Subway Shooter 1985 vs Subway Choker 2023 – Legal Analysis

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Subway Shooter 1/85, Subway Choker 5/23 – Similar Legal Analysis; Goetz Shot 4 in NYC Subway, Wasn’t Charged; Ex-Marine likewise Privileged

Bernhard Goetz- The Subway Shooter

WASHINGTON, D.C. (May 8, 2023) – In 1985, when subway crime was also widely perceived to be out of control, four Black youths, who displayed no weapons but who asked a White passenger for money, were all shot by the passenger, Bernhard Goetz, who was subsequently dubbed the “Subway Shooter.”

Although Goetz, who was White, unquestionably used illegal deadly force (an unlicensed handgun), fled the scene and the state, paralyzed one of the Black youths, and was known to make racial threats in public (“The only way we’re going to clean up this street is to get rid of the spics and niggers”), a grand jury declined to indict him for the shootings.

One reason may have been a legal analysis, which was published in the New York Post just days before the grand jury met, which had explained why Goetz’s actions were legally justified under New York’s law which permits persons to use reasonable force to defend themselves and others in many circumstances. It was written by public interest law professor John Banzhaf.

Banzhaf subsequently performed similar legal analyses of other use-of-force cases in which he correctly predicted that the defendants would not be convicted. These include Jacuzzi Shooter Carl Rowan, Kyle Rittenhouse, Daniel Pantaleo, George Zimmerman, several police officers accused of killing George Zimmerman in Baltimore, and others.

Although a subsequent grand jury did return an indictment against Goetz, he 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.

Daniel Penny – Subway Choker

Now, faced with a case which likewise involves the use of force in the subway which caused a death – this time a former White marine (Daniel Penny) who used a neck hold to restrain a Black passenger (Jordan Neely) who had repeatedly been convicted of crimes and was then reportedly threatening other passengers – Professor Banzhaf has performed a similar legal analysis.

In it he concludes that in Penny’s situation – which did not involve any weapon, where Penny was joined in restraining Neely by two other passengers who apparently shared Penny’s view of the need to restrain him, and in which Penny, rather than fleeing, had other passengers call the police and then cooperated with them once they arrived, his use of force appears to likewise be justified as “defense of others.”

There is also no evidence that the former marine had ever expressed any racial animus towards Neely or any other Black person.

Banzhaf says that Penny would likely argue that he acted not only in self defense, but also in defense of others. New York State’s § 35.15 recognizes a right of any person to use reasonable force to defend himself or others from “unlawful physical force.” This term could include many forms of unwanted touching, including groping, of the other passengers.

Any good samaritan coming to the aid of others may “reasonable force,” but generally not force which amounts to “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 sometimes cause death in certain circumstances, 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 which they can use to defend themselves, and well as physical restraints such as handcuffs, and can also generally call for backup.

Here Penny had no other readily available ways to restrain Neely – 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 good samaritan, than trying to restrain a person by holding his hands, feet, or waist.

The fact that at least two other men assisted this good samaritan in using force to restrain the criminal – and therefore could be charged as accessories if the samaritan himself 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 Neely until police arrived.

The verbal approval by other passengers not involved is further evidence that the use of such force was seen by many other witnesses who were present as reasonably necessary under the circumstances.

Moreover, 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 Penny asked other passengers to summon police by calling 911, made no effort to flea the scene to avoid possible prosecution, and apparently did not – unlike the situation involving Eric Garner – ignore claims by the person being restrained that he could not breathe, or cries by many of the witnesses to release the hold.

So demands now being made that the good samaritan should be prosecuted for murder are not well founded, and it can only be hoped that the DA will carefully consider the very broad legal privilege of defense of others provides 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 those around him who may be more vulnerable would further discourage other bystanders from protecting other victims from the even-growing crime on the subway and elsewhere in the City.

It is also quite likely that a conviction would not be obtained since at least one juror – especially one who rides the subway – would exercise his constitutional right of juror nullification and simply refuse to vote “guilty,” no matter what the evidence shows, if he believes that a conviction would be unfair or not in the public interest.