Daniel Penny is a 26-year-old Long Island native and former marine. Some call him hero. Others, view him as the villain of the story. A murderer, in fact.
Thank you for writing a consideration of this news story while acknowledging the tension that exists. I agree with most people here that Penny should not be held liable given the specific fact-pattern here, but I disagree with those totally dismissing that there is any tension. It obviously needs to be possible for people who kill other people in scenarios like this to have acted disproportionately sometimes. Otherwise there is nothing to stop vigilantes and score-settling.
IMHO - while this is an interesting discussions of the nuances and pros and cons of the situation, it is an incredible over intellectualizing of a very simple situation. Subway passengers were being threatened by a mentally unstable man who was still free due to the incredibly stupid policies of the NYC elites who continually released him after similar episodes. ( If anyone should be implicated for indirectly causing his death it is Alvin Bragg and ultra liberal City Council members and politicians who promote such policies) Penny immediately jumped into action in a dangerous situation when most bystanders were afraid to do so. The victim struggled and unfortunately died during that restraint. Case closed with Penny as a hero if it were not for the misdirected and self righteous DA Alvin Bragg where this prosecution is just another of his misguided ( probably too kind a word) attempts as his effort at “social justice “ ( a term I abhor as feel,good and meaningless) to right the many perceived wrongs of the system. A prime example of two wrongs never make a right. If Penny were black and the victim white with the otherwise same exact facts this prosecution would never have been brought.
This incident is more likely to occur when crime is out of control as it currently is in NYC. The story that crime is down is BS especially when prosecutors downgrade charges and there is a revolving door for perpetrators to go right back in the street. It’s similar to the Goetz case of the early ‘80s.
It’s easy to contemplate the degree of threat Neeley posed when you’re not in the situation, but if you are riding the subway daily, witnessing more and more riders with erratic behavior, and seeing firsthand the negative changes that are felt city wide, you’ll perceive that threat differently. It creates an environment where terrible accidents are going to happen.
Thanks for bringing up this difficult case, which is highly relevant to problems many Western societies are grappling with right now. In theory, the state has a monopoly on the legal use of force, and has a duty to provide public safety. In reality, though, public authorities have lost control of the streets (including public transport) in many cities, meaning that citizens feel the need to take the law into their own hands in certain situations. London, for example, which used to be one of the world's safest large cities, is now a place where criminality thrives. You might get harassed, mugged, knifed, have your watch, smartphone, wallet/purse or even (gasp) have your dog stolen from you. This happens in "nice" neighbourhoods.
You are right to put a ? mark here....it is often near impossible to be sure about a case like this without spending huge amounts of time digging into to the details. But whatever the truth about Daniel Penny, the bigger picture is clear enough..... our Progressive purity spiral in the 21st c. West has been rightly described as an Anarcho-tyranny ...a socio-political order that increasingly clamps down of the freedoms of decent law-abiding Mr and Mrs Normal Person whilst, at the same time, giving ever greater license to the lawless and freakish. https://grahamcunningham.substack.com/p/stairway-to-equiheaven
I cannot say whether Penny's actions constituted manslaughter. Neither can media pundits, online commenters, nor you, Katherine, nor any of the readers of your very good Substack,
What I can say is that, under the law as I understand it, Penny should absolutely have been charged. That he was charged with second degree manslaughter (a charge that someone has caused the death of another person unintentionally, but recklessly or negligently) indicates balance and restraint on the part of police and prosecutors., not overreach or abuse nor, God help us, a Woke justice system. The facts as reported to date support this charge on a common sense basis.
Whether Penny should be convicted will be up to a jury (or judge, if a judge-alone trial is an option). And the facts of the case during trial may be different from those reported in the media and online, given that legal / admissible facts are those determined to be relevant to a trial in the context of established legal procedure. And let me say that careful handling of evidence and admissibility (and legal arguments regarding same by prosecution and defense) is a vital aspect of ensuring fairness and balance in the courts.
The legal basis for conviction of second degree manslaughter in New York is informed by New York Penal Law, case law / precedent, and, ultimately, the facts of the given case. As I understand it, in NY this includes three tests: (1) did the person's conduct create a real and unjustifiable risk that death would occur, (2) did the person knowingly disregard that risk, and (3) did the person's actions deviate substantially from what a 'reasonable person' would do or observe.
