Daniel Penny

On May 1, 2023, in New York City, Jordan Neely, a 30-year-old homeless man, was killed after being put in a chokehold by Daniel Penny, a 24-year-old United States Marine Corps veteran while riding the New York City Subway. Neely, who was reportedly agitated and threatening passengers, was subdued by Penny, leading to his death. Penny was found not guilty of criminally negligent homicide, and a charge of second-degree manslaughter was dismissed. Neely's death prompted protests and a debate around Penny's actions and Neely's circumstances.

Neely boarded a subway train at the Second Avenue station, violently threw his coat on the ground and reportedly began screaming. According to one of the passengers, Neely yelled that "he had a rough day, that he don't care about what happens today, he don't care about going to jail, but someone's dying today". Another passenger stated that Neely came in yelling that he was looking for food and that "basically he was ready to risk it...he was about to hurt somebody". Juan Alberto Vázquez, a journalist who witnessed the incident, said Neely removed his jacket and threw it to the floor, in response other passengers moved away from him. Vázquez said he did not witness Neely assaulting anybody, however other witnesses reported fearing death from Neely's actions, which included his throwing trash at other passengers and approaching people intimidating them. Penny then approached Neely from behind and put him in a chokehold. Prosecutors and defense attorneys stated Neely was threatening passengers at the time that Penny began restraining Neely.

Penny maintained the hold after the train had reached its next stop, Broadway–Lafayette Street, while other passengers held the doors open to prevent it from moving. During the chokehold, some bystanders warned Penny about Neely's health; one told him, "You're gonna kill him now", while others helped in holding down Neely until police arrived. Vázquez captured the final three minutes of the hold on video, which shows Penny applying it for nearly a minute after Neely had stopped struggling and gone limp. Prosecutors alleged that the chokehold lasted for six minutes, while Penny said it lasted less than five minutes. An unknown amount of time after Penny released Neely, New York City Police (NYPD) officers arrived. The responding officers stated that Neely had a faint pulse upon their arrival. Neely was given naloxone and cardiopulmonary resuscitation by officers at the scene. The New York City Fire Department transported Neely to a hospital, where he was pronounced dead. Penny was taken for questioning by the NYPD and released without charge.

The incident was a national controversy. Critics of Penny joined protests and characterized him as a vigilante, demanded that he be charged, and alleged he was motivated by racism against Neely, an African-American. Supporters of Penny defended him as a Good Samaritan seeking to protect other passengers, with some donating money to his legal defense. Neely had an extensive criminal record, including 42 arrests on charges including petty larceny, jumping subway turnstiles, theft, and three unprovoked assaults on women in the subway between 2019-21. Given Neely's background of homelessness and mental health issues, the incident prompted discussion about the treatment of such individuals in New York City.

A medical examiner determined Neely's death to be a homicide by compression of the neck, which was disputed by Penny's defense lawyers. On May 11, 2023, Penny was charged with second-degree manslaughter and released on bond. He was formally indicted by a grand jury, with a lesser charge of criminally negligent homicide added. Penny pleaded not guilty to both charges, under which he faced up to 15 years in prison. Penny's trial began in October 2024 and concluded that December. The manslaughter charge was dismissed on the request of the prosecution, after the jury deadlocked, while he was acquitted on the remaining charge of criminally negligent homicide. A wrongful death suit by Neely's father remained pending .

Incident

The incident took place on the New York City Subway in Manhattan. Some time after 2:00 p.m. (EDT) on May 1, 2023, Neely boarded a northbound F train at the Second Avenue station just before it departed for the Broadway–Lafayette Street station. Penny was in the same train car, planning to go to a gym. Vázquez told ''The New York Times'' that Neely began screaming, "I don't have food, I don't have a drink, I'm fed up. I don't mind going to jail and getting life in prison. I'm ready to die." Another witness heard Neely say, "Someone is going to die today." Penny said that Neely repeatedly threatened to kill other passengers. Vázquez said that Neely was frightening but had not assaulted anyone. Other witnesses said that Neely made "half-lunge movements" at other passengers and was within "half a foot of people", and recalled fearing for their lives. A mother with a child testified that Neely charged at passengers, and she shielded herself and her child behind a stroller, believing she might die. Prosecutors later highlighted a witness saying that Neely's actions felt common to him due to him frequently interacting with and witnessing outbursts on public transit. Conversely, defense attorneys quoted a witness stating that she had been riding the subway for years but had never encountered a person who "put fear into" her as much as Neely did. Prosecutors stated that Neely was high on synthetic marijuana and suffering from mental illness at the time of the incident. Defense attorneys stated that Penny initially ignored Neely, but acted after he saw Neely approach the mother and son hiding behind a stroller while saying "I will kill." Prosecutors said that Neely was "making threats and scaring passengers" when Penny placed him in a chokehold.

