The potential criminal charges against a US Marine veteran who put Jordan Neely in a fatal chokehold aboard a New York City subway train might depend on whether a “reasonable” New Yorker would have acted similarly.
Neely, a locally-known Michael Jackson impersonator who friends say suffered from worsening mental health, died Monday when a fellow rider pulled him to the floor and pinned him with a hold taught in combat training.
According to a freelance journalist who recorded a video of his final minutes, Neely had been screaming at other passengers but hadn't attacked anyone.
The man who administered the chokehold, Daniel Penny, said through his lawyers Friday that he was only protecting himself after Neely threatened him and other passengers.
“Daniel never intended to harm Mr Neely and could not have foreseen his untimely death,” said his lawyers, Thomas Kenniff and Steven Raiser.
The Manhattan District Attorney’s Office is investigating the incident; no charges have been announced.
If a case does go forward, an argument of self-defence would likely brush up against a “tricky” legal requirement, according to Mark Bederow, a former assistant district attorney in Manhattan.
Under New York’s penal code, a person who uses deadly force must not only prove that they feared for their own life or someone else’s but that any reasonable person would have felt the same way.
“Suppose the Marine says, ‘I honest to God thought I had no choice but to save someone,’ the question would be whether an objectively reasonable person in his circumstances would have felt the same,” Bederow said.
The interpretation of that statute was last clarified by the state's highest court in 1986, in response to Bernhard Goetz’s shooting of four teenagers aboard a subway, an infamous case that has drawn comparisons to Neely’s death.
In 1984, Geotz, who was white, shot four young Black men after one of them asked him for $5. Goetz said he thought he was being robbed. A jury ultimately acquitted Goetz of attempted murder but convicted him of carrying an unlicensed handgun.
Neely’s killing has set off an emotionally-charged debate about compassion and mental illness in New York.
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