In my view there is a solid basis for proceeding with a trial on the basis of the first two tests. This, again, supports the laying of the charge(s). I am guessing that the bulk of the defense's arguments will turn on the third question, and that a conviction will depend on how convincingly the state is able to present its case in the face of exculpatory evidence.
Some considerations:
- Penny's military experience and training may play against him at trial, as anyone trained in choke holds would be well aware of their risks
- If, as reported, Neely did not actually attack anyone but was only shouting at them (as is extremely common in New York and, er, Toronto), then the defense will have to work hard to offset the state's view that the force Penny used was reckless (i.e., excessive to the circumstances).
- Having said that, the degree of fear fellow passengers, including Penny, might have felt is relevant -- did they genuinely believe Nelly was going to do violence to them? There are legal procedures for weighing the threat-fear issue in court.
- If, as reported, multiple people restrained Nelly, then this would work against defense claims that a choke hold was justified.
One final note: Penny cannot accurately be called a Good Samaritan--not in a legal sense, and not in a Biblical sense either. In most jurisdictions the Good Samaritan defense is relevant when a bystander attempts to help someone--e.g., pull them from a burning car or save them from a drug overdose--and either fails to save them or inadvertently (but not recklessly) causes them injury or death while doing so. This case is decidedly not that, and media personalities claiming Penny was a Good Samaritan in order to amplify outrage do real damage to civility.
Oh, and heck: one other note: I suspect a lot of people defending Penny are upset about extra-legal issues, such the growing problem of drug addiction and poorly managed mental health issues. These are complex and important problems for sure, but they are not immediately relevant to the question of whether Penny should have been charged.
This is an excellent, well-organized, and persuasive analysis. However, there is another factor which has not been considered.
The answers to your three excellent analytic questions are likely to be greatly influenced by your identities (physical, social and political).
My survey research using hypothetical scenarios showed that a respondent's sex, sexual orientation, and political identity and beliefs all significantly influenced perception of "hostile environments." (The Baffling 'Bull' Behind Title IX — Minding The Campus); it seems to us, that we are passively taking in information when we observe (or read about) events; however, neurologically, we are searching our sensations for evidence that what we already concluded (often unconsciously) was actually true.
At issue is whether he acted recklessly or negligently in choking someone to death for shouting on a train. This is a question for the court to answer.
This matter is currently before a court, I believe, with closing arguments reportedly set for next week. The court -- not online commenters, not media pundits, and not protesters with ideological agendas -- is the appropriate place to determine, first, whether Penny killed Neely, and second -- if he is determined to have killed Nelly -- whether he did so recklessly or negligently.
A man died. Another man may have killed him. This is a serious matter -- one of the most serious matters in our society -- and is properly adjudicated at law.
If you’ve ever been attacked by a mentally unstable person during a psychotic episode then you’d understand that even after the person is subdued they could be pretending to be. I was once attacked by a crazed individual who meant harm to the 3 of us standing there. We were an hour from police or town so had to deal with it on our own. She was viciously swinging a pipe and meant to harm us. We had no choice but to physically subdue her and then we duct taped her hands and feet together. She then began to cry saying she would leave and ‘be good’ but please untape her. I was outvoted by my companions who untaped her. At this point she began to attack us again and her partner finally had to whack her over the head with a thin board at which point they taped her up again. Point is you never know when the episode is over and I think that is why he held him so long. When you’re dealing with mentally unhinged people better to be safe. imo
Come on! It’s ridiculous that charges were brought against Penny. It was a situation in which defense was necessary and you are nitpicking how he went about it. Neely’s death is on him and on NYC for allowing him to remain on the streets after past violence.
Great essay with great questions. Having been a victim of threatening behavior on public transportation - while pregnant - and having NO ONE intervene on my behalf, I am 100% on Daniel Penny's side.
The gross indifference to life is not demonstrated by those who step in to protect other people, but by those who look the other way and allow predators to pick off the weaker members of the herd.
