Patterico's Pontifications


Constitutional Vanguard: Is Daniel Penny Criminally Liable for the Death of Jordan Neely?

Filed under: General — Patterico @ 12:23 pm

It’s been a while since I wrote one of these. It’s a piece that dispels some of the lazy Big Media narrative about the killing of Jordan Neely, and analyzes the Manhattan D.A.’s prosecution of Daniel Penny.

I’ll warn you: it’s long; over 9,000 words, with over 4,000 words for paid subscribers. If you make your way through the whole thing, I think you’ll encounter some points that you have not seen anywhere else. For example:

So when Washington Post reporter Timothy Bella writes:

Vazquez wrote on Facebook that men were in that position “for about 15 minutes while other passengers and the train operator called the police.”

Bella is misquoting a passage that actually says they were in that position for five minutes:

Jordan and the Marine continued in this posture for at least five minutes. Meanwhile other passengers (myself included) and the train operator called the police (as can be heard in the video).

This reminds me of when Bono opened the song “Vertigo” with the words “uno, dos, tres, CATORCE!” (one, two, three, FOURTEEN!).

Washington Post reporter Bella appears to count as follows: uno, dos, tres, cuatro, QUINCE! (one, two, three, four, FIFTEEN!).

Bono, when asked to explain the opening lines of “Vertigo,” said: “There might have been some alcohol involved.” What’s Bella’s excuse?

Read it here. Subscribe here.

32 Responses to “Constitutional Vanguard: Is Daniel Penny Criminally Liable for the Death of Jordan Neely?”

  1. Hi.

    Patterico (8d1bb4)

  2. Jeez, I didn’t listen to Vertigo close enough to process that he said “catorce!”

    Paul Montagu (8f0dc7)

  3. In my tentative analysis I’ve relied in part on this assertion in the NY Times:

    The struggle on the F train was captured in a four-minute video showing Mr. Penny choking Mr. Neely and holding on for an additional 50 seconds after Mr. Neely stopped struggling.

    That seems at odds with Vazquez’s Facebook account that “when [Neely] stops moving, they release him.” I infer that to mean the choke hold was released, if not immediately, than certainly very quickly after Neely stopped struggling. Certainly not 50 seconds later. In this context 50 seconds is an eternity. I haven’t seen the video, and frankly I don’t want to. Does it lend any support to the Times’ account, or is it just another false report to add to the list?

    lurker (cd7cd4)

  4. The Irish never got good at Spanish, despite all of that dilly-dallying with Phillip II’s sailors after the Spanish Armada had been crippled.

    JVW (fb78a7)

  5. Excellent article (as much as I could read of it). You are as precise when criticizing the media as you are pointed when countering political propaganda.

    If the LA Times had any sense, it would hire you as ombudsman.

    norcal (15fce4)

  6. I didn’t rely on the 15 minutes. It seemed wrong. But it was more than eight seconds so it was a chokehold.

    NYT letters seemed to be on all sides, but the theme of this article seems to have been commissioned with the idea of considering whether bystanders might be liable for not stopping Daniel Penny – and was that bad law or policy?

    …Around 10 passengers observed the three holding down Mr. Neely, 30, who slipped into unconsciousness. A woman tried to walk around the cluster of people on the floor, but seeing Mr. Neely flail his legs, she bit her lip and stepped back, the video shows. Another woman typed on her phone, looked at Mr. Neely then glanced out the subway doors. One man stepped into the train and told Mr. Penny, “You’re going to kill him.” He was not seen to physically intervene.

    Wouldn’t he be legitimately afraid of what Daniel Penny might do to him if he tried to physically stop him from choking Jordan Neely?

    Nor, under New York law, did he have to…

    … The legal standard is clear: No U.S. state explicitly requires civilian strangers to physically intervene when they see an adult in danger, though some impose a duty to report wrongdoing and two set an ambiguous standard of rendering assistance. The value of such legislation has been debated for years, according to people who study the intersection of ethics, the law and bystanderism — the phenomenon of being less likely to intervene when there are others present…

    ….Some New York activists believe the passengers share some culpability. During a wave of heated protests near and inside the Broadway-Lafayette Street subway station where the F train was sitting when Mr. Penny choked Mr. Neely, some demonstrators focused on those who merely watched.

    Arrest “everyone that was on that train,” read one protester’s sign. “Love and protect your fellow man. Don’t move here if you’re scared of your neighbors,” read another. It added: “If you watch someone choke and attack/kill another, you are complicit. You are responsible.”

