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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".

"We were scared for our lives."

No. No reasonable person would be in that situation, and, "survivor" or not, it cheapens our discourse to tolerate such statements with not even gentle push-back.

  • -27

A) The ship sailed on that discourse back in 2020 with covid. Not that I think you are wrong, just that I don't think we could dial it back at this point regardless.

B) I don't think you realise how weak elderly ladies can be. Especially if they have something like osteoporosis or a hip replacement, it can be a challenge for them to lift more than a few pounds, and moving quickly anywhere is right out.

Body language and tone of voice says a lot that text can't convey. Without video we can't judge what was going on in any meaningful way.

Why? Why would no reasonable person fear for their lives?

It seems pretty clear that Neely was a bad dude with a history of violence. While the people on the train likely didn’t know that, violent weirdos give off an aura.

Second his language certainly indicated he was willing to do extreme things.

Third, people read of crazy people like Neely doing crazy dangerous violent things.

When someone says they "feared for their life" I expect there to have been a reasonable chance that they would die. Now I'm at best a middle-of-the-road martial artist, but I'm not a malnourished psychotic either. Compared to Neely I'm a force of nature. In a train car with a dozen people I doubt I could do enough damage to kill someone before being stopped. Maybe? Call it under 10%, fixating on one person with the sole goal of killing.

Now one might contort the phrase to mean "needed to do something to reliably avoid a lethal threat". That might well be the case here, but it's a dangerous equivocation: after all, by that standard one "fears for their life" constantly while driving a car.

  • -29

People are both more resilient and more delicate than you can imagine. You can be pushed and hit your head on the ground in the wrong way, and you're dead.

Dealing with sketchy public transit on a daily basis, my main death fear is getting stabbed, though. I've only seen a crazy threateningly brandish a knife on the bus a couple times, but it's always terrifying. And knives, contrary to popular belief, are every bit as deadly as guns, and pretty much everyone can get a hold of one. Someone who's in a particular mental state can plausibly turn into a threat to your life in a second. (So can sane people, but the threat they pose is always more calculated and directed toward some end e.g. mugging you, which if you don't resist isn't usually a life thread.)

All it takes is a hard to see knife or gun and someone could be dead in seconds.

How do you know he doesn’t have a knife? What if you are an older woman? The dude already punched out a 60+ year old woman. A single punch especially to an older woman could be fatal.

The guy was acting in a very threatening way. He made comments clearly indicating imminent and dangerous violence. He apparently took off his jacket a little before (thereby putting himself in a better situation to carry through on his threat)

Compared to Neely I'm a force of nature. In a train car with a dozen people I doubt I could do enough damage to kill someone before being stopped. Maybe? Call it under 10%, fixating on one person with the sole goal of killing.

Okay but this is the comment you're replying to:

It seems pretty clear that Neely was a bad dude with a history of violence. While the people on the train likely didn’t know that, violent weirdos give off an aura.

Second his language certainly indicated he was willing to do extreme things.

Third, people read of crazy people like Neely doing crazy dangerous violent things.

Bystander effect aside, you can be an MMA fighter and still be paralysed by the fear factor in such circumstances if you've never been in one in the first place. Very important to keep in mind that one is a contained, monitored environment where everyone has to follow the same rules and medical help will be readily available when necessary. One the other hand, a young man raised in the slums of Rio and who had seen stabbings, people being beat to death, etc. and had to fight for himself a few times would still stand a better chance than the big macho guy who does MMA on the weekends if it was an unexpected, deadly encounter. Because he won't be as prone to hesitate or be paralysed with the fear response. And he will be be more prone to reflexively use his environment and to fight hard and dirty instead of trying to follow a mechanistic, paint by numbers system.

[ @The_Nybbler makes similar points ]

To clarify, can you answer 2 questions?

  1. How common are killings in similar circumstances -- a single, unarmed individual kills complete strangers on a modestly crowded bus/train after exhibiting unfocussed threatening behaviour?

  2. In light of your answer to (1), and the unfortunate common presence of disturbed individuals on public transit, how do you estimate the probability that any given passenger (other than Neely) would have died on that trip?

From this side of the screen:

  • I was unable to find any examples in a brief search -- plenty of cases of group violence, armed killings, or direct person-to-person conflicts, but none resembling the facts at hand. Presumably it's happened -- just due to the huge numbers of encounters.

  • Given that I can't find any examples, and that this type of thing must happen thousands of times a year, I'll put the individual death probability at < 0.01%.

If you can get a better handle on (1), then I'm happy to update.

I'm not sure I follow. Perhaps I'm misreading your post and if so, apologies in advance.

Are you asking whether it's rational for one to fear for their life given the stats that show how many civies actually die in these situations? It's a hostile scenario, you're in a crowded train where everyone could very well go into panic mode and make your ability to maneuver that much harder. Even if you remember the stats at the face of your fight or flight instinct, that's no guarantee that things won't escalate to fatal proportions in this situation. A crazy person going crazy in the middle of a crowd is not being rational, so if you don't already have any experience subduing crazies amidst a crowd, odds are you'd act irrationally too just to save yourself.

