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by Gila Hayes

Anyone still clinging to the belief that the legal system views physical force as somehow less serious than firearms is getting a remedial lesson via the prosecution of Daniel Penny in New York.

The situation reminds Network members of the seriousness of so-called unarmed attack so ably articulated by Dr. Robert Margulies in articles at featured in this journal a few months ago. Explaining one of the ways an empty-handed opponent can kill you, Margulies observed, “Normally, the brain runs out of oxygen in roughly 20 seconds, but if choking occurs during an altercation, you have 4 to 6 seconds because during an altercation, there is already increased blood flow and increased consumption of oxygen. The brain is working harder; it consumes oxygen during physical activity as well as mental activity. Choking shuts off blood flow up and blood flow down. Oxygen is consumed. The brain does not have storage of oxygen like in the muscle cells, so without oxygen, brain cells start dying.”

“Some of this has never been tested. There have not been functional MRIs done while someone is being choked to see what the brain is actually doing. What we know of these time frames is by inference, from what we see in martial arts, combat and police work. The shorter 4 to 6 second times are an inferential number based on observations, and statements by people who a) have had it done to them, and b) who learn how to do it properly and recognize that the individual has gone limp.”

I wonder whether the news media knows or cares that the narrative they’ve trotted out about Daniel Penny is largely unsubstantiated. Juan Vázquez, the freelance reporter who recorded and uploaded video to Facebook of the final minutes of the struggle, spread clearly impossible claims about the length of time Penny’s arm was around Neely’s neck. Writing “I witnessed a murder on the Manhattan subway today,” Vázquez put out only the first in a torrent of inflammatory stories. I wonder if he understands the definition of murder.

Interestingly, the deluge of stories that started as raucous cries to punish Daniel Penny spewed by reporters and professional rabble rousers like Al Sharpton tapered off to a trickle of disappointed opinion pieces masquerading as news that surfaced when Manhattan District Attorney Alvin Bragg announced second degree manslaughter charges. When a grand jury indicted Penny about a month later and added the charge of criminally negligent homicide, most of the public protests and outrage had already died down.

Penny, who defended himself and fellow passengers on a New York City subway car early on the afternoon of May 1st, has made several video statements; so have his lawyers. Still, there remains a substantial dearth of information about the actions that led up to Penny and another subway rider physically restraining Jordan Neely. That’s interesting when you compare news coverage of this story against other high profile self defense cases like the trials of Kyle Rittenhouse, Curtis Reeves and George Zimmerman.

I am frustrated by the scarcity of reliable detail about what precipitated decisions to go hands on with Neely. Juan Vázquez and others use terms like “angry” and “aggressive” to describe the way Neely threw his jacket to the subway car floor. Penny’s statement to police responding to the scene tell of Neely pacing back and forth in the subway car. Will witness statements, as well as Penny’s own testimony, show Neely’s actions are recognizable as pre-assault indicators? The media has made a lot of noise about Neely’s threats only being verbal (when they aren’t asserting he was only asking for food and water). When spelled out for a trial jury, the combination of Neely’s verbal threats and physical actions will have to be considered, especially if Penny can testify that he was trained to recognize the physical cues that indicate that an aggressor is winding up and getting ready to launch an attack. For members wishing to brush up on their own study of pre-attack indicators, log in and review our educational video . Take some notes and email them to yourself to memorialize your exposure to the material.

Penny was arraigned just a couple of days ago, pleading not guilty to charges of second degree manslaughter and criminally negligent homicide. Oct. 25 has been set for Penny’s next court appearance, leaving many months for those who would benefit to spread lies and weave half-truths about the actions of Jordan Neely and Daniel Penny on that subway car May 1. I have to wonder if Manhattan District Attorney Bragg truly believes he can get a conviction, or whether like Assistant District Attorney Thomas Binger’s overt punishment by process of Kyle Rittenhouse, he pushes forward knowing the facts aren’t on his side, but also knowing he can stir up quite a ruckus, enough to keep his name in the spotlight for many months to come.

Also in the spotlight will be use of force against empty handed attackers, and how to articulate why using force – be that with firearms or empty hands – can be entirely reasonable and necessary. In light of the video statements Penny’s defense team has allowed him to make, it seems likely Penny will take the stand and tell the jury why the restraint he used was reasonable under the circumstances. That will be instructional.

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