The Risks of Restraint
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Use-of-Force, Proportionality + the Daniel Penny Case
For anyone not following the case, a New York jury recently acquitted Daniel Penny on charges of criminally negligent homicide related to the death of Jordan Neely. We’ll begin with the facts we know, and then evaluate the case for lessons learned when it comes to questions of use-of-force and our rights to defend ourselves, and others, in public places.
In May 2023, New York City was in the midst of a wave of violent crime, especially within the confines of its subway system. Penny, a former Marine trained in Marine Corps Martial Arts, happened to be riding the subway when Neely, a thirty-year-old Michael Jackson impersonator with a long history of mental illness and violent crime, boarded and began to threaten other passengers, asking for money and saying he wanted to do something that would get him sent back to jail. As Neely’s threats and disturbing statements escalated, Penny decided to intervene, overtaking Neely and subduing him with a rear choke and the aid of several other passengers. Six minutes later, the police arrived, and Neely was still conscious.
But before he was delivered to the hospital, Neely had died.
In the court of public opinion, the question was whether Penny was simply trying to defend his fellow passengers from a man who was violently threatening everyone on the train, or were his actions racially motivated?
From a court of law, the question was twofold:
Was Penny justified in intervening to defend his fellow passengers from a man who was violently threatening them?
Was the technique he used to subdue Neely proportional to the threat, or did he use excessive force?
As this case demonstrates, legal questions alone can be challenging to unpack, but coupled with underlying social and political dynamics, it can feel like navigating a minefield. I will not be addressing my opinions on the social and political aspects of this case, but rather, will focus on the legal – and thereby tactical – lessons learned.
As a disclaimer, keep in mind that I am not a lawyer, nor is this article intended as legal advice. It is a perspective from a subject matter expert in the field on the challenges and implications of use of force for defense of yourself or another.
Additionally, it is not my intention to question the jury’s finding of not guilty. My purpose is to teach you how to defend yourself in a manner that is the least likely to result in questions about whether your actions were justified. Although a finding of not guilty is desirable, a better outcome would be to minimize the likelihood of facing a jury at all.
Was Intervention Justified?
To me, the answer to this question is much clearer than the answer to the second: Yes, I clearly believe some level of intervention was justified.
One of the key standards of law, particularly as it relates to use of force, is the concept known as “the reasonable person standard.” In a case like this, we have to ask ourselves, “would an otherwise reasonable and prudent person, knowing what Daniel Penny knew at the time, believe that force was justified?”
Given the context of the case, including the recent spate of escalating violence in NYC, the confined space of the subway, and the totality of the threats and aberrant behavior, I believe, as did the jury, that intervention was justified.
The real question came down to whether or not the jury felt Penny’s use of force was appropriate.
The Proportionality Conundrum
In any use-of-force case, particularly in the matter of deadly force, the concept of proportionality becomes paramount to understand. As a gross over-simplification, for deadly force to be justified in defense, one must be facing an imminent threat of deadly force or serious bodily injury, or defending another from the same.
The issue in this case was Penny’s choice of technique – a rear choke – and the application thereof.
Since the early 1990’s, Brazilian Jiu Jitsu (BJJ) and mixed martial arts (MMA) have been increasingly popular, not just in the US, but across the world. But most schools of BJJ and MMA are very careful to advertise and explain that their martial arts are for sport fighting, not self-defense. Penny was taught some level of Marine Corps Martial Arts, a system primarily based upon MMA and BJJ. A fighting system, for sure, but fighting is different than self-defense, and this is not just a matter of semantics.
This differentiation is not just the combative approach of these arts, or the context under which they are intended to be used – ring fighting, or war fighting – it is that many of the techniques themselves, such as choke holds taught in MMA and BJJ, can cross the line into use of deadly force if deployed in a self-defense scenario.
This is not to suggest that these skillsets are not useful.
Clearly, they work, and they certainly have utility in specific contexts. Problems arise when physical training is not adequately balanced with the right legal and moral understanding for use in the real world. Without this balance, you can easily run the risk of using the wrong technique for the job – as was the case with Penny – and in general using excessive force.
From public perception to the perception of law enforcement, there are plenty of techniques a person can employ to defend themselves in a manner that will pass the “reasonable and proportional” standards, but to most people, a choke is a choke, and so it is considered a deadly force tactic.
Anytime you execute a choke, there is a chance for things to go very wrong, especially given that you won’t know what someone’s preexisting medical conditions are, or what drug interactions may be a factor.
Generally, if you’re skilled enough (and for that matter, calm enough in the situation) to perform a rear choke correctly, it is applied as a lateral vascular neck restraint (LVNR). An LVNR can efficiently cut off the person’s blood flow from their brain and cause a blackout in a matter of seconds. But if you hold that choke too long, or very commonly, apply the technique incorrectly, there is a chance of compressing or injuring the airway, which can result in asphyxiation and possible death.
Even if the choke is properly applied and does not affect the airway, there is a risk that the arteries may not open back up or that the person may otherwise not regain consciousness after the choke is released. This is precisely the reason why most law enforcement organizations have been prohibited from using LVNR’s as a restraint technique, unless deadly force is clearly justified given the situation.
The risk of airway obstruction and damage is simply too high.
In my assessment of this case, Penny not only chose the wrong technique for the job, he applied it incorrectly. I base this off of two factors. First, from the cell phone video footage of the incident, you can clearly see Penny’s forearm locked around Neely’s neck, almost directly against the throat. For an LVNR to be applied correctly, the users arm must be wrapped far enough around the subjects neck to align the elbow with the subjects chin, otherwise the force of the choke will apply compression primarily to the airway, rather than to the blood vessels along the sides of the neck. Second, Penny held Neely in this choke for approximately six minutes. A correctly applied LVNR would cause unconsciousness in a matter of seconds, 100% of the time. The sheer duration of the choke indicates airway compression, rather than vascular compression.
So, Penny was justified in taking action to subdue Neely, but his choice of technique and arguably his poor execution of that technique are the likely reasons we have even heard of this case.
Takeaways
In any use of force situation, there is always the possibility, if not the likelihood, of legal ramifications.
As such, it is vital that if you need to use force or deadly force to protect yourself or another, you must know what you’re doing and how to do it – tactically, legally, and morally. Choosing the right training is paramount, because your life, and your freedom, may depend on it. In a stressful situation, where it’s already hard to think and make good decisions, it’s vital that your training inculcates _appropriate_ responses physically, and with a healthy understanding of what you should, and shouldn’t, do in complex situations.
As with any crisis, the time to develop your options is NOT during the crisis. It is ahead of time, through thoughtful preparedness and training.
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