People have fears disproportionate to actual threats all the time. For example, some people won't go to the beach because they're convinced sharks will eat them. And when they're reported to fear for their life when a wave breaks over their feet, we acknowledge that, but with a footnote that the fear is irrational, and sharks aren't really a danger of much magnitude in that situation.

There is an urgent societal need to (as much as possible) ground such feelings in reality, in part because mortal danger justifies a lot of otherwise forbidden behavior. One's dog phobia, for example, does not justify shooting your neighbor's pet when it barks.

People have fears disproportionate to actual threats all the time. For example, some people won't go to the beach because they're convinced sharks will eat them. And when they're reported to fear for their life when a wave breaks over their feet, we acknowledge that, but with a footnote that the fear is irrational, and sharks aren't really a danger of much magnitude in that situation.

There is an urgent societal need to (as much as possible) ground such feelings in reality, in part because mortal danger justifies a lot of otherwise forbidden behavior. One's dog phobia, for example, does not justify shooting your neighbor's pet when it barks.

Exactly, and this is why traditional common law construct of "reasonable man" exists.

If you end before a court worthy of this name, judge and jury would not ask: "were you afraid" but "would reasonable man in this situation be afraid of death or great bodily harm?"

They usually do the killing in the station, where it's easier because they can just push people onto the tracks. On the train its harder to successfully kill someone.

I'm unsure if this framing illuminates much. If I, without your consent and neither any pressing need nor benefit to you or anyone else, performed a procedure on your house that gives it a <0.01% p.a. chance of spontaneously collapsing the tiny probability of something happening in your lifetime would not be a convincing defence. That the risk is small doesn't matter when there is no reason why anyone should tolerate being exposed to it in the first place, which is a significant difference to things like driving which you brought up in the post above.

That the risk is small doesn't matter when there is no reason why anyone should tolerate being exposed to it in the first place

Agreed. My issue is with the casual use of "fearing for ones life", which cheapens and reduces our ability to del with what should be very serious issues. In the case at hand, it seems reasonable for the passengers to have restrained Neely, as some violence was arguably reasonably anticipated from him. Shooting him, for example, would not have been justified though, and we should, IMO, calibrate our language to maintain respect for human life.

I don't understand your objection. "Calibrating our language to maintain respect for human life" is exactly why "fearing for your life" is such a powerful argument these days.

More comments

What about "fearing for one's life or grievous bodily harm"? Would that make any difference? Pointing out that only so many people are actually killed by such criminals misses the point.

More comments

I’m surprised you couldn’t find any, I think some twenty-five people got pushed onto tracks in NYC last year with several casualties. There was also the widely publicized mass shooting last spring, which somehow everyone survived but is exactly the kind of “unstable person trying to kill people” story that sticks in people’s head.

Odds are still very low, but normal people don’t pull out the calculator and reason probabilistically when a crazy person starts yelling at them. Being trapped in an enclosed space with an aggressive, unstable person is pretty scary for most people, especially if they haven’t had years of exposure to combat situations like yourself.

Now I'm at best a middle-of-the-road martial artist, but I'm not a malnourished psychotic either. Compared to Neely I'm a force of nature.

No, a malnourished psychotic is closer to a force of nature. No inhibitions.

In a train car with a dozen people I doubt I could do enough damage to kill someone before being stopped. Maybe? Call it under 10%, fixating on one person with the sole goal of killing.

OK, now suppose no one's trying to stop you except the victim, and you get to choose the victim. Because if no one being reasonably in fear of their life precludes physical defense of others, then you shouldn't be including others stepping in when you're deciding if such fear is reasonable.

Agree. people think that bigger means stronger or better fighter. Outside of weight classes in which skill is controlled for, this is hardly true. Someone enraged and on drugs can have considerable strength, way more than suggested by appearance alone . Studies show considerable variance of grip strength for males even controlling for weight, with many smaller, lighter guys having more grip strength than bigger, heavier guys. It's also unlikely he was actually malnourished or even hungry. Someone who has been professionally homeless for a decade cannot find a foodbank?

No, a malnourished psychotic is closer to a force of nature. No inhibitions.

Hollywood has lied to you. Inhibitions don't mean shit against 90 lbs and a full caloric load.

Meth, on the other hand...

Actual meth isn't out of the question when faced with any given malnourished psychotic, but I think "crazy" can have similar effects.

I mean, yeah, usually it boils down to either "hysterical strength", "ignores pain", or both, and in both cases it's a mental phenomenon that can be achieved without drugs (indeed, the former is literally named after hysteria often producing it).

Not sure whether it's in play here, but practice being in pain (e.g. self-harm, possibly also long-term injection drug use) also increases pain tolerance to unusual levels (permanently?).

In my experience it absolutely has the same effects. Crack psychosis or regular psychosis, people who have lost touch with reality can do amazing and terrible things, things that don't seem humanly possible - that make you start to wonder if they even are human any more, haunting you for the rest of your life. Drug psychosis is usually where you see guys peeling skin off their face, because the drugs affect your nervous system more than sheer determination, but sometimes determination is enough.

