Daniel Penny Trial Starting – Defense Analysis

Marine’s Case Stronger Than Subway Shooter’s, Says His Defender 

But the law professor whose legal analysis helped keep Subway Shooter Bernhard Goetz out of jail insists that the defendant, Daniel Penny, is a good samaritan and not a vigilante, and that he has an even stronger legal defense under the laws of New York; especially since, unlike Goetz, Penny risked his own safety to protect not himself but others.

Thus public interest law professor John Banzhaf, who has provided successful legal defenses in other similar situations – including the eerily similar case of Bernie Goetz, dubbed the “Subway Shooter” or the “Subway Vigilante” – maintains that Daniel Penny’s legal case is stronger than the others in which the professor was been successful.

Penny is no vigilante, says Banzhaf. In contrast to other definitions of “vigilante,” Penny was certainly not seeking to take the law into his own hands since the law of New York [§ 35.15], like the law of virtually all states, seeks to encourage citizens to go to the defense of others less capable of protecting themselves; an ancient legal privilege which has been expanded in many states over the past generation as the need for self help by private citizens has continued to become more evident.

To permit if not encourage individuals to go to the aid of their fellow citizens, the law permits them to use reasonable force not only against perceived threats of death or serious injury, but rather against any perceived threats of any use of “unlawful physical force.”

The latter term includes virtually any wrongful touching, including mere groping (sexual or otherwise), a touching of the clothing or possessions such as a purse of another passenger, or removal of something from a third party’s pocket.

Moreover, so that people need not fear arrest or a lawsuit if they make an honest mistake about the need to use force to protect others, the statute requires only that their belief in the need to use force be a “reasonable” one; not necessarily the best or only one, or even the one many other people might claim they would have employed under the circumstances.

As the noted jurist Oliver Wendell Holmes once declared in a self defense case, “detached reflection cannot be demanded in the presence of an uplifted knife” – or in this violent thrashing and verbal threats to kill.

And, says Banzhaf, the best evidence that Penny’s belief was not an unreasonable one are the actions of other passengers who were present at the time, and therefore could best understand and knowledgeably evaluate the situation. In Penny’s situation, many of the other passengers said they felt threatened by Neely, even if they didn’t know he had a violent criminal history with over 40 known arrests, most for violence against innocent bystanders.

Indeed, they had compelling reasons to fear not just a mere touching, which is all New York law requires for the legal privilege of defense of others to apply, but real physical injury or even their very lives.

Witnesses said he had been demanding money while making what they perceived to be threats, such as “someone is going to die today,” and that he was “ready to go to Rikers” and “ready to do life. Passenger described Neely’s shouts and “insanely threatening” and “satanic.” One frequent subway rider said that she had encountered many things on the train, “but nothing that put fear in me like that.” Another said he was “insanely threatening.”

That many passengers suffered real fear – a reasonable fear of imminent physical harm if not death – is also proven by the uncontradicted fact that two fellow passengers on the subway car independently jumped in to join Penny in restraining Neely until the police arrived, thereby showing that Penny’s belief in the need to restrain Neely for a considerable period of time, and the neck hold – apparently not a coke hold cutting off his air supply – Penny was employing, were both not unreasonable under the circumstances.

Indeed, these two men believed it so strongly that they were willing to risk physical injury to themselves as they continued to hold down a demented man with a criminal record as he violently thrashed around. So, argues Banzhaf, following the prosecutor’s legal theory, these two fellow passengers should also be charged with manslaughter and convicted if Penny is found guilty.

Also, unlike with the Eric Garner situation, none of the other passengers were yelling to let him up – which they presumably would have if any of them deemed the restraint not reasonable under the circumstances, and/or unreasonably dangerous to Neely.

Finally, to win any criminal prosecution, the DA must prove beyond a reasonable doubt that the defendant acted with a wrongful criminal intent (scienter). But the undisputed facts that Penny asked other passengers to call the police, and remained (rather than fleeing as Goetz had) once they arrived, certainly shows that he did not act with any criminal intent, and certainly not with a criminal intent to kill Neely.