    Debate over if or when bystanders should intervene intensified after the 1964 sexual assault and murder of Kitty Genovese in Queens. The New York Times initially reported that 38 people had witnessed the attack at various points but did nothing to help. (The Times has since acknowledged that the report “grossly exaggerated the number of witnesses and what they had perceived.”)

    Earlier coverage:

    …On the F train in Manhattan on Monday, Mr. Neely, a subway performer and dancer who also had a history of mental illness and erratic behavior, had been yelling at passengers, saying he was hungry and thirsty, but also at one point that he was ready to die, according to one witness.

    There is no indication that he was violent or that he made any direct threats.

    But one of the train’s riders, a former marine who has not been identified by officials, approached Mr. Neely, put him in a chokehold, and held him until he became limp.

    It does not appear that any riders intervened to help Mr. Neely; at least two other riders appeared to help pin him down. Mr. Neely was later pronounced dead at a hospital in Greenwich Village. Law enforcement officials are still investigating the incident and have not yet decided whether to charge the man.

    Sammy Finkelman (1d215a)

  7. But what happens when it’s unclear exactly when the force became deadly? That, to me, is the “x” factor in this case.

    To me, Penny’s chokehold appears to fall on a sort of continuum: less deadly (and thus more justified) at the beginning, and more deadly (and thus less justified) as time went on. The chokehold clearly became deadly force at some point, because it killed Neely. But when did it become deadly, exactly? It’s tough to say, isn’t it?

    It was deadly force from the beginning. And it would have been deadly force, from the beginning, if Penny and Neely had been engaging in consensual “rough sex” in the privacy of their Greenwich Village hideaway. (Yes, there has been at least one case like that, and not on Law And Order.)

    This was not a 2-year old climbing up on the couch and throwing her arms around daddy’s neck. This was a healthy, 24-year old, ex-Marine, using enough force to render another grown man unconscious or dead.

    He does not need to have intended death. And the charge reflects that. He could have simply lacked the skill. But that’s like a bad gunman aiming to shoot a cigarette out of a cowboy’s mouth and potting him in the head.

    nk (ccaa3f)

  8. Anyway, Bragg can still eat his political cake and have it too. Penny has only been charged by complaint so far, as I understand, and the grand jury might not indict him. Like the cop in the Eric Griner case.

    nk (ccaa3f)

  9. Re: “Vertigo”

    “All of this, all of this can be yours
    All of this, all of this can be yours
    All of this, all of this can be yours
    Just give me what I want and no one gets hurt”

    (From the lyrics) I always pictured Satan tempting Christ:

    Matthew 4:8-9 Again, the devil took Him up on an exceedingly high mountain, and showed Him all the kingdoms of the world and their glory. 9 And he said to Him, “All these things I will give You if You will fall down and worship me.”

    The end of the song says:

    “Your love is teaching me how
    How to kneel”

    The whole thing is a prayer, imo, as so many of their songs are. Bono navigating his world of temptation.

    JRH (0d9035)

  10. It was deadly force from the beginning. And


    That’s a very interesting perspective and indeed it’s likely what prosecutors would argue. I should have addressed it in the piece. I didn’t because I thought it obviously was not deadly force at first, but reading your take, I think it’s a serious argument.

    Let me challenge you on it and see how you respond.

    Obviously I could, in theory, beat someone to death with my fists. That kind of thing has happened. But the fact that it can and does happen — and indeed, if it goes on long enough, may even be likely to happen (imagine a beating lasting hours), I would think, would not be enough to render fists deadly force. Do you agree?

    If so, I will agree with you that a chokehold is potentially more deadly. But isn’t it somewhat more like fists than a gun, at least in the sense that it could be used for a few seconds and almost certainly, in almost all cases, not cause death?

    The question is, what actually characterizes the nature of deadly force? Again, it’s not a thing we usually analyze in most cases because the force is obviously deadly or not deadly. I do think it’s a question that merits more discussion and analysis. I’d love to hear your thoughts on it.

    (By the way, for anyone watching, nk is disagreeing with me, and I am hoping to have a discussion with him about that disagreement. See how we can do that without calling each other liars and so forth? Isn’t that nice? Wouldn’t it be nice to have more of that sort of thing?)

    Patterico (4bddf8)

  11. Interestingly, if I think of “choking” vs. a “chokehold” I think of the former as deadly force and the latter as falling on a spectrum where it can become deadly over time. As I say that out loud, I’m not sure it makes a lot of sense. A chokehold is, in a sense, just a form of choking someone. And choking someone, if not done with precision and incredible force, generally only gets more deadly over time, just like a chokehold. It seems obvious to me that I view them different because of the intent: choking generally seems like it’s part of an intent to harm and a chokehold seems like part of an intent to restrain. But does it make sense to change how you categorize force based on the presumed intent? I’m not sure it does.

