May 16, 2023

The Daniel Penny charges.

Daniel Penny being escorted from court in NYC. Image: ABC YouTube / Screenshot
Daniel Penny being escorted from court in NYC. Image: ABC YouTube / Screenshot 

Penny was charged with second-degree manslaughter.

I’m Isaac Saul, and this is Tangle: an independent, nonpartisan, subscriber-supported politics newsletter that summarizes the best arguments from across the political spectrum on the news of the day — then “my take.”

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Today's read: 11 minutes.

We're covering the Daniel Penny charges. Plus, a reader question about Missouri v. Biden. 

Two emails.

I know you guys get a kick out of these, so here are two emails I got about 20 minutes apart yesterday — from readers unsubscribing after our newsletter on the Biden investigations:

Screenshot from Tangle's inbox
Screenshot from Tangle's inbox
Screenshot from Tangle's inbox
Screenshot from Tangle's inbox

Quick hits

  1. Special counsel John Durham released his long-awaited report on Monday, sharply criticizing the FBI's basis for launching an investigation into Trump and calling the decision to do so "seriously flawed." (The report)
  2. Two aides to Rep. Gerry Connoly (D-VA) were hospitalized after an assailant attacked them at their district office with a baseball bat. (The attack)
  3. The Supreme Court agreed to hear a case examining whether South Carolina's congressional map discriminated against black people and constitutes a racial gerrymander. (The case)
  4. China sentenced a 78-year-old U.S. citizen to life in prison on espionage charges. (The charges)
  5. Ukraine says it shot down 18 missiles aimed at Kyiv after an "exceptional" air attack on its capital. (The war)

Today's topic.

The Daniel Penny charges. Daniel Penny, who was seen putting Jordan Neely in a chokehold on a New York subway on May 1, was charged with second degree manslaughter on Thursday, the Manhattan District Attorney's Office said. Penny could face as many as 15 years in prison. Shortly after turning himself in, he was released on a $100,000 bond. Penny did not enter a plea, as the charges will go before a grand jury who will decide whether or not to indict him.

You can find our initial coverage of this story here.

The encounter between Penny and Neely began after Neely was begging for food on an F-line train and began acting erratically. Several people on the train said Neely was making threats to passengers and insisting that he didn't care if he died or went to jail. Penny, a 24-year-old former Marine, approached Neely from behind and placed him in a chokehold. He then kept him in the hold for several minutes, as two other passengers helped him restrain Neely on the ground.

A video (warning: graphic content) of what happened next was posted online by an independent journalist. About thirty seconds into the video, Neely tries to break free of Penny's grip, while two others help hold him down. One of the people helping restrain Neely asks if anyone has called the cops. Around two minutes into the video, Neely goes limp. A witness tells the men restraining Neely that he has defecated himself and that they are going to kill him and should let him go. One of the men helping restrain Neely responds that it is an old stain and that Penny isn't squeezing his neck.

The man holding Neely's arms then releases him and asks if Neely can hear him. He does not respond, and Penny then lets him go, before rolling him over onto his side into what's called a "recovery position," which is meant to stop someone who is unconscious from choking on their own saliva. Near the very end of the video, with Neely on his side, he appears to take a large breath. Medics arrived on the scene and could not revive Neely, who was pronounced dead at the hospital. The New York City medical examiner's office determined that Neely died from compression of the neck and ruled his death a homicide.

Neely, who was known to some New York commuters as a Michael Jackson impersonator, was also well known to New York police and social services. He was on a list of the 50 homeless people in the city with the most acute needs and had been arrested 42 times, including three charges of unprovoked assaults between 2019 and 2021. People who knew Neely said his mental health challenges began in 2007, when he was 14-years-old, after his mother was killed by her boyfriend.

Video of Penny, who is white, choking Neely, who is black, immediately went viral. It set off an intense debate about policing, mental illness, race, vigilantism, and homelessness, with some praising Penny as a hero for protecting passengers and others describing him as a murderer who overreacted. The case sparked protests across New York and in the subways, with demonstrators calling for Penny to be arrested. Meanwhile, a GoFundMe campaign to support Penny has raised over $2 million.

"There was no attack," Donte Mills, an attorney representing Neely’s family, told reporters. "Mr. Neely did not attack anyone, he did not touch anyone, he did not hit anyone. But he was choked to death, and that can't stand. That can't be what we represent."

Thomas Kennif, who is representing Penny, insisted Neely was threatening Penny and other passengers and that more information would come to light during the case that would absolve Penny of any wrongdoing.

"There has been some video that's out. It's not all out, there's more to come," he said. "I am confident that everything that will come out will show that my client took reasonable steps to restrain someone."

