Will Daniel Penny’s acquittal make New Yorkers more likely to defend themselves?

When a man started harassing Jordan Williams and his girlfriend on the J train in June 2023, New York City was still reeling from a viral video released a month earlier that showed a homeless man being held in a chokehold on the subway. That homeless man, Jordan Neely, was declared dead shortly after the incident.

In both cases, witnesses described panic on the train after someone boarded and began to act erratically. In Williams’ case, he told Gothamist, the man hit him and his girlfriend.

Williams said he doesn’t remember exactly what happened next. But according to officials, a fight ensued and Williams stabbed DeVictor Ouedraogo in the chest, killing him.

Williams never went to trial. Brooklyn prosecutors charged him with manslaughter and weapons possession, but they dismissed the case a couple weeks later, citing New Yorkers’ right to use deadly physical force to defend themselves or others from imminent harm.

In the chokehold case, on the other hand, Daniel Penny was tried in Manhattan on charges of manslaughter and criminally negligent homicide in the death of Neely. A jury deadlocked on the manslaughter charge after days of deliberations, then acquitted Penny of criminally negligent homicide.

Now, in the wake of Penny’s divisive trial, legal experts, pundits and casual observers disagree about whether the case will discourage self defense or normalize it. Some have warned that New Yorkers may be more hesitant to act, out of fear that they’ll end up in court. Others worry Penny’s acquittal will embolden people to unnecessarily take matters into their own hands. The debate is playing out as crime overall is on the decline in New York City but anxieties about public safety persist, especially in the subway system.

“I don’t think anyone’s going out there trying to be a Daniel Penny or Jordan Williams,” said defense attorney Jason Goldman, who represented Williams after his arrest. “No one wants to be in these situations.”

But when people are afraid for their lives, he said, they often don’t have time to think about the potential consequences.

“It’s just more of a fight or flight reaction,” he said.

The ‘Daniel Penny effect’

Since Penny’s trial ended, various conservative commentators have cautioned about what they’ve dubbed the “Daniel Penny effect. ” Steven Raiser, one of Penny’s lawyers, said the theory is that the case made some people afraid to protect themselves or others.

“ Although he was ultimately acquitted, it was a long, hard fought battle,” he said. “It does create a chilling effect.”

But prosecutors said at trial that Penny went “way too far” when he continued to wrap his arm around Neely’s neck for about six minutes and didn’t recognize Neely’s humanity.

Penny’s critics worry that the fact Penny wasn’t convicted may embolden more people to use force against others. Fritz Umbach, an assistant professor at the John Jay College of Criminal Justice, said New Yorkers should be less focused on taking matters into their own hands and more focused on helping people like Neely before they end up in a violent encounter.

"The low road here is vigilantism,” he said. “The high road here is a more thoughtful approach to how we handle mental illness, particularly in public spaces."

‘Very controversial cases’

Self-defense trials like Penny’s are rare in New York, legal experts said. It’s not uncommon for people who use force against others to say they did so in self defense, both in fatal and nonfatal cases, according to legal experts. Prosecutors in the five boroughs said they don’t collect comprehensive data on these cases, but a Gothamist review of incidents that garnered media attention identified more than a dozen New Yorkers who have claimed self defense after stabbing, shooting or holding someone in a chokehold since 2020, including Penny and Williams.

In one case, a Harlem bodega clerk fatally stabbed a man who appeared to attack him behind the counter. Last month, a homeless man stabbed two people, one fatally, after they allegedly tried to rob him while he was sleeping on the 7 train. In nearly all the cases Gothamist reviewed, district attorneys either declined to prosecute or dismissed the cases after initially bringing charges.

In New York, whether someone is legally justified when they use physical force depends on whether they believe they’re in imminent danger and whether a reasonable person would respond in the same way under the same circumstances. Gary Galperin, a former Manhattan prosecutor who now teaches at Cardozo School of Law, said prosecutors have to assess whether they have enough evidence to convince jurors the person was not justified before they decide to pursue criminal charges. In a case like Penny’s, he said, the choice is complicated.

“There’s no formula by which you put in all the different variables and you get a definite result,” he said.

During his decades with the Manhattan district attorney’s office, Galperin said, he handled several cases in which someone claimed that they used force in self defense. He said sometimes the decision about whether to bring charges was fairly straightforward, like when a man who thought he was about to be robbed at gunpoint shot his alleged robber. Other cases were murkier, he said, such as when police officers killed a driver after firing at a car they thought was driving toward them.

“These are very difficult cases, very controversial cases,” he said. “Sometimes the facts can justify completely opposite results, depending on how you interpret and process them.”

Galperin said he understands why the DA’s office chose to try Penny, but he also understands why jurors reached the verdict they did, especially as high-profile crimes dominate headlines and stoke fear.

“A rise in crime in and of itself doesn’t make it reasonable for someone to use deadly physical force against another, but it definitely colors one’s perceptions and reactions,” he said. “There’s a definite overlap between what’s objectively right or reasonable and the climate and the milieu of where you find yourself.”

Doug Cohen, press secretary for the Manhattan DA’s office, said in a statement that every case is brought based on the facts and the evidence after a thorough investigation.

“The totality of the evidence — and the lengthy jury deliberations — underscored why it was important to put this case in front of a jury,” he said.

Williams said he’s still haunted by what happened on the J train almost two years ago.

“I can’t believe the result was the result,” he said. “It was all very traumatic for me.”

Williams, who is now 21, said he sees similarities between his case and Penny’s, including that they both used force against someone who was acting erratically on the subway. But he said he doesn’t know whether he agrees with Penny’s actions.

“Jordan Neely didn’t touch anyone or physically harm anyone, so to speak, and he is no longer here,” Williams said. “I don’t know if that was the right outcome.”

When Williams encountered Ouedraogo on the J train in June 2023, he didn’t know who Daniel Penny was or that he was facing criminal charges, he said. But even if he had, Williams said, he doesn’t think he would have responded differently.

“ I don't think that fear of prosecution should come into your mind when you're in that situation, because you're possibly rolling dice with your life,” Williams said. “I don't think that that's a smart thing to do, because in my situation, I could be the one that's not here anymore.”