’s not necessarily the end of the question. Penny didn’t board the subway that day with the intention of killing Neely or anyone else. He wasn’t out to become a hero, a la Bernhard Goetz, but just to get from here to there, when he saw a crazy man threatening people on the train. Being a decent person, he came to their defense and acted.
Maybe he went too far, but in the heat of the moment, there wasn’t much time for the nuanced parsing of a post-hoc review from either the district attorney’s desk or the jury box. Had Penny done nothing and Neely harmed or killed someone, the cries would have been for someone to do something. Why didn’t anyone stop Neely? What kind of men were on that subway who let this crazy person do harm to others while watching and doing nothing?
In New York, there is something called a Clayton motion for “dismissal in furtherance of justice.” The criteria are set forth in the statute.
(a) the seriousness and circumstances of the offense;
(b) the extent of harm caused by the offense;
(c) the evidence of guilt, whether admissible or inadmissible at trial;
(d) the history, character and condition of the defendant;
(e) any exceptionally serious misconduct of law enforcement personnel in the investigation, arrest and prosecution of the defendant;
(f) the purpose and effect of imposing upon the defendant a sentence authorized for the offense;
(g) the impact of a dismissal upon the confidence of the public in the criminal justice system;
(h) the impact of a dismissal on the safety or welfare of the community;
(i) where the court deems it appropriate, the attitude of the complainant or victim with respect to the motion;
(j) any other relevant fact indicating that a judgment of conviction would serve no useful purpose.
Given these criteria, is there any purpose in prosecuting Penny? Is there any useful purpose to a conviction? Would a dismissal increase confidence in the legal system, or would it create the appearance that it’s open season on the mentally ill? What was Daniel Penny to do on that subway train that day? Even if his use of force exceeded what was necessary or reasonable in the heat of the moment, does it serve society to prosecute someone for imperfectly coming to the defense of others?
*Tuesday Talk rules apply.