New York City Subway Case NOT About Self Defense; Good Samaritan Protected By Defense of Others
New York City Subway Case Is About Defense Of Others
WASHINGTON, D.C. (May 5, 2023) – Although many media outlets continue to argue that the case involving a chocking on the New York City subway involves “self defense,” the good samaritan who went to the aid of fellow passengers threatened by a convicted criminal acting irrationally is much more likely to rely upon the “defense of others” privilege.
Which he has under New York law, says public interest law professor John Banzhaf, who has analyzed and correctly predicted the outcome in many such cases, including the subway shooter case which also occurred on the subway.
Given his physical size, youth, physical fitness, and training in self defense, it is unlikely that the samaritan would have much to fear from the smaller man who threatened the passengers, argues Banzhaf.
However, since the latter’s actions reasonably presented a threat to fellow passengers who would not be able to defend themselves as well, the former marine would probably rely upon his right – what the law terms a privilege – of defense of others.
New York State law [§ 35.15 ] – gives a bystander the right to use reasonable force to defend or protect another from “unlawful physical force.” Such unlawful physical force is certainly not limited to that which is life threatening or even serious. It would include any unwanted touching such a grabbing at someone’s clothing, reaching into another’s pocket, a groping, etc.
There is ample evidence to support the claim that the samaritan used only force which most people would regard as reasonable.
The fact that two other passengers joined in holding Neely down (and therefore could be criminally and civilly liable as well as the samaritan), that other passengers reportedly supported restraining him.
That unlike another recent case neither Neely nor anyone nearby apparently claimed that he could not breathe or that the hold should be removed, and the perception that violent crime against innocent passengers is again rampant in the subway provides strong support for this argument.
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 here 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.
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 flee 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.
It is also quite likely that, such a prosecution be brought under these circumstances, as least one juror would exercise his legal right under the recognized doctrine of juror nullification if he believes that a conviction would not be fair or in the public interest, notes Banzhaf.