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Vox Tries to Explain to Why We Praise Daniel Penny and Condemn Luigi Mangione … and Faceplants

Aaron Walker
Aaron Walker  |  7:45 PM on December 19, 2024
meme

Okay, folks, get ready for a good old fashioned Fisking, like mom used to make.

Regular readers are aware of the cases of Daniel Penny and Luigi Mangione. Penny is the subway rider who confronted a man named Jordan Neely as Neely threatened passengers on the New York subway. Penny held the guy down and, according to the prosecution, caused Neely's death.

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And of course, Luigi Mangione is the man who (allegedly) shot Brian Thompson, CEO of UnitedHealthcare. This is alleged video of the killing:

And over at Vox, Zack Beauchamp is struggling to explain to his readers why conservatives celebrate Penny and condemn Mangione. Both are killing, after all! … or something.

Seriously, he wrote a whole piece on this, and paywalled it. That is, someone decided that the piece is so good that you had to pay extra to read it. We have read it so that you don’t have to. It is all part of a series called “on the right” where they struggle to understand why the right thinks the way it does. We have said for years that there is a certain breed of leftists who attempt to understand how conservatives think roughly the way Jane Goodall tries to understand chimpanzees. Not by actually talking to us, but mainly by watching us from afar and guessing.

Zacky even explained that he was focused on only conservative thinking:

Of course, the most basic reason why conservatives support Penny and not Looney Luigi is something that that Zacky almost understands: Penny arguably acted lawfully, while Looney Luigi almost certainly didn’t. Zacky almost understands this, but then he misses that point.

Now, just to be clear, we’re using a few more “allegedlys” when talking about Looney Luigi than Penny because in theory he might claim that he is completely innocent—he might claim he isn’t even the guy seen in the video. They might have the wrong guy.

(Although it isn’t looking very good for Looney Luigi right now.)

Still, if we assume that Looney Luigi is the guy in the video, it is legally almost impossible to defend. While Daniel Penny had a credible argument for self-defense and the defense of others, we would be hard pressed to imagine any scenario where Looney Luigi would be legally justified in killing Thompson. There is no evidence that Looney Luigi could invoke any valid theory of self-defense, or defense of others. It frankly looks like a cold-blooded execution.

Just to lay out some Criminal Law 101, there are three basic ways to defend yourself against a criminal charge.

The most basic way is you could defend against the charges on the elements—that is, “I didn’t do the things the statute requires me to do to commit this crime.” That can be, in essence, “you’ve got the wrong guy” as Looney Luigi might claim. Or it could be “this statute on burglary requires that the crime be committed at night, and I broke into that house at noon.” That’s a defense on the elements.

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The second kind of defense is a legal excuse. “Yes, I did it, it was bad that I did it, but I am not legally responsible.” The classic example of that is the insanity defense. There’s a lot of myths about the insanity defense, but we will simply say that you have to be a very particular kind of insane, the defense almost never works, and even if it does work, they typically throw you into a mental institution until they can be sure you won’t be a danger to yourself or others. It isn’t quite the get-out-of-jail-free card some people think it is.

And finally, there is justification. That amounts to “yes, I did it, and I had a legal right to do it.” That can cover a cop shooting a fleeing felon, but it can also cover self-defense and the defense of others.

So, Luigi’s best chance, in our opinion, is to go on the elements. And to his credit, Zacky seems to understand that Luigi can’t claim self-defense, writing:

The killing of United Healthcare CEO Brian Thompson was a cold-blooded killing; multiple shots to the back with no prior altercation and no hint that Thompson posed an immediate physical threat to anyone. This was a straightforward, intentional, and premeditated killing.

But then Zacky goes completely off the rails when talking about the Penny situation:

Neely’s situation is different: Some passengers on the train said he was threatening to hurt someone, though he hadn’t actually done so. Penny claims that he restrained Neely to protect the other passengers.

In reality, it’s highly questionable whether putting Neely into a chokehold for six straight minutes is a justifiable response to mere verbal aggression. Even Penny’s defense team implicitly conceded death was not an appropriate punishment[.]

Of course, the first problem in Zacky’s analysis is the use of the word “punishment.” Self-defense has nothing to do with punishment. We covered this issue before and to make our point, we cited one of the greatest Christmas movies of all time: Die Hard. Specifically, we used the fictional but realistic scene when Al Powell explained why he was no longer a beat cop:

As we wrote:

Powell explains that he no longer works as a beat cop because he shot a kid. He explains it was dark and the kid had a toy gun. He thought it was a real gun and shot the kid. It sounds like the kid survived, but Powell could never bring himself to point a gun at a person again.