The decision to bring manslaughter charges by District Attorney Alvin Bragg's office was a point of contention on its own, with some arguing for murder charges and others saying that Penny should not have been charged at all. First degree manslaughter is defined as an intentional act, while second degree manslaughter — the charges brought against Penny — requires reckless negligence for human life.

Prosecutors in New York will now convene a grand jury, which will decide whether to indict Penny and bring his case to trial, potentially change the charges, or drop them altogether. Penny turned over his passport and is not allowed to leave the state. His next court appearance is July 17.

Today, we're going to examine some arguments about the decision to charge Penny with second-degree manslaughter from the right and left, then my take.

What the left is saying.

  • The left is supportive of the charges and argue there was no justification for Penny's actions
  • Some call out conservatives who have tried to make Penny a hero and Neely the bad guy.
  • Others say we need a national reckoning on mental health.

The New York Daily News editorial board said these charges seem about right.

"Set aside the chants on the far-left claiming Jordan Neely was 'lynched' on May 1 and the equally unhelpful claim that Daniel Penny did what any responsible citizen could be expected to do," the board said. "There should be criminal culpability for Penny’s killing of Neely, and the second-degree manslaughter charges brought by Manhattan District Attorney Alvin Bragg seem to get it about right: Based on what we know, the Marine recklessly applied force that he should’ve known could well result in Neely’s death."

Two things are true: One, "Neely had a history of mental problems" and hurting people, and it's not surprising "nor inherently wrong" that someone intervened. Two, Penny "applied disproportionate force in the form of a prolonged chokehold" that didn't just subdue Neely, but ended his life. "We have questioned Bragg's judgment many times," but on this, he appears to have "met his responsibility to do justice."

In The New Republic, Prem Thakker criticized conservatives who think it's "anti-hero" to arrest Daniel Penny for killing Jordan Neely.

The right is "somehow arguing that arresting someone for manslaughter is actually 'pro-criminal,'" Thakker said. "Since the announcement of charges against Penny, right-wing figures have advanced ludicrous and vicious ideas about it all, claiming the arrest of Penny to be unjust—the most bizarre among them being that to arrest Penny is to be pro-crime. 'It’s pro-criminal, it’s anti-hero,' Fox host Greg Gutfeld said on Thursday."

"They are advancing the notion—sans brain or soul—that Penny’s arrest symbolizes the state punishing an individual for being a hero and for sticking up against evil," Thakker wrote. "If there’s anything repressive or authoritarian about this case, it’s not that someone is being charged for killing. It’s our reaction to the already senseless killing of a homeless man who embodies the millions of people our society fails and leaves in the dust... There are corrupt power structures to be confronted in our society; do try looking for the ones that pit you against your fellow human beings, the ones happy for you to assume the worst in others who are more like you than you realize."

In The Los Angeles Times, LZ Granderson said this is just a start.

"Daniel Penny, a 24-year-old ex-Marine, crushed Neely’s windpipe while trying to protect people who might not have been in any immediate danger. It’s all awful. Neely’s lifeless body left lying in his own feces on the floor of the F train. A tragic ending to a story already riddled with tragedy," Granderson wrote. This isn't so much a story about race as it is a story about a failing mental health system, given Neely sought out treatment for himself on numerous occasions.

"As tragic as the story of Neely is, it’s not rare. Most cities have mentally ill people living on the streets. And sometimes they die there. Sometimes they harm others, as Neely did. And sometimes they are the ones who are harmed, as he also was. Neely didn’t deserve to die, that much we know," Granderson said. Neely's story should be viewed with a wider lens, and prompt the kind of urgency we had after 9/11 or the war in Ukraine to devote funding to better mental health care. "If nothing more comes out of this than a conviction, his death becomes even more tragic."

What the right is saying.

  • Many on the right criticize District Attorney Bragg for ignoring other crime in New York City, though some believe there is justification for the charges.
  • Others argue that the charges are unnecessary and only happening because of progressive activism.
  • Some say Bragg has turned his back on the violence in his own city.

The Wall Street Journal editorial board criticized Bragg for bringing these charges when he ignores other crimes.

Alvin Bragg, who "refuses to prosecute many crimes" has decided to use this as a public example. "Neely was all too typical of the mentally ill who wander New York streets" and are "well known" to the police. "Decades ago the U.S. made a decision to end the institutionalization of all but the most dangerous mentally ill, but too many of them now wander the streets and occasionally turn violent," the board said. "Was Mr. Penny wrong to intervene? The details of what happened will presumably be presented at trial, but it’s clear his intention wasn’t to kill Neely. It was to protect himself and others."