For all they knew he could have had a gun or a knife.

Yeah. Knife/gun potential far bigger consideration than anything to do with his bare hands, IMO.

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.

This is a tough one where more video would help immensely. In the absence of more video, the pro-Penny side might beclown themselves by doing the same thing that a bunch of leftists did with Rittenhouse and hallucinate, when imagining the event, things that did not actually happen.

The people who are convinced that Penny was in the right without having a lot of information about what actually happened somewhat remind me of those who think that it was justified for people to attack Rittenhouse because he was allegedly being dangerous and intimidating by carrying a rifle around at the riot, or because "what if he was a right-wing mass shooter or something?".

If we had video, we would be able to see whether Neely had made any overt violent moves towards anyone before Penny took action, or whether Neely was just ranting but was not actually in the process of attacking someone when Penny took action.

I think here is the key: some witnesses report that Neely was throwing trash at people. If that was actually the case, then I think that it was reasonable for Penny or anyone else to attempt to restrain Neely. If Neely was just ranting and threw nothing, then I am not so sure. This is all aside from the other question of whether Penny's particular method of restraint was reasonable.

I think that the people who take Penny's side because of the alleged trash throwing make sense. However, I notice that many commentators do not refer to the alleged trash throwing or any other alleged overt violent act by Neely, they just act as if it would obviously be reasonable for someone to put Neely in a chokehold even if Neely had done nothing other than rant about violence. And that, to me, is a lot more questionable, since if Neely was just ranting then there are many stages of escalation that an onlooker could have taken between "do nothing" and "chokehold". For example, Penny could have just walked a little bit towards Neely and made it clear with his body language and words that he was ready to intervene if Neely did anything.

For all I know, maybe Penny did do just that.

To sum up, yeah if Neely was throwing trash then I think Penny trying to restrain him was reasonable. If Neely was just ranting then I think Penny trying to restrain him was probably not reasonable.

A bunch of people on the two main sides of the culture war have whipped themselves up into a frenzy about this event, but I think that surely there is some room for nuance here.

Some people might think that I am being naive, but I have been in a number of violent incidents as a participant and a number of others as an onlooker. I have encountered crazy ranting people, I have encountered crazy ranting violent people, I have been mugged, I have been in street fights, I have been at riots. So I hope that people do not take this as pure armchair theorizing.

I'm inclined by my side of the culture war to be on Penny's side. I think in this case it's pretty strongly supported by the facts. The facts I'm aware of that make me think he acted reasonably are:

  • At least 2 other people assisted him in holding Neely down

  • Nobody is known to have tried to comment or intervene on Neely's behalf at the scene

  • At least one other person, as quoted in the article, also says she thought Penny and the other riders' restraint of Neely was reasonable and necessary

  • Neely did not die at the scene and was moving after he was released - his death happened later as the result of various complications from the incident

An important background fact is that the mainstream media and the activist/protester community is all-in hard on the pro-Neely side. Therefore, anyone who was at the scene speaking out on Penny's side is risking doxxing, social media censure, career issues, harassment, etc. Anyone speaking on Neely's side would be swooned over. Therefore, the fact that at least one other person who was at the scene has come forward on the pro-Penny side, even if anonymously, and nobody has come forward on the Neely side is telling.

I would be open to changing my mind if the facts I cited turn out to be wrong. If it turns out that Penny did infact keep him in a chokehold for multiple minutes after he stopped moving, that would be pretty significant. Or if it turns out that the people helping were Penny's buddies and there were several other bystanders telling them they should let him go.

Ultimately, none of us were on that train, and without good video of exactly what Neely was doing beforehand, it's impossible to judge whether he really did seem sufficiently dangerous to require physical restraint. If all of the people who were there judged that it was necessary, then I think it's best to go with their opinions. I live in NYC myself and take the train regularly. I've seen several people acting pretty nuts. It seems plausible to me that maybe 1 in 100 of them are actually violent enough to justify this.

The thing that I'm wondering about is why put Neely into a chokehold? There were multiple people there trying to restrain Neely, couldn't they just pin him to the ground until the cops come pick him up?

It's really, really hard to pin down a grown man in a way that he can't get out, hit you, kick you, bite you, etc., without hurting him.

You need a lot of dudes to do it. Three is too few. You want six to eight guys. It’s best if they’re not scrawny office workers, but they don’t need to be built like the Rock.

If Neely was just ranting then I think Penny trying to restrain him was probably not reasonable.

Composed armed dudes are dangerous but not scary.

The thing with raging mentally ill hobos are that they are unpredictable and could turn violent for anything and everything in any given moment. That makes them scary.

and hallucinate, when imagining the event, things that did not actually happen

Not to call anyone out, but this community in particular had egregious problems with this when discussing the murder of Ahmaud Arbery. Some people would start describing the situation and then add in a larger fictional context that would justify shooting a burglar.

