What Utah law says about cases like veteran Daniel Penny’s

SALT LAKE CITY — A jury in New York acquitted former U.S. Marine Daniel Penny in the choking death of Jordan Neely on Monday. Penny’s attorneys had argued he was defending the other subway riders when he restrained Neely using a chokehold. 

KSL Legal Analyst Greg Skordas said “use of force” laws in self-defense are similar across the country, including in Utah.

“If the same conduct occurred in the state of Utah, a very similar, or maybe exact type of defense would have applied. That is, the use of force to protect yourself or others.”

Skordas said the jury would have received instructions to decide whether or not the use of force was justified.

“Whether they would have reached the same verdict is a different question. But the law in both states appears to be very similar.”

Whether someone is justified in using deadly force has to be determined on a case-by-case basis, Skordas said.

“If you recall in the George Floyd case, an officer used a choke-type hold and caused the death of [Floyd]. [Later] he was charged with and convicted of a homicide.”

In Penny’s case, however, Skordas said the jury found his conduct appropriate for defending others.

“So you have to look at these cases on a case-by-case basis and say, look, the law allows a person to use force to prevent death or serious injury to another person, was that appropriate in an individual case.  And, did the person really have what we call the justification? [Was it] reasonable to do this?”

What if the Daniel Penny case happened in Utah?

In Utah, Skordas said the case may never have gone to a jury. Penny would have had an additional level of protection through Utah law, called a justification hearing.

In a justification hearing a defendant and their lawyers can present evidence to a court before it gets to trial.

“That [evidence] would say, look, this conduct was justified and the state can’t overcome that justification.”

And if the state couldn’t overcome the justification, Skordas said, the case would be dismissed.

“If they can [overcome it], then the judge puts it before a jury, and they sort of make the same determination but at a different level after hearing the trial. Whereas, the justification hearing that you can file in Utah before you get to trial can get a case dismissed before it even gets to trial.”

According to Skordas, Penny’s attorneys would still have had to prove that Penny was justified in the amount of force he used in subduing Neely.

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