Jordan Neely’s death raises questions about New York law and what’s a threat

Neely, a homeless man, died May 1 after a former Marine placed him in a chokehold.

The death of Jordan Neely, a homeless man killed by a chokehold on a New York City subway train, shines a light on New York’s law that governs the use of force by civilians, assistance for the mentally ill, and the lethal risks of chokeholds.

Neely, 30, died on May 1 after a former Marine, Daniel Penny, 24, restrained him in a chokehold. Penny’s law firm, in a statement, said Neely acted aggressively toward him and other passengers, and their client acted “to protect themselves.” The lawyers said Penny, who is white, “never intended to harm” Neely.

Neely, known for his Michael Jackson impersonations in Times Square and on subway trains, suffered from mental health issues, his aunt told the New York Post. A witness told NBC News that Neely seemed upset and said “he was hungry, he was thirsty, that he didn’t care about anything.”

An estimated 80,000 homeless New Yorkers suffer from mental health issues, according to the New York City Council. For those familiar with the city, it’s not unusual to see someone agitated to the point of yelling and screaming on the street or in a subway.

“Some guy yelling at you on the subway — you can’t choke him out and kill him,” Jeffrey Lichtman, a defense attorney who once represented John Gotti Jr., told the New York Post. He said it’s up to the Manhattan District Attorney’s office “to find out exactly what kind of legitimate threat the guy posed.”

The legal question that arises: When does force go from being justified to unjustified?

Eli Northrup, an attorney for the Bronx Defenders, a legal non-profit, told the New York Times: 

“Police and prosecutors almost never apply the level of scrutiny to cases that they are extending in this instance. The practice is to arrest and charge first, ask questions later, especially when the person being arrested is Black, brown or poor.”  

The medical examiner’s office said Neely died of “compression of the neck” and ruled his death a homicide. In a statement, the prosecutor’s office has promised a “rigorous” investigation that will include talking to witnesses, reviewing video and other evidence. “This is a solemn and serious matter that ended in the tragic loss of Jordan Neely’s life,” the statement said.

The New York Penal Code, Defense of Justification, governs when using physical force against another person is appropriate. Under 35.10, “A person may … use physical force upon another person in self-defense or defense of a third person.” The Associated Press reported that the person who used the force must show that any reasonable person would feel the same way.   

But the law also says that a person “may not use deadly physical force” if they can avoid doing so by retreating.

New York doesn’t have a Stand Your Ground law that generally allows people to use force, sometimes deadly, if they feel threatened. Some 28 states have such laws, but their applications don’t fit New York’s. Few cities have subways, and only Los Angeles has a larger homeless population than New York. 

In another infamous New York City subway incident, Bernhard Goetz shot four Black teens in December 1984 after one of them approached him for money. They all survived, although one, Darrell Cabey, became paralyzed after a bullet severed his spine.

Goetz also claimed self-defense, and jurors believed him. He faced four charges of attempted murder and assault, among others, but jurors convicted him of third-degree criminal possession of a weapon, the .38-caliber revolver he used in the shooting. Goetz served a little more than eight months in jail. 

In a more recent case, the rapper Kidd Creole (whose real name is Nathaniel Glover) received a 16-year sentence in 2022 for stabbing a homeless man to death in 2017. Glover, a member of the groundbreaking hip-hop group Grandmaster Flash and the Furious Five, argued with the man while on his way to work in Midtown Manhattan. He fatally stabbed the man twice in the chest.

Neely’s death has resulted in national headlines focusing on services for those suffering from mental health issues and reignited discussions about the lethality of chokeholds. 

The chokeholds are so dangerous that, in the wake of George Floyd’s murder in 2020, several police departments banned the practice. New York’s legislature made the use of police chokeholds a felony. And a major medical organization cautions against it. The American Academy of Neurology said law enforcement agencies should, “at minimum,” classify neck restraints like chokeholds as “a form of deadly force.”

Restraints “can cause permanent injury to the brain, including stroke, cognitive impairment, and even death,” the academy wrote in an editorial for JAMA Neurology, a peer-reviewed medical journal. The editorial said the restraints can cause unconsciousness and “catastrophic global brain dysfunction.” The consequences that “result from limiting blood flow or oxygen to the brain due to the use of neck restraints are potentially irreversible and entirely preventable.”

All of those issues – what the law says, the failures of treating the mentally ill, and the dangers of chokeholds – are secondary considerations to the Neely family. 

A lawyer for the Neely family, Lennon Edwards, told the New York Times that Neely was “robbed of his life in a brutal way by someone who decided that they were judge, jury and executioner on the spot,” he said. “We can’t have vigilantes, and we can’t have people taking the law into their own hands.”

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