Agree 100%. Daniel Penny is just like the heroes who jump into the water or onto the tracks to save a child without thinking of their own safety. His instinct is to protect and defend. A trial is appropriate since a life was lost, justice will be served when Penny is exonerated, but let it not detract from the gratitude and honor our warriors deserve for doing the hard work of keeping the rest of us safe and free.
With what is known about this situation, I am on the side of Penny. Full disclosure, I was in the military police in the Air Force. Not by choice, I enlisted for a different job. Still, I was trained about these kind of encounters and our restraint methods were similar.
The police officers conduct in this case, as you describe, is completely inexcusable. This fosters an environment where no one wants to talk to the police, for good reason. This is advice I've been given during training for my Carry License in Texas. Don't talk to the cops. The downside to this is that the cops need information to do their jobs.
Legal defense is too expensive and complicated by "legalese." Lawyers are fine, but their guild language needs to be translated so that anyone with a high school language can understand "legalese."
It's impossible to know in advance if provocative behavior is going to turn into substantial violence. Our legal system and courts should be biased in favor of citizens defending themselves. Subduing a person is not magically evaluable, at best it's an art not a science.
There's a lot more I could say about this, but I'm at work and running on caffeine for the night. Thank you for a balanced article and have a good one.
Thanks for sharing. I'd be very curious for you to say more. Abd I would ask you what Katherine brings up in the piece: What could explain why Penny held Neely in that hold for so long? I mean, one imagines that Neely was thrashing around a lot, but why would Penny apply that much force? And how do we determine how much force was necessary?
Excellent, thought-provoking piece. So many questions! And it's great to come across a piece that leaves them mostly un-answered. My impression after reading this is that some things are almost too big and complex for us to wrap our heads around -- at least not without putting some serious thought into them. I appreciate how this post respects that.
Thank you for writing a consideration of this news story while acknowledging the tension that exists. I agree with most people here that Penny should not be held liable given the specific fact-pattern here, but I disagree with those totally dismissing that there is any tension. It obviously needs to be possible for people who kill other people in scenarios like this to have acted disproportionately sometimes. Otherwise there is nothing to stop vigilantes and score-settling.
Exactly. The question is, did the situation meet the standard for taking this to court?
IMHO - while this is an interesting discussions of the nuances and pros and cons of the situation, it is an incredible over intellectualizing of a very simple situation. Subway passengers were being threatened by a mentally unstable man who was still free due to the incredibly stupid policies of the NYC elites who continually released him after similar episodes. ( If anyone should be implicated for indirectly causing his death it is Alvin Bragg and ultra liberal City Council members and politicians who promote such policies) Penny immediately jumped into action in a dangerous situation when most bystanders were afraid to do so. The victim struggled and unfortunately died during that restraint. Case closed with Penny as a hero if it were not for the misdirected and self righteous DA Alvin Bragg where this prosecution is just another of his misguided ( probably too kind a word) attempts as his effort at “social justice “ ( a term I abhor as feel,good and meaningless) to right the many perceived wrongs of the system. A prime example of two wrongs never make a right. If Penny were black and the victim white with the otherwise same exact facts this prosecution would never have been brought.
This incident is more likely to occur when crime is out of control as it currently is in NYC. The story that crime is down is BS especially when prosecutors downgrade charges and there is a revolving door for perpetrators to go right back in the street. It’s similar to the Goetz case of the early ‘80s.
It’s easy to contemplate the degree of threat Neeley posed when you’re not in the situation, but if you are riding the subway daily, witnessing more and more riders with erratic behavior, and seeing firsthand the negative changes that are felt city wide, you’ll perceive that threat differently. It creates an environment where terrible accidents are going to happen.
Thanks for bringing up this difficult case, which is highly relevant to problems many Western societies are grappling with right now. In theory, the state has a monopoly on the legal use of force, and has a duty to provide public safety. In reality, though, public authorities have lost control of the streets (including public transport) in many cities, meaning that citizens feel the need to take the law into their own hands in certain situations. London, for example, which used to be one of the world's safest large cities, is now a place where criminality thrives. You might get harassed, mugged, knifed, have your watch, smartphone, wallet/purse or even (gasp) have your dog stolen from you. This happens in "nice" neighbourhoods.
