Daniel Penny

Daniel Penny, the subway rider who subdued Jordan Neely with a chokehold and was charged with manslaughter and then with criminally negligent homicide after Neely died, was acquitted by a New York City jury today.

In May 2023 Penny was aboard a subway train in NYC when Jordan Neely entered the train and began threatening passengers. He apparently said that, “someone is going to die today,” and that he was not afraid of going to prison. Witnesses testified at the trial that they were afraid of what Neely might do, though they also testified that he never actually touched anyone or lunged at anyone. Penny, an ex-Marine, approached Neely from behind and took him down to the floor of the train, placing him in a chokehold while other passengers helped to restrain him. After a while, Neely went limp, but Penny kept his chokehold in place. Neely later died, though there was a difference of opinion as to the cause of death.

Eleven days later, New York City District Attorney Alvin Bragg charged Penny with manslaughter, inspiring an uproar among New Yorkers and people across the country. Penny’s defense attorney and supporters claimed that he acted heroically for protecting the other passengers from a potentially violent man. Neely’s family, Black Lives Matter activists, and the prosecution argued that Penny had gone too far in his actions, persisting in the chokehold that they say caused Neely’s death even after the threat had been extinguished.

The jury first came back with a hung verdict on the charge of manslaughter. We have no way of knowing how many voted to acquit Penny and how many voted to convict him. What we do know is that the prosecution took the step of asking the judge to dismiss the manslaughter charge so that the jury could consider the lesser charge of criminally negligent homicide, which carries a maximum penalty of four years in prison and requires a lesser burden of proof. Despite earlier instructing the jury that they could not find Penny guilty of criminally negligent homicide unless they found him innocent of manslaughter (which, technically, they did not do), the judge allowed the prosecution’s motion. This itself caused critics to complain that the judge (and DA Bragg?) were setting Penny up for conviction. The jury went home over the weekend, came back today, and quickly voted to acquit Penny of the lesser charge.

I heard a Black Lives Matter activist in a TV news report claim that, with this verdict, the city is saying that vigilantes can strangle Black people “because we’re loud.” This is disingenuous. Neely was not merely being “loud.” He was actively threatening people, and there was no reason not to take his threats seriously. The fact that it was later discovered that he had no weapon on him is beside the point. No one knew that at the time, and it’s not unreasonable so presume that a man who is threatening to kill people has the means to do so. The fact that Neely had a long criminal record, a diagnosis of schizophrenia, and was on drugs is also irrevelant. Again, no one on that subway train at the time could have known that. The threat he posed was immediate, and merited an immediate response. Whether Daniel Penny went “too far” in his efforts to restrain Jordan Neely was for the jury to decide, and they decided that he did not. Charges that the verdict was based on racism neglect the facts that the jury was multi-ethnic and that many of the passengers on the subway train Penny was acting to protect were racial minorities.

Penny insisted to police after the incident that he had no intention of hurting Neely. “I’m not trying to kill the guy,” he told detectives. “I’m just trying to keep him from hurting anybody else.” He was responding to what he thought was a genuine threat. He mentioned that people had been pushed onto the rails of the subway by mentally ill people, so he had no reason to interpret Neely’s threat as anything other than real. Passengers who later testified in Penny’s favor thanked him at the time. The claim that Penny held the chokehold for too long is a subjective judgment, but I certainly understand why Penny would not want to take any risk in freeing or even letting up on a man who had been threatening to kill people.

Dr. Cynthia Harris is the medical examiner for New York City. She performed the autopsy on Neely and testified that it was Penny’s chokehold that killed him. The toxicology report showed that Neely had the synthetic marijuana drug K2 in his system at the time, but Harris made her assessment before she knew the results of the toxicology report. She insisted, however, that she would not have changed her assessment even if Neely had had enough drugs in him “to put down an elephant.” That’s an interesting conclusion, especially since she had put on Neely’s death certificate that the cause of death was “inconclusive.” I wonder what made her so adament at the trial that it was the chokehold that killed Neely? The defense, of course, had their own medical expert, Dr. Satish Chundru, who claimed that Neely had not been killed by the chokehold, but by “the combined effects of sickle cell crisis, the schizophrenia, the struggle and restraint, and the synthetic marijuana.”

I am sad for Neely’s family, of course. They lost someone they loved. But is it too much to ask, where were they all through Neely’s bouts of mental illness, his drug abuse, and his many crimes? Perhaps they, too, were overwhelmed, not unlike the passengers on the subway train that day. Perhaps they didn’t know what else to do. Perhaps they had given up on Jordan because they simply had tried so hard for so long, but he refused their help. Regardless, it seems a bit much that they are now seeking monetary damages for the death of their family member that they either refused or were not able to help. It isn’t Daniel Penny’s fault that their family member decided to do drugs that day and to step on a subway train and threaten people. Given his mental illness, it may not be Jordan Neely’s fault, either. But to make Penny pay monetarily for his actions, even given the tragic conclusion, seems “too far” to me. Eric Adams, mayor of New York, acknowledged that the city had failed Jordan Neely. He should not have been on the streets. He should not have been free. But our society decided many decades ago that the mentally ill cannot be held without their consent, except in the most extreme circumstances. Apparently, Neely’s situation was not judged that extreme, until it was.

I am glad that Daniel Penny was acquited. He stepped up to protect his fellow New Yorkers when no one else would. We’ve seen the consequences of when others refuse to step up to protect others, especially strangers. It’s called the Bystander Effect. People refuse to step up because they fear being hurt, retribution, misunderstanding the circumstances, or the expectations of those around them. It turns out, the more people there are witnessing a situation where someone is in distress, the less likely any particular person is to act to help. When there are a great many other people refusing to help, people feel justified in refusing to help themselves.

The harm that Daniel Penny’s prosecution has caused is unmeasureable. How many people will now sit idly by when someone threatens a group or an individual because they fear being prosecuted? Today, I read the story of a 20-year-old American woman visiting Germany who says she was accosted by a man. She pulled a knife, threatening him if he didn’t back off. He didn’t back off, but grabbed her. She freed herself from his grasp and stabbed him, killing him. She says she didn’t mean to kill him, only to get away from him. Now she is being charged with “bodily injury resulting in death,” and could be sentenced to ten years in prison if convicted. So, now self-defense is a crime? Hopefully, the truth will come out and the U. S. consolate will come to her aid.

It is reasonable for people to take reasonable action to defend themselves. Often, after the dust has settled, what seems reasonable at the time, under the heat of the moment and the imminent threat of another, can later seem “too far” to others looking at the facts from the calm, air-conditioned environs of an attorney’s office. We ought to ask ourselves what we would do under similar circumstances, and not be too confident that we would do the “right” thing. There but for the grace of God …

Be Christ for all. Bring Christ to all. See Christ in all.