Why Daniel Penny Killed Jordan Neely

Forget fight or flight. Think Freeze

On May first, Daniel Penny subdued Jordan Neely on the New York City subway. According to witnesses, the Marine held the homeless man in a chokehold for around 15 minutes. More than long enough to kill him.

Penny faces 15 years in prison for second degree manslaughter. If we set aside the question of whether or not Mr. Penny should have intervened in the first place, we’re left with another conundrum: why so long? If Penny had released Neely sooner he wouldn’t have killed him.

There’s little doubt the Marines trained Mr. Penny how to use a chokehold. The Marines also trained Penny to apply the amount of violence needed to achieve a specific objective, and no more. It’s what’s called the “principle of proportionality.” According to the Official COIN (Counter Insurgency) guidelines…

The principle of proportionality that the anticipated loss of life and damage to property incidental to attacks must not be excessive in relation to the concrete and direct military advantage expected to be gained.

Proportionality and discrimination require combatants not only to minimize the harm to noncombatants but also to make positive commitments to ·    Preserve noncombatant lives by limiting the damage they do. ·    Assume additional risk to minimize potential harm.

Mr. Neely didn’t appear to be armed. Mr. Penny had assistants. After Mr. Penny brought Mr. Neely to ground, the Marine should have released him, turned him onto his stomach or side and continued to restrain him. Yes but…

From the start, the incident put the Marine’s parasympathetic nervous system on full alert. When Mr. Penny had control over Mr. Neely, Mr. Penny was safe. Innocent bystanders were safe. His subconscious or “lizard brain” wouldn’t let him get past plan A, to a plan B with new and greater risks.

In short, Penny froze.

You hear a lot about the fight or flight response. While some people respond to life-threatening danger by attacking or running away, this is not the default response. The most prevalent reaction to danger: freeze. Stay still. Do nothing. Yes, your body prepares you physiologically for fight or flight, but the primary behavior is freeze.

You didn’t build that. Evolution did. What do predators look for? Movement. If a predator can’t see you, they can’t kill you. Staying still is your best option, especially if you’re alone. Humans who tried to run from predators were killed. Their genetics died with them.

The freeze response is not limited to humans. When my schnauzer caught a bird, the normally obedient dog stood stock still with the bird flailing around in her mouth. Rosie ignored my commands to “drop it” and “come.” She froze.

I saw the freeze response in myself back in the day, when a calm cigar lounge erupted in violence. I sat in my chair, cigar in hand, watching as the police officer sitting next to me bolted from his chair, pulled his gun and pointed it at an unexpected “guest.” I should have got up and moved to safety. I didn’t. I froze.

I learned to “get off the X” through simunitions training: real guns, plastic bullets, “shoot/no shoot” scenarios. Instruction, peer pressure and repetition reprogrammed my subconscious to react rather than freeze. It was not easy, comfortable or fun. But it worked.

“Daniel never intended to harm Mr. Neely and could not have foreseen his untimely death,” Mr. Penny’s lawyer insists. While I don’t think Mr. Penny set out or indeed intended to kill Mr. Neely, you’d think a trained Marine would know how and when to release someone from a chokehold.

Knowing is not the same as doing. Penny knew to let go, but the rational part of his mind wasn’t in control. He was in a trance state. Time perception went out the window. He experienced auditory exclusion; he couldn’t hear/process voice commands or suggestions. Again, he couldn’t get past plan A.

The Neely homicide is reminiscent of the George Floyd homicide. Officer Derek Chauvin kept his knee on Mr. Floyd’s neck for an astounding eight minutes and 46 seconds – killing Mr. Floyd and earning Officer Chauvin a 20-year prison sentence.

Granted, Chauvin had 18 official complaints against him, including a previous knee on a neck incident. Did Chauvin freeze or just not give a shit? Probably both. Either way, we have every right to demand that law enforcement officers exercise restraint when using restraint. To “unfreeze” before injuring or killing their prisoner.

I wonder if the defense in the Penny case will argue that the trained marine lacked the ability to release Mr. Neely. As for preventing future restraint-related deaths, police training should directly and repeatedly address the “get off the X” issue.

Simply expecting officers “to do the right thing” – even when they know what it is – isn’t sufficient. Obviously.