Daniel Penny, the ex-Marine who was filmed subduing Jordan Neely on Monday, will likely not face murder charges, according to at least one legal expert.
During an interview with The Daily Caller, George Washington University Law Professor Emeritus John Banzhaf outlined his case for why criminal charges are unlikely in this situation, claiming that Penny will likely be protected by New York state’s law on the use of reasonable force for defense.
“I think a strong argument could be made that, under the circumstances, it was reasonable to restrain that guy by holding him around the neck,” Banzhaf told The Daily Caller.
While the office of District Attorney Alvin Bragg has stated they are primarily concerned with discerning whether Penny had a reasonable fear for his own life, Banzhaf suggested that this standard is inappropriate for determining Penny’s criminal liability, saying that “unwanted physical force” on Neely’s part could include unwanted touching.
Banzhaf also noted that Penny’s means of subduing Neely by neck restraint may not qualify as “deadly physical force,” defined by New York state law as “physical force which, under the circumstances in which it is used, is readily capable of causing death or other serious physical injury.” Banzhaf pointed to tasers and tear gas as applications of force typically considered “nonlethal” which nonetheless can result in death in certain conditions.
Finally, Banzhaf observed that the presence of other passengers attempting to restrain Neely will bode well for Penny, suggesting that other witnesses felt they were in sufficient danger to justify Penny’s use of force. Altogether, in Banzhaf’s estimation, the balance of these facts would make it extraordinarily imprudent and difficult to prosecute Penny.
“If these charges are even brought, this is going to substantially further deter people from coming to the aid of others,” Banzhaf told The Daily Caller, raising the possibility of jury nullification. “There have been a lot of situations in New York or elsewhere, where people have been attacked on the street and there were bystanders who could have done something, and they did not intervene.”
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