Meta’s Zuckerberg May Help NYC’s Subway Samaritan; Reminds Public That Choke Holds Are Common And Not Deadly Force
WASHINGTON, D.C. (June 5, 2023) – The report that Mark Zuckerberg Slams New York Times’ Claims He Was Choked out at Jiu-jitsu Tournament Last Month could help former marine Daniel Penny who has been charged with second-degree manslaughter as a result of using a choke hold to restrain Jordan Neely, a mentally unbalanced man with a criminal record of violence, who was reportedly threatening subway passengers, says public interest law professor John Banzhaf.
Subway Samaritan’s Defense
Banzhaf, who provided the legal analysis which helped keep “Subway Shooter” Bernhard Goetz from being convicted for shooting four Black youths on a New York City subway train after they asked him for money – and who correctly predicted outcomes of similar trials involving “Jacuzzi Shooter” Carl Rowan, Kyle Rittenhouse, Daniel Pantaleo, George Zimmerman, several police officers accused of killing George Zimmerman in Baltimore, and others – says that “Subway Samaritan” Penny can use the same defense, and has a much stronger case, than Goetz.
Banzhaf says that Penny would likely argue that he acted not only in his own self defense, but also in defense of others; an argument not available to Goetz. New York State’s § 35.15 recognizes the legal right of any person to use reasonable force to defend himself or others from what he reasonable believes is the prospect of “unlawful physical force.” This term could include many forms of unwanted touching, including groping, of the other passengers, and is not limited to force which might be harmful.
Since several other passengers have said that Neely was threatening them, and that they feared for their physical safety (much less feared a simple unwanted touching), it seems quite clear that Penny had a very reasonable belief that Neely was threatening “unlawful physical force” to at least some of the passengers.
Indeed, since the legal privileges of self defense and defense of others applies even if the belief of unlawful touching is incorrect but reasonable under the circumstances, Penny was fully justified in using force, says Banzhaf.
In any event, to find him guilty, a jury must unanimously conclude beyond any reasonable doubt that Penny’s belief was unreasonable; a finding highly unlikely here, especially since jurors are likely to be aware, in some cases from personal experience, of the dangers posed by the crazy people who frequent New York’s subways.
Any good samaritan such as Penny, coming to the aid of others, may use “reasonable force,” but generally not force which amounts to “deadly physical force,” to defend himself or others. The term “deadly physical force” is defined in New York as “physical force which, under the circumstances in which it is used, is readily capable of causing death or other serious physical injury.” [§10.00(11)]
But as Zuckerberg’s situation very dramatically illustrates, choke holds are very commonly used in jiu-jitsu, judo, MMA (mixed martial arts) and other tournaments, including many which involved children; although chokes are not permitted in judo tournaments for children under 13 years of age. If they were “readily capable of causing death,” choke holds obviously would not be taught to students and routinely used in matches.
Indeed, anyone who has watched judo matches in person or on television has probably seen at least one match which was ended by a choke hold which briefly incapacitated the opponent. More specifically, both choke holds which cut off breathing by compressing the windpipe, and those which cut off blood flow to the brain by compressing the carotid arteries, are expressly permitted by the rules in most tournaments.
So a choke hold does not necessarily constitute “deadly physical force,” especially since Penny – who, unlike police who have handcuffs and plastic tie restraints – had no other way to restrain Neely on a swaying train.
Restraining The Shooter
The very fact that two other passengers felt it both necessary and appropriate to help restrain Neely – despite the danger of physical harm to themselves, and the possibility that they might be charged as accessories if Penny were to be charged with a crime – strongly suggests that very forceful restraint (including a choke hold) was required, and was not “deadly physical force” “under the circumstances.”
Yes, of course, choke holds can kill in some circumstances, but so can pepper spray, Tasers, a blow with a police baton, on even a punch to the face or body, noted Banzhaf, and all are used when necessary by the police.
While so-called “choke holds” have been banned for some (but by no means not all) police, different considerations apply since police carry other weapons which they can use to defend themselves, and well as physical restraints such as handcuffs, and can also generally call for backup.
Here Penny had no other readily available ways to restrain Neely – who was still struggling despite the efforts of three men to protect other passengers by holding him down – and holding him by the neck is generally more effective, and less dangerous to any good samaritan, than trying to restrain a person by holding his hands, feet, or waist.
So Goetz, who was not protecting other passengers, acted alone and used an illegal gun to shoot four Black youths, fled the scene before police arrived, tried to hide in another state, and had made racially disparaging remarks about African Americans, was not even indicted by the first grand jury.
When public pressure forced a second grand jury to indict him, the Subway Shooter was acquitted of the two shooting-related charges (attempted-murder and first-degree-assault) after a criminal trial, but was found guilty of one charge which he could not be deny: criminal possession of a weapon (unlicensed gun) in the third degree.
Here, in stark contrast, Penny acted only after other passengers felt threatened, was aided by other passengers even at risk to their own physical safety and the risk of criminal charges, urged other passengers to call 911, remained at the scene and cooperated with police, and there is no evidence at all of racial animus.
Police familiar with the threatening situations on the subway, and who interviewed the passengers, did not detain Penny or even issue him a desk appearance ticket because they did not believe that a crime had been committed.
For all these many reasons, Banzhaf says that Penny’s defense is far stronger than the one he helped outline for Goetz.
If Penny is tried, at least one juror is likely to see it that way and to exercise his legal right to juror nullification; refuse to vote “guilty” despite the evidence and the judge’s charge.