A question that all good Samaritans should consider is whether they would intervene if a threat were to arise.

By now, most people who follow popular news channels have learned about the indictment of 24-year-old Daniel Penny, for second-degree manslaughter by a Manhattan grand jury. The case centers around Penny, who asserts he was coming to the aid of fellow subway passengers when an allegedly homeless man, 30-year-old Jordan Neely, started acting erratically and threatening passengers.

Penny determined Neely was indeed a threat to himself and passengers in the car, and as he was not carrying a weapon, tackled and physically restrained him. Unfortunately, in order to restrain Neely, Penny wrapped his left arm around Neely’s chin and neck, while other passengers on the train tried to restrain his legs and arms.

The struggle took several minutes, eventually ending when Neely stopped struggling while being restrained. Neely then stopped breathing and subsequently died. Video clips of the struggle are online, but it’s challenging to find the entire video … most are just a few seconds of Penny with his arm around Neely’s neck and chin.

Mainstream media news outlets all say Neely died from a choke hold, but from what I saw when I watched the video, it looked like neither Neely’s air flow was being cut off nor the blood flow to the brain. The autopsy report hasn’t been released, so we don’t know the medical reason for Neely’s death yet.

Paramount to Penny’s defense will be the training he received in the Marine Corp and any other training he received in hand-to-hand combat. If he can show that he had training in controlling combative subjects by controlling the head, and knew the difference between a nonlethal control hold and a lethal choke hold, then he’ll be well on his way to convincing the jury he didn’t use deadly force.

It’ll also be extremely important to his defense to determine what exactly the mechanism of Neely’s death was. A phenomenon called excited delirium is a medical condition that results in death after an individual fights or struggles for an extended period of time. If drugs are also in the bloodstream, it can result in immediate shutdown of the individual’s life. This could’ve been involved in this event, but we will have to wait to see. I certainly hope the defense researches this issue, and if necessary, hires experts to fully explore the issue and testify in court.

Was Prevention Possible?

How could this situation have been prevented?

First, of course, is if Penny hadn’t involved himself he wouldn’t be in jail awaiting trial. But many witnesses report feeling relieved when Penny acted, and these people should be willing to come to court and testify as to Neely’s actions. They won’t be able to state the acts of Penny were justified, but the jury will be able to connect the dots. On the flip side, Penny was the only one who believed the threat was sufficient enough to act, or had the guts to act, so that fact might work against him.

But, having said all the above, the trial will likely be resolved on the question of whether or not the jury believes Penny only used sufficient force to control Neely, and not excessive force. When I saw the video, I didn’t see that level of force. One cannot usually use deadly force against an unarmed person unless there’s substantial evidence that such a use of deadly force was warranted. But Penny has indicated in pre-indictment comments to the press that he never intended to kill Neely, nor did he think his use of force would do so.

Clouded Circumstances

If you’re thoroughly confused by now, that would be normal. There are many factors to consider, and I will attempt to summarize. Penny used force against Neely in an attempt to subdue him, because Neely was threatening passengers in the subway car. When Penny had Neely on the ground with his arm around the neck and head of Neely, others joined in to try to control his limbs. It was clear that Neely was out of control and struggling until he lost consciousness.

At the time of this writing, no clear indication of the cause of death has been released, only the statement that the cause of death was a “choke hold.” But a choke hold by itself isn’t necessarily fatal—it’s the strength and duration that matters.

Experts in the use of force and the use of the “lateral vascular neck restraint” should, and likely will, be used by the defense to convince the jury that Neely’s death was a tragic accident, perhaps caused by drugs and the phenomenon called excited delirium. It’ll be interesting to watch this one play out.

Editor's Note: This article originally appeared in the October 2023 issue of Gun Digest the Magazine.

Know Your Rights:

• Carry Law: What Is A Righteous Shooting?
• Concealed Carry and the Right to Remain Silent
• Tips For Communicating With Police After Shootings
• Concealed Carry: After the Shooting
• Q&A: Massad Ayoob On Self-Defense In 2020 America

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