Judging Freedom - Judge Blocks Border Releases _ Man who choked subway rider faces manslaughter

Episode Date: May 12, 2023

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Hi everyone, Judge Andrew Napolitano here for Judging Freedom. Today is Friday, May 12, 2013. It's about 2.50 in the afternoon here on the east coast of the United States. Here are your hot topics for today. Some of these are stories that we've been following throughout the week. Late last night, a federal district court judge sitting in Pensacola, Florida, enjoined the entire Department of Homeland Security, not just the DHS agents in Florida, but DHS agents everywhere, from using what's called a parole system of release. So here's how this works. A migrant approaches the border and makes an initial showing, what lawyers call a prima facie showing, just a basic initial showing that the migrant is there escaping some sort of repression at home. The migrant then is processed. What is your name? What is your

background? Where do you live? Who's with you? Are you the mother or the child of these children getting basic information about the person? And then in a system used by the Trump administration and by the Biden administration is paroled. I'm saying that with air quotes because the concept of parole is you are released from the government confinement, told to behave properly, and ordered to return. That's exactly what had been happening here. The government is so overwhelmed at the border. There is not enough room for these people to be confined. If you give them a court date, it's many years before the court date is valid or realistic what to do with them. So the Trump administration paroled them. The Biden administration has been paroling them. Well,

the situation changed today because today is the first day that the government cannot decline to admit people because they come from countries with high concentrations of COVID. Why? Because the Centers for Disease Control has decided that the COVID pandemic is over. And therefore, that is no longer a basis under what's known as Title 42, a nomenclature given to a specific federal statute that lets the Border Patrol reject you absolutely if you're coming from a country with high concentrations of COVID, even if you are qualified as an asylum seeker to enter. So without that bar, without that ability to stop them, the government expects massive numbers of people who are aware that the COVID bar no longer exists to knock at the door, mainly in Texas. So then what the government is saying, well, look, we don't have beds for you. We don't have bathrooms for you. We don't have room for you. We don't have food for you. Here's a piece of paper. Come back in two weeks. You're on parole. Come back in two weeks.

We'll either have a bed for you or we'll have a court date. Go. That's what the federal judge said they can no longer do. So what are they to do? They are either to give them a court date right then and there, or they are to and then make a judgment as to whether or not they're going to return. If there's no evidence that they're going to return, then the government has to confine them. It can't expel them because they are legitimately escaping repression in another country. So this will really make a mess at the border worse than a mess at the border. The government has not indicated that they're going to appeal this judge's decision. I'm not saying I agree with the decision or I disagree with it. I don't think it's an ideological decision at all. It's a decision made on the basis of the law and the basis of practicality. Are these people really going to come back in order to get a court date, or are they more likely to come back when

you give them a court date? Government will say and has said, this is the court micromanaging the executive branch under the separation of powers. The executive branch, the president, the people that work for him regulate the borders. The government, the courts branch under the separation of powers. The executive branch, the president, the people that work for him regulate the borders. The courts decide what the constitution and what the laws mean. The courts can't micromanage the borders. That's the argument the government made to this federal judge in Florida, and it lost. So no more parole. Either give them realistic court dates with realistic court personnel and a judge realistically waiting for them or confine them in a circumstance that you and I would not ever want to be confined in. Okay, last week there occurred on a subway car in New York City a choking

death of a crazy person. The crazy person was moaning and yelling and groaning and screaming that his life wasn't worth anything and why do you have a better life than I do? And he was basically intimidating and harassing other passengers. He did not pose a deadly threat. He did not touch any other passengers. One of those passengers was a 24-year-old college student, a Marine Corps veteran by the name of Daniel Penny. Mr. Penny put this crazy guy, whose name was Jordan Neely, legitimately mentally deranged. When I say legitimately, meaning beyond dispute, mentally deranged. Mr. Penny put Mr. Neely in a chokehold and applied the chokehold with such pressure and such duration that Neely's air pipe was crushed and he suffocated

to death in Penny's arms, Neely dying in Penny's arms. The crowd, of course, appreciated the fact that Mr. Neely was no longer a threat, but Mr. Neely was now dead. It took the government a week to decide what to do with Mr. Penny, the one that did the chokehold. Yesterday, he was indicted for second-degree manslaughter. Second-degree manslaughter is a killing without intent. It's the reckless use of a deadly or dangerous object. It could be a golf club. It could be a steak knife. It could be the arms of a person trained to use a chokehold. In this case, that's what it was.

