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  4. Daniel Penny learned the chokehold that killed Jordan Neely in Marine boot camp. He likely didn't learn when to let go.

Daniel Penny learned the chokehold that killed Jordan Neely in Marine boot camp. He likely didn't learn when to let go.

Laura Italiano   

Daniel Penny learned the chokehold that killed Jordan Neely in Marine boot camp. He likely didn't learn when to let go.
  • Daniel Penny learned the "rear choke" that killed Jordan Neely in boot camp, Marine veterans tell Insider.
  • The chokehold was "sloppy," and "letting up 30 seconds earlier could have saved Neely's life," one said.

Daniel Penny was 17 years old when, like all Marine recruits, he learned the basics of "blood chokes," the move he used, seven years later, to kill Jordan Neely on a northbound subway car under lower Manhattan.

On Wednesday, Penny, 24, pleaded not guilty to a newly unsealed felony indictment in the May 1 death of Neely, a 30-year-old homeless man who prosecutors and witnesses agree had been screaming erratically at passengers.

Penny is not accused of murder. The charges recognize that the former Marine sergeant and infantry squad leader intended to restrain — not kill — his victim, as Penny himself has insisted.

But prosecutors do allege that Penny was negligent in not realizing his chokehold might take Neely's life.

Using a second, more weighty statute, they also accuse him of recklessness, alleging he knew he might kill Neely, but choked him anyway, including for nearly a minute after Neely stopped moving.

Penny, who is due back in court on October 25, has amassed a nearly $3 million defense war chest through the GiveSendGo Christian fundraising website. Manhattan Supreme Court Justice Maxwell Wiley did not set a trial date at Penny's brief arraignment Wednesday morning, but the case is almost certainly heading for trial.

What Penny learned about chokeholds in his Marine training will be key at that trial, as a Manhattan judge or jury weighs whether Penny was negligent, or reckless, or neither.

Insider spoke with four Marine veterans, including two retired senior officers. They said that Penny's training would have focused on keeping himself, his fellow Marines, and innocent bystanders safe while teaching him little about how to safeguard someone seen as an "opponent."

The chokehold that killed Neely was "sloppy" and "excessive," said Alex Hollings, a former Marine black belt.

But in a combat situation, "We don't place a heavy emphasis on knowing when to let up to ensure your opponent survives."

Penny's training will be key to his defense

"They're going to have to think of it from his perspective," defense lawyer Karen Friedman Agnifilo told Insider of Penny's potential jury.

"And his perspective is going to come from, 'What was his training?'" said Friedman Agnifilo, who is not involved in the Penny case, and who is a former chief of the Manhattan district attorney's office trial division.

The stakes are high, she noted.

If a judge or jury finds Penny was negligent, this decorated, young Marine veteran will be guilty of criminally negligent homicide, and he'll be sentenced to anywhere from zero to four years.

If they also find he was reckless, he'll be guilty of second degree manslaughter. That, too, carries no mandatory minimum sentence, but the maximum is 15 years. Penny's defense lawyer, Thomas Kenniff, declined to comment for this story.

Negligent? Reckless? Marine vets weigh in

Marine veterans who viewed the nearly four-minute bystander video of Neely's death disagree on whether Penny was reckless or negligent in applying the chokehold. They ranged from a former senior officer who called Penny a hero, and the former black belt, who said Penny's fatal chokehold was not only negligent, but "egregious."

But the four agreed that Penny was following his training in deciding to restrain what prosecutors and witness accounts have described as a screaming man on a train full of passengers.

"The chokehold temporarily takes the place of handcuffs," until help arrives, said Marine veteran Dave Bruce, a Farmington, Missouri-based attorney who is a chat room moderator on the website

"Marines are trained to do something in these situations," Bruce, a former sergeant, said. "They're not going to sit back and watch some potentially dangerous situation," he added.

"You're trying to subdue someone until help arrives," said one former senior officer, asking to remain anonymous because they were not authorized by their employer to make press statements.

"You're not thinking, 'let me hold his neck here, and not there, so that it's a non-lethal chokehold,'" they said. "You're thinking, let me make sure he doesn't hurt anyone."

What recruits learn about chokeholds

Recruits jokingly call it "Marine-Foo," the martial arts-inspired foundations of hand-to-hand combat taught to all who enter boot camp, typically in their first month. Choke holds like that one used on Neely are part of this early training.

The Marines teach only "blood chokes," designed to restrict the carotid arteries that run along both sides of the neck, delivering oxygen-rich blood from the heart to the brain.

