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PaperclipPerfector  11mo ago (text post)   30977 thread views

Culture War Roundup for the week of May 15, 2023

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Witness to Jordan Neely chokehold death calls Daniel Penny a 'hero'

Whoops, wrong link, not sure how that happened. Lets try again.

Witness to Jordan Neely chokehold death calls Daniel Penny a 'hero'

"He’s a hero," said the passenger, who has lived in New York City more than 50 years.

The witness, who described herself as a woman of color, said it was wrong for Bragg to charge Penny with second-degree manslaughter.

"I’m sitting on a train reading my book, and, all of a sudden, I hear someone spewing this rhetoric. He said, ‘I don’t care if I have to kill an F, I will. I’ll go to jail, I’ll take a bullet,’" recalled the woman, who is in her 60s.

"I’m looking at where we are in the tube, in the sardine can, and I’m like, ‘OK, we’re in between stations. There’s nowhere we can go,’" she said. "The people on that train, we were scared. We were scared for our lives."

Penny stepped in when Neely started using the word "kill" and "bullet."

"Why in the world would you take a bullet? Why? You don’t take a bullet because you’ve snatched something from somebody’s hand. You take a bullet for violence," she added.

Freelance journalist Alberto Vazquez began recording the confrontation after Neely was already in a chokehold and offered a second account of the homeless man’s conduct.

"He started screaming in an aggressive manner," Vazquez told the New York Post. "He said he had no food, he had no drink, that he was tired and doesn’t care if he goes to jail. He started screaming all these things, took off his jacket, a black jacket that he had, and threw it on the ground."

I do wonder if words can do justice with how threatening Neely was being on that train. I'm reminded of the Always Sunny bit about "the implication".

I'm not a lawyer and I've been trying to figure out exactly what the standard is for using force in self defense. I read some FAQ from law firm websites and a lot of the issue comes down to whether the threat is 'imminent'. In clarifying whether a threat is imminent these blogs usually focus on timing. If a guy with a knife says "I'm going to stab you", that is an imminent threat you can defend yourself against. A guy without a knife saying "I'm gonna go get a knife come back here and stab you" does not constitute an imminent threat and you have no right to use force until he actually gets the knife and comes back. I haven't found anything on conditionals like "I don't care if I have to kill a F, I will" where it's not clear what he is about to do, or when he will do it, since we don't know what he 'has' to do.

I'm also not clear what the exact duration on 'imminent' is since most of the examples given involve very obvious immeadiete threats like someone running at another person with a knife or baseball bat. If Neely is issuing general threats and a reasonable person might fear that he will assault someone in the near future, but he hasn't threatened a specific person or moved to begin the act of assault does that constitute an 'imminent' threat?

The best explanation I've seen for non-lawyers is probably from Massad Ayoob: https://youtube.com/watch?v=-j4PS_8R5IE&ab_channel=MrMuscleBilly

This video is long but quite thorough. The specifics of when deadly force is justified start around 27:00. He's being relatively conservative to try to cover as many legal jurisdictions as possible, but given that this is NY it's probably the most legally relevant anyway.

immediate otherwise unavoidable danger of death or grave bodily harm to the innocent.

so, a guy without a knife saying "I'm gonna go get a knife come back here and stab you"

According to this video, to be in the clear in most jurisdictions, you should... just not be there when he comes back.

In the case of Neely... did he have a history of causing grave bodily harm to anyone? The man had... let's see... four alleged assault charges? everything else was trespassing, public urination, disturbing the peace, etc. Is that even enough? If his assaults were impotent does that count as disparity of force? In the situation where he died, he was in a subway with enough other sane people that he was rather outnumbered... everyone else had the force of numbers. This doctrine seems to let you do a lot of dickery before anyone is actually permitted 'deadly force'.

According to this video, to be in the clear in most jurisdictions, you should... just not be there when he comes back.

The way I understand it is that if you want to be as sure as you can in all jurisdictions then yes. It doesn't mean you'll definitely be found guilty if you don't leave. But if you can't leave, as in the subway car, I'm not sure how relevant it is?

In the case of Neely... did he have a history of causing grave bodily harm to anyone?

I don't think his criminal history can generally be admitted as evidence unless Penny or someone else involved knew it. The really relevant facts are "what was he doing in the moment?"

This doctrine seems to let you do a lot of dickery before anyone is actually permitted 'deadly force'.

I mean, yes? I have to admit I'm confused by the statement. We're talking about killing a person, regardless of whether some people think that being mentally hill or on drugs or a petty criminal means you're subhuman. This is very much something we as a society should be taking seriously, and not permitting for minor annoyances or slights.

According to this video, to be in the clear in most jurisdictions, you should... just not be there when he comes back.

No. If he comes back with a knife, then you can use deadly force, because then the risk is imminent.

Yes, but it wasn't unavoidable. Because he told you he was coming back with a knife. Such a case comes up in the video. I mean, I'm sure it varies by jurisdiction but still.

