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The potential criminal charges against a U.S. Marine veteran who put Jordan Neely in a fatal chokehold aboard a New York City subway train might depend on whether a “reasonable” New Yorker would have acted similarly.
Neely, a locally-known Michael Jackson impersonator who friends say suffered from worsening mental health, died Monday when a fellow rider pulled him to the floor and pinned him with a hold taught in combat training.
Neely had been screaming at other passengers but hadn’t attacked anyone, according to a freelance journalist who recorded video of his final minutes.
The man who administered the chokehold, Daniel Penny, said through his lawyers Friday that he was only protecting himself after Neely threatened him and other passengers.
“Daniel never intended to harm Mr. Neely and could not have foreseen his untimely death,” said his lawyers, Thomas Kenniff and Steven Raiser.
The Manhattan District Attorney’s Office is investigating the incident and no charges have been announced.
If a case does go forward, an argument of self-defense would likely brush up against a “tricky” legal requirement, according to Mark Bederow, a former assistant district attorney in Manhattan.
Under New York’s penal code, a person who uses deadly force must not only prove that they feared for their own life or someone else’s, but that any reasonable person would have felt the same way.
“Suppose the Marine says, ‘I honest to God thought I had no choice but to save someone,’ the question would be whether an objectively reasonable person in his circumstances would have felt the same,” Bederow said.
The interpretation of that statute was last clarified by the state’s highest court in 1986, in response to Bernhard Goetz’s shooting of four teenagers aboard a subway, an infamous case that has drawn comparisons to Neely’s death.
In 1984, Geotz, who was white, shot four young Black men after one of them asked him for $5.