The reckless use of a deadly weapon that results in the death of another person. Now, under what circumstances could Penny have killed Neely? Only if Neely was posing a deadly threat to himself or others, which Neely was not. He was a pain in the neck. He was irritating. He was foul. He was disgusting, but he wasn't posing a deadly threat. The remedy is to get out of the subway car and go in another one or find a police officer. There's a cop on every train. They can't have a cop in every car. Some of the cars are 15 and 20. Some of the trains are 15 and 20 cars long, but there's at least one or two cops somewhere in there. The remedy is not death.

The remedy is not homicide. The DA, this is the same DA, Alvin he died, Neely, Jordan Neely, posed no dangerous threat to Daniel Penny or to anybody else on the train. And therefore, Penny should be charged with second-degree manslaughter.. Second degree manslaughter in New York is 15 years in prison, so this is no light or easy matter. This is very, very serious. It's not first degree murder. It's not even second degree murder. It's almost an accidental killing, if you will. As I said, the use of a deadly weapon in a manner that is reckless and heedless for the value of human life. When can you use deadly force against another person? When that person has the present apparent ability. There's the phrase, present apparent ability to use deadly force

against you. Does he have a gun? Does he have a knife? Does he have a club? Does he have some sort of a projectile which is a deadly force? If so, deadly force can meet deadly force. If not, deadly force cannot be used. That's basically the law that's confronting Mr. Penny. Unfortunately, you know, this is America 2023, and it's all racial. Penny is blonde-haired, blue-eyed, and looks like he came out of Gentleman's Quarterly magazine. Neely was black, disheveled, foul. So now you have the racial arguments. What is the value of the life of a deranged black person? What is the value of the freedom of a white college student?

That should not be the issue. Race should not be involved in this issue. What should be involved is vigilantism, the ability of somebody to protect the public. No question about that but what happens when that protection goes well beyond protection and becomes homicide or in this case manslaughter. We'll see where this goes in the courts. It'll probably get better before it gets worse knowing the political forces in New York City, as I do, and how they'll soon be involved. Republicans in the House of Representatives are about to vote to hold Secretary of State Antony Blinken in contempt.

What is this all about? Okay. Remember the horrible, ignominious flight from Afghanistan, President Trump negotiated an agreement in 2020 when he thought he was going to be reelected that provided for the Afghan government to release 5,000 Taliban fighters and the American troops in Afghanistan to go home. Trump's people, Secretary of State Mike Pence, excuse me, Secretary of State Mike Pompeo, did not negotiate with the government of Afghanistan. They negotiated with the Taliban, the government-in-waiting, the people who eventually took over. Anyway, the agreement

was signed by Secretary of State Pompeo. 5,000 of your prisoners will be let out of jail. And by May of 2021, Donald Trump will bring American troops out of Afghanistan. Of course, May of 2021 came and Donald Trump wasn't the president. Joe Biden was. Biden stuck with that promise and removed our troops. There was apparently a great debate in the State Department about whether we should move the troops out and under what circumstances they should be moved out. We all know that it was a catastrophe. 13 American troops

died. Thousands of others died. And the worst elements of the Taliban, the people of the American government, thank you, George W. Bush, had been fighting against for 20 years, the longest war in American history, soon became the government of Taliban, which they are to this day. Okay. When the State Department had this debate, the Biden State Department, right before 2021, there were memos sent to the Secretary of State about what would happen if we summarily removed our troops. The Republicans in the House want to see those memos, and they have subpoenaed Anthony Blinken, the Secretary of State, to furnish those memos, and he has said, I'm not going to furnish them. I don't know why they don't just follow the law. So now they want to hold him in contempt. He probably doesn't care if they hold him in contempt. But if you have subpoena authority,

whether you're a grand jury or whether you're a congressional committee, subpoenas are the same. And you serve somebody with a subpoena and require them to give you a document that they have, and they refuse to do it. Are you going to tarnish their reputation? Are you going to give you a document that they have, and they refuse to do it. Are you going to tarnish their reputation, or are you going to go into a court and get a court order ordering them to do it? Go and file a complaint against the Secretary of State and the Department of State. You may not even have to name him because he's probably not the custodian of the document. Find out who the custodian of the document is. Find out who the author of the document is. Get it from that person. File a lawsuit and have a judge order this stuff to be surrendered. Holding Tony Blinken in contempt is, again, being gutless. Republicans

