If you only glance at the headlines in recent years, you would believe that there is no longer any acknowledgment of the right to self defense by police and prosecutors.
To cite just a few examples:
On January 30, Arizona Rancher George Kelly allegedly shot and killed an illegal alien crossing Kelly’s property. The trespasser, Gabriel Cuen-Butimea, was in the company of a group of armed men, and may have been armed himself at the time he was killed. Despite Kelly’s right to defend his property, himself and his family from armed intruders on his land, and regardless of Arizona’s “Stand Your Ground” laws, Kelly was arrested, charged with murder, and is currently awaiting trial in Santa Cruz County, Arizona.
Also in January, Pro Life activist Mark Houck was put on trial in federal court in Philadelphia, Pennsylvania for pushing a Pro-Abortion activist named Bruce Love away from Mr. Houck’s 12 year old son. Despite video that showed Love instigated the incident by harassing Houck’s minor son, federal prosecutors went forward with a five day trial, that ended in a full acquittal of Mr. Houck after only one hour of deliberation by the jury.
Then, on March 30, a security guard was arrested by Port Authority Police in New York City for allegedly assaulting a shoplifter who was in the process of stealing from the store and assaulting the guard. Retired NYPD officer Salvatore Lopiccolo caught Rahmell Coleman stealing from the Walgreens located in the Port Authority Bus Terminal in midtown Manhattan and escorted him from the premises, telling him not to come back. But Coleman did come back and stole more property. “Lopiccolo stopped Coleman at the door when the scuffle broke out…Coleman allegedly whacked the retired officer in the head with the bag of food before Lopiccolo tackled him to the ground… officers ended up charging both Coleman and Lopiccolo.” According to Fox News, “Coleman has at least five prior arrests, including an incident where he allegedly punched a man multiple times outside Penn Station and took his cellphone,” and “failed to show up to his recent court date for assault and harassment charges in connection to the incident” with Lopiccolo.
Lopiccolo told Fox News that he has been unable to work as an armed guard since his arrest.
Now, the most recent case involves an incident which occurred on the New York City subway early this May.
According to CNN, “Juan Alberto Vazquez said he was riding the subway when he saw a man, later identified as (former street performer Jordan) Neely, enter the car just as the doors were closing. Neely immediately launched into an aggressive rant about being ‘fed up and hungry’ and ‘tired of having nothing,’ Vazquez said. Vazquez quoted Neely as saying: ‘I don’t care if I die. I don’t care if I go to jail. I don’t have any food … I’m done.’ Neely then took off his coat and threw it on the floor and said he was ready to go to jail and get a life sentence, Vazquez said. Many passengers became visibly uncomfortable and moved to other parts of the train car…(a)nother rider then approached Neely from behind and put him in a chokehold, Vazquez said.”
Neely subsequently died after first being rendered unconscious. “The New York City Office of Chief Medical Examiner confirmed to CBS News…that the cause of death…was determined to be ‘compression of neck’ or a ‘chokehold.'”
According to CNN, “(b)efore his death, Neely had been on a NYC Department of Homeless Services list of the city’s homeless with acute needs…(he) had a lengthy arrest record with New York police, a law enforcement source told CNN’s John Miller, including 42 arrests on charges including petty larceny, jumping subway turnstiles, theft, and three unprovoked assaults on women in the subway between 2019 and 2021.”
Who was it that decided to stop Neely before he could hurt anyone on that train?
“Daniel Penny...who served as a Marine infantryman from 2017–2021…(who) was promoted to sergeant while in the Individual Ready Reserve. He deployed to the Mediterranean with the 22nd Marine Expeditionary Unit from December 2018 to July 2019. Penny was last assigned to 1st Battalion, 2nd Marines, an infantry unit that falls under 2nd Marine Division, based at Camp Lejeune, North Carolina. His military awards include the Marine Corps Good Conduct Medal, National Defense Service Medal, Global War on Terrorism Service Medal, Global War on Terrorism Expeditionary Medal, Humanitarian Service Medal and Sea Service Deployment Ribbon,” this last being awarded twice to Penny.
Clearly, Penny is an honorable man, with an exemplary record of service to his country. Neely, on the other hand, was a repeat offender, who was violently threatening Penny’s fellow passengers on the New York City Subway.
It is tragic that Neely died. But are Penny’s actions criminal, or were they in defense of himself and his fellow subway riders?
Predictably, according to a spokesman for Manhattan DA Alvin Bragg, “Daniel Penny will be arrested on a charge of manslaughter in the second degree,” and true to the DA’s word, Penny was arraigned on May 12, 2023 in Manhattan Criminal Court for that charge.
Penny was “freed pending trial hours after turning himself in at a police station and appearing in court…(a) judge authorized Penny’s release on $100,000 bond and ordered him to surrender his passport and not to leave New York without approval. Prosecutors said they are seeking a grand jury indictment. Penny is due back in court on July 17.”
Under New York State Penal Law Section 125.15, “A person is guilty of manslaughter in the second degree when…He recklessly causes the death of another person.” “Recklessness” is defined in Criminal Procedure Law Section 15.05(3) as follows; “A person acts recklessly with respect to a result or to a circumstance…when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.”
As described by New York City Criminal Attorney Jeffrey Lichtman, “(t) he most classic example of Manslaughter in the Second Degree is a person pointing a loaded gun towards a crowd of people and firing. Even if the shooter did not intend for any specific person to die, a prosecutor can argue that they knew that there was a substantial likelihood that their actions would result in a death.”
