The Charging of Daniel Penny
The killing of Jordan Neely has become one of those cases where mythology has swiftly consumed the unpleasant task of actual thought. While the unduly passionate inexplicably decided that standing on subway tracks chanting about lynchings would somehow help Neely, the district attorney of New York County, Alvin Bragg, has announced that Penny will be charged with Manslaughter in the Second Degree.
There are four crimes with which Penny could have potentially been charged. The first two fall under Murder in the Second Degree, whether under an intentional murder theory or a “depraved indifference” theory. There was no evidence that Penny intended to kill Neely, and the crux of “depraved indifference” murder is conduct that is so clearly deadly that it the perpetrator knew it created a “grave risk of death.” The classic example is shooting into a crowd, there the shooter may not intend to kill any particular individual, but recognized that his actions would almost certainly result in someone being killed. That wasn’t the case here either.
Manslaughter in the Second Degree is the charge for reckless killing.
A person is guilty of manslaughter in the second degree when:
1. He recklessly causes the death of another person;
Reckless is defined by Penal Law § 15.05(3).
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.
Key to the definition of recklessness is that the perpetrator “is aware and consciously disregards” the risk. Penny had his arm around Neely’s neck. Whether he was aware that he held Neely in a chokehold or thought it was merely some harmless restraint is a fair question.
As Penny was a former Marine, some assume he was trained in chokeholds and was thus conscious of the fact that his arm around Neely’s neck presented a “substantial and unjustifiable” risk of death, even if that wasn’t his intention. In the heat of the moment, it could be that he either failed to appreciate the danger of restraining Neely by his arm around his neck, or that he didn’t believe his restraint was a chokehold and therefore was neither aware of, nor consciously disregarded, the risk.
As an aside, that his use of force was excessive under the circumstances presents little question. While Neely may have said things that suggested he might use physical force, he had not used physical force before he was restrained by Penny. While the threat of imminent use of force may provide justification for the use of force, the use of deadly force is more circumscribed.
2. A person may not use deadly physical force upon another person under circumstances specified in subdivision one unless:
(a) The actor reasonably believes that such other person is using or about to use deadly physical force. Even in such case, however, the actor may not use deadly physical force if he or she knows that with complete personal safety, to oneself and others he or she may avoid the necessity of so doing by retreating;
There was no basis upon which to form a reasonable believe that Neely was about to use deadly physical force. While Penny could arguably justify his use of force to the extent of restraining Neely based upon his statements that he was no afraid of arrest or to die, that did not extent to the use of a deadly restraint of a chokehold. Further, the claim that Neely had previously been arrested and used unlawful physical force to harm others does not enter into the analysis since Penny had no knowledge of Neely’s prior conduct. One cannot claim that physical force was justified based upon facts unknown at the time.
Lastly, there is the crime of Criminally Negligent Homicide.
A person is guilty of criminally negligent homicide when, with criminal negligence, he causes the death of another person.
Criminal negligence differs from recklessness by the failure to perceive a risk.
A person acts with criminal negligence with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive 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 the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.
The distinction here is that the risk was so obvious that failure to perceive it “constitutes a gross deviation” from what an objectively reasonable person would realize. There’s rarely a reason to charge criminally negligent homicide as its utility is largely as a lesser included of Manslaughter 2 if the defense is that he was unaware of the risk.
More than a week elapsed between the killing of Jordan Neely and Bragg’s announcement that Penny would be charged with Manslaughter 2. Why is a mystery, as it appeared obvious that Penny’s actions, regardless of how intended, exceeded the level of force that could reasonably be applied based upon the fact that it resulted in Neely’s death. If you’re going to restrain someone by putting an arm around his neck, then the law requires you to do so with a level of care that does not cause the person’s death.
Some have argued that had Penny been black, he would have been arrested and charged immediately. Anecdotal evidence suggests that’s historically true. Bragg, however, is both a black man and a reform district attorney, suggesting that race should not have entered into his decision making. Still, the more than a week delay between the killing of Jordan Neely and the announcement of an obvious charge against Daniel Penny is hard to explain.