Thou Shalt Not Stand By - Unless You're in NYC

The New Price of Moral Courage

On May 1, 2023, Jordan Neely was riding the northbound F train on the New York City subway. He took over a subway car, yelling “I'm willing to die! I'll do anything! I'm willing to die and go to jail! I don't care!" He lunged at people, and threw down his jacket when people tried to leave.

The subway riders were terrified.

It would later turn out that they had every reason to be — and not only because of what they were experiencing. Jordan Neely was a serious man. He had more than forty prior arrests, including one for punching an elderly woman on the subway and breaking her nose and face. His readily apparent strength was amplified by the synthetic marijuana that he was on.

Daniel Penny, an ex-Marine on the train, was afraid as well. He pondered the situation for fifteen seconds – and concluded that if he escaped the car, women and children would be alone with this maniac. Daniel Penny took off his headphones, stood up from his seat, took Neely to the ground and put him in a chokehold — the move that he and onlookers agreed would prevent Neely from using his drug-addled strength to break free and gain an advantage. The train stopped at the next station, but it took some minutes for the police to arrive. Soon, Neely was dead.

The Manhattan District Attorney, Alvin Bragg, charged Daniel Penny with second degree manslaughter and criminally negligent homicide. A grand jury indicted Mr. Penny on charges that, if found guilty, could have resulted in him being in prison for 19 years.

The trial commenced in the winter. It lasted nine weeks, including jury selection. The jury acquitted Mr. Penny of all charges.

One might think that Daniel Penny was the only person whose liberty was at risk in the trial. One might also think that the story – aside from the civil case against Mr. Penny – is now over.

Turning to the best place for guidance on pretty much everything – the Torah – we can assess those claims. And we see that the story is far from over, and that it has enduring and wide-ranging implications that we will have to resolve (with lack of resolution being a kind of resolution).

The Torah has many laws and rules. One thing they have in common: They are never about things we would do naturally. For instance, the Torah never commands us to eat, drink or love our children – all things that people do naturally, without encouragement or instruction. Instead, the Torah commands us to do unnatural or difficult things that we nonetheless should do.

Enter Leviticus 19:16: “You shall not stand by your neighbor’s blood.” This is the foundational statement against being a bystander – one who witnesses or even just knows about a bad situation, and does nothing to stop it. The phenomenon of being a bystander is so natural and prevalent that modern social science has an entire literature on it.

The Torah does not just forbid being a bystander. It illustrates the dynamic of bystanding through two stories – one in Exodus (with Moses) and one in Number (with Pinchas). In Numbers, Moabite women seduce the Israelite men – and convince them to not only engage in forbidden sexual relations, but to worship foreign gods.

God tells Moses to hang the Israelite leaders. Moses, without accepting or refusing the mission, delegates. He tells the judges to kill the men who “were attached to Baal-peor.”

None of the judges do so.

The idolatrous debauchery continues. An Israelite man and a Moabite woman have sex on the Temple steps. Still, no one does anything – until Pinchas, until now an obscure character in the Bible, steps up and plunges his spear through both of them. God rewards Pinchas by giving him the “Covenant of Peace.”

(Phinehas slaying Zimri and Cozbi the Midianite by Jeremias van Winghe, 1578–1645)

The importance of being an upstander (the opposite of a bystander) will occupy a deep place in Jewish teaching and thought. Perhaps its most poignant articulation was in 1998 when the historian Yehuda Bauer, a Holocaust survivor, was invited to return to Germany to address the country’s parliament. He concluded his remarks by saying: “I come from a people who gave the Ten Commandments to the world. Time has come to strengthen them by three additional ones, which we ought to adopt and commit ourselves to: thou shalt not be a perpetrator, thou shalt not be a victim; and thou shall never, but never, be a bystander.”

Daniel Penny did not only do what any civilian on the subway would have wanted someone to do – especially if one’s wife or child were being terrorized by a drug-addled criminal maniac. He complied with Leviticus 19:16, and overcame what is most people’s default status: to be a bystander. By putting him on trial – by subjecting him to the possibility of being convicted of serious crimes and receiving a long prison sentence – the Manhattan DA made a profound statement about bystanding and upstanding in New York City.

It did not take long to see the effects of such a statement. Within weeks of the conclusion of the trial, Sebastian Zapeta-Calil – an illegal immigrant from Guatemala – went up to a sleeping woman in another New York City subway car. He lit her on fire. The subway car was full, but no one stood up to intervene as they presumably saw Zapeta-Calil murdering the sleeping woman – later identified as Debrina Kawam.

Why not? Curtis Sliwa founded the Guardian Angels in 1979 – which was another period in New York City history when public crimes were ubiquitous. There are few people (if any) who have devoted as much time, thought and action to public’s interaction with New York City crime than Mr. Sliwa. Following Zapeta-Calli’s murder of Ms. Kawam, he announced that the Guardian Angels would be in full force on the subways – bringing water and conversation to homeless people, introducing them to authorities when appropriate and intervening in potentially or actually violent encounters when necessary.

Why does he believe that the Guardian Angel presence is so important now? He explained: “Unfortunately, the ‘Daniel Penny Effect’ has frozen them. They’re not going to get involved. I’ve seen grown men who normally might have gotten involved. They’re just not getting involved any longer.”

Mr. Sliwa is right. The Manhattan DA just massively raised the costs of being an upstander.

(Curtis Sliwa, Founder of The Guardian Angels via Wikimedia Commons)

How might this be rectified? The Manhattan DA could apologize – but that is not going to happen. The New York legislature could pass a law recognizing the right to be an upstander – but no one is talking about that, either.

This situation is compounded by a Talmudic teaching – that derives from the Biblical stories of Abraham and Lot and of King Saul and Agag. The Talmud teaches: “He who is kind to the cruel will be cruel to the kind.”

By being “kind” to Jordan Neely – a man who roamed the subways looking for women to beat up or worse – the New York DA was being cruel to Daniel Penny. And the cruelty extends – to all of those who might be saved by a future Daniel Penny, but will not be.