Executed correctly, a blood choke renders an opponent unconscious in 8 to 13 seconds, according to the Marines martial arts training manual, which calls it a "non-lethal" way to stop a fight.

An "air choke," by contrast, compresses only the windpipe at the front of the neck. Air chokes take too long to subdue an aggressor — it's at least two or three minutes before an opponent loses consciousness, the manual warns. They are not recommended for combat and are not part of training.

Penny's "sloppy" but deadly chokehold

The blood choke that was used on Neely is taught in its most basic form to every recruit, and it has a long name, said Hollings, the former black belt and editor-in-chief at the influential military blog at

It's a "figure-4 variation on the standard rear choke."

"A standard rear choke is effectively a headlock," Hollings explained, breaking the name down.

The figure-4 variation improves the effectiveness of that standard headlock through "grabbing the inside of your other arm, and then using that other arm to apply pressure to the top and back of your opponent's head, to press their neck into the choke," he said.

"Penny isn't doing a particularly good job at this figure-4 variation rear choke," Hollings told Insider after reviewing the bystander video, shot by Juan Albert Vazquez.

"His hand placement is incorrect, and it's that improper positioning that appears to have turned what should have been a 'blood choke' into an 'air choke' for the first few minutes of this video," he said.

What Hollings called that "sloppy air choke" may not have even closed Neely's airway entirely, explaining why Neely continued to struggle, his chest rising and falling, even as two other male passengers try hold down his arms.

Then, about a minute into the video, everything changes.

Penny sinks his heels

"Penny wraps his legs around Neely. We call this 'sinking your heels in,' and it provides added control and leverage for the choke," Hollings said.

It is this deeper chokehold that claimed Neely's life, Hollings believes, based on his extensive experience and training.

Neely's legs move for another 30 seconds as that deeper chokehold digs into his carotid arteries, reducing, then constricting completely, the blood flow to his brain. Neely then stops moving. But Penny continues to hold Neely's neck for nearly a minute more.

"Letting up 30 seconds earlier could have saved Neely's life," Hollings estimated.

"He should have been able to assess that his opponent was no longer providing any kind of resistance, and at that point he should have known that Neely was unconscious," and should have let go, Hollings told Insider.

"And in my opinion, unless Neely was posing a very real threat to someone's life, it was negligent to spend so much time seating and then executing the choke when the three men could have subdued Neely in another way.

"Of course, we are talking about a fight," Hollings added. "Most people aren't thinking at all, let alone thinking straight during one. I can see how this might happen, even if I believe it shouldn't have."

Benefit of the doubt

Even in being highly critical of Neely's death, Hollings notes that Penny's green-belt-level training as an infantry squad leader would not have involved practice in choking an opponent while grappling on the ground.

Given his inexperience, and the heat of the moment, Penny may have been confused about whether he was compressing Neely's windpipe, or his carotid arteries, Hollings said.

"If you think you're constricting the airway, but you're actually preventing blood flow through the carotid arteries, you can kill a person in less time than you think it'll take," he said. "And I believe that's likely what happened here."

When to let go?

"Bottom line — at some point, Mr. Penny should have let go before Jordan died," Neely family attorneys Donte Mills and Lennon Edwards said in a statement responding to Penny's indictment.

"Any reasonable person knows choking someone for that long will kill them," they noted.

But what a reasonable civilian knows, and a reasonable Marine knows, may be two different things.

"Once you make the decision to intervene, the only thing you can do is hold on until help arrives," maintaining a chokehold just tight enough that your opponent cannot turn their body, the former senior officer insisted.

"You can hold someone in a chokehold indefinitely without killing them," the former officer added, although "you can apply it in one manner, and then the guy might squirm his way into a blood choke."

When to let go is very clear in basic training, when your opponent is a fellow Marine who offers no resistance, and who taps you on the arm when it's time to release the practice hold, Hollings said.

"But we don't place a heavy emphasis on knowing when to let up to ensure your opponent survives" in actual combat, he said.

"Was he supposed to let go, and have the guy possibly lash out and fight you back again and take you down?" Friedman Agnifilo, the former prosecutor, asked rhetorically of Penny.

"For arguments' sake let's say he did it wrong," she said of Penny and his fatal chokehold.

"He made a mistake. He didn't remember some part of his training. Or he wasn't looking at his watch. He didn't know it was 45 seconds that Neely wasn't moving," she added.

"That's criminal? No way. If that's criminal, this is an upside down world."

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