I wasn't around when Arbery was a live issue, but the hallucination seemed to be limited to the non-traditional-conservative Trump-supporting circles of mine.

The hard core rightwingers pegged them as going down for murder 1 first day, so it is a bit odd that this place went for the weirdo side of it.

Frankly no one knows the full history re Arbery. I remain convinced Arbery was a criminal and the McMichals acted like idiots.

"Jogger" briefly became a meme! Just saying it feels cringe, but "both sides" love to claim that obviously the most recent CW incident fits neatly into my political claims and if you even doubted otherwise for a moment you're dumb / don't get it / are a useful idiot. But there's an awful lot of contingency and idiosyncratic attributes of individuals and situations that go into something like a homicide, that don't necessarily have anything to do with (black) or (racism). (And conversely, this means indexing too much on individual media incidents is a mistake, even if the last three big rape accusations were [true/false] it's still possible about half are [false/true]).

Not to call anyone out, but this community in particular had egregious problems with this when discussing the murder of Ahmaud Arbery.

This community has egregious problems with it in any fraught story, because it's a very human thing to do. It's just the game of telephone: people hear something and misinterpret it, don't realize they have, and continue to argue based on the misconception.

Although I agree with your point, this community has a specific mission not to do that. So "everyone else does it too" isn't an excuse.

Sure, but it takes the sting out of

this community in particular had egregious problems with this

When in fact it's a general problem and not particular to this community.

Yeah I don't think this interview added much evidence other than that other people on the car were scared. The fact that she brought up him throwing his jacket and not any other instance of trash throwing may suggest he wasn't throwing anything particularly injurious.

To me, stripping out of a jacket/shirt is prototypical "I am posturing and about to throw fists" behavior.

In normal conflict situations, the two are mutually contradictory. Someone who is actually planning to attack just does it. Someone who is making a real threat to attack unless you to submit just does that. Someone who is noisily posturing about their willingness to start a fight isn't "about to throw fists" unless someone else accepts the challenge.

  • -14

I have literally seen people take off their jacket and then start punching the other person in a fight. Granted, this was in high school, but that's also the last time I really seriously interacted with the bottom quarter of the population.

Did he take off his jacket and start punching, or did he take off his jacket, engage in a long rant about how he was going to kick ass, and then start punching. I am claiming that the second version (nonspecific ranting followed by violence) is rare.

Someone who is noisily posturing about their willingness to start a fight isn't "about to throw fists" unless someone else accepts the challenge.

Except that things like "failing to immediately obey him" may be taken as accepting the challenge.

Like past controversial cases of a similar nature, the full video does not exist to the public. Just short clips online. I am sure the New York City Transit Authority (NYCTA) has the full recording, from the start to finish of the altercation. The jury has more information than the public which is sometimes why the former may depart from the latter in terms of sentiment or opinion.

Most subway cars do not have cameras.

If we can reasonably expect every police officer to carry a body camera on duty in 2023, we could absolutely put a camera on every subway car. A little searching suggests that every car in the Tokyo subway has had cameras since at least 2020. Like the body cameras, at some point it becomes an obvious choice to not provide surveillance, although it's not completely obvious to me that 2023 is that point.

We can't expect either in NYC.

The NYPD claims that its rollout of body cameras to "all Police Officers, Detectives, Sergeants and Lieutenants regularly assigned to perform patrol duties throughout the city" was completed in August 2019, for a total of around 24,000 cameras. There are approximately 6400 subway cars in NYC.

The MTA is chronically mismanaged. Even if they make the decision to roll out the cameras, there's always going to be some little thing preventing the project from actually being completed. At best, it will be completed within several years.

Any analysis of how something feasible is should not assume the best or even reasonable humans will be implementing it. It needs to take into account the actual humans who will do it. And the actual humans here are far, far below anyone's standards.

It is possible that they have the full recording. However, I know from other cases that it is also not unlikely that whatever cameras were mounted on the subway car were broken. It is possible that there is a full recording from such a camera, and it is also possible that there are more videos that were taken by onlookers with their phones but which we have not seen so far.

This should help him at trial right? It's going to be real hard to argue that he didn't have a case for self-defense when a third party in the same specific circumstance will be ready to testify that she was fearing for her life.

Someone fearing for her life would not be enough because people fear for their lives for all kinds of reasons. It would have to be a reasonable fear for her life.

Deranged person in confined space makes deadly threats surely qualifies especially with the specifics that Penny only acted after Neely used "kill" and "bullet".

Well, he is charged with involuntary manslaughter. So whether he had the right to act in self-defense at all is really not the major issue. The issue is whether he used too much force, whether he continued using force after the danger had abated, etc.

it depends. the plaintiff can bring their own witnesses too

I do wonder if words can do justice with how threatening Neely was being on that train.

