THE ‘BYSTANDER EFFECT’ AND SMARTPHONE CULTURE ENCOURAGE EYEWITNESSES TO RECORD INSTEAD OF ACT BUT THE LAW ALLOWS AND ENCOURAGES GOOD SAMARTIANS TO TAKE ACTION WHEN ACTION IS NEEDED.

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The killing of an aggressive black panhandler by a white former Marine on a New York City subway has triggered wide-ranging debate across America on public safety, individual responsibility and a Nation's duty to take care of its citizens who are unable to take care of themselves. 

“‘I don’t have food, I don’t have a drink, I’m fed up,’” Jordan Neely, 30, screamed after boarding the train around 2:30 pm Monday, May 1, according to another passenger on that train, Juan Alberto Vazquez. 

"'I don’t mind going to jail and getting life in prison. I’m ready to die," Neely added, Vazquez said.

“He said, ‘I would kill a motherf—er. I don’t care. I’ll take a bullet. I’ll go to jail.,” another passenger, a 66 year-old retiree, told the New York Post.

That's when the former Marine-turned-college student, Daniel Penny, 24, stepped up and restrained Neely, in a chokehold, on the floor of the subway car. At least two other subway riders help Penny restrain Neely, video recorded by Vazquez shows.

Neely was wanted for assault at the time of his death. An NYPD arrest warrant charged him with assaulting a subway rider, a 67-year-old woman, the New York Daily News reports. Neely also pleaded guilty to assaulting a then-64-year-old Mexican migrant on the subway in 2019. 

“Out of nowhere, he punched me in the face," Filemon Castillo Baltazar told the Daily News.

Penny remained at the scene after killing Neely. He was detained and questioned by the NYPD but released without charges. 

"When Mr. Neely began aggressively threatening Daniel Penny and other passengers, Daniel, with the help of others, acted to protect themselves," Penny's criminal defense lawyers said in a news release.

It is almost impossible not to contrast Neely's killing with the 1964 murder of Catherine, a/k/a "Kitty," Genovese in Queens. The Lesbian bookie-turned-bartender was repeatedly stabbed to death by a man trying to rape her, Winston Mosely. Though Mosely attacked Genovese twice over a half-hour on a residential street and screamed for help no one saved her. 

In the wake of Mosely’s murder of Genovese, social commentators blamed not just Mosely. They also blamed the people who failed to stop it, ginning up various explanations including "moral decay," "dehumanization produced by the urban environment," "alienation," "anomie," and even "existential despair," according to two psychologists who studied the killing. 

The psychologists came up with their own explanation for the failure of bystanders to intervene and stop it. They called it the "bystander effect." According to the bystander effect, the more witnesses to a crime there are the less likely any single one of them will intervene to stop it. 

There are obvious humanitarian norms about helping the victim, but there are also rational and irrational fears about what might happen to a person who does intervene. 'I didn’t want to get involved,' is a familiar comment, and behind it lies fears of physical harm, public embarrassment, involvement with police procedures, lost work days and jobs, and other unknown dangers.

Penny was not deterred by the bystander effect. He acted, but he went too far. He did not let go of Neely's neck fast enough—it now seems in hindsight. 

Perhaps thorough investigation and testing will reveal additional factors that contributed to Neely's death, factors that militate in favor of holding Penny criminally responsible, or factors that mitigate against it. At a minimum, Manhattan District Attorney Alvin Bragg will likely present all the evidence to a Grand Jury and let the People directly decide whether Penny is a good samaritan worthy of praise or a vigilante deserving punishment.

In making that decision the Grand Jury will be guided by New York law, as instructed by a judge. 

Generally stated, New York immunizes killers from criminal liability if they acted in defense of self or others. But what, exactly, does the law say about Penny's actions and Neely's death? Does Penny's killing of Neely really qualify as self-defense, under the law? According to the facts as we know them now, it appears the answer is "Yes," it does.

That's primarily because police in the United States do not have a general legal obligation to protect citizens. It's a common misperception that police do have a legal duty to protect people. Police do not have  a legal duty to protect you, whether you call 9-1-1 or not, the Supreme Court has ruled, repeatedly. Under the Constitution, instead of police, personal protection and protection of family, friends, fellow citizens is each citizens' individual and collective responsibility. 

The legal right to individual and group self-defense dates back centuries to the Roman Empire and, specifically, the Justinian Code. Philosophers throughout history recognize self defense is a fundamental human right. Self-defense and defense of others is precisely what the Second Amendment is for, according to the Supreme Court. America's Founders enshrined basic criminal procedure in the US Constitution, including the right to trial by jury and "an individual right to keep and bear arms for self-defense," the Supreme Court has repeatedly ruled.

In New York, Article 35 of the State Penal Law recognizes a legal right to self-defense--armed and unarmed. It recognizes both a general right of "justification" to all criminal charges that, if specific conditions are met, excuses criminal liability, NY Penal Law § 35.05, and a specific right to use lethal and non-lethal "physical force upon another person" in certain, specified circumstances. NY Penal Law § 35.10.

One of those circumstances is "self-defense or defense of a third person ..."

When it comes to using non-lethal physical force against another person in self-defense, only force in proportion to the threat can be used. Specifically, "to the extent he or she reasonably believes such to be necessary to defend himself, herself or a third person from what he or she reasonably believes to be the use or imminent use of unlawful physical force by such other person."

Significantly, as the law necessarily implies, citizens do not have to wait until under actual attack to defend themselves with physical force. They can strike first if—but only if—unlawful use of physical force by a potential attacker is "imminent."