    All very interesting questions. Obviously this is stream of consciousness stuff from me; I’m thinking out loud, or whatever the written equivalent of “out loud” is, on a Saturday morning. What do people think?

    Patterico (4bddf8)

  12. Pat, I usually think you are right on point but the very beginning of your substack really rubbed me the wrong way:

    “The narrative we have heard from many quarters is that this was a murder of a black man who was not threatening in any way, but simply said he was hungry and thirsty. He was then choked for 15 minutes by a white racist until he died, despite warnings of onlookers who tried to get the white racist to stop.”

    Is this the narrative we’ve heard? None of this sounds right. I’ve not heard he was not threatening in any way (all media I’ve consumed said the opposite) nor have I seen anyone anywhere make the claim that it only happened because he was hungry and thirsty. I’ve not heard the white racist angle really played up (you mention it twice, making it the first two times I’ve heard him referred to that way. Nor have I seen the 15 minutes really played up although that one I’d at least seen before.

    I’m sure if I searched I could find examples of both of those first two things somewhere in the media, but I’m worried you’re engaging in nut-picking to create a straw man to argue against.

    To other commenters: before reading this piece, was the impression you’d gathered from other media what is described in my quoted paragraph? Maybe it’s me who is off base.

    Nate (1f1d55)

  13. Also I really appreciate you and nk’s disagreement. I think there is room for good arguments on both sides of what is a pretty unclear situation.

    Nate (1f1d55)

  14. I just saw your comment, Patterico. It may take me all day to respond. Chores and errands and such.

    nk (9f641c)

  15. My son was a state-champion wrestler, and he learned about chokeholds in high school. Dumb thing, but in practice the teammates actually applied chokeholds on each other ’til they blacked out. He even did it to his younger sister, which pissed me off to no end. No harm, not deadly, but an unnecessary risk.

    Given that, I would say that a chokehold is not “deadly force from the beginning”, but it doesn’t take long for it to become so; anything longer than a minute and it does cross that line, IMO.

    There are other ways to subdue than wrapping an arm around another’s neck. Maybe initially, in the first minute, it was okay, but not after that because another man’s life is put at risk. Also, there’s a reason why the majority if not most of the largest police departments forbid the practice. There’s a good example right in NYC.

    Paul Montagu (8f0dc7)

  16. I think the narratives of Eric Garner and George Floyd have changed views on chokeholds and stress positions. The feds and 24 states have banned chokeholds or have limited their use to cases where deadly force is warranted.

    So while there might not be universal acceptance that a hold could be excessive force, there does seem to be broad acknowledgement that there is more risk than benefit in law enforcement (probably too in hospitals and schools for restraining out of control individuals). Now we can all question whether this is a political conclusion or best practices conclusion, but it’s something.

    MMA fighters also use carotid holds to force submission. Is it deadly force? Well, the referee pays close attention to the victim and intervenes rapidly when conciousness is lost. Again, that’s some recognition that grave damage (and liability) can occur.

    I don’t believe that Penny intended to cause grave damage, but he also may not have appreciated that if the hold went too long beyond Neely losing conciousness that it could be fatal. He also may not have appreciated if Neely had any medical conditions that might exacerbate this. Most people would agree that Neely likely just wanted to restrain Neely so he was no longer a threat. I would imagine in the Marines where he likely practiced the hold, there was always someone monitoring and intervening with the hold. That might operate against Penny. Here, even though there were people helping, they got it wrong. The question is whether it’s justice to say “accident” and move on. Maybe yes, maybe no.

    AJ_Liberty (4bdc5d)

  17. Excellent Substack post. Thank you for writing it, Patterico.

    I think the early reports were exactly as Nate portrayed them, Nate.

    As for a chokehold, what choices did Penny have? He apparently had no weapon, as we would expect in NYC where having a weapon is frowned upon. Should he have polled the subway patrons to see if anyone would help him restrain the threat? That seems more dangerous than simply retreating to a corner and hoping the train gets to a station quickly.

    Retreat was, of course, another option, but I believe there were other people on the subway who were not able to defend themselves like Penny, the trained Marine, could. So he took action. What, other than a chokehold, were his options once he decided to intervene? If Neely was threatening acts of violence, as some of the riders and the Substack post convinced me he was, wouldn’t deadly force be not only allowed but appropriate?

    DRJ (b9bade)

  18. Correction:

    I think the early reports were exactly as Patterico portrayed them, Nate.