Probably doesn't matter that much for general conversations. I'm sure it'll matter legally, but when we're having the ethical discussion about it, it's going to just keep coming back to some people thinking that you shouldn't ever get violent with a belligerent vagrant that has not yet initiated any physical force and others not caring what happens to belligerent vagrants. This probably isn't a bridgeable divide and most of the nuance is intellectual window-dressing. Yes, it would be best if the person doing the restraining exercise somewhat more caution than choking a guy to death. Yes, it's also true that restraining someone will not be completely safe for the restrainee, particularly when they're likely high as a kite and experiencing excited delirium. Neither of those points really moves the needle from people's gut responses.

belligerent vagrant that has not yet initiated any physical force

"Belligerent" essentially means "threatening to initiate physical force".

I think it is likely that the Internet disproportionately represents people who look on the matter without nuance because such people are the most likely to write commentary about it. I would like to think that in reality, there is a large number of people who can think about the matter in a nuanced way. I can, and I can easily think of a number of people whom I know in person who also could.

"Nuance" in this case is a trick. It's a way to map a yes-or-no, guilty or not-guilty question onto a spectrum such that "guilty" is all but one of the endpoints and "not guilty" is the excluded endpoint. Then demand no one take the endpoint positions because they're not nuanced. Then all the acceptable positions get to map back to "guilty".

That is, once you're talking about "nuance", you've decided Penny is guilty and you're only talking about his level of guilt.

No, when I say nuance I mean actual nuance, not what you are talking about.

I can think about this matter with actual nuance, and I am sure that several people I know in real life also can.

I can imagine more information coming in about what happened and, based on that information, deciding that Penny is not guilty of anything at all. That is, I have not ruled out deciding that Penny is guilty of nothing. Based on the information I have seen so far I think it is likely that he is at least slightly guilty in the sense of being guility of using too much force, but I can imagine more information changing my mind about that.

The position described by The_Nybbler accounts for your type of "actual nuance".

To put my spin on it, I think it's important to recognize ones own biases and contextualize ones own thinking process. That doesn't mean our views and opinions stop being relevant or valuable, as much as they ever were. In fact, recognizing what we think and how we likely came to think it changes very little.

But on the flipside, recognizing that our minds are, most of the time, just playing third rate magician parlor tricks does wonders to help oneself realize that we are in fact not bending the laws of physics and we can in fact not read minds. We knew the card drawn was going to be the ace of spades because every card in the deck was the ace of spades because we, at some point, through whatever process, chose that deck to perform with.

To put that in context, here's your deck:

I think here is the key: some witnesses report that Neely was throwing trash at people. If that was actually the case, then I think that it was reasonable for Penny or anyone else to attempt to restrain Neely. If Neely was just ranting and threw nothing, then I am not so sure. This is all aside from the other question of whether Penny's particular method of restraint was reasonable.

The parameters of your 'nuance' are not accidental. They are not tethered to some objective metric linked to the fabric of reality. They are chosen by you. Now why did you choose them? Do you think it is likely Neely was throwing trash at people? I don't.

It should matter, though. As @Rov_Scam pointed out in a previous thread on this topic, you really do not want to encourage people to be very loose with their standards when it comes to applying violence to another person. It certainly can be difficult to summon lots of sympathy for the average person making a disturbance on the train, but that's missing the point. The kind of person who will aggressively (aggressively as the opposite of "conservatively" here, not in the sense of being the aggressor necessarily) use deadly physical force will likely not limit themselves to people that you personally find distasteful. Offend them on the road by cutting them off? They might take it on themselves to play cop and run you off the road. Take part in a protest they disagree with? Maybe they'll start a fight. Get into an argument at a bar? They might leave to retrieve a weapon, or wait for you outside.

To be clear, I'm not accusing Penny of being this type of person. I have no basis on which to make that particular determination. He might have just made an error in judgement (or he could even have acted in the right--I think this is unlikely, given the witness statements I've read, which don't seem to actually include any actions that Neely took that would constitute a serious threat to human life, but they could be incomplete or wrong). But the use of violence by civilians against other civilians has to be based on high and objective standards, rather than how we feel about the people involved.

I’m totally with you most of the way, but I think you’d want to make sure that the person is legally able to defend themselves while it’s still actually possible to do so successfully. If I have to wait for the burglar in my house to hold a gun to my head before I’m legally allowed to do anything to defend myself, in essence, I don’t have any right to defend myself, because I can only do so once it’s really too late. And I think this would lead to people simply ignoring the laws as they exist. If I’m going to jail unless I let the guy put a gun to my temple, there’s no benefit to restraint. If I shoot him in my driveway or once he comes in or when he starts to threaten me, I still go to jail. So why not go for broke here? Why not waste them in the driveway? With a reasonable self defense law, there’s a reason to not be hasty because while being hasty will probably send you to jail, there’s a point before he pulls the gun where I’m allowed to defend myself without the state’s goons coming after me.

