Investigations of Zuckerberg Choke Could Help Subway Samaritan; Both Show That Choke Holds Are Not “Deadly Force” and Thus Legal
Choke Holds Are Common In Jiu-jitsu
WASHINGTON, D.C. (June 12, 2023) – First the New York Times wrote a piece in which it suggested that Meta’s Mark Zuckerberg was choked to unconsciousness during a jiu-jitsu match. Then, when he vehemently denied that he ever lost consciousness during a match, two different investigations were launched.
Although the reported investigations yielded different results, the two media pieces do tend to remind the public – at a time when a grand jury is considering whether to indict former marine Neil Penny for choking a mentally disturbed person on the subway – that choke holds are common in jiu-jitsu as well as in judo and in other martial arts, says public interest law professor John Banzhaf.
The law professor explains that New York State law [§ 35.15] recognizes the legal right of any person to use reasonable force to defend others from what he reasonably believes to be the prospect of “unlawful physical force” by a third party.
This term “unlawful physical force” could include many forms of unwanted touching, including groping or reaching into pockets of the other passengers, and is not limited to force which might be harmful.
Moreover, a good samaritan is entitled to use that force even if he is mistaken about the apparent threat of unlawful physical force by a third person, provided the mistake was not an unreasonable one.
As lawyers often put it, a reasonable mistake about the need to use force does not defeat the legal privilege to use it, since otherwise bystanders would be even more reluctant to go to the aid of third parties being attacked or threatened with attack.
Here, since a number of the other passengers have stated that they also felt threatened by Jordan Neely, and two of them felt so strongly about the need to protect the other passengers that they risked being injured or even arrested as an accomplice to Penny that they helped restrain Neely, it seems clear that Penny was authorized to use reasonable force because his belief was reasonable and shared by others.
Thus the only real issue in any criminal case against Penny would be whether the use of a choke hold, especially under the unique specific circumstances here, constituted the use of prohibited “deadly physical force,” which 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) emphasis added]
Thus, suggests Banzhaf, the fact – as illustrated by the New York Times article and the two articles investigating the claim – that choke holds are so common in various martial arts tournaments, and frequently do not even cause any discernible harm and/or only fleeting unconsciousness (in this case, to Zuckerberg), means that they can hardly meet the definition of the “deadly physical force” which is prohibited under New York law.
Not Deadly Physical Force
So a choke hold as used by Perry does not necessarily constitute “deadly physical force,” especially since Penny – who, unlike police who have handcuffs and plastic ties to restrain any person when necessary – had no other way to restrain Neely on a swaying train, and would find it virtually impossible to restrain him other than grabbing him around the neck.
The very fact that two other passengers felt it both necessary and appropriate to help restrain Neely – despite the danger of physical harm to themselves, and the possibility that they might be charged as accessories if Penny were to be charged with a crime – strongly suggests that specific restraint Penny chose (including a neck hold) was required, and was not “deadly physical force” “under the circumstances.”
Yes, of course, choke holds can cause death in some circumstances, but so can pepper spray, Tasers, stun guns, a blow from a police baton, on even a punch to the face or body, notes Banzhaf, and all are frequently used when necessary in self defense or in defense of others.
If a woman used pepper spray – which is frequently carried for this very purpose – to ward off a man who was groping her, no one would even suggest that she should be sent to prison for using “deadly physical force” – even though some people have in fact died after being pepper sprayed.
Similarly, a man who reasonably believed that someone was about to attack him, and used a Taser – which is sold for this very purpose – to protect himself would not be imprisoned for using “deadly physical force” – even though some people have in fact died after being shocked by a Taser.
Penny’s Defense
While so-called “choke holds” have been banned for some (but by no means not all) police, different considerations apply to their use by civilians since police carry other weapons which they can use to defend themselves, and well as physical restraints such as handcuffs and plastic ties, and can also generally call for backup.
Here Penny had no other readily available ways to restrain Neely – who was still struggling, despite the valiant efforts of three good samaritans to protect other passengers by holding him down – and holding him by the neck is generally more effective, and less dangerous to any good samaritan, than trying to restrain a person by holding his hands, feet, or waist.
Banzhaf, who in 1985 provided the successful legal defense for Subway Shooter Bernhard Goetz – who shot four Black youths who had asked him for money but made no threatening gestures – says that Penny has a much stronger defense than Goetz.
Goetz, who was not protecting any other passengers, who acted alone and used an illegal gun to shoot four Black youths, fled the scene before police arrived, tried to hide in another state, and had made racially disparaging remarks about African Americans, was not even indicted by the first grand jury.
When public pressure forced a second grand jury to indict him, the Subway Shooter was acquitted of the two shooting-related charges (attempted-murder and first-degree-assault) after a criminal trial, but was found guilty of one charge which he could not be deny: criminal possession of a weapon (unlicensed gun) in the third degree.
Here, in stark contrast, Penny acted only after other passengers felt threatened, was aided by other passengers even at risk to their own physical safety and the risk of criminal charges, urged other passengers to call 911, remained at the scene and cooperated with police, and there is no evidence at all of racial animus.
Police familiar with threatening situations on the subway, and who interviewed the passengers, did not detain Penny or even issue him a desk appearance ticket because they did not believe that a crime had been committed.
For all these many reasons, Banzhaf says that Penny’s defense is far stronger than the one he helped outline for Goetz.
Also, if Penny is tried, at least one juror is likely to see it that way and exercise his legal right to juror nullification; i.e., refuse to vote “guilty” despite the evidence and the judge’s charge.
