The state of nature on a subway

In December 1984, a New York City electrical engineer named Bernhard Goetz responded to an approach by four young men on a subway car by drawing his gun and shooting them. All four of the youths had police records, which lends some credence to Goetz’s claim that he felt threatened when they asked him for money while smiling. Goetz had earlier been a mugging victim and carried the gun for self-defense.

The case was a national sensation during a time when crime was a major problem in New York. Many people who lived there could readily recall times they’d been threatened and/or robbed. To some, Goetz was an unstable and dangerous man who attempted to murder young men he couldn’t know had previously been in trouble with the law. To others, he was more like a hero who was fed up with being afraid and finally took matters into his own hands.

One notable feature of the trial was that Goetz was white and the young men he shot were black. Notably, however, race was not the focus of the trial. Instead, it was vigilantism and self-defense. In the end, Goetz was acquitted by the jury on all counts other than a gun charge for which he served eight months in prison.

On Monday, almost exactly 40 years after that famous event, a New York jury found young Marine veteran Daniel Penny not guilty of criminally negligent homicide. When Penny and his fellow subway riders encountered the erratic and threatening Jordan Neely in May 2023, it was the former Marine who intervened and attempted to subdue Neely. Penny’s chokehold, which he’d been trained to understand would render another man unconscious, proved fatal.

There were key differences between Goetz and Penny. While Goetz sought to protect himself and had a gun, Penny attempted to protect his fellow passengers with nothing other than his physical abilities. As a strong young man with military training, Penny could afford to look the other way and not intervene. It was far more likely a female or an older person would be a target. Instead, he tried to contain the danger posed by Neely, who had been previously arrested 40 times.

On one occasion, Neely had seriously injured an elderly woman by assaulting her and served time for the offense. While Penny and the other subway riders couldn’t know Neely had a record, the fact adds credibility to their perception of danger. He was clearly disinhibited enough to raise concerns, as some testified in court.

Unlike in the Goetz trial, where prosecutors chose not to risk appealing to bias and prejudice by making much of the racial identity of Goetz and the men he shot, Manhattan District Attorney Alvin Bragg (also notable for using novel legal theories to target Donald Trump’s business) did emphasize Penny’s status as a white man and Neely’s as a black man. Given that the jury did not convict Penny, it is clear they perceived that there were more salient issues than race involved in the conflict. One was whether they wanted to punish the rare individual who gets involved when a threat appears. Another was whether they could imagine themselves as either a potential protector or someone who needed protection from a raving and threatening man on a subway car with no easy escape.

One of the great contributions of John Locke’s political thought has to do with the idea of the social contract and human beings emerging from the state of nature to form a political society to secure their freedoms. The critical right we yield upon entering that society, Locke argued, is the right to act as a vigilante. Instead, we will expect the government, the courts, and the police to maintain order and to provide the protection and punishments necessary to allow us to live our lives with far less fear and danger than we might otherwise experience.

But in that subway car, Penny was caught in a tragic conundrum. There were no police there to take action. He and the other riders were alone in that closed car with a raving man who seemed to mean them harm. What happened was not glorious. Penny didn’t defeat a supervillain or even a calculating criminal. He prevailed in a struggle with a mentally unstable, troubled, homeless man and accidentally killed him in an attempt to restrain him until the authorities could do their job.

Penny may have made a mistake in his use of force. Maybe he held the chokehold too long. We could second-guess him in a variety of ways. But we weren’t there, and he was. And what Daniel Penny did—the former soldier and therefore maybe more like a policeman than anyone else in the car—was to take responsibility. That’s what the jury saw.