But he wasn’t telling that story in prison. …

Self-defense is not about determining whether or not the person you are using force against is guilty or innocent of a crime. In Powell’s story, that kid sounds completely innocent and it doesn’t matter. Of course, if you know a person committed certain crimes in the past, that can influence that perception—for instance, if you know that someone just committed a mass shooting, you have a right to be more concerned that they might try to harm you than a random civilian. But even then, it is not about guilt or innocence. It is purely about the reasonable perception of danger at that moment.

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So, the first mistake Zacky makes is to indicate that he thinks that the Penny trial was about determining whether or not Neely deserved to die.

But the second is that Zacky, like a lot of leftists, didn’t even understand just how narrow the prosecutors’ argument was. They didn’t charge Penny with intentionally murdering Neely. Indeed, they didn’t even charge Penny with simple battery. They only charged him with negligent or reckless homicide.

That failure to charge him with battery is critical. A battery is nothing more than an offensive touching. To be blunt, there is no question that what Daniel Penny did would normally be considered a battery, unless he could claim he was justified in doing it. He pulled a man to the ground and placed him in a hold. That is normally a battery.

So why wasn’t Penny charged with battery? The only explanation is that the prosecution was at least implicitly admitting that Penny was justified to grab Neely and place him in that hold in the first place by either self-defense or the defense of others. The charges also tell us that the prosecution believed that Penny caused Neely’s death, but they don’t think Penny wanted him to die either. Again, Penny was charged with recklessly or negligently causing Neely’s death, not intentionally doing so. So the prosecution was really saying, just by the charges they filed, is that Penny was right to place Neely in a hold to defend himself or others, but Penny negligently or recklessly executed that hold, causing Neely’s death—most likely by holding Neely too long. That is the narrow question in front of that jury—did Penny recklessly or negligently cause Neely’s death when he lawfully defended himself and others?

Penny for his part has argued that he couldn’t let Neely go because he was underneath Neely, and that placed Penny at a disadvantage if he let him go. 

So, it seems to this author that Penny’s initial intervention was primarily about the defense of others but as it went on, he had to continue using the force primarily to defend himself. It doesn’t appear that Penny specifically wanted Neely to die.

Further, another element Zachy seems to know nothing about is imminence. Let’s take a simple hypothetical. Imagine we meet a man who loudly says “I am going to kill my wife. I have a gun and I am going to shoot her at the first moment I see her.” You see the man’s wife coming out of a store about 50 feet away, and you see him draw the gun. So, you draw your own gun faster and kill him. That is classic defense of others and not a crime.

Now let’s change up that situation. The same guy says he is going to kill his wife, he has a gun and he will shoot her at the first opportunity that he sees her. But you ask him, “where is she now?” and he responds: “she’s visiting her mother out of state. She’s supposed to fly back in two days.” So… are you allowed to shoot that man? No, duh, because the threat is not imminent. In that situation, you have plenty of time to call the police and let them handle it. Ideally, if someone presents a threat to another person, the police are the ones to intervene.

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Because of course the left’s argument is that Thompson is responsible for people’s deaths by denying them coverage. But even if that will cause death eventually, there is no imminence.

And, Zacky also misses that there is a world of difference between omission and commission, inaction v. action. Penny was concerned that Neely was about to violently attack a person. By comparison, you can only argue that Thompson posed a threat if you believe that was going to fail to help a person by not agreeing to pay medical bills. It’s the difference between someone holding someone under the water versus a lifeguard seeing a person drowning and doing nothing. The answer in that latter situation isn’t to shoot the lifeguard, but rescue that person your damn self.

And that entire argument gives Looney Luigi’s defenders more credit than they deserve. Bluntly, with all of the people justifying the murder of Thompson, you can tell they don’t actually know very much about Thompson—they never talk about anything Thompson has done, just about how much they hate the health care system in general. They just assume that he is evil because of what he does for a living. For all they know, maybe Thompson was fighting with elements within his own company to interpret their insurance contracts broadly, to give the most care to the most people. But the left doesn’t care about that because fundamentally they can’t see past the stereotype of an evil CEO. Basically, they think every healthcare executive deserves to die on general principles.

By comparison, we don’t know any conservative that thinks every homeless person deserves to die. We support what Penny did based on the specific facts in the case and our belief that Alvin Bragg has a pro-criminal bias.

Indeed, Zacky gives away his fundamental misunderstanding of the issue when he writes:

Daniel Penny is not just a one-off: There is a long and troubling history of conservatives endorsing vigilante killings of the “right kind” of people, with fairly recent examples including Kyle Rittenhouse and George Zimmerman.

Except none of these men are vigilantes. Lawful self-defense and the defense of others is not vigilantism. And the only thing that makes the people that these self-defense heroes shot and/or killed the right kind of people is their conduct when these three people defended themselves.