I agree; I linked a video in another comment which goes into detail on the conditions that permit deadly force in self-defense. It includes, among other examples, a description of how drawing a gun, aiming, and firing can take substantially more time than charging at someone with a knife, even from a distance where the casual observer would look and say "that seems safe." My main point is that these standards have to depend on what the person involved actually did and could do in the moment, and that those actions have to reach an objective standard of threat. They cannot be based on someone's personal distaste, or on guesswork, or on the behavior of other people who might be similar, or on an immediate emotional reaction that is not grounded in reality.

those actions have to reach an objective standard of threat

The level of threat they have to reach is sometimes called "objective", but it's more of a "common knowledge" thing than an "objective fact" thing. The test is whether a reasonable person in that situation would believe unlawful physical force (or deadly physical force) was being used or was imminently going to be used. This absolutely allows for guesswork, consideration of the behavior for other people who might be similar, and even immediate emotional reactions provided a "reasonable person" would have similar ones.

Yes, it would be best if the person doing the restraining exercise somewhat more caution than choking a guy to death.

Was Neely choked to death? I was watching Tim Pool and he remarked that Neely was alive and unconscious when police arrived. I wonder if that was him talking out of his ass, then I looked it up more. From Time

When officers arrived on the scene, Neely was unconscious. He was transported to the hospital where he later died, according to the New York Police Department.

I looked and I looked and I looked, and I found no account arguing this fact. Penny did not choke Neely to death. Penny choked Neely unconscious, and he then later died.

people thinking that you shouldn't ever get violent with a belligerent vagrant that has not yet initiated any physical force

I mean, if the media keeps framing what happened in a deceitful way, and people never learn how menacing and threatening Neely was, literally threatening and in saying he will kill someone, than yeah sure. But this is an artifact of a lying media for most NPCs who have a received opinion on this topic. I doubt many people's priors are that someone can literally threaten to kill you, give every indication that they intend to kill you, and you must wait to be dead before you are allowed to do anything about it.

Was Neely choked to death?

...

Penny choked Neely unconscious, and he then later died.

This seems a bit like saying that someone wasn't stabbed to death, just stabbed until they collapsed from blood loss, after which they later died. Yeah, if you choke someone unconscious and they proceed to never wake up, they were choked to death. I don't give a shit about Neely, I'm on the side that assumes Penny was a good Samaritan that had no intention of doing any harm beyond restraining the violent lunatic that was threatening people, but I also don't really see what I'm getting from the distinction above.

I'm not that knowledgeable about physiology, but what would cause someone to die after being choked?

Dying after being stabbed is obviously blood loss, dying while being choked is bloodflow restriction/breath loss, but I can't see what would cause death after the choking stops.

If you are choked, you will stop breathing, and if you stop breathing for a duration, you will suffer brain damage. If your breathing does not restart, you die. It may have been that after the choke ended, Neely was too brain damaged to be resuscitated, which makes sense since most accounts indicate he was choked for a pretty long period of time (10 mins, definitely enough to kill someone).

Drugs in the system. Having a weak heart that gives out from the struggle. Either because of a defect, or some sort of systemic damage. Both, as habitual drug abuse often damages the heart.

Reading about the scant number of MMA fatalities actually revealed a lot of those fatalities were people with a undiagnosed heart condition who died in their first or second match.

Also brain bleeds, and organ failure brought on by dehydration.

Unlike stabbing, choking is a continuous action. If you choke someone out, the expectation is that they will start to recover once they're released. "Choking someone to death" is generally expected to mean holding the choke until they're dead.

So if Penny choked Neely out, but released him before he died, that makes the excessive force and negligence claims much weaker. It certainly sinks any accusations of intent.

If he had punched him out, then he hit his head on the ground when falling and died, "beat him to death" could be said to be technically true, but wouldn't exactly give an audience an accurate picture of what happened.

Strangling is continuous, choking isn't (from a wrestling perspective).

A choke has a defined end; which is a tap, unconsciousness, or death. A choke leads to unconsciousness somewhere between 5 and 15 seconds (shit is faster than you think; once it is locked in.) and brain damage/ death in 1 - 5 mins. Assuming that this was a shitty armature choke as from a guy that had a couple months of light combatives once; it is still pretty murder-y.

Any choke that is held for more than 10 minutes is as excessive as shooting a dude 7 times that reloading and giving him another 7.

Given that he surrendered himself and doesn't seem to have intended to kill the dude, manslaughter seems about right.

Strangling is continuous, choking isn't (from a wrestling perspective).

A choke has a defined end; which is a tap, unconsciousness, or death.

No, a choke ends when it's released, which can be at any time. What happens afterwards isn't part of the choke.

A choke leads to unconsciousness somewhere between 5 and 15 seconds

That clearly didn't happen here though. Neely was fighting back for much longer.

Holding a choke for 10 minutes isn't excessive if the target is still fighting back at 9:50, just like shooting someone 14 times isn't excessive if the first 13 miss.

No, I mean that a choke physiologically CANNOT last longer than about 5-15 seconds. If you have a choke on someone and they are still struggling after that long, it is either autonomic flailing and their brain is about to die or you are actually strangling them.

Basically, there are two levels here. One is there is no safe way to squeeze someone's throat; which is fine. It's not supposed to be safe, it's supposed to be effective.