Indeed, the additional fact that the police did not make an arrest, nor even issue Penny a desk appearance ticket, shows that those who were actually on the scene, and who talked with the other passengers immediately following the incident, certainly thought that Penny’s belief under the circumstances was not an unreasonable one, and that the force which he used was also reasonable under the circumstances as they evaluated it on the scene.

Those who argue that Penny’s use of a neck hold to restrain Neely constituted deadly force are also wrong, says Banzhaf, noting that New York law [§10.00(11)] defines that term narrowly to mean only “physical force which, under the circumstances in which it is used, is readily capable of causing death or other serious physical injury.”

But while a neck hold might in some cases possibly cause death, so also can (and has) the use of Tasers, tear gas, a blow from a police baton or nightstick, throwing a criminal violently resisting arrest to the ground and then landing upon him, or even a punch to the face or body (remember Houdini) – all of which are frequently and lawfully used in self defense as well as in defense of others by both police and by private citizens defending themselves or others.

Also, as anyone who watched judo matches at the Olympics or otherwise has frequently observed, chock holds are taught and regularly used in such matches.

That any of these tactics might in some circumstances cause a death does not mean that they are “readily capable of causing death,” especially “under the circumstances” in which they are used in self defense or defense of others as in this instance.

Indeed, many police and sheriff’s departments still permit the use of neck holds even though police officers also have other so-called non-lethal weapons they could alternatively employ, restraint devices such as handcuffs and/or plastic ties to safely restrain a violent criminal, usually work together in pairs, and can call for backup – all advantages and alternatives which Penny did not have and could not call upon.

Moreover, notes Banzhaf, Penny would still have a strong defense even if a jury were to conclude that a choke hold does constitute “deadly physical force.” Here, according to statements by Penny, and apparently corroborated by other passengers, Neely was expressly threatening to kill others on the subway car; shouting that he was going to kill them, and that he didn’t care if he died.

Thus, in the face of such clear threats to kill others, Penny is entitled under New York State’s § 35.15 to use even deadly force because, in the words of the statute, “the actor reasonably believes that such other person is using or about to use deadly physical force”.

Without handcuffs or plastic ties, how else could Penny, even with the aid of two other passengers, effectively restrain Neely in a swaying subway car as he continued to dementedly thrash around violently, Banzhaf asks.

In a carefully researched piece in the New York Times entitled “A Killing on the F Train,” a well known New York based columnist describes how “about once a week” he encounters on the subway men “actively menacing other passengers” (usually women) to the point where they “make you genuinely afraid that you are about to be assaulted.”

The author, John McWhorter, is a 59-year-old man of large stature in apparently good physical condition. If he, despite these physical attributes, is “genuinely afraid that [he is] about to be assaulted” on the subway “about once a week,” it is easy to understand and believe that it was at least reasonable (i.e., not unreasonable) for Penny, much less the women who were genuinely put in fear by Neely, to be concerned about a mere (but not necessarily harmful) touching, which is all that the law requires for the legal privilege of defense of self or others to apply.

In other words, since McWhorter’s words above appears to be an accurate description of the very real threats all passengers, and especially female ones, face weekly on the subway, Penny’s belief that other passengers were being threatened with at least a physical touching – if not something far more serious – from Neely, and Penny’s decision to utilize a hold frequently used by police and others to restrain someone threatening others, are not unreasonable, and therefore are not only expressly permitted by New York law but also clearly not a serious crime, says Banzhaf.

This also seems to be the overwhelming consensus among many of the public, since they have so far contributed well over $2 million to an online fund page for Penny, and very little for Neely.

A fair minded jury should not find to the contrary, especially not beyond a reasonable doubt, says Banzhaf, and jurors should certainly not seek to punish Penny for whatever failures there might be in governmental actions and inactions which permit violent mentally deranged criminals to regularly ride the subways and put even able bodied men such as McWhorter in legitimate fear of being violently assaulted.

And since many jurors ride the subway and are familiar with individuals who make even large-statured men afraid of being assaulted, almost certainly at least one will and should refuse to vote “guilty” beyond a reasonable doubt – since a conviction would only further discourage even brave men from going to the aid of fellow passengers being threatened by people with major mental problems which manifests itself in irrational violence against others, says Banzhaf.