Perhaps he felt the responsibility as a 24-year-old veteran. "We sometimes call such men good samaritans when they intervene to stop a shooter or step between a young woman and a harasser," the board said. "Even if Mr. Penny is acquitted by a jury, the charges against him will surely deter other potential samaritans from intervening to subdue a seemingly dangerous person or even to stop a robbery or assault. If you do and something goes wrong in New York, you will be the one prosecuted."

In National Review, Andrew McCarthy said New York City "does not have a justice system" but a political system run by race-obsessed progressives.

"It is certainly possible that there is, technically, a law violation," McCarthy said, "Penny’s use of force was lawful at the start. That is why he was helped in subduing Neely by other passengers. That is why still other passengers on the train expressed gratitude that Penny had the courage to act when Neely was threatening them. At a certain point, though, Neely was subdued. While a civilian is still allowed to use force necessary to detain a threatening person until the police arrive, the force has to be proportionate to the threat."

Penny was "protecting himself and passengers," and "he was put in that position by Neely, a predatory, mentally unstable career criminal with over 40 arrests to his name, who was fresh off a stretch in Rikers Island for punching an old woman in the face, breaking her nose and eye socket, and who habitually harassed and threatened subway riders," McCarthy said. "A reasonable prosecutor would conclude that, though Neely’s death (like his life) was tragic, a jury of Manhattan subway riders would probably not convict Penny of manslaughter." But "for the progressive-prosecutor project, the only fact that matters is racial disparity: Neely was black and Penny is white, so Penny must be charged."

In The New York Post, Bob McManus said Alvin Bragg "didn't trust a grand jury" to do his bidding.

"In less bizarre times — that is, before America lost its bearings on matters of crime, criminals, and simple justice itself — the case wouldn’t be complicated: A vagrant was menacing subway passengers, a straphanger reacted, the vagrant died — and a grand jury could be trusted to do the right thing," McManus said. "No one disputes that Neely was aggressively threatening straphangers. A witness said he yelled, 'I would kill a motherf—er, I don’t care. I’ll take a bullet. I go to jail.' Uncountable numbers of New Yorkers have been in such circumstances — and surely they relate."

This is what happens "when a district attorney turns his back on violent predation. Jordan Neely happens — often enough so that reasonable people enter the subway system wondering when it will be their turn," McManus said. "And wondering further whether Alvin Bragg will go after them if they dare to fight back. Justice? Not at all."

My take.

Reminder: "My take" is a section where I give myself space to share my own personal opinion. If you have feedback, criticism, or compliments, don't unsubscribe. You can reply to this email and write in. You can also leave a comment.

  • I think these charges were the right call.
  • There needs to be a determination of Penny's guilt, but it's obvious it was not intentional.
  • It is also clear someone could reasonably conclude he committed a crime.

My take today is going to be pretty straightforward: These charges are appropriate, and this is the system working.

Whether you believe Penny is a good samaritan hero or a racist killer is almost irrelevant. Clearly, New Yorkers are divided. But the only thing that matters is the law. Someone was killed — the medical examiner's office ruled Neely's death a homicide by compression of the neck. Penny administered the chokehold that compressed Neely’s neck. It seems obvious he did not intend to kill Neely — so he is not a murderer and not guilty of first degree manslaughter. The question is whether or not his actions constitute negligence and reckless disregard for Neely's life. And the proper forum to resolve that question is a courtroom.

If Penny goes to trial, witnesses from the train car will be called to testify. Their perception of what happened will matter a great deal. How threatening was Neely? Did he do anything we don't know about? Was he just calming down as Penny restrained him, or was he becoming more agitated? Did he attempt to hurt anyone on the train, or did he do little aside from asking for food and water? These questions can only be answered by witnesses.

Writers like Andrew McCarthy (under "What the right is saying") make great points about the flaws of the prosecutorial system and Alvin Bragg more specifically. But McCarthy ignores the fact that a huge chunk of New Yorkers — Penny's fellow citizens — view what he did as criminal. It's not just "progressive activists" who want the DA to bring charges and it’s disingenuous to pretend it is. New York law says a person is guilty of manslaughter in the second degree if they "recklessly" cause the death of another person. Reckless is defined this way:

“A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.”

Whatever his other flaws, and there are plenty, Bragg chose the right charges to bring in this specific case, and I suspect the grand jury will pursue them. Penny is out on bail, as is his right, and the judge's discretion there was correct. He is very unlikely to be a flight risk or a threat to anyone else. As I wrote previously, I think the more details we get the better we'll understand if his decision to intervene was warranted or not. From the video alone, I believe his actions were excessive. At least a few of the fellow subway riders seemed to agree, but a few didn’t. We don't know enough to confidently convict based on those details alone, which is exactly why a trial is necessary.