Two is if you squeeze someone's throat for more than the x amount of time (which is quite short actually), it is +/- equivalent to shooting them in the chest or stabbing them.

This is actually why I think that if anyone puts their hands on you in the street you are fully justified in killing them instantly: the human animal can live through ridiculous punishment then die because throat squeeze ouch.

All this is going waaaaaaaaaaaaay off track from what I started reeeeeing about though; that being that manslaughter charges are appropriate for someone that does something that commonly results in death without premediating or intending to kill the other dude.

No, I mean that a choke physiologically CANNOT last longer than about 5-15 seconds. If you have a choke on someone and they are still struggling after that long, it is either autonomic flailing and their brain is about to die or you are actually strangling them.

  1. "Choke" has been used, by me and the people I responded to, to mean "the act of choking someone". You can, physiologically, very easily hold a choke on someone who is already dead.

  2. If your point is the distinction between choking and strangling, that's just a terminology nitpick.

  3. I'm pretty sure you actually got it mixed up. Wikipedia:

"A chokehold [or] choke […] is a general term for a grappling hold that critically reduces or prevents either air (choking) or blood (strangling) from passing through the neck of an opponent."

Two is if you squeeze someone's throat for more than the x amount of time (which is quite short actually), it is +/- equivalent to shooting them in the chest or stabbing them.

But there isn't an "x amount of time". Even when properly applied, you yourself give ranges of time, but when not (as clearly the case with Penny and Neely) it can take much longer. And you typically have the warning of unconciousness before lasting damage. The proper thing to do is to release the choke on that, not after a countdown regardless of whether he's weakly twitching or trying to gouge your eyes out.

All this is going waaaaaaaaaaaaay off track from what I started reeeeeing about though; that being that manslaughter charges are appropriate for someone that does something that commonly results in death without premediating or intending to kill the other dude.

The "something that commonly results in death" is "keep holding the choke after unconciousness". You don't expect choking someone just until they stop resisting to result in death, regardless of how long it took.

More comments

Neely clearly was NOT unconscious within 5 to 15 seconds, so all the rest of your reasoning does not follow.

'cause he was getting strangled, which is impossible to do safely. Even a short strangulation routinely fucks your neck up such that you die without medical care.

So, either he was choking him in such a way he would certainly die, or he was strangling the dude (which is also bad, and also ends in death if you hold it for 10+ mins.)

If you're using "strangle" to refer to cutting off air rather than blood, then yes, it is likely that is what was happening. And no, he probably didn't hold it for 10+ minutes; it's not that long between the stations in question.

agree. I am not sure this distinction matters . Neely would otherwise be alive if not for the altercation. Maybe Penny's team can argue that the force was not excessive, because Neely died later.

This is a terrible take, that wipes away intent, reasonable expectations of the outcome of the altercation, and is just pure dystopian strict liability. It erases all differences between tazing someone, shooting someone, pepper spraying someone, holding someone, or even just yelling at someone with a frail heart. Did you take any sort of action in the direction of someone who died? Not sure the distinction about what you did really matters.

If I have a rare genetic condition that makes my head as frail as an eggshell. And if someone punches me causing my skull to break and killing me. That person is a murderer. "But they didn't mean to," okay, so some manner of manslaughterer according to their state laws.

No. The eggshell skull rule is for civil law. In criminal law, if they punch you not intending to kill you, but do kill you, that's likely voluntary manslaughter, or what New York calls First Degree Manslaughter. It might not even be a crime at all, if the punch would not have been expected to cause serious physical injury.

Even in civil law, the eggshell skull rule is also only supposed to apply to damages; if there is no negligence there is no responsibility and thus no damages regardless of the plaintiff's skull state. In practice courts will draw the inference that there was negligence from the amount of damage caused (ignoring the plaintiff's hidden frailty), then apply the eggshell skull rule to award full damages, but that's because the courts are utterly broken.

Well, largely that people get choked out, live on TV, all the damned time, and after consulting this list, none have ever died of it. So I would consider it categorically different than knifing someone.

I actually think MMA has given people are a false impression of the safety of chokes and that's probably part of what results in situations like Neely or Eric Gardner. Yes, people can be blood-choked and then quickly released without suffering long-term consequences. This is much safer if both participants are on the same page about the stopping point, are highly practiced and technically versed in the practice, are following a ruleset that mitigates lethal risk, and have an official to mediate and end the match as soon as someone is no longer capable of defending themselves. In real life, trying to control a flailing crackhead doesn't include a guy that's going to inform you that the crackhead's continued movements are autonomic and you need to release him. You may or may not know what you're doing and wind up crushing a windpipe. The crackhead may die from a combination of the physical stress and the massive quantity of drugs they've taken. But if you've watched some UFC and rolled a couple times, you kind of get the impression that this is completely safe rather than just less-lethal than other reliable means of incapacitation.

Yeah, and/or a false impression of the franticness and stakes when grappling outside of controlled conditions like in the octagon or in the gym, especially with a wild hobo.