    DRJ (b9bade)

  19. DRJ, I have long been concerned about people who were not there holding forth on what things were like—the eyewitnesses were there.

    The people who are all defensive about the poor wretch who died (who should have been under treatment in an institution instead of on the streets) should have fifty dollar bills safety pinned to their shirt, and forced to ride the subway late at night.

    It might change their opinions.

    Simon Jester (ca4340)

  20. DRJ, I am thinking about Dr. Zenkus.

    Simon Jester (ca4340)

  21. Thanks, DRJ, it’s certainly possible that I missed the early reporting and my perception is off.

    Nate (a946fa)

  22. Nate, I think this AP report is representative of the initials reports. It describes Neely as a Michael Jackson impersonator/dancer who was shouting, yelling and pacing before he was tackled and put in a chokehold by other passengers.

    DRJ (00ae32)

  23. IMO the fact that other people immediately helped restrain Neely bolsters the idea that Neely was perceived as dangerous and threatening.

    DRJ (00ae32)

  24. Patterico, the reason I say that a chokehold is deadly force from the beginning is because, while recognizing your view that duration is also a significant factor, I place greater significance on the amount of force and its application.

    Granting as well that the chokehold is done “perfectly”, with no significant involvement of the trachea or cervical vertebrae, it is stil applied in a way and with sufficient force to cut off blood flow to the brain. That kills people.

    Going from that, I do not consider the fact that it takes a while for it to go from mere unconscious to irreversible brain damage and death anything other than inviting disaster. More than that, it would take extraordinary skill and care on the part of the strangler to avoid disaster, and that’s even without taking into account the unique weaknesses and vulnerabilities of the victim.

    Putting a chokehold on someone is a path which requires no misadventure to turn out wrong and the best of good luck to turn out well.

    nk (9f641c)

  25. In this case, I would give more importance to duration when considering whether it was a gross deviation from the standard of care which a reasonable person would exercise in the
    situation or depraved indifference.

    Neely was dying with every heartbeat that failed to send blood to his brain. Did Penny aware of that? Did he care? Did he believe that even so it was necessary to protect himself and the other passengers?

    nk (9f641c)

  26. The people who are all defensive about the poor wretch who died (who should have been under treatment in an institution instead of on the streets) should have fifty dollar bills safety pinned to their shirt, and forced to ride the subway late at night.

    I took the subway for seven years, all the way through college and law school, sometimes late at night and sometimes very early in the in morning, and for part of that period I paid my way by running a newsstand in the subway.

    nk (9f641c)

  27. @25. Did Was Penny aware of that?

    nk (9f641c)

  28. nk, I meant no disrespect to you. But you strike me as the kind of person whom predators—even mentally ill ones—know to leave alone. I also bet serious coin if someone threatened you directly you would have knocked them out.

    But what about threatening other people nearby? It’s easy for me to take the side of the frightened folk, because I have always dealt with fear, and have had to deal with a couple of beatdowns over money.

    As always, I appreciate your thoughts…and not just when we agree.

    Simon Jester (ca4340)

  29. But you strike me as the kind of person whom predators—even mentally ill ones—know to leave alone.

    Heh! I was reading Nietzsche at the time and my subway books were The Gay Science and Ecce Homo. Everybody stayed away from me.

    No worries, Simon. I was not offended by your comment.

    But I’ll tell you, if I had had occasion to slay the dreaded subway troll, I would not have have settled for some piddly GoFundMe. I would have demanded the going rate: Half the kingdom and the princess’s hand in marriage. Does Mayor Adams have a daughter, do you know?

    nk (21b5ba)

  30. There is a fine line between thus case and the pregnant NYC nurse and the rented bike. Both involve a group of people who felt they were justified in targeting another person. It appears to me the subway group was acting reasonably to stop a threat, but we have to wait to know for sure.

    IMO these types of problems are ptedominantly urban problems because people are living, working, and taking mass transit in close quarters. These cities are often really neat places with lots to do, but they have their risks.

    DRJ (39fa52)

  31. Of course, rural areas and smaller to we ns have their own problems. Just different.

    DRJ (39fa52)

  32. These cities are often really neat places with lots to do, but they have their risks.

    DRJ (39fa52) — 5/20/2023 @ 7:39 pm

    Big cities have so many charms and amenities. Public transportation, shopping, restaurants. Unfortunately, one has to go abroad to feel safe in a big city. Large American cities just seem to have a kind of pathology about them. It’s not just crime, either. They are dirty. Also, they tend to be governed by lefties who are soft on crime. I don’t think that’s a coincidence.

    Taipei, Hong Kong, and Beijing? All were safe and clean.

    norcal (15fce4)

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