You are right to put a ? mark here....it is often near impossible to be sure about a case like this without spending huge amounts of time digging into to the details. But whatever the truth about Daniel Penny, the bigger picture is clear enough..... our Progressive purity spiral in the 21st c. West has been rightly described as an Anarcho-tyranny ...a socio-political order that increasingly clamps down of the freedoms of decent law-abiding Mr and Mrs Normal Person whilst, at the same time, giving ever greater license to the lawless and freakish. https://grahamcunningham.substack.com/p/stairway-to-equiheaven
I cannot say whether Penny's actions constituted manslaughter. Neither can media pundits, online commenters, nor you, Katherine, nor any of the readers of your very good Substack,
What I can say is that, under the law as I understand it, Penny should absolutely have been charged. That he was charged with second degree manslaughter (a charge that someone has caused the death of another person unintentionally, but recklessly or negligently) indicates balance and restraint on the part of police and prosecutors., not overreach or abuse nor, God help us, a Woke justice system. The facts as reported to date support this charge on a common sense basis.
Whether Penny should be convicted will be up to a jury (or judge, if a judge-alone trial is an option). And the facts of the case during trial may be different from those reported in the media and online, given that legal / admissible facts are those determined to be relevant to a trial in the context of established legal procedure. And let me say that careful handling of evidence and admissibility (and legal arguments regarding same by prosecution and defense) is a vital aspect of ensuring fairness and balance in the courts.
The legal basis for conviction of second degree manslaughter in New York is informed by New York Penal Law, case law / precedent, and, ultimately, the facts of the given case. As I understand it, in NY this includes three tests: (1) did the person's conduct create a real and unjustifiable risk that death would occur, (2) did the person knowingly disregard that risk, and (3) did the person's actions deviate substantially from what a 'reasonable person' would do or observe.
In my view there is a solid basis for proceeding with a trial on the basis of the first two tests. This, again, supports the laying of the charge(s). I am guessing that the bulk of the defense's arguments will turn on the third question, and that a conviction will depend on how convincingly the state is able to present its case in the face of exculpatory evidence.
Some considerations:
- Penny's military experience and training may play against him at trial, as anyone trained in choke holds would be well aware of their risks
- If, as reported, Neely did not actually attack anyone but was only shouting at them (as is extremely common in New York and, er, Toronto), then the defense will have to work hard to offset the state's view that the force Penny used was reckless (i.e., excessive to the circumstances).
- Having said that, the degree of fear fellow passengers, including Penny, might have felt is relevant -- did they genuinely believe Nelly was going to do violence to them? There are legal procedures for weighing the threat-fear issue in court.
- If, as reported, multiple people restrained Nelly, then this would work against defense claims that a choke hold was justified.
One final note: Penny cannot accurately be called a Good Samaritan--not in a legal sense, and not in a Biblical sense either. In most jurisdictions the Good Samaritan defense is relevant when a bystander attempts to help someone--e.g., pull them from a burning car or save them from a drug overdose--and either fails to save them or inadvertently (but not recklessly) causes them injury or death while doing so. This case is decidedly not that, and media personalities claiming Penny was a Good Samaritan in order to amplify outrage do real damage to civility.
Oh, and heck: one other note: I suspect a lot of people defending Penny are upset about extra-legal issues, such the growing problem of drug addiction and poorly managed mental health issues. These are complex and important problems for sure, but they are not immediately relevant to the question of whether Penny should have been charged.
This is an excellent, well-organized, and persuasive analysis. However, there is another factor which has not been considered.
The answers to your three excellent analytic questions are likely to be greatly influenced by your identities (physical, social and political).
My survey research using hypothetical scenarios showed that a respondent's sex, sexual orientation, and political identity and beliefs all significantly influenced perception of "hostile environments." (The Baffling 'Bull' Behind Title IX — Minding The Campus); it seems to us, that we are passively taking in information when we observe (or read about) events; however, neurologically, we are searching our sensations for evidence that what we already concluded (often unconsciously) was actually true.
He sure as anything acted to protect everyone on the subway car. Are you living in a dream world?