MMA fighters often make it look so calm when they're grappling, as both the choked and choker are trying to conserve as much energy as possible while looking for subtle repositionings or the next opportunity. The stakes are also relatively low; if you have your opponent in a choke-hold but fail to choke him out, maybe you can just choke or knock him out later, maybe it goes to a decision. Worse comes to worse he later makes you tap, or chokes or knocks you out, but it's just another day at the office.

In contrast grappling a wild hobo is much more frantic, like a desperate fight for a knife in the mud. "Crackhead strength" used to be a common phrase. The stakes are much higher if you release your opponent before you're absolutely sure he's out, as he could do anything ranging from biting to stabbing you, or both. While his opponent was not a hobo, and "just" a home invader likely high on drugs, UFC Light Heavyweight Anthony Smith described how terrifying and difficult it can be trying to fight a deranged opponent, even a much-smaller one (albeit with high school wrestling experience): "No normal human is able to fight like that," Smith said. "I'm by no means the baddest dude on the planet. But he's a regular Joe and I had a hard time dealing with him. And he took everything that I gave him—every punch, every knee, every elbow. He took every single one of them and kept fighting me."

I'd much rather get into a street grappling match with a professional or ex-pro MMA fighter than a hobo. While my chances of winning are much lower with a professional MMA fighter (obviously), the downside of losing to a hobo is that you have no idea what he might do to you given an advantageous position—whereas a lot of pro-MMA fighters are quite merciful in street fights (e.g., Matt Serra and Ryan Hall) and most importantly, likely smell better (for example, Luke Rockhold was literally the figurative face of Polo Blue). It would seriously suck, though, if one got into an altercation with someone who sits at the intersection between ex-pro MMA fighter and wild hobo, like Krazy Horse Bennett.

both participants are on the same page about the stopping point

Yep. A lot of guys are going to tap as soon as they realize that they're blacking out or can't offer any more meaningful resistance against their opponent. That eliminates a lot of the danger right there.

Mike Cernovich made a similar point. MMA fighters tap out , newbs flail around

I mean. I've only dabbled in martial arts as a teenager. I might've earned a stripe or two on my white belt; I'm no badass martial artist. I've been choked out a few times doing BJJ. I was 5'6" and 130, and most of the guys were bigger and stronger. But when you get choked out by someone who knows what they're doing, you black out and go limp. After that, the other guy lets you go.

This was a case of a wild dude against a guy who didn't really know what he was doing. Also, three guys is kind of too few to restrain a man like that without risking seriously injuring or killing the other guy...when I was on the psych ER we generally wanted the ratio to be more like six or eight to one.

The crackhead may die from a combination of the physical stress and the massive quantity of drugs they've taken.

Well that's just on them and their poor life choices. But even given the rest, what is the better option? What possible better option was there, aside from let Neely act on his threat to kill someone? And if that is the only choice being offered, then yeah, I default to

not caring what happens to belligerent vagrants

So I guess congratulations on boxing me into your false dichotomy.

Dude, I'm the one that doesn't care what happens to the vagrant. I flatly do not care that he fucked around and found out. I don't think the guy that killed him did so intentionally. I wish more people would behave like the Marine in the story. The only thing I'm arguing with you is the chain of causality wherein I'm pretty sure Neely wouldn't be dead if he hadn't been choked.

Isn't anyone who follows through on this just feeding the monster? Poke the dog, dog fear-bites, that's your excuse to shoot the dog.

If a dozen innocent homeless people, including four blacks, were randomly shot by white people who espoused the above rhetoric, that'd push back the mood shift doglatine described above.

Agree. Behavior and individuals who inflict negative externalities on all, is tolerated too much as it is.

I hope this isn't just the tip of the iceberg: if this is a significant, sustained problem (upstanding citizens being menaced by psychotic homeless people, with police unable or unwilling to stop it) it seems reasonably likely that these individuals will be taken care of. At best, they would be strongly encouraged to leave town. This sort of thing is how you get mafias and an erosion of the legitimacy of the rule of law.

I hope we are least get a good remake of the Death Wish films if we get another round of chaos.

More likely you get another wave of overcorrecting tough on crime bills and a trail of political careers ruined by the latest version of Willie Horton.

As Battlestar Galactica tells us:"all of this has happened before and will happen again"

The careers of politicians shouldn't have been ruined by William Hortons furlough?

The tough on crime bills weren't an overcorrection. They were responsible for the huge decrease in violent crime we saw in the 1990s and 2000s. Likewise, our current crime wave is caused by prosecution becoming far too lenient again.

Segregating violent criminals from the population is really the only effective way to reduce violent crime.

People concerned about the rights of violent criminals should lobby for better prison conditions, not for letting them loose onto the streets to prey on the rest of the population.

A central lesson of the Holocaust is: "When someone says they want to kill you, believe them." --- Elie Wiesel

Elie Wiesel on intentionally lying and inflating Holocaust deaths:

"Sometimes you need to do that to get the results for things you think are essential."

On a related note, Germany Must Perish!

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