Neely’s death and reasonableness: Like in the Bernard Goetz, how the word is interpreted will determine if the subway killing by Daniel Penny is lawful or now

It feels like déjà vu. On May 1, Daniel Penny choked Jordan Neely to death on a subway because Neely was ranting, acting erratically, and begging for money. Almost four decades ago, Bernard Goetz opened fire on four unarmed Black teenagers because one asked him for money and Goetz thought he had a threatening look on his face. And once again, the city is divided about whether the perpetrator should be vilified or celebrated, a division that’s unlikely to go away any time soon given the district attorney’s decision to seek second degree manslaughter charges against Penny, rather than murder charges. Or no charges at all.

For many, the issue is about more than this one case. It’s about subway crime, including the mass shooting on the N train in Brooklyn just over a year ago, and Michelle Go’s death after being shoved onto the tracks at Times Square in January 2022. It’s the sense it could happen to anyone. Never mind that about 2.4 million people ride the subways each day without incident, or that New York remains one of the safest large cities in the U.S.

And here’s the real déjà vu. Even with the manslaughter charges against Penny, there still remains a problem with the law of self-defense, a problem which is likely to benefit Penny. As the Goetz case made clear, whether a person is legally justified in using deadly force in self-defense — i.e., permitted to kill another person — turns on whether he reasonably believes the other person is about to use deadly force on him.

So the question a jury now has to wrestle with, assuming this case goes to trial, is whether Penny’s fear was reasonable. In other words, would a hypothetical reasonable person have been afraid for his life?

What this means is so unclear that New York’s highest court ended up weighing in during the Goetz case, writing that in determining reasonableness, one can consider “any relevant knowledge the defendant had about that person,” and the “physical attributes of all persons involved,” and any “prior experiences” of the defendant which could lead him to reasonably think another person’s intentions were to injure him. But in explaining what reasonableness means, the court punted on the most difficult issue: race. By failing to say whether race could be a factor in the reasonable fear analysis, the court in effect gave its blessing to bias.

Because, of course, our ideas about “reasonableness” are inseparable from race and other characteristics. Goetz, after all, admitted he was afraid of the teenagers because they were Black, and yet was acquitted, presumably because the jury found his fear of Black teenagers reasonable.

As with Goetz, the scales are already tipped in Penny’s favor. What do we mean by this? Well, picture a reasonable person. Now tell us. What race is the person you pictured? Are they male or female? How are they dressed? Chances are the reasonable person you pictured already shares characteristics with Penny. Here’s another exercise. In your mind’s eye, switch the races of Penny and Neely, but keep everything else the same. Chances are it’s harder to imagine Penny (now Black) being deathly afraid of Neely (now white).

Unfortunately, this problem of built-in bias has always dogged the use of self-defense, even though there are easy fixes, including requiring the jury to engage in switching exercises like the one above. In other words, we could solve this problem, but we don’t.

But for us, there’s a larger problem that the death of Neely surfaces. Neely, after all, wasn’t just a Black man. He was a Black man suffering from mental illness. The question all of us should ask is not just whether Penny was justified in choking a mentally ill man for several minutes, long after Neely could have posed any threat. We should also ask whether we are justified in how we treat, or don’t treat, people who are mentally ill. We understand we should give up our seats for someone with a physical disability. It’s right there on the MTA signs. But when it comes to people with mental disabilities — well, we just wish they’d disappear.

Too often, our default response is to respond without empathy, to see them as the problem. No matter what happens in this case, the larger issue of how we treat the most vulnerable members of society — those who suffer from mental disabilities — that’s on us.

Capers is the John D. Feerick Research Professor of Law, and director of the Center on Race, Law and Justice, at Fordham Law School; Godsoe is professor of law at Brooklyn Law School.