Neely and Penny: What Do We Know?

The other day, a friend was sitting in Brooklyn’s Prospect Park with a friend when a friend of the friend appeared. Somehow a recent incident came up. On May 1, a 24-year-old, white ex-marine named Daniel Penny put a thirty-year-old black man named Jordan Neely, who had been raging on a subway car, in a chokehold, leading to Neely’s death. The friend of the friend launched into a tirade against the ex-marine Penny that seemed directed at my friend, even though she hadn’t expressed an opinion one way or the other.

Here is the second tragedy to come out of this incident: People have formed conclusions before they can possibly know all there is to know.

Violent incidents can become vehicles for expressions of civic anger. Vocal right-wingers believe Penny should not be indicted for his brave intervention to protect his fellow passengers. Many liberals, convinced that racism was the motive, demanded and got an indictment (issued this morning), although the higher of two charges, manslaughter in the second degree, is far less than the murder charge they wanted. Other liberals get heated in the other direction, distraught over the indictment because Penny did a terrible but necessary public service. Their only regret is finding themselves on the same side as the right. But what do we actually know?

For this post, although I’ve read numerous related articles, I’m relying primarily on a New York Times article most recently updated on May 13, and one from NBC News dated June 12. I link to other sources in context.

What Do We Know?

According to NBC News, Jordan Neely was a “subway busker who often performed as Michael Jackson.” He had been arrested forty-two times, often for minor crimes associated with his homelessness. However, four of the arrests were for assault, with one such charge pending since 2021. Before all that, he’d been traumatized in 2007, at the age of fourteen, by the murder of his mother and then having to testify against the perpetrator. His life was one long tragedy.

However, the passengers on the F train that fateful afternoon could have known none of Neely’s background other than what they might have speculated from his behavior.

We know that Neely entered the train at the Second Avenue stop. The police received the first call at 2:27 p.m. We have seemingly reliable statements that he ranted in the faces of one or more passengers. According to Juan Alberto Vazquez, a journalist who was to videotape a later part of the incident, Neely said “he was hungry and thirsty and took off his jacket, throwing it down on the ground.” Still according to Vasquez, Neely declared, “‘I’m tired already. I don’t care if I go to jail and get locked up. I’m ready to die.’” Vasquez said people moved away.

The NBC News article, which includes references to videoed statements that Penny later made, reports that he says: “… he [Neely] was yelling, so I took my headphones out to hear what he was yelling. And the three main threats that he repeated over and over was ‘I’m going to kill you,’ ‘I’m prepared to go to jail for life,’ and ‘I’m willing to die.'” Penny said “He was fearful of Neely and ‘couldn’t sit still’ as he saw women and children being threatened.”

The indictment charges that Penny took Neely from behind, forced him to the subway car’s floor and put him in a chokehold.

Vazquez hadn’t started videoing up to this point.

The train stopped and remained standing at Broadway-Lafayette, the station after Second Avenue. Vazquez had now begun recording. Penny continued to hold Neely down while two other passengers grabbed Neely’s arms.

At 2:29, a passenger is heard on Vazquez’s video saying, “’You don’t want to catch a murder charge. You got a hell of a chokehold, man.’”

Then the three men turned the motionless Neely on his side. The man who gave the warning said, “’He’s all right. He ain’t going to die.’” Firefighters arrived at 2:46.

Vazquez said the chokehold lasted fifteen minutes. Penny points out that it didn’t begin until after Neely boarded the train at Second Avenue, which means it could not have lasted more than five minutes, if that.

NBC News reports that Penny said: “… he adjusted his grip on Neely ‘based on the force that he’s exerting’ and that Neely was breathing in the video.”

I have read no independent reporting on whether Neely was still breathing at that point, nor do I know how significant it would be. Can a chokehold prove fatal even if relaxed while the person is still breathing?

We know Neely died.

Those are the facts in the public forum, as far as I can ascertain them.

What Don’t We Know?

The first question to dispose of is whether Penny was racially motivated. So far we have no indication that racism is in his background. Some theorize he would not have acted as he did if Neely had been white. But all such theorizing can only be speculation. If evidence of racism turns up, it may change. For now, it cannot be considered a factor.

And again, since the passengers could have known nothing about Neely’s past, it must be set aside when considering Penny’s decision-making.

On the other hand, any New Yorker who regularly travels by subway has witnessed people, typically men, acting out in ways that can be disturbing and even threatening. I detailed my own such experiences in a 2020 essay, “The Maligned City.” When disturbing behavior occurs, the question in any passenger’s mind is whether it might escalate into violence. That background deserves consideration in assessing how Penny and the other passengers reacted to Neely’s behavior.

What I don’t know, and can’t get a good read on, is exactly how threatening the passengers here found Neely’s behavior. The impact of the various witness statements is that his ranting was in-your-face. However, subway passengers are accustomed to looking the other way and otherwise doing everything in their power not to escalate such encounters into confrontations. Moreover, I haven’t come across any witness who corroborates Penny’s assertion that Neely said, “I’m going to kill you.”