In an interview with ''New York'' magazine's Curbed, Vázquez repeated much of his account as reported by the ''New York Times'':

eelystopped the door from closing and he got on the train. And he stood in the middle of the train car, and then he started yelling that he didn't have food, that he didn't have water. From what I understood, he was yelling that he was tired, that he didn't care about going to jail.

I tried to start filming from that moment, but I didn't because I couldn't see anything – it was too crowded. And then I heard him take off his jacket. He bundled it up and just threw it on 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.

It's at that moment that this man came up behind him and grabbed him by the neck, and I think – I didn't see, but I think – that move of grabbing him by the neck also led him to grab Neely by the legs with his own. They both fell. And then in like 30 seconds, I don't know, we got to Broadway–Lafayette, and they were just there on the floor.

Vázquez said that Neely did not interact with Penny prior to the chokehold. Police later stated that Neely had been acting in a "hostile and erratic manner", and had reportedly been throwing garbage at other passengers.

When the train reached Broadway–Lafayette Street station, riders prevented the train from moving onward by holding open the train doors, waiting for police to come. It is estimated that the time from when Jordan Neely boarded the train at the Second Avenue station to the time it reached the Broadway–Lafayette Street station was one minute. Prosecutors said that the chokehold began less than 30 seconds before the train arrived at the Broadway-Lafayette Street station. Most passengers exited the car where the physical fight was underway.

Penny maintained the chokehold on Neely for several minutes, at least three of which were seen in Vázquez's video. Penny disputed widely-circulated claims of a 15-minute chokehold, and said it lasted for less than five minutes. Prosecutors later alleged that the chokehold lasted for six minutes.

Neely struggled against the chokehold by kicking and trying to free his arms, which were being pinned by two other men. A witness said that it did not look like Penny had control of the situation due to the struggle.

Vázquez said that Penny asked other riders to call the police while he had the chokehold. Penny had learned the technique for restraint in basic training. Another witness said that at some point during the chokehold, Penny relaxed his grip on Neely, and Neely coughed up a wad of blood and mucus. The same witness noted that nobody on the train car was telling Penny to stop his chokehold, and that some passengers expressed hostile statements toward Neely and support for Penny's actions.

At 2:29 p.m., a passenger on the train warned that Neely had defecated on himself, a sign that he may be dying, saying, "You don't want to catch a murder charge. You got a hell of a chokehold, man." One of the other men restraining Neely responded, saying that the excrement on Neely's pants was old. He also responded to the warning by saying that Penny had stopped "squeezing" Neely's neck.

About 50 seconds after Neely became motionless, Penny and one man who was still restraining Neely's arms released their hold on him. Shortly thereafter, a man named Johnny Grima can be seen in the video saying, "Don't put him on his back though, man. He might choke on his own spit." Penny placed Neely on his side, into a recovery position. Grima said that he put water on Neely's forehead, but was told to stop by Penny. Other passengers also checked on him, including an onlooker who warned Penny about killing Neely, who said, "He's all right. He ain't gonna die."

The New York Police Department reportedly received a call at 2:27 p.m. about a fight on the train, and arrived before 2:30 p.m., administering first aid to an unconscious Neely. Another source says the first call was around 2:25 p.m. according to police. The NYPD issued a press release on May 4 which said they had responded at 2:27 p.m. to calls made before that time. The New York City Fire Department received a call for help at 2:39 p.m., arriving at 2:46 p.m. At least five 9-1-1 calls were made, with some initial reports describing a homeless man that some found to be threatening in his mannerisms and volume. An officer arriving at the scene asked how Neely ended up on the floor, and Penny said that he had "put him out". Responding officers testified that Neely had a faint pulse on their arrival, and was initially given Narcan and eventually CPR.

