If you believe that a 15-minute long chokehold on the NYC subway (that’s 900 seconds of asphyxiation) is a justified use of deadly force, you really need to read up on NY Penal Law 35.15.👇
Section 35.15 provides, in pertinent part, that a person may not use deadly physical force unless he “reasonably believes” that another person “is using or about to use deadly physical force” and that its use is “imminent.”
Further, deadly physical force may not be used if the individual, with complete safety as to himself and others, can avoid the necessity of such force by retreating. So there is a duty of retreat.
Finally, Jordan Neely’s past criminal history cannot serve as a post-hoc justification of the use of deadly physical force unless Daniel Penny was actually aware of Mr. Neely’s criminal record at the time he made the decision to place him in a deadly chokehold.
Per New York case law, the “critical focus” of the reasonableness inquiry under NY Penal Law s. 35.15 “must be placed on the particular defendant and the circumstances actually confronting him at the time of the incident . . .”
Marine Corps Close Combat Manual:
"The carotid hold, when properly applied, renders the subject unconscious in a matter of seconds. A tracheal hold takes anywhere from 2-3 minutes to render a subject unconscious.”
Penny, a former Marine sergeant, kept the chokehold for 15 mins.
“Courts have consistently held that chokeholds may not be continued once a suspect has been subdued. The reason for such a rule is obvious: once an individual has been effectively subdued, she no longer poses a significant threat, and therefore the need to use force has ended.”
"The application of any chokehold is properly considered the application of deadly force." See Coley v. Lucas County, 799 F.3d 530, 541 (6th Cir. 2015) (describing a chokehold as “deadly physical force”); Ingram v. Shipman-Meyer, 241 F. Supp. 3d 124, 140 (D.D.C. 2017).
6th Circuit: "Chokeholds are objectively unreasonable where an individual is already restrained. Gray's actions as described in the complaint violated clearly established law: Gray put Benton in a chokehold and continued to choke him even after Gray heard him gurgling and another… twitter.com/i/web/status/1…
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