Subway Shooter 1/85, Subway Choker 5/23 - Similar Legal Analysis

WASHINGTON - May 8, 2023 - PRLog -- In 1985, when subway crime was also widely perceived to be out of control, four Black youths, who displayed no weapons but who asked a White passenger for money, were all shot by the passenger, Bernhard Goetz, who was subsequently dubbed the "Subway Shooter."

Although Goetz, who was White, unquestionably used illegal deadly force (an unlicensed handgun), fled the scene and the state, paralyzed one of the Black youths, and was known to make racial threats in public ("The only way we're going to clean up this street is to get rid of the spics and niggers"), a grand jury declined to indict him for the shootings.

One reason may have been a legal analysis, which was published in the New York Post just days before the grand jury met, which had explained why Goetz's actions were legally justified under New York's law which permits persons to use reasonable force to defend themselves and others in many circumstances.  It was written by public interest law professor John Banzhaf.

Banzhaf subsequently performed similar legal analyses of other use-of-force cases in which he correctly predicted that the defendants would not be convicted.  These include Jacuzzi Shooter Carl Rowan, Kyle Rittenhouse, Daniel Pantaleo, George Zimmerman, several police officers accused of killing George Zimmerman in Baltimore, and others.

Although a subsequent grand jury did return an indictment against Goetz, he was acquitted of the two shooting-related charges (attempted-murder and first-degree-assault) after a criminal trial, but was found guilty of one charge which he could not be deny: criminal possession of a weapon (unlicensed gun) in the third degree.

Now, faced with a case which likewise involves the use of force in the subway which caused a death - this time a former White marine (Daniel Penny) who used a neck hold to restrain a Black passenger (Jordan Neely) who had repeatedly been convicted of crimes and was then reportedly threatening other passengers - Professor Banzhaf has performed a similar legal analysis.

In it he concludes that in Penny's situation - which did not involve any weapon, where Penny was joined in restraining Neely by two other passengers who apparently shared Penny's view of the need to restrain him, and in which Penny, rather than fleeing, had other passengers call the police and then cooperated with them once they arrived, his use of force appears to likewise be justified as "defense of others."  There is also no evidence that the former marine had ever expressed any racial animus towards Neely or any other Black person.

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