Seriously, in trying to understand how the right thinks, did Zacky try actually talking to one of us?

Anyway, let the dragging commence:

The cut off text reads (with some censorship):

You call it "mere verbal aggression" that can't justify restraining someone. Shouting "I'm going to kill a mother—ker"? Really? You can't see how trying to restrain someone saying that is an *entirely* different situation than a guy just walking down the street murdered in cold blood? Let's recall that the jury found Penny "not guilty" of even negligent homicide....

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But other than that, it’s totally the same.

Party pooper, stating the blindingly obvious.

The cut off text reads:

Progressives on the other hand respond only to a perceived absence of power. They don't think of those situations like normal people do. They don't ask themselves, "which guy would I be in this situation?" They've instead trained themselves to think, "which guy in this situation has less privilege?" 

Because this way of thinking takes additional work, because most people have to be trained to engage in it, precisely because it is the product of intellectual effort, progressives suspect that it must be a superior moral framework. 

This is a kind of labor theory of philosophical and moral value.

We admit we are not sure if we agree with that analysis, but we are first to say that it is an interesting analysis.

Indeed, our own immortal French aristocrat (who denies he is actually a vampire but we have our doubts) successfully frogged Zachy’s piece (as of this writing):

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It’s a weirdly popular trope in modern media.

The cut off text:

The outcome was unfortunate, but morally, we should judge actions, not outcomes.

If you are holding down a violent opponent, it’s dangerous to let him go. If Penny had known in advance that Neely would die, he likely would have done things differently. But Penny could not have known. (He didn’t even know that Neely had died during the police interview afterward.)

It's also true that if Penny had behaved perfectly in every instance, he could have done something different that would have lowered the risk of causing death, while still protecting the fellow passengers. But this can't be the standard against which we judge actions! No one is perfect. While one could theoretically identify safer techniques with the benefit of hindsight, this ignores the reality of crisis decision-making in unusual and difficult situations.

The Beauchump article gets even worse when he writes that it was an example of a vigilante killing, along with Kyle Rittenhouse and George Zimmerman.

This shows how profoundly he doesn’t get it. Zimmerman had a dangerous, violent attacker (Trayvon Martin) on top of him, smashing his head into the concrete sidewalk. Trayvon then said, “You’re gonna die tonight, motherfucker,” and reached for Zimmerman’s gun. Shooting in self-defense is not “vigilantism.” In that case, I’m not even sure what hypothetical perfect behavior Zimmerman could have shown. He could have never joined the neighborhood watch, I suppose.

The main argument for Zimmerman’s innocence is not that it’s a defense of moral order, as Beauchamp claims, but that it was a crystal-clear case of self-defense. Yes, Trayvon Martin ended up dead, and that is unfortunate. But you should not judge actions solely based on outcome.

Similarly, Kyle Rittenhouse was also a clear case of self-defense. He was attacked by a violent psychopath (Rosenbaum) who had threatened to kill him. Rittenhouse fled while Rosenbaum chased him and reached out to grab his gun. After that, Rittenhouse was attacked by a mob of violent criminals who hit him and tried to grab his weapon. Two people died, but again, you shouldn’t judge the situation solely by the outcome. And actions of self defence [sic] are not "vigilantism" or even morally wrong.

Furthermore, many woke people complain that Rittenhouse “crossed state lines.” In fact, crossing state lines is neither inherently bad nor unusual. While it’s true that as a result of the situation initiated by Rittenhouse crossing state lines two people ended up dead, moral judgment should not be based on outcome alone.

I commend Beauchamp's attempt at trying to understand the other side. Possibly he could meet with conservatives and discuss such issues as actions in context vs outcome and self defence, and write a follow-up article.

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A point that is also highlighted obliquely is this. Two things can be true at the same time. You can believe that Daniel Penny acted legally and even heroically, while also believing that it is sad that Neely is dead. As we hammered home over and over again, self-defense has nothing to do with what a person deserves. Neely didn’t deserve to die, but he created a situation where Penny was legally entitled to lay hands on him, and in the process of Penny’s lawful actions, Neely died. We can say that Penny was right to do what he did, and still wish that before that day someone intervened to get Neely off the streets. The man had a long rap sheet, so why was he walking around as a free man, anyway?

And for the record, why don’t they simply put armed security on every single subway car, in order to protect the public? If New York did that, Penny probably wouldn’t have had to lay hands on Neely in the first place. The police could have handled it.

Finally:

*stifles laughter* Anyone remember that dumb talking point from the Rittenhouse case?

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Tags: CRIME MURDER VOX DANIEL PENNY

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