This New York Law Could Keep Marine From Prison In Subway Death Case, Expert Says

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Trevor Schakohl Legal Reporter
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A Marine who restrained a homeless man by the neck on a New York City subway train, leading to the man’s death, could avoid conviction on potential charges in the case based on a longstanding legal protection, an expert told the Daily Caller News Foundation.

Jordan Neely, 30, reportedly boarded a Subway train Monday, aggressively screamed that he didn’t care about going to jail and threw his coat on the floor, with a 24-year-old Marine subsequently holding him by the neck and restraining him on the ground for around 15 minutes, according to the New York Post. Neely became unconscious and died, but the Marine could fight possible charges from Manhattan District Attorney Alvin Bragg by citing the New York state-protected right to defend or protect others from “unlawful physical force” using reasonable force, George Washington University Law Professor Emeritus John Banzhaf said.

“I think a strong argument could be made that, under the circumstances, it was reasonable to restrain that guy by holding him around the neck,” Banzhaf told the DCNF, saying the right to defend others with reasonable force has existed since the Middle Ages.

New York State’s modern Penal Law §35.15 outlining the defense justification for using reasonable force dates back to 1965. Other states have similar statutes sanctioning reasonable defensive force in threatening situations.

Former Manhattan Chief Assistant District Attorney Karen Friedman Agnifilo said Bragg’s office was primarily faced with considering whether the Marine was “justified and if he feared for his life,” according to The Washington Post. However, his greater size than Neely, conditioning and defense training meant he probably was not personally afraid of the homeless man, Banzhaf said, adding that “unlawful physical force” could include some unwanted touching. (RELATED: How Is That Not A Crime?’: Joy Reid Blames Subway Passengers For Not Helping Jordan Neely)

Banzhaf said civilians who intervene to help others are generally prohibited from using “deadly physical force” to defend them, with New York state law defining that term as “physical force which, under the circumstances in which it is used, is readily capable of causing death or other serious physical injury.” He argued that a neck restraint does not necessarily qualify as “deadly force” based on the circumstances, noting that using weapons like tasers and tear gas can cause death despite not being intended to do so.

Footage shows two other men helping to restrain Neely as the Marine holds him around the neck. Banzhaf contended that their intervention suggests they thought using force was reasonably necessary, saying Neely continued to struggle and the Marine lacked other readily available restraint options.

Banzhaf said the other two men could qualify as accessories if the Marine is charged or convicted of homicide. He argued it would be very unlikely for charges to be brought against the three restrainers under “fair, reasonable and impartial application of the law.”

“If these charges are even brought, this is going to substantially further deter people from coming to the aid of others,” Banzhaf told the DCNF, suggesting one or more jurors in the case would likely move for jury nullification. “There have been a lot of situations in New York or elsewhere, where people have been attacked on the street and there were bystanders who could have done something, and they did not intervene.”

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