What does self-defense mean in US? Subway killing shows divide.

When former U.S. Marine Daniel Penny restrained Jordan Neely with a rear naked choke earlier this month, killing him on a New York City subway car, the moment touched the nation’s most sensitive of cultural nerves.

Caught on a bystander video, it was an intimate moment of violence, punctuated by the contexts of recent rising crime, the ethics of self-defense, and the enduring specter of race in America. Mr. Penny, who is white, lay flat on his back on the subway floor as he held Mr. Neely, who is Black, on top of him, clenching his neck in an arm vice from behind.

Images of Mr. Neely’s killing have sparked deeply emotional reactions across the country, laying bare not only the country’s deep partisan divides, but also the contrasting values underlying the profoundly different reactions to Mr. Penny’s actions on the New York subway. Today in Harlem, hundreds of people gathered to mourn at Mr. Neely’s funeral at the Mount Neboh Baptist Church.

Witnesses have described the actions of Mr. Neely, an unhoused person who had a history of arrests, including an assault on an elderly woman in 2021, as erratic and potentially violent. He screamed that he had no food or drink and didn’t care if he went to jail, and took his coat off and threw it down. That’s when Mr. Penny took him down to the floor from behind, witnesses said, keeping him in a chokehold for 15 minutes, even after he went limp.

Before the video became public, police questioned Mr. Penny and released him. But the video caused an uproar, and homeless advocates and Democratic politicians such as Rep. Alexandria Ocasio-Cortez, said the circumstances of the encounter did not justify the former Marine’s violent reaction. The video also led New York officials to later charge Mr. Penny with manslaughter. 

“Was Mr. Neely behaving erratically? Reports indicate that he was. Might one feel threatened by such behavior? Certainly,” says Christopher Fee, professor of English at Gettysburg College in Pennsylvania, who has taught service-based courses on homelessness for two decades. “Should Mr. Neely have died for this behavior? No, of course not. Further, if he were not an African American man, it is quite unlikely that he would have.”

Stand your ground vs. duty to retreat

Since 2005, however, there has been a momentous shift in the ethical and legal understanding of self-defense as Republican states began to pass so-called stand-your-ground laws. Today, 27 states, mostly Republican-led, have passed laws that protect individuals’ rights to use deadly force whenever they have a reasonable fear they are being threatened with danger. These laws eliminate what was legally known as a “duty to retreat.”

Bebeto Matthews/AP

Andre Zachery (second from left) father of Jordan Neely, stands outside with mourners at a funeral service for his son at Harlem's Mount Neboh Baptist Church, May 19, 2023, in New York.

Thirteen mostly Democratic-led states, including New York, still impose the duty to retreat, which means individuals cannot resort to deadly force to defend themselves outside their homes if they are able to safely avoid the risk of harm and flee the situation. 

So Republican politicians and many conservatives have seized upon the case to declare Mr. Penny a hero, a “Subway Superman,” an avatar of bravery and justified self-defense in the midst of an urban crime wave – and to castigate Democratic notions of justice in this case.

Florida Gov. Ron DeSantis, in a reference to a well-known parable of Jesus, proclaimed Mr. Penny a “Good Samaritan,” altering the New Testament story about kindness to strangers to describe him as trying to take back the streets from criminals.

“We must defeat the Soros-Funded DAs, stop the Left’s pro-criminal agenda, and take back the streets for law-abiding citizens,” Governor DeSantis, who is expected to launch a run for the 2024 presidential race next week, tweeted. “We stand with Good Samaritans like Daniel Penny. Let’s show this Marine ... America’s got his back.”

Former South Carolina governor Nikki Haley, echoing her likely Florida rival this week, also urged New York’s Democratic Gov. Kathy Hochul to pardon Mr. Penny.

If she doesn’t, Ms. Haley said that “criminals will continue to rule the streets of New York because they will know that there is no accountability for anyone who tries to stop them,” she told Fox News. “If she pardons him, that sets right a lot of things. It’ll put criminals on notice. And, it will let people like Penny – who really were very brave in that instance – it will let them know that we’ve got their back.”

