DA Cites Wrong Standard In New York Subway Death Case; “Defense of Others,” Not “Self Defense”; Legal Justification
New York Subway Death Case – Wrong Legal Standard
WASHINGTON D.C. (May 5, 2023) – The Washington Post is reporting that the legal standard the New York DA is planning to apply in determining whether to charge a former marine for his role in the death of a convicted criminal threatening passengers on the subway is: “whether the 24-year-old’s actions against Neely were justified and if he feared for his life.”
But this is wrong for several reasons, notes public interest law professor John Banzhaf, who has analyzed and corrected predicted the outcome in many such cases, including the subway shooter case which also occurred on the subway.
The good samaritan probably would not argue that he feared for his own life – especially given his physical size and conditioning, as well as his self defense training.
Instead, he would almost certainly rely upon a legal privilege which goes back hundreds of years, and is now codified in New York State [§ 35.15 ] – the right to use reasonable force to defend or protect another from “unlawful physical force.” This term could include many forms of unwanted touching, including groping, of the other passengers.
This is not “self defense,” but rather “defense of others” – e.g. the other passengers less able to defend themselves – the law professor would remind the DA.
The Use Of Force
Any good samaritan may generally not use “deadly physical force” to defend himself or others. This term is defined in New York as “physical force which, under the circumstances in which it is used, is readily capable of causing death or other serious physical injury.” [§10.00(11)]
But while a neck hold can cause death, so also can the use of a Taser, tear gas, a blow from a police baton, or even a punch to the body or face, so the use of a neck hold by a civilian is not necessarily “deadly force” since the determination requires consideration of the “circumstances.”
While so-called “choke holds” have been banned for some (but by no means not all) police, different considerations apply since police carry other weapons and well as restraints, and can generally call for backup.
Here the samaritan had no other readily available ways to restrain the criminal – who was still struggling despite the efforts of three men to protect other passengers by holding him down – and holding him by the neck is generally more effective, and less dangerous to the restrainer, than trying to hold him down by holding hands and/or feet.
The fact that at least two other men assisted the good samaritan in using force to restrain the criminal – and therefore could probably be charged as accessories if the samaritan were to be charged with murder or other homicide – suggests that they all believed it was both necessary and justified to use such force to restrain him.
The verbal approval by other passengers not involved, and the fact that apparently no one complained and/or called for the neck hold to be removed, is further evidence that the use of such force was reasonably necessary under the circumstances.
Wrongful Criminal Intent
To win any criminal prosecution, the DA must prove beyond a reasonable doubt that the defendant acted with a wrongful criminal intent (scienter).
But here the facts that the samaritan asked other passengers to summon police by calling 911, made no effort to flea the scene to avoid possible prosecution, and apparently did – unlike a recent infamous case – ignore claims by the criminal that he could not breathe or cries by any of the witnesses to release the hold.
So premature demands that the samaritan should be prosecuted for murder are not well founded, and it can only be hoped that the DA will carefully consider the legal privilege to defend others, and not simply an argument of self defense, in deciding how to proceed, says Banzhaf.
The DA should also consider that prosecuting someone who in good faith risks his own safety to protect fellow subway passengers would further discourage others from protecting more vulnerable passengers from the even-growing crime on the subway.