Use of "deadly physical force" is distinct from "physical force" under New York law. NY Penal Law § 35.10(2). A person can lawfully use deadly physical force to defend one's self and others only when he or she "reasonably believes that such other person is using or about to use deadly physical force." 

Even then, the law does not allow defensive use of deadly physical force if "he or she may avoid the necessity of so doing by retreating."

However, the duty to retreat only applies if a defender "knows" it can be accomplished "with complete personal safety, to oneself and others." There is also no duty to retreat if the aggressor is committing or about to commit kidnapping, forcible rape, forcible criminal sexual act or robbery.

Very important to New York's self-defense law is its repeated use, in both its lethal and non-lethal use of force provisions, of the phrase "he or she reasonably believes." What it means is the legal standard for all uses of force in New York is a hybrid one including both subjective and objective measures. 

First, the legal question whether use of force is justified starts with the threat as perceived by the person acting in self-defense. Police, prosecutors, judges and juries must put themselves in the shoes of the person claiming self-defense. Simply stated, the law does not allow Monday morning quarterbacking or second-guessing.

However, at the same time, an individual's subjective belief that force is necessary must be objectively "reasonable." 

That means, for example, if you shoot someone because you believe they're armed and about to kill or rob you and they, in fact, turn out to have been armed, you didn't commit murder you acted in self-defense, under New York law. But if they turn out not in fact to have been armed, your action may still be legally justified, but police, prosecutors, judges and juries get to decide for themselves whether your belief they were armed was "reasonable" in light of the facts as you knew them at the time you used force.

While New York's self-defense law is complex, its application to the facts as now known of Penny's killing of Neely is fairly straight-forward.

Because New York law imposes greater restrictions on citizens' use of "deadly physical force”—as opposed to simple "physical force"—the first question to be answered is whether the chokehold Penny applied to Neely is "deadly physical force" within the meaning of New York law. Chokeholds easily qualify because New York law explicitly defines "deadly physical force" as force "which under the circumstances in which it is used, is readily capable of causing death or other serious physical injury." NY Penal Law § 10.00(11).

Since Penny used deadly physical force on Neely, its use is only justified if it was objectively reasonable for Penny to believe Neely himself was "using or about to use deadly physical force" against Penny or other subway riders. Neely wasn't actually using deadly force. So the question, for police, prosecutors, the Grand Jury and an interested public, is was it reasonable for Penny to perceive that Neely was "about to use deadly physical force"? 

If it was, then Penny's action was justified. If it wasn't, then he should be indicted.

How the Grand Jury answers that question will ultimately be determined by the facts police investigators uncover about Penny and Neely. But what we now know points to a finding that it was objectively reasonable for Penny to perceive Neely was "about to use deadly physical force" and, thus, his chokehold was justified under New York law. 

The operative facts, succinctly summarized, are stated as follows: 

Guy gets onto a train, throws his jacket to the floor, screams he wants to die or spend the rest of his life in prison, continues to act crazy and out-of-control.

I could see why a passenger on that train would want to grab that person and hold onto that person until police arrived.

In the midst of a wave of mass shootings, including one in the New York City subway system just last year, fear that a person who boards a train and screams he wants to die or spend the rest of his life in prison will pull out a gun and start shooting, pull out a knife and start stabbing, trigger an improvised explosive device, or kill himself by jumping in front of a train or touching the electrified third-rail, seems not just reasonable but almost commonsensical. 

Other passengers on the train basically ratified Penny's action, effectively confirming Penny's belief that action was justified.

Vazquez, the passenger who witnessed the tragedy unfolding and video recorded some of it, was one of them. For him, it was Neely's removal of his jacket and the way he did it that signaled he was about to be violent.

Neely took off his jacket, bundled it up into a ball and threw it to the floor, "very violently. You could hear the sound of the zipper hitting the floor. At that moment, when he threw the jacket, the people who were sitting around him stood up and moved away. He kept standing there and he kept yelling," Vazquez said.

"To me," Vazquez explained, "when Jordan throws his jacket, it is a way of saying: 'There could be an act of violence here.'" 

“It was a very tense situation because you don’t know what he’s going to do afterwards,” Vazquez added.

"No one in the car was telling the Marine to stop," another passenger told investigative journalist Nick Pinto. "[A] lot were like 'Fuck this guy,'" referring to Neely. 

The eyewitness added "there was no real disagreement. There was consensus that this was the right thing to do." 

"The other people who were there, who had already grasped what was going on," the eyewitness explained, “were like, 'This guy is protecting us.’”

This witness wished to remain anonymous. Pinto has relied on anonymous sources in the past; they've proven reliable. I trust his credibility judgments and reporting.

Neely never should've died. He should not have been on the street. At a minimum, he should have been involuntarily committed to a hospital for treatment. 

New York City Mayor Eric Adams had a plan last year to step up the involuntary commitment of mentally-ill homeless New Yorkers, but blowback from activists claiming to speak in the name of the homeless, parrotted and given force by well-meaning but clueless news media, pressured him to cancel it. Adams' plan appears to have been not seriously enforced at all, or at least scaled back, Neely's death shows—regardless what City Hall says.

The price of that now fateful policy decision should not be paid by a 24-year-old college student trying to do the right thing by his fellow New Yorkers.

The City and State that suddenly finds billions of dollars to shower on hotel rooms and other services for migrants but pleaded poverty when it came to housing its own homeless residents and treating its own mentally-ill population are Neely's real killers.

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