It's not a popular thing to say in a moment like this, but I actually think this shows the justice system is working. In fact, this is the justice system working about as well as it could. Nobody should be able to kill someone without being tried for a crime, Penny is innocent until proven guilty, and the charges reflect the reality that at worst he unintentionally took Neely's life. Now we need to uncover more evidence and allow Penny’s peers to examine his actions. The second-degree manslaughter charges provide the best way to do that.

Your questions, answered.

Q: I asked once before and received no response. So I’m asking again. Why don't you cover Missouri vs Biden? The attorney general of Missouri is accusing Biden and his family of quietly using their influence to silence social media posts that they believed were politically damaging to their political careers. Is this not true?

— Shelly from Burlington, North Dakota

Tangle: It’s important to be clear what Missouri v. Biden is about. This case is not about "Biden and his family" quietly using their influence to silence social media posts damaging to their political careers. I think that description actually reflects how distorted the facts about the case have become.

It is actually a case about the government — beginning in the Trump era — pressuring social media companies to silence "vaccine misinformation." The litigants are arguing that this pressure campaign amounted to free speech violations which then continued and escalated under the Biden administration. We have covered a similar story about government intervention and social media companies (related to the Hunter Biden laptop) many times in this newsletter.

If you want, you can read this piece from one of the lawyers in the case who is suing the government. It is (obviously) just one side of the argument, but presents the main points about the facts of the case accurately and explains why it is so significant.

We have a limited number of newsletters and an infinite number of topics. This case is still in its early stages. As it moves through the court system, more evidence is presented, and it becomes more and more relevant, I expect we'll cover it.

Want to have a question answered in the newsletter? You can reply to this email (it goes straight to my inbox) or fill out this form.

Under the radar.

President Biden and New York Mayor Eric Adams are on the outs. Adams was long-expected to be a key surrogate for the 2024 campaign, but the president and Adams have become "so crossways… that he was dropped from Biden's 2024 campaign advisory board before it was announced last week," Axios reports. Adams, mayor of the biggest city in the U.S., has been a harsh critic of Biden's immigration policies and positions on crime. His criticisms have been echoed by many Democratic state and city officials, and it's possible the feud could become a major issue for the Biden campaign. Axios has the story.


  • 36.98%. In a May 8 survey, the percentage of Tangle readers who said, "I think Daniel Penny was right to intervene, but went too far and should be charged with a crime."
  • 25.43%. In a May 8 survey, the percentage of Tangle readers who said, "I think Daniel Penny was right to intervene, and should not be charged with a crime.
  • 11.66%. In a May 8 survey, the percentage of Tangle readers who said, "I think Daniel Penny was wrong to intervene and should be charged with a crime."
  • 3.31%. In a May 8 survey, the percentage of Tangle readers who said, "I think Daniel Penny was wrong to intervene but I don't think he should be charged with a crime."
  • 21.9%. The percentage who said they were unsure, had no opinion, or answered "other."

The extras.

  • One year ago today, we covered the baby formula shortage.
  • The most clicked link in yesterday's newsletter was our review of the 2,000 Mules film.
  • Carry on: 58.4% of Tangle readers said they generally support the Biden investigation and think it’s worthwhile, while just 19.9% said they do not support it and think it is a waste of time.
  • Nothing to do with politics: Get familiar with the name Victor Wembanyama. Tonight is the NBA draft lottery, and the winner will get to pick Wembanyama, a 7'2" French prodigy, first in the draft. He is considered the best prospect since LeBron James and is widely expected to reshape the league.
  • Take the poll. What do you think of the charges? It's the same poll from 9 days ago — we want to see if opinions have changed. Let us know.

Have a nice day.

The Illinois General Assembly passed a bill to ensure certain classes taken at community colleges can be transferred to any public higher education institutions in the state. The bill is an effort to help ensure community college students who transfer to public universities won’t need to retake classes or start from behind. Right now, some schools only count community college coursework as elective credits. Lawmakers say the bill should help students save money on college education and graduate sooner. “They spend a great deal of time and money attending community college for various reasons. And now they have the opportunity to make sure that they don’t have to repeat a class and spend more money at a new institution,” said state Rep. Terra Costa Howard. The bill is similar to a bipartisan push happening in the U.S. Senate. MyStateLine has the story.

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Isaac Saul
I'm a politics reporter who grew up in Bucks County, PA — one of the most politically divided counties in America. I'm trying to fix the way we consume political news.