Neely was pronounced dead after being transported to Lenox Hill Hospital.

People involved

Jordan Neely

Jordan Maurice Caine Neely was a 30-year-old man who grew up in Bayonne, New Jersey. Neely had an extensive criminal record, including 42 arrests for offenses such as petty larceny, theft, jumping subway turnstiles, and assaults. Between 2019 and 2021, he was involved in three unprovoked assaults on women in the subway.

Neely was frequently homeless and had a history of mental health issues, including schizophrenia, depression, and PTSD, which were linked to trauma he experienced in his youth. In 2007, when he was 14 years old, his mother was murdered by a man with whom she had been in an abusive relationship. Her body was found in a suitcase on the side of the Henry Hudson Parkway. Neely was called to testify at the trial. According to his aunt, Neely developed major depression, schizophrenia, and post-traumatic stress disorder after the murder of his mother. He was placed in foster care as a youth.

As an adult, Neely was known for his performances as a Michael Jackson impersonator, performing in Times Square and subway stations. He was said to be a talented dancer. He was frequently homeless and had been involuntarily hospitalized for mental issues in the past. According to ''The Guardian'', once Neely became homeless he slipped "into a cycle of mental health crises, arrests and hospitalization that would continue until his death". He had been a client of the Bowery Residents' Committee, which attempted to find him permanent shelter. From 2019 until the time of his death, he was included on what was informally known as the "Top 50 List", a city-maintained roster of homeless people considered to be most in need of assistance and treatment, to which they are often resistant.

Neely's funeral was held on May 19 at Mount Neboh Baptist Church in Harlem. At least 200 people were present, while a small group of peaceful protesters gathered outside. In addition to Neely's family and friends, several Democratic politicians, including Rep. Alexandria Ocasio-Cortez, New York City public advocate Jumaane Williams, and Lt. Gov. Antonio Delgado, also attended.

Civil rights activist and Baptist minister Al Sharpton delivered Neely's eulogy, in which he criticized what he saw as systematic abuse and criminalization of people with mental illness, and double standards of the police and criminal justice system on the basis of race. He objected to the characterization by some of Penny as a "good Samaritan", saying, "A good Samaritan helps those in trouble, they don't choke him out."

Neely was buried at Kensico Cemetery in Westchester County in a private service.

Daniel Penny

Daniel Penny is a Marine veteran from West Islip, New York. At the time of the killing, he was 24 years old. He was indicted for the death of Jordan Neely. He hired Thomas Kenniff, a former Republican candidate for district attorney, to represent him.

Shortly after the chokehold, Penny was interviewed by detectives. In the interview, Penny recounted that Neely entered the train while saying, "I'm gonna kill everybody. I could go to prison forever, I don't care." Penny said that he did not intend to kill Neely with his restraint and was attempting to deescalate the situation. Penny demonstrated the hold he said he used on Neely to the detectives.

On May 5, 2023, Penny's attorney released a statement offering his condolences to Neely's family, stating that he "never intended to harm Mr. Neely and could not have foreseen his untimely death" and that Mr. Neely began aggressively threatening Daniel Penny and the other passengers, Daniel, with the help of others, acted to protect themselves, until help arrived." In the same video, Penny said about Neely, "The three main threats that he repeated over and over was, 'I'm going to kill you,' 'I'm prepared to go to jail for life,' and 'I'm willing to die. Penny disputed characterizations of his own intent, or assertions that he had restrained Neely for 15 minutes. He said, "Between stops, it was only a couple of minutes, so the whole interaction, less than five minutes. Some people say I was trying to choke him to death – which is also not true. I was trying to restrain him. You can see in the video there's a clear rise and fall of his chest, indicating that he's breathing."

