Potential criminal charges against a US Marine Corps veteran who put Jordan Neely to a fatal chokehold on a New York City subway train may depend on whether a “reasonable” New Yorker acts in kind.
Neely, a locally known Michael Jackson impersonator who friends say was suffering from declining mental health, died Monday when he was dragged to the ground and gagged by a fellow jockey studying in combat training.
Neely was shouting at other passengers but did not attack anyone, according to a freelance journalist who recorded video of his final minutes.
Daniel Penny, the man who administered the chokehold, said through his attorney 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 attorneys, Thomas Kenniff and Stephen Reiser.
The Manhattan District Attorney’s Office is investigating the incident and no charges have been announced.
If the case goes forward, the self-defense argument would likely conflict with a “difficult” legal requirement, according to Mark Pedro, a former Manhattan assistant district attorney.
Under New York Penal Code, a person using deadly force must not only prove that he feared for his life or the life of someone else, but any reasonable person would have felt the same way.
“Suppose a Marine says, ‘I’m so true to God I thought I had no choice but to save someone,’ the question would be whether a person who was objectively sane in his circumstances would feel the same way,” said Pedro.
The interpretation of this platform was last explained by the state’s highest court in 1986, in response to Bernard Goetz’s shooting of four teenagers on a subway, a notorious case that has drawn comparisons to the death of Nellie.
In 1984, Goetz, who was white, shot four young black men after one of them asked him for $5. Goetz said he thinks he’s being mugged. A jury eventually acquitted Goetz of attempted murder but convicted him of carrying an unlicensed handgun.
Neely’s murder sparked an emotional debate in New York about empathy and mental illness.
Most people who ride the subway system have occasionally had uncomfortable encounters with people screaming or behaving in alarming ways, but who pose no danger to anyone. The most common response is to ignore it or move to a different car. It is unclear why Benny, or two other men who can be seen in the video helping to restrain Indigo, decided to act.
In a statement Friday, Penney’s attorneys did not provide details of what happened, other than to say that “when Mr. Neely began to severely threaten Daniel Penny and the other passengers, Daniel acted by helping others to protect themselves, until help arrived.”
Police made no arrests, angering some who have called for criminal charges in the death.
Others, including New York City Mayor Eric Adams, have urged caution, highlighting the rights of riders to defend themselves in certain situations as well as the dangers of a transit system that often serves as a shelter for the city’s neediest residents.
Pedro speculated that Manhattan District Attorney Alvin Bragg might choose to take the case to a grand jury, a process sometimes used in controversial or complex cases. He said a charge of second-degree manslaughter or criminally negligent homicide is more likely.
Walter Signorelli, a former NYPD inspector and professor at John Jay College, said he’s not sure charges will be filed, given the apparent fear among riders in response to Neely’s behavior. If the case goes to trial, he said, the jury can sympathize with the defendant.
“It’s not like he’s evil,” Signorelli said. “He did what he thought was right and what seemed reasonable to him. He’s progressing where most people walk away.”
The defense can also highlight Neely’s criminal record, which includes dozens of arrests, ranging from disorderly conduct to assault. Recently, in 2021, he was accused of assaulting a 67-year-old woman leaving a subway station. After pleading guilty, he missed a court date, which resulted in a warrant being issued for his arrest that was still valid at the time of his death.
At the same time, legal experts said Neely’s track record was unknown to those inside the subway car.
The fact that Penny served in the US Marine Corps could also count against him, if prosecutors argue he had the training to know better than to use a dangerous chokehold. Military records show he served in the corps from 2017 to 2021, rising to the rank of sergeant. His lawyers said he is now a college student.
Video of the accident shows Benny putting Nellie in a chokehold for several minutes. He maintained his grip even after Nellie stopped struggling.
“Even if I find it justified at first, the question then becomes how much is it?” Pedro said. “If you look at that video, I don’t think anyone would say this guy was a threat at the time.”
As Neely lies face down on the floor of the subway car, still wrapped in a chokehold, at least one bystander can be heard in the video urging restraint, warning that they might kill him.
The man says, “You have to let him go.”
Another witness, Johnny Grima, tells Benny and the other riders that the unconscious Nellie could choke on his own spit if they weren’t careful.
Grima reached inside the subway car while the throttle was in progress, and said he was deeply disturbed by the sight. He said the men assured him that Nellie was still breathing.
But when they let him go, he fell limping, staring into space, said Grima. His eyes were open, but there was no light.
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