in the House, and many of you are my friends, you really want these documents, go to a federal district court judge in Washington, D.C. with a copy of your subpoena and get an order from the judge for compliance. Because if Tony Blinken or whoever is the custodian of the document doesn't comply with that order, there won't be contempt. There'll be jail time. That's the way to get a document. Let's see if my friends, the Republicans in the House, are serious about this. Two days ago, the American military discovered that Russian planes were flying over Egypt in order to get to Ukraine. And the American Secretary of State and Secretary of Defense asked their Egyptian counterparts to stop giving Russians permission to do that. And they basically said, forget about it. We're neutral. We're on both sides. We buy natural gas

and oil from Russia, and you give us a few billion dollars cash for free. Last time I looked, it was $3 billion cash, no strings attached to the Egyptian government with which to pay their bills. The Egyptian government said, we're neutral. We're not going to get involved in this. You want to fly over our airspace? You can fly over our airspace. The Ukrainians want to fly over our airspace. They don't have an air force, but if they wanted to fly over our airspace, they can. The Russians want to fly over our airspace, they can do so as well. This just broke in the Wall Street Journal about two hours ago. So I don't know where this is going to go. I don't know what the government is going to do. I don't know what the Biden administration is going to do about this. This is a significant setback. Part of foreign aid is a bribe. We give you $3 billion a year, President al-Sisi. You comply with what we want, and what

we want is no Russians over the airspace. I'm sort of happy that President al-Sisi is controlling his sovereign airspace and controlling his sovereignty. And even though he receives all this cash from the American government, it's not bowing down to it. We'll see where this goes. I don't think this is the end of the story. I don't think the Biden administration will be very happy about this. We haven't seen any quotes yet about threats but as this gets more serious we'll see where it goes and of course we'll report it to you. And it's five after three Friday afternoon. It's summertime here in the east coast, particularly in Washington DC. Justice Barrett, we are still waiting for you. Justice Amy Coney Barrett, who hears emergency appeals from the Seventh Circuit Court of Appeals, that's that part of

the upper Midwest that includes the city of Chicago and, of course, the state of Illinois, gave herself until the end of today, that's just a few hours from now, Justice Barrett, I know her, we had some of the same professors at Notre Dame Law School, though we were a generation apart. I'm not going to talk to her by her first name, but I am going to address her. constitutional, a state assault weapons ban enacted by the legislature of the state of Illinois, which basically bans semi-automatic rifles that have a stock on them so that you can hold the rifle with your left hand and have it in your armpit and your finger with your right hand. The government says when you can hold that stock, or Illinois says when you can hold that stock with your left hand, it's an automatic weapon. If you have to put your palm under it, it's an assault weapon. When you put your palm under it, it's not an assault weapon. This is ridiculous, absolutely absurd. And the authors of this legislation are people who hate

guns, who don't believe in self-defense, who think that somehow the police can take care of them. People like the governor of Illinois, J.B. Pritzker, who is protected by Illinois state troopers in plain clothes who carry these very guns with these very stocks because they're more accurate. This is what they're trying to keep away from the good people of Illinois. A federal district court judge did not disturb the statute. The Seventh Circuit Court of Appeals on which Justice Barrett sat when she was Judge Barrett did not disturb the statute. The emergency appeal is now before her. She has until the end of the day today to decide whether or not she's going to interfere

with the statute. Justice Barrett, your court, and you sat on the court, has reinforced the natural human right of self-defense using the same mechanical mechanisms that the bad guys use and that the government uses. Your court has upheld the right not only to own arms but to carry arms. Your court has said that if weapons have been traditionally used in the United States of America, those weapons can be used by civilians. Your court has said whatever weapons the bad guys have and the government has, civilians can own and can carry. This is a no-brainer, Justice Barrett. You don't have to listen to me. I know we study constitutional law at the feet of the same great people. You know it as well as I do. You probably know it better than I do. You certainly know these cases because one of them

you taught when you were a professor and you obviously are familiar with it, and the other you were involved with on the court because it came down last June. This is almost a personal plea from one graduate of Notre Dame Law School to another. Enjoying these crazy anti-Second Amendment politicians from interfering with the natural and constitutionally protected right to keep and bear arms. Now, if she does interfere with this statute, then the state can't enforce it. But there still has to be a trial in the district court, because the district court, the trial court's ruling was preliminary based on documents alone. The decision by the Seventh Circuit Court of Appeals was preliminary based on documents alone. Her decision will be preliminary based on documents alone. If she enjoins the enforcement of it,

then the case goes back to the trial court for a trial and it can't be enforced during the trial. If she does not enjoin the enforcement, the case still goes back to the trial court, but the law can be enforced while the trial is going on. More as we get it. If we don't speak again, have a great weekend. We'll see you Monday morning. Judge Napolitano for Judging Freedom.