Opinion | When the Rule of Law Fails Us

The key word in that definition is “unjustifiable.” That’s because New York State law provides a defense of justification, which permits a person to use physical force on another person when it is “necessary to defend himself, herself or a third person from what he or she reasonably believes to be the use or imminent use of unlawful physical force by such other person.”

Even if some restraint was justifiable, Penny may face conviction if the restraint is deemed excessive. Thus, he has two primary points of legal peril: the initial decision to restrain Neely and the nature of the restraint itself, a prolonged chokehold.

No one should be certain of what the outcome of the case will be. There is still much we don’t know, including the perceptions of the other passengers on the train and the reasons Penny held Neely for so long. But one striking aspect of the public commentary surrounding Neely’s death is the sheer number of people who’ve shared stories of their own disturbing and dangerous encounters on New York City’s subways. In The New Yorker, Adam Iscoe wrote about his encounters, including watching a young man start masturbating in public. On the site UnHerd, Kat Rosenfield wrote that she was “groped, flashed or masturbated at probably two dozen times” when she lived in New York.

Viral videos of violent harassment show the cost of tolerance for public disorder. Should passengers stand by when, say, an angry man yanks the hair of a woman next to him? Or when a man assaults a gay passenger in a violent homophobic attack? I’m a former resident of New York City and a frequent visitor. I can easily think of tense moments when I had to ask myself whether it would be more or less dangerous for me and others if I stayed in my seat. How passive should we be when unstable men act out in public, especially when the police are nowhere to be found?

It’s a failure of the rule of law that these questions come up so frequently. And this failure places passengers under serious pressure. It puts them in tense situations where the proper course of action isn’t clear. Both action and inaction have their risks. What if Penny had done nothing? Would everyone — including Neely — have emerged from that subway car unscathed? We can’t know for certain, and that lack of certainty creates the conditions for violence.

The best way to resolve these problems isn’t through jury trials of those, like Penny, who take it upon themselves to intervene (as necessary as those trials may be) but rather through the preservation of public order by the just application of the law and the generous provision of public support. Regardless of the outcome of the case against Daniel Penny, we know this: New York City failed Jordan Neely. And it also failed the passengers on that train.

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