After his acquittal, Penny said he maintained his hold on Neely for several minutes because he found Neely to be "extraordinarily strong", and was worried about Neely attacking him or someone else if he let go. Penny said that he would take the same course of action again if he had to, due to the possibility of Neely hurting someone. Penny was hired by Andreessen Horowitz, a prominent Silicon Valley venture capital firm, as a deal partner a few months later.

Legal proceedings

Police questioned Penny after the incident but released him without charges a few hours later. On May 3, Manhattan District Attorney Alvin Bragg confirmed that his office had begun an investigation into Neely's death. Also on May 3, the medical examiner's office determined the manner of death to be homicide, stating that Neely died from "compression of neck (chokehold)". The medical examiner made the determination after performing an autopsy and watching cell phone video of the incident, but did not wait for results from a toxicology report. On May 11, Bragg's office announced that Penny would be charged with second degree manslaughter, which carries a penalty of between five and 15 years in prison.

On May 12, Penny turned himself in to police for arrest and was arraigned in Manhattan Criminal Court. Since he had not been indicted by a grand jury, he chose not to enter a plea, and was released from custody on $100,000 cash bail. He was required to surrender his passport and instructed to not leave New York without approval.

A grand jury was impaneled on May 31 to hear Bragg's case against Penny. On June 14, 2023, he was officially indicted by the grand jury. At a second arraignment on June 28, 2023, the grand jury's indictment was unsealed, revealing a charge of criminally negligent homicide in addition to second-degree manslaughter, giving the trial jury the option to convict on a lesser charge. A second-degree manslaughter conviction would require the prosecution to prove the defendant knew the potential to cause death, and acted recklessly. A criminally negligent homicide conviction would require proof that the defendant's actions unjustifiably risked Neely's death, but without awareness of the danger.

After the arraignment, the district attorney's office released a list of evidence to be given to the defendant's attorneys. Items included witness statements, cellphone videos from at least two witnesses, and surveillance video. An extended video of the incident was captured by a European couple that later returned to Europe. The couple met with prosecutors remotely, but declined to provide their footage or testimony. Defense attorneys alleged that the prosecution was not making a good-faith attempt to secure the evidence.

On January 17, 2024, the presiding judge, Maxwell Wiley, denied a request by Penny's legal team for a dismissal of his charges. The trial began with jury selection on October 21, 2024. During jury selection, nearly all prospective jurors reported having prior knowledge of the incident. Opening statements in the trial began on November 1.

The two other men who helped to restrain Neely were not charged.

The case was prosecuted by Assistant Manhattan District Attorney Dafna Yoran. During the trial, prosecutors acknowledged that Penny acted to protect others, calling his intention "laudable", but alleged that he acted recklessly in applying a chokehold against Neely for several minutes. They alleged that Penny attempted to render Neely unconscious, but knew that he was applying his chokehold improperly, resulting in Neely's continued struggling and eventually death. Defense attorneys argued that Penny attempted to maintain a hold to restrain Neely, rather than render him unconscious, and was forced to continue it due to Neely's struggling. They also argued against the medical examiner's determination of a homicide, citing a pathologist's testimony stating that Neely died from a combination of factors, including his sickle cell trait, a schizophrenic episode, struggling with Penny's restraint, and intoxication from K2 synthetic marijuana.

Closing arguments were delivered on December 2, 2024. On December 3, jury deliberations got underway. Jurors were instructed to consider the top charge of manslaughter before considering the charge of criminally negligent homicide. They were also instructed to determine whether Penny's actions were responsible for Neely's death, and if so, whether his actions were reckless and unjustified. During deliberation, jurors sent over 10 notes to the judge for further instructions. After a jury deadlock emerged on the manslaughter charge, Judge Wiley gave jurors Allen charge instructions, requesting that they reconsider differing opinions to reach an agreement.

On December 5, a wrongful death suit was filed into the New York Supreme Court by Jordan Neely's father, Andre Zachary, on the grounds of negligence, assault, and battery.

On December 6, prosecutors successfully requested a dismissal of the manslaughter charge against Penny following the jury deadlock, which cleared the jury to deliberate on the lower charge of criminally negligent homicide. Penny was found not guilty of the remaining charge of criminally negligent homicide on December 9.

