The Daniel Penny verdict — why we should care
The incident
On May 1, 2023, in the midafternoon, Daniel Penny, a 24-year-old former U.S. Marine attending college in Manhattan took a fateful subway ride home after class.
During the trip, 30-year-old Jordan Neely, a homeless man with a history of mental illness and 42 prior arrests, boarded the subway car occupied by Penny and several others including a young mother and her children. Neely was agitated and offensive as he pulled his jacket off, threw it down and started threatening passengers by standing over them yelling words like “I don’t care what happens,” “I don’t care if I go back to prison,” and “someone is going to die.”
Penny later said that he was alarmed and afraid that Neely was going to assault or attempt to kill him or other passengers, so he stood up to restrain him by putting Neely in a hold around his neck from behind, and bringing Neely to the ground. Two other male passengers joined Penny in helping restrain Neely’s arms as he flailed on the ground trying to break free from Penny.
The move was effective in that it prevented Nealy from assaulting or continuing to threaten the other passengers. The move is not dangerous or life-threatening. It is a jujitsu hold used thousands of times a day across the world in training and in real life. People don’t die from the hold, especially in the manner Penny was using it.
A fellow passenger began taking a video of Penny holding Neely a short time after Penny brought Neely to the ground. The video shows that a few minutes into the struggle, Neely stopped struggling, and that Penny released his hold less than a minute later and then conscientiously put Neely in what’s called the “recovery” position, on his side to ensure he could breathe. Other passengers had called 911 so that police could arrest Neely for his threatening and assaultive behavior.
Penny did not attempt to flee and waited on the subway car for the police to eventually arrive. When they arrived, they determined Neely had a heartbeat but was not conscious. Neely eventually went into cardiac arrest and died. Reports indicate he had K-2, a synthetic marijuana in his system and other medical conditions that may have contributed to his death under the circumstances. A DEA fact sheet on K-2 describes the adverse effects of K-2 as “… agitation, anxiety, seizures, stroke, coma, and death by heart attack or organ failure.”
Multiple witnesses of all races and genders gave statements to the police that Neely, a black man, was threatening and assaultive, and that Penny, a white man, had thankfully restrained Neely. One witness, a black man, specifically told police that Penny had not “choked” Neely but had only used enough pressure on Neely to hold him in place. That witness was upset about how long it took for police to arrive, saying, “they took a mad long to come.” None of these witnesses described Penny’s actions as reckless or negligent, and most thanked Penny for stepping forward to protecting them.
Penny voluntarily went with the police to give a statement about his actions, no doubt believing he had done nothing wrong, and had acted in good faith, attempting to protect himself and others from being assaulted or worse. During his statement to the police, Penny explained his actions and physically demonstrated how he had restrained Neely. Penny stated that he intentionally “calibrated” the force he used to counter the force Neely was using to free himself, and that at no time did he attempt to injure Neely, but rather was trying to de-escalate a dangerous situation and prevent himself and others from being injured.
The charges
About 10 days later, the Manhattan District Attorney, Alvin Bragg charged Penny with 2nd Degree Manslaughter (or Reckless Homicide) and Negligent Homicide. Bragg is the very prosecutor who decriminalized much of the behavior exhibited by Neely and others, making NYC a less safe and less hospitable place to reside or visit. The trial began November 1, 2024, and the jury began deliberating on December 3.
Reckless Homicide in New York requires the prosecutor to prove that Penny caused the death of Neely by consciously disregarding “a substantial and unjustifiable risk…” and that the risk “must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.”
Negligent Homicide in New York requires the prosecutor to prove that Penny caused the death of Neely by failing “to perceive a substantial and unjustifiable risk” and that the “risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.”
Penny’s actions were justified under existing New York Penal Code 35.15 which states, “A person may…use physical force upon another person when and to the extent 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.”
Why we should care
It is outrageous that in the city of New York, which spends $11 billion annually on public safety and another $1 billion annually on behavioral health services, a law-abiding citizen such as Penny is left to try to protect himself and others from a threatening and assaultive person like Neely. Penny deserves our admiration, not our condemnation.
The last message we need at this time is that we all must cower and look at our shoes every time we come in contact with the Jordan Neelys among us. We need men like Daniel Penny who are willing to stand up to the threats that so clearly exist — especially when our public safety institutions have shown they are incapable of carrying out that role alone.
The utter failure of the “community-based” treatment philosophy our mental health system has employed for decades is responsible for setting the stage for this tragic but predictable outcome. Both Daniel Penny and Jordan Neely have paid the price for this failure.
As I write this, Daniel Penny is awaiting a verdict from a jury of his peers. The jury is deliberating into its fourth day.
Yesterday the jury asked the judge to re-read the definitions of reckless and negligent. Today the jury sent a message to the judge that it was unable to reach a unanimous verdict on the more serious manslaughter (reckless) charge. The judge directed the jury to continue deliberating. This is an interesting development as the jury instructions prohibit the jury from convicting Penny of both charges. The jury can only consider the negligent homicide charge if they find Penny not guilty of second-degree manslaughter.
This verdict is not just important to Penny. A not-guilty verdict supports a society where men can and do stand up against threats of violence. A guilty verdict perpetuates a society that cowers and stares at its shoes. I know the society I want to live in.
Video image credit: Luces de Nueva York/Juan Alberto Vazquez via Storyful