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PaperclipPerfector  1yr ago (text post)   30026 thread views

Culture War Roundup for the week of May 8, 2023

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So the legal (and moral) question becomes twofold: Was Penny entitled to use less-than-lethal restraints against Neely? And was Penny Negligent or Reckless in how he applied those restraints?

I think this actually isn't going to be legally an issue. Instead, the state will argue that a chokehold is deadly force, which I believe is established law in New York. But that's a bit of a double-edged sword; having established that a chokehold is deadly force, it becomes much harder (though not impossible) for the state to argue that Neely was reckless in applying it.

If the state chooses to argue that Penny intended to kill Neely, I predict an acquittal.

Well, that's why they're not arguing that. They're arguing that he caused the death by acting recklessly; by putting Neely in a chokehold he ignored a substantial and unjustifiable risk. The problem for Penny is that to get an acquittal he has to argue that the risk was justified, which is a tall order. New York law already recognizes that chokeholds are a form of deadly force, and claiming deadly force was justified is effectively the same as claiming that he would have been justified in shooting Neely on the spot.

They've already not chosen that argument, by charging with 2nd degree manslaughter rather than some form of murder.

having established that a chokehold is deadly force, it becomes much harder (though not impossible) for the state to argue that Neely was reckless in applying it.

If anything, the opposite is true. In New York, under Penal Law 125.15 "A person is guilty of manslaughter in the second degree when: 1. He recklessly causes the death of another person; or ....".

Under Penal Law 15.05, "A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation."

So, IF he used deadly force, that strengthens the argument that he disregarded a substantial and unjustified risk. Of course, he might not have knowingly used deadly force -- eg he was using force which he thought did not carry a risk of death. Or, his use of force might have been justified.

Are all methods of "deadly force" really treated as a single risk category legally? Hard to believe a chokehold would be treated the same as shooting someone with a firearm.

I believe that the key issue is the intent to use deadly force. Eg Calif Criminal Jury Inst 505 says that for self-defense, the defendant must actually believe that deadly force was necessary. If he has that belief it doesn’t matter what form the deadly force takes.

No. You've ignored the most important part, which is "unjustified". If a chokehold is deadly force, then to successfully use the self-defense argument Penny must show that deadly force was justified. But once he's done that, the fact that Neely died doesn't show recklessness.

You've ignored the most important part, which is "unjustified

I literally said, "Or, his use of force might have been justified."

The point is that it is EASIER to prove recklessness if deadly force is used, not harder, as you said. Deadly force obviously carries a greater "risk that such result will occur" -- the result referred to is the "result . . . described by a statute defining an offense[,]" which in the case of manslaughter is the risk of death. Obviously, deadly force carries a greater risk of death than does non-deadly force.

Again, none of this means he is guilty. As I said, "Of course, he might not have knowingly used deadly force -- eg he was using force which he thought did not carry a risk of death. Or, his use of force might have been justified." But it does mean that you were incorrect when you said that arguing that a chokehold is deadly force makes it harder for the DA to secure a manslaughter conviction.

But it does mean that you were incorrect when you said that arguing that a chokehold is deadly force makes it harder for the DA to secure a manslaughter conviction.

What I said is that it is a double-edged sword. If a chokehold is not legally deadly force, and Penny was justified in applying non-deadly physical force, and Neely died as a result, the prosecution can argue that he applied the force in a reckless manner and killed Penny. But if a chokehold IS legally deadly force, and Penny was justified in applying deadly physical force (a higher bar, which is one edge of the sword) then the fact that Neely died as a result of such force is only expected (since it's deadly force), not evidence of recklessness (the other edge of the sword).

There is no double edge. If the People argue that the chokehold was deadly force (note that although there is NY authority that the use of a knife is deadly force as a matter of law, People v Kerley, 154 AD3d 1074, 1075 (2017), I don't see any such authority re chokeholds, though I only looked briefly), then the People have two arguments:

  1. If the jury finds that the chokehold was deadly force, it must convict because Penny was not justified use of deadly force; and

  2. If the jury finds that chokehold was not deadly force, it must nevertheless convict because it was so dangerous that its use constituted recklessness.

If they instead concede that it was not deadly force, then they only have argument #2.

There is no way that Penny is helped by a jury finding that the chokehold was deadly force. The more extreme or dangerous Penny's actions were, the easier it will be for the People to win.

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