By Rabbi Rachel Esserman

The USA Today headline said, “Subway killing divides country.” The article announced the acquittal of Daniel Penny. For those unaware of the trial, Penny was found not guilty of the killing of Jordan Neely, an unhoused person who suffered from mental illness. The event took place on a New York City subway car: Neely was placed in a chokehold for six minutes by Penny after Neely acted irrationally and yelled that he was going to kill someone. Some see Penny as a racist murderer who unfairly subdued Neely and who should be punished for his deed. Others see Penny as a hero who rescued innocent people being threatened with injury by Neely.

The import of the article is people’s opinions are split along political lines. That makes sense: almost every act in our society is now judged along political lines. But I think it’s possible to see both sides of the issue here. First, we need to admit that the mentally ill in the U.S. are often unable to get the healthcare they need, especially if they are poor or unhoused. If Neely had had somewhere to live and been given the care that he needed, it is unlikely he would have been considered dangerous. His behavior was not voluntary, but rather part of his illness. Plus, systemic racism mostly likely played a role: the fact that he was Black would have made him seem more dangerous.

However, it’s also unfair to assume that Penny acted in bad faith. At that moment, the former Marine felt he needed to protect the people on the subway car. The real question at the trial was not whether it was illegal for him to subdue Neely, but whether his specific actions were reasonable or unreasonable at that time. I don’t know all the specific details of that part of the case, but a jury acquitted because they felt his actions were reasonable. Would they have been considered reasonable if the person was white and not suffering from mental illness? If someone was actively trying to kill someone on that subway car, then we probably would say yes. The problem is that we don’t know if Neely would have actually hurt anyone. Penny wasn’t willing to take that chance; it’s difficult to judge if he was right or wrong. But what is wrong is that this event would not have taken place if Neely had had the medical care he needed and if we solved the unhoused problem. 

We need to find ways to educate the public about how to deal with people with disabilities and mental illness. I’ve read of trainings for police so they can learn how to interact with those who are autistic. Some recommend that information about a disability can be written on a card so they can share it with the police. I actually have something like that in my purse about my hearing impairment. It can be dangerous for someone with a hearing impairment to be stopped by the police: we may not hear their instructions correctly or even know we’ve been spoken to. Before my cochlear implant, I couldn’t hear someone speaking behind me: that means that if police yelled at me to stop, I would have disobeyed a direct order and continued walking because I had no idea I was even being spoken to. Just think about how much more difficult this is for people with mental health issues or who have difficulty processing information.

Neely died partly because our society refuses to help those in need. That made his death unnecessary: we should have done better. But I can’t condemn Penny if he truly believed he was trying to save people’s lives. I imagine he was horrified to learn that he killed Neely, when all he was trying to do was prevent him from harming someone else. The bottom line is that we need to start working together to make certain something like this never happens again. We need help for the unhoused; we need medical care for those with mental illness; and we need education for the rest of us. Do I think this is a realistic wish? It can only happen if we stop taking sides and work together. I’m pessimistic, though, because, in our current culture, we refuse to reconcile difficult ideas. If we continue to refuse to consider more than one side of an issue, Neely’s death will not be the last one.