The jury will need to evaluate what the passengers say they saw, felt and knew. If Penny hadn’t acted as he did, would they have viewed it as just another unpleasant incident? Or were one or more passengers truly frightened, whether by Neely’s behavior itself or by his behavior in the context of subway violence generally? In that case, was Penny justified in interceding? Or was he too hasty to act?

Should the jury take into account Penny’s marine training? One could make the case that it gave him experience that could have made his intervention constructive. But the question remains whether the chokehold could be deemed an appropriate degree of force. We know chokeholds have been widely banned by police departments, but it might be different if a civilian, albeit former marine, applies a chokehold in defense of self or others.

Then there’s the duration of the chokehold. It will be critical at trial that it be established as precisely as possible. After all the reporting, protests and convictions, every American must know it took a seven-minute chokehold to kill George Floyd. But even if the chokehold went on longer than some theoretical maximum length of time, Neely might have been strong enough to scare Penny, in which case maybe Penny could claim an ongoing need to keep him subdued. This, notwithstanding the other two men helping him to restrain Neely. Recalling childhood brawls with my brother, whenever I had hold of him, I feared letting go and freeing him to come right back at me.

Is a Broadly Accepted Resolution Conceivable?

Another friend of mine originally favored indictment. However, she wrote in an email: “There have been one or two terrifying times on the subway when I would love to have had Daniel Penny around.” This is the crux of the dilemma for any New York subway traveler. On the one hand, the incident reeks of vigilantism, which New Yorkers tend to denounce. On the other, between stations, we are trapped in a car with strangers. When a clearly disturbed man rants in front of you and speaks and acts provocatively, suggesting impending violence, we can be terrified. And so we might well feel relieved when someone takes action to prevent it from happening. But if the result is something as terrible as death, guilt might take over from fear and relief because we acquiesced.

I doubt Penny will plead guilty, in which case there will be a trial. Passengers’ recollections will be crucial in determining, among other things, just how frightening they found Neely’s behavior, even though this testimony can’t be completely reliable. Memories of feelings in the moment will inevitably have been influenced by later reflection and all the media coverage. It’s doubtful the witnesses would be lying, but rather, doing their best as normal, flawed human beings.

The prosecution is likely to contend that the chokehold was inappropriate. Then they’ll need to establish, to a reasonable degree of certainty, how long Penny maintained it. The jury will then need to assess Penny’s explanation.

If Penny truly did stop a situation from spiraling out of control, punishing him would seem unjust. In that event, a third tragedy would be that he is convicted and made to serve time. On the other hand, if excess zeal induced him to engage in an unnecessary act of violence, he will amply deserve his conviction. In that event, it will send a warning to others contemplating taking the law into their own hands.

We need to wait to assess the evidence presented at trial to come to any conclusions. Even then, will we know with any certainty what really happened and what Penny’s intentions really were? And either way, will we learn from it?

A comparison crosses my mind that I doubt could be raised at trial. In 2020, seventeen-year-old Kyle Rittenhouse crossed the state border from Illinois to Kenosha, Wisconsin to, so he claimed, protect property and people during ongoing Black Lives Matter protests. Rittenhouse took with him a semi-automatic rifle and killed two people. A year later, he was exonerated at trial. Despite the acquittal, he strikes me as a young punk looking for trouble. By contrast, Penny could not have anticipated that a mentally ill man would get on the subway at the F train’s Second Avenue station. Penny wasn’t armed. His decisions were made in the moment.

Many see Neely’s death as a consequence of government’s failures. Some commentators propose that mentally ill people be given treatment in community home settings, an expensive proposition that would require widespread support. Others call for more police on the subway, though it’s hard to see how the city could assign a cop to every car in the system. Others will argue for legislation protecting people like Penny who act to protect themselves or others when the police are absent in threatening circumstances.

Ultimately, it may be the near impossibility of knowing what is best for the future that has us preoccupied with this incident and its aftermath. We like to think we live in a civilized society. We hope we’re doing our best to assist financially, mentally and otherwise disadvantaged people, even if with relatively limited resources. At the same time, we are a deeply divided nation with a consequently ineffective Congress.

And so, as a city and as a nation, we stagger from incident to incident without a clear plan, forcing individuals to make decisions that might or might not do disproportionate harm and that might or might not be punished by the justice system. Without a coherent plan, some of our actions and later judgments on those actions are bound to appear arbitrary.

It takes no special insight to anticipate that no matter what the verdict in this case, one side or the other, or perhaps both, will see the outcome as unjust. Then again, I’m a poor forecaster. If Manhattan District Attorney Alvin Bragg presents a case that leads to a thorough accounting, whatever the verdict, maybe, just maybe, a way forward will emerge in a dark and tangled forest.