Well, the problem is that the guy in the video is not a lawyer and his statement is wrong under US law. There is no obligation to avoid a place you have the right to be just because someone threatened to kill you if you went there. It is obviously wrong in a stand your ground state, but also in non-stand your ground states like NY, where the duty to retreat is not triggered until the threat is imminent:

The trial judge believed Davis was not entitled to a charge on justification because, by returning to Amsterdam Avenue where he knew Bubblegum was, he violated the statutory duty to retreat. At that moment, Davis was able to retreat with complete safety, simply by leaving the vicinity. The trial judge believed Davis's duty to retreat arose as of that moment, so that his return to Amsterdam Avenue caused a forfeiture of his right to receive a charge on justification.

[However] Under the terms of Section 35.15, the duty to retreat does not arise until the defendant forms a reasonable belief that the other person "is using or about to use deadly physical force." N.Y. Penal Law § 35.15(1). The ruling of the New York Court of Appeals in Y.K., further spelled out that this duty does "not arise until the point at which [the other person's use of] deadly physical force was [actually occurring] or imminent." Y.K., 87 N.Y.2d at 434, 639 N.Y.S.2d 1001, 663 N.E.2d 313.

Davis v. Strack, 270 F. 3d 111 (2nd Circuit 2001)

Note also that that video is ancient; he refers to the Soviet Union, and the guy depicted is now almist 80 years old.

Unfortunately, that was the ruling of a Federal court. New York courts do not consider the rulings of Federal courts (other than the Supreme Court) on state law to be be binding precedent. So notwithstanding the 2nd Circuit ruling, the opposite NY Court of Appeals ruling remains law in New York.

It is following state law, and there is no opposite Court of Appeals precedent: the Y.K. case is from the NY Court of Appeals, ie, from highest NY state court, and was "issued after Davis's trial." 270 F.2d at 116.

Again, as it says, "The ruling of the New York Court of Appeals in Y.K., further spelled out that this duty [to retreat] does "not arise until the point at which [the other person's use of] deadly physical force was [actually occurring] or imminent." Y.K., 87 N.Y.2d at 434, 639 N.Y.S.2d 1001, 663 N.E.2d 313." (Initial bracketed material and emphasis added ).

In one instance he materially injured an old woman. He also appears to have attempted to kidnap a small kid.

This doctrine seems to let you do a lot of dickery before anyone is actually permitted 'deadly force'.

Well yes, that’s the point. ‘Being a dickhead’ isn’t a death sentence whether you’re in Texas or New York, you have to actually present an immediate threat. Obviously there’s a pretty big gray area as to what’s threatening and what’s being a dickhead, and that’s why Florida and New York have extremely different laws about this(in your knife example, a Florida man would be justified in shooting first when the other man returns while a New Yorker probably has to get stabbed).

while a New Yorker probably has to get stabbed

No, certainly not. People v. Hagi, 169 AD 2d 203 (1991) [" it is certainly objectively reasonable to believe that a knife-wielder who threatens to kill poses an imminent threat of unlawful physical force."]

Good luck stopping/restraining a knife-wielder without being stabbed. Guns are functionally illegal in NY so no luck there either.

Good luck stopping/restraining a knife-wielder without being stabbed

Do you not understand that you are agreeing that the law in NY permits you to use deadly force before being stabbed?

Guns are functionally illegal in NY so no luck there either.

Far less so than in the past, yet that did not stop Bernard Goetz from both using a gun in self-defense and being acquitted.

If you have access to absolutely all facts about the incident, having committed assault in the past shouldn't change your opinion. If you don't, you need to consider things like "was he acting threateningly in ways that could be perceived" and someone who has committed assault in the past is more likely to have been acting threateningly this time. It's not like he pushes a button and acts completely normal before he smashes your skull in.

Sure.

Is it different for non-deadly force? Obviously its not Murder if noone dies and not attempted murder without intent.

But if Neely had lived, I'm not clear on whether Penny would have been charged with assault.

I'm mulling over the various perspectives...

There have been posts on Neely in past culture war threads along the lines of "We should be punching disruptive members of society more." there have been even more extreme takes along the lines of "Barbarians are not moral subjects. Kill em." There have been counter-takes that you don't want random citizens playing judge-jury-executioner. There have been takes like "The system should be dealing with this. Neely shouldn't have been on the streets."

More information about the legal realities at play give more texture to these takes.

Re any force, the amount used must be proportionate to the threat that is reasonably believed to exist. People v. Terk, 24 AD 3d 1038 (-NY: Appellate Div., 2005).

But the real issue in this case is probably not going to be the initiation of the use of force, but its nature and length. Penny is charged with second degree manslaughter, which requires recklessness, and in NY " 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."

It obviously does not help him that one guy there warned that he might be killing Neely. And it does not help that two others began helping to restrain Neely; once that happens, arguably the threat posed by Neely is greatly reduced, and hence the need to use a chokehold is greatly reduced. Of course, I don't know how far into the event that happened. But the point is that the legal issues likely to be involved are quite different from the issues being discussed here.

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