But let us consider the circumstances where a defendant’s conduct has actually been determined to satisfy the legal requirements for the charge of Manslaughter in the Second Degree under New York law.
In People v. Maldonado, the defendant stole a motor vehicle, and struck and killed a pedestrian while fleeing from the police. The defendant was originally convicted of Murder for acting with “depraved indifference” to human life, however, the New York State Court of Appeals felt that the “defendant sought to mitigate the consequences of his reckless driving because he ‘actively attempt[ed] to avoid hitting other vehicles’ by swerving, conduct which establishes a lack of depraved indifference.”
The Court held this way despite the fact that the “defendant drove on the wrong side of the road,” and even though “(t)he victim hit the passenger side of the minivan’s windshield with such force that her body landed more than 100 feet down the avenue (and) died at the scene.” Regardless of these facts, the Court stated “Defendant was unquestionably reckless, but he was not depravedly indifferent as we have defined and interpreted that state of mind.”
Further, in People v Gaworecki, the same Court found that a drug dealer who sold five bags of heroin to a person who subsequently died of an overdose was not guilty of Manslaughter in the Second Degree. Incredibly, the Court stated that “the evidence presented to the grand jury failed to establish…that defendant acted…with the recklessness required to sustain the charge of second-degree manslaughter… the People presented insufficient evidence that defendant was aware of, or failed to perceive, a substantial and unjustifiable risk of death from the heroin he was selling…when he sold heroin to the decedent.”
These few examples may give some idea of the level of proof necessary to establish that Daniel Penny’s actions were criminally “reckless.” What is more reckless – striking and killing a pedestrian with a stolen vehicle, selling heroin that kills the user, or placing an aggressive, threatening panhandler in a chokehold?
It is also important to note that under New York’s Criminal Procedure Law Section 35.10, “(t)he use of physical force upon another person which would otherwise constitute an offense is justifiable and not criminal (when) (a) person (uses) physical force upon another person in self-defense or defense of a third person.”
The witness interviewed by CNN, Juan Alberto Vazquez, stated that Neely had thrown his coat to the floor of the train car, and stated that he did not care if he went to jail and got a life sentence. Vazquez also described other passengers being visibly uncomfortable, and making efforts to move away from Neely. Is it reasonable for Penny to believe Neely to be a threat to himself and others in that train before he placed Neely into a chokehold?
The arraignment of Daniel Penny is only the first step in this prosecution. The Manhattan DA must now convince a Grand Jury that Penny acted while “consciously disregard(ing) a substantial and unjustifiable risk” that his actions could cause the death of Neely. In reasonable times, reasonable minds may have concluded that Penny’s actions, while well intentioned, went tragically wrong – that is, Penny may have been negligent, but not criminally so.
But these are not reasonable times. As recounted above, there is a recent, widespread pattern of ignoring the law of self-defense, and prosecuting people who, in the past, may have been considered justified in the actions they take.
Why has this become a prevailing viewpoint? Perhaps the answer lies in an examination of the basic purpose for the law of self defense. As described by Professor Michael O’Hear of Marquette Univeristy Law School, while discussing a paper written by Professor Janine Young Kim of Chapman University, “why (do) we have government and criminal law in the first place: to protect ourselves from interpersonal violence…If we understand this to be the purpose of criminal law, then we can see the self-defender as someone whose motives are congruent with the very reason we have criminal law: the prevention of violence. As Janie puts it, ‘This account helps to explain why our understanding of self-defense is often more intuitive than deliberate. The rationale behind self-defense is both basic and familiar because it constitutes the foundation of our notion of an organized, civilized society’. Put differently, since the whole point of the social contract is to protect ourselves from violence, it would make no sense to have a legal system…that punishes people for their individual efforts to protect themselves from violence.”
Indeed. And judging by the examples cited here, isn’t it clear that there currently are certain leaders of our society, particularly certain prosecutors like Alvin Bragg, who do not believe in the “social contract” intended by the existing justice system, and seek to punish people for protecting themselves and others from violence?
Just ask Jose Alba.
As reported in the Daily Mail, “Alba…was working at the Blue Moon deli (in Manhattan) on July 1 (2022) when he fatally stabbed (Austin) Simon in the neck and chest….(s)urveillance footage clearly showed that Simon had moved behind the counter at the convenience store in Hamilton Heights and pushed the store clerk into a stack of shelves before grabbing him. It was only then that Alba reached over to a shelf and pulled out a knife to fight back.”
Alba was originally charged with Murder in the Second Degree by the Manhattan DA. But after only a month, Bragg dropped the case, admitting he could not prove the charge. “District Attorney Bragg had faced intense criticism after charging Alba, including from Mayor Eric Adams.”
As the situation was described by Billy Binion in Reason, “(p)eople will disagree on why Bragg charted his initial course and why he decided to reverse it. But I’ll posit a theory: Progressive prosecutors, and some criminal justice reformers generally, sometimes have a blind spot for self-defense claims, particularly when they may empathize with the person killed. As I wrote shortly after the murder charge was filed: ‘Simon was black, poor, and caught up in the criminal justice system. And so now Alba—himself neither white nor well-off—is caught up in the criminal justice system too.’ It’s hard to see who wins here.”
Unlike Alba, Penny is white, and appears to be in a better social and economic situation than Neely, who was black. Yet, like Alba, Penny has the exact same right to self-defense, as do we all. Will Alvin Bragg continue to ignore that right, and hope that a Grand Jury will ignore it too?
Judge Wilson (ret.) served on the bench in NYC
Illustration: Pixabay