Reactions and protests

Neely's family and friends

Neely's father, Andre Zachery, spoke with the ''New York Daily News'' on May 5, 2023, stating, "Obviously he was calling for help... He wasn't out to hurt nobody. He was a good kid and a good man too. Something has to be done. That man, he's still walking around right now. My son didn't deserve to die because he needed help." On May 8, 2023, attorneys representing Neely's family released a statement about Penny's press release, saying it "is not an apology nor an expression of regret. It is a character assassination and a clear example of why he believed he was entitled to take Jordan's life... He never attempted to help him at all. In short, his actions on the train, and now his words, show why he needs to be in prison." The family asked Al Sharpton to deliver the eulogy at Neely's funeral. However, as a father, Zachery was mostly uninvolved in Neely's life throughout his childhood, according to a 2023 ''New York Magazine'' profile of Neely.

Moses Harper, a dance instructor and performer and a friend and mentor of Neely from age 16 until his death said, "when I think of Jordan Neely, I think of a gifted, kind, young soul who was trying to find some joy and peace in this world. He was looking for a reason to celebrate and engage in something positive. And it is painful to think that somebody treated him like he wasn't worth anything. He was priceless." Based on her years of outreach work at Rikers Island, Harper said that younger homeless men like Neely were frequently counseled by their elders to intentionally commit minor offenses for the purpose of getting a warm meal and bed in jail, or claim suicidal ideation to gain hospital admission, when no other options were available. The last time Harper saw Neely alive, she encouraged him to "get clean and clean up." Neely said, "Don't worry, I am going to do it." "But the system failed Jordan," said Harper.

Public officials and community

New York City mayor Eric Adams called Neely's death "tragic" and said "there's a lot we don't know about what happened here", and that Neely's mental health issues played a role in the killing. Later, without mentioning the circumstances of Neely's death, Adams said that death could have been prevented if Neely had received more mental health assistance. When asked about the issue of vigilantism in a May 4 interview with Abby Phillip, Adams replied that "we cannot blanketly tell passengers what they should or should not do". Adams later held a press conference calling for passage of the proposed ''Supportive Interventions Act'', a bill that would lower the legal threshold at which a person can be involuntarily committed in New York.

New York Governor Kathy Hochul called Neely's death "deeply disturbing" and called for "consequences". She described Penny's actions as a "very extreme response" to a person who did not appear to be a threat to others. Metropolitan Transportation Authority chair Janno Lieber called the death "really troubling and upsetting" and urged riders to "find a way to deescalate" if challenges emerge on the subways.

State Senator Julia Salazar called Neely's killing a lynching, arguing that Neely would not have been perceived as threatening if he were not black, referencing news and social media coverage demonizing the homeless and mentally ill. She tweeted, "The constant demonization of poor people and people in mental health crisis in our city allows for this barbarism. It is making our city sick." Executive director of the Coalition for the Homeless, Dave Giffen, said that political rhetoric has led to hatred and violence against homeless people. City Council member Tiffany Cabán said the killing was "the inevitable outcome of the dangerous rhetoric of stigmatizing mental health issues, stigmatizing poverty and the continued bloated investment in the carceral system at the expense of funding access to housing, food and health".

Many left-leaning activists, including Democratic Party representative Alexandria Ocasio-Cortez, said Neely was murdered, pointing to what they say are deficiencies in the city's response to homelessness and mental illness. Ocasio-Cortez tweeted: "Jordan was houseless and crying for food in a time when the city is raising rents and stripping services to militarize itself." She accused the Adams administration of "trying to cut the very services that could have helped" Neely. New York City comptroller Brad Lander said, "We must not become a city where a mentally ill human being can be choked to death by a vigilante without consequence."

Mayor Adams rebuffed statements from Lander and Ocasio-Cortez as " otvery responsible at the time where we're still investigating the situation" and called for officials to wait on investigations from Bragg and law enforcement officials.

Other officials expressed frustration that DA Bragg's office had not already criminally charged Penny, claiming that if he had been black, the situation would have unfolded differently. City Council speaker Adrienne Adams stated, "The initial response by our legal system to this killing is disturbing and puts on display for the world the double standards that black people and other people of color continue to face."