At issue is whether he acted recklessly or negligently in choking someone to death for shouting on a train. This is a question for the court to answer.
‘Shouting on a train’. Sure Amy. Way to minimize the whole situation. That’s just ridiculous.
This matter is currently before a court, I believe, with closing arguments reportedly set for next week. The court -- not online commenters, not media pundits, and not protesters with ideological agendas -- is the appropriate place to determine, first, whether Penny killed Neely, and second -- if he is determined to have killed Nelly -- whether he did so recklessly or negligently.
A man died. Another man may have killed him. This is a serious matter -- one of the most serious matters in our society -- and is properly adjudicated at law.
Yes I am indeed aware that the case is in court. Currently.
If you’ve ever been attacked by a mentally unstable person during a psychotic episode then you’d understand that even after the person is subdued they could be pretending to be. I was once attacked by a crazed individual who meant harm to the 3 of us standing there. We were an hour from police or town so had to deal with it on our own. She was viciously swinging a pipe and meant to harm us. We had no choice but to physically subdue her and then we duct taped her hands and feet together. She then began to cry saying she would leave and ‘be good’ but please untape her. I was outvoted by my companions who untaped her. At this point she began to attack us again and her partner finally had to whack her over the head with a thin board at which point they taped her up again. Point is you never know when the episode is over and I think that is why he held him so long. When you’re dealing with mentally unhinged people better to be safe. imo
The fact that guy was mentally ill is an important point. You can’t reason with these people.
Emptying the insane asylums has had downsides as these people are now in the general population.
Come on! It’s ridiculous that charges were brought against Penny. It was a situation in which defense was necessary and you are nitpicking how he went about it. Neely’s death is on him and on NYC for allowing him to remain on the streets after past violence.
Great essay with great questions. Having been a victim of threatening behavior on public transportation - while pregnant - and having NO ONE intervene on my behalf, I am 100% on Daniel Penny's side.
The gross indifference to life is not demonstrated by those who step in to protect other people, but by those who look the other way and allow predators to pick off the weaker members of the herd.
Daniel Penny is a hero in my eyes.
Agree 100%. Daniel Penny is just like the heroes who jump into the water or onto the tracks to save a child without thinking of their own safety. His instinct is to protect and defend. A trial is appropriate since a life was lost, justice will be served when Penny is exonerated, but let it not detract from the gratitude and honor our warriors deserve for doing the hard work of keeping the rest of us safe and free.
With what is known about this situation, I am on the side of Penny. Full disclosure, I was in the military police in the Air Force. Not by choice, I enlisted for a different job. Still, I was trained about these kind of encounters and our restraint methods were similar.
The police officers conduct in this case, as you describe, is completely inexcusable. This fosters an environment where no one wants to talk to the police, for good reason. This is advice I've been given during training for my Carry License in Texas. Don't talk to the cops. The downside to this is that the cops need information to do their jobs.
Legal defense is too expensive and complicated by "legalese." Lawyers are fine, but their guild language needs to be translated so that anyone with a high school language can understand "legalese."
It's impossible to know in advance if provocative behavior is going to turn into substantial violence. Our legal system and courts should be biased in favor of citizens defending themselves. Subduing a person is not magically evaluable, at best it's an art not a science.
There's a lot more I could say about this, but I'm at work and running on caffeine for the night. Thank you for a balanced article and have a good one.
Thanks for sharing. I'd be very curious for you to say more. Abd I would ask you what Katherine brings up in the piece: What could explain why Penny held Neely in that hold for so long? I mean, one imagines that Neely was thrashing around a lot, but why would Penny apply that much force? And how do we determine how much force was necessary?
He didn’t.
In the newly compiled footage(you can find it on TheFP, as of this morning) we see that Neely was trying to break free of the hold.
We also see the other two men that were helping. One held Neely’s right arm while the other mostly stood over the scene.
Excellent, thought-provoking piece. So many questions! And it's great to come across a piece that leaves them mostly un-answered. My impression after reading this is that some things are almost too big and complex for us to wrap our heads around -- at least not without putting some serious thought into them. I appreciate how this post respects that.
I really appreciate that you can see that. That's how I feel about it. Thank you so much.