In fact, the crime rate in New York City remains a fraction of the rampant crime and violence the city experienced in the 1970s and 1980s. And while subway crime spiked during the pandemic and has remained an issue, it has been falling this year. Overall subway crime is down nearly 20% in 2023 compared to last year. Major crimes have fallen 10% since this time in 2022.

Daniel Perry and Bernie Goetz

In a similar case, Texas Gov. Greg Abbott said last month he plans to pardon the former Army Sgt. Daniel Perry, who was convicted of murdering an armed man during a Black Lives Matter protest in 2020 in Austin. Last week, a Texas judge sentenced Mr. Perry to prison for 25 years. 

“Texas has one of the strongest ‘Stand Your Ground’ laws of self-defense that cannot be nullified by a jury or a progressive District Attorney,” Republican Governor Abbott tweeted in April, noting that the parole board would have to issue a recommendation for pardon. “I have already prioritized [reining] in rogue District Attorneys.”  

Images of Mr. Penny choking Mr. Neely on the subway, however, have deeper associations in New York. In 1984, the notorious case of Bernhard “Bernie” Goetz also gripped the nation. Mr. Goetz, who had been a victim of subway crime, shot four Black teenagers after they attempted to rob him. Also hailed as a hero at the time, a jury acquitted Mr. Goetz of the charges of attempted murder and assault.

But the killings of Eric Garner in 2014 and George Floyd in 2020 have also informed the national debate over Mr. Neely’s killing, as well as New York’s reaction to chokeholds that have killed unarmed Black men. 

In 1993, the New York Police Department banned the use of asphyxiating chokeholds. And after the murder of George Floyd by a Minneapolis police officer, the state of New York became one of the first to ban the use of chokeholds by law enforcement statewide. 

In 2022, a state court also reinstated a local law the New York City Council passed after the murder of Mr. Floyd in 2020. The Eric Garner Anti-Chokehold Act, or “diaphragm law,” banned the use of chokeholds – or any type of sitting, kneeling, or standing on a person’s chest or back that could suffocate them.

Many observers say Mr. Penny’s actions to restrain Mr. Neely on the subway should be understood in the context of the nation’s epidemic of mass shootings. In 2022, a Black nationalist entered a New York subway car, threw smoke grenades, and fired a handgun 33 times, injuring almost 30 people. No one was killed. 

“I don’t think this actual episode was as much about race – no real evidence that was a factor – and more about too many guns and gun shootings and the lack of government help for mental illness and homelessness,” says Lori Brown, professor of sociology and criminology at Meredith College in North Carolina. “And I do think there is an issue for the passengers on the subway who didn’t trust the police to take care of things and decided to take care of things themselves.”

“Acts rooted in fear”

But the contexts of gun violence can’t be separated from the wider history of race in America, others say.

“These acts are rooted in fear: fear of death, fear of bodily harm, fear of the other, fear of that which we do not understand,” says Professor Fee at Gettysburg College. “Jordan Neely represented a terrible trifecta of sorts, in that he represented three categories Americans most fear: Black men, the poor and unhoused, and the mentally ill.”

Rodney Coates, professor of critical race and ethnic studies at Miami University in Ohio, says it is not surprising that those who would ban discussions of the history of race and racism, or expel Black lawmakers from their midst, would then defend the chokehold killing of a Black man in a crisis situation.

“We’ve got tens of thousands of people who have heard that clarion call and are trying to enjoy that thing called freedom,” says Dr. Coates, animatedly. “And we have lost the capacity, if we ever had the capacity, or the empathy, to say, you know what? These deaths, these murders, even urban crime, or a young man walking and saying, ‘I don’t have anything to eat and drink, I don’t have a place’ – these are screaming huddled masses yelling, ‘Hey, we’re here.’”

“What are we going to do about them?” he says. “Where is the American dream, and how do we make that American dream a reality? What does that look like? We are at this existential point in time. It’s an existential moment that is going to define us as a people. Not Black, white, Native American, homeless without shelter, but as humans, as Americans.”