New York City media reported that residents were divided, with some supporting and others opposing Penny's actions. More than 59,000 online donations have been made to Penny's legal defense fund, totaling around $2.9 million, including $10,000 from Vivek Ramaswamy, with some conservatives – including Republican politicians Ron DeSantis and Matt Gaetz – labeling him a hero and celebrating his actions. Republican politician Nikki Haley was very critical of the DA charging Penny, and said "the governor needs to pardon Daniel Penny ... no question about it ..right away". Republican Nassau County, New York executive Bruce Blakeman held a rally in support of Penny in Manhattan.

On May 25, Republican politician Andy Ogles proposed House Resolution 448 in the United States House of Representatives to "recognize and honor Daniel Penny ... for his heroism and courage in apprehending a threat to public safety". The resolution was supported by Marjorie Taylor Greene and other Republican representatives. The text of the resolution made reference to Neely's arrest record. On the same day, Ogles wrote on Twitter, "In Democrat-run cities across the nation, crime is rampant, and the desperate cry for order is loud. Rather than take action to protect everyday citizens, Leftist government leaders prioritize political agendas over justice." Tennessee State Rep. Gloria Johnson responded to the resolution on Twitter, saying, "Maga republicans sure love criminals." No further action was taken to advance the resolution.

Former NYC prosecutor Michael Bachner told ''NBC New York'' that Penny's status as a Marine veteran could undermine an argument he acted in self-defense, saying, "If he knew and was trained to use a chokehold, he would be no different than the training a police officer would get. The argument is going to be that he acted in a way that he should have known could result in death."

Penny joined U.S. president-elect Donald Trump and vice president-elect JD Vance at the 2024 Army–Navy American football game as a "guest of honor" after his acquittal.

Journalists

Conflicting and incorrect information was widely disseminated by many news and other media outlets due to reporting by Juan Alberto Vázquez. A freelance journalist, he recorded part of the altercation on his cellphone. Vázquez told NBC New York, and posted on his Facebook, that the chokehold lasted for 15 minutes. But Vázquez later told CNN that "the two men were on the floor for about seven minutes" and that he "started recording about three or four minutes after the chokehold began". The earlier claim of a 15 minute chokehold continued to circulate after the correction.

About a month after Neely's death, reporter Andy Newman, who had covered the Neely story for ''The New York Times'', gave an interview to the ''Columbia Journalism Review''. He said that he found the issues of homelessness and mental illness "vexing to write about" because they lack easy solutions, and that he thought many readers feel or assume that the answer is to "just get these people to take their meds, and or just lock them away in a long-term psychiatric institution." Reflecting on his 25 years at the metro desk, he said:

Protests

On May 3, two days after Neely's killing, a vigil-turned-protest was held inside the Broadway–Lafayette Street station, during which the arrest and charging of the then-unnamed man who choked Neely were demanded. A protest in front of the Manhattan district attorney's office was set for May 4, and another May 4 protest was held in Brooklyn; after dark on May 4, a group of demonstrators marched from Brooklyn to Manhattan across the Manhattan Bridge, onto which they spray-painted slogans related to Neely's death. Several organizations, including Black Lives Matter, NAACP, and Amnesty International USA, have called for accountability in Neely's killing. On May 5, 2023, protests took place across the city, including locations such as the Broadway–Lafayette Street station, Washington Square Park, and outside the Manhattan district attorney's office, calling for criminal charges to be brought. Protests were again held on May 6, 2023, at various locations in Manhattan, including the Lexington Avenue–63rd Street station, where several protesters were arrested. On May 8, 2023, 11 protesters were arrested.

On June 23, the Manhattan district attorney's office dropped all misdemeanor charges related to the protests, which included resisting arrest and disorderly conduct. The office said that it was still seeking to prosecute three people who were arrested on felony charges, one for blocking subway tracks, one for pinning an NYPD inspector's arm in a door, causing "bruising and substantial pain", and one for striking the back of an officer's head multiple times.

See also

* 1984 New York City Subway shooting
* 2022 New York City Subway attack

Notes

References

External links

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