In a Case Resembling Jordan Neely’s Killing, an Arrest Came Quickly

Last year, on a spring evening, a 28-year-old man confronted a woman on a San Diego bus who was filming him with her cellphone, according to court documents.

Edward Hilbert, 56, another rider, decided to intervene. He grabbed the man, Anthony J. McGaff, 28, put him in a chokehold and held him for eight minutes, Mr. McGaff’s family said, until Mr. McGaff lost consciousness and died.

The circumstances bear a strong similarity to the case of Jordan Neely, who was choked to death on a New York City subway last Monday, nearly one year after Mr. McGaff was killed. Like the New York case, the victim in San Diego was Black and the man who killed him was white. A video captured by a subway rider shows Daniel Penny holding Mr. Neely in a chokehold for at least three minutes, including nearly a minute after he went limp.

Yet the responses and aftermath of the two cases have been markedly different so far. In San Diego, law enforcement officials arrested Mr. Hilbert within hours. In New York City, more than a week after Mr. Neely’s killing and after the medical examiner ruled the death a homicide — a ruling that means that Mr. Neely was killed, but is not a finding of legal culpability — Mr. Penny, 24, has not been arrested.

Mr. Neely’s death comes during especially heated debates in New York over how to handle crime, homelessness and mental illness, particularly in the subways, and New Yorkers have been divided in their response to the incident.

Protesters, some political leaders and advocates for homeless New Yorkers and mental health reform have criticized Mr. Penny’s actions as the reckless behavior of a vigilante who acted outside the law. They have called the legal process racist.

Conservative commentators and some subway riders have argued that Mr. Penny acted to protect others. A witness who recorded the video of Mr. Neely’s death said that just before the confrontation, Mr. Neely screamed that he was hungry, thirsty and “ready to die.” The police said the witnesses they have interviewed described him as hostile and erratic but said that he did not assault any passengers.

Still, the California case raises the same questions that have swirled around the death of Mr. Neely: Was the chokehold killing a crime, and if so, what charges should the killer face?

Mr. Hilbert was initially charged with the murder of Mr. McGaff. The charge was downgraded to involuntary manslaughter, and the case is awaiting trial. Mr. Hilbert has pleaded not guilty.

In New York City, many leaders have called for Mr. Penny’s swift arrest. Protesters have taken to the streets and the subways over several days. Some left-leaning politicians have called the killing a “murder” and said that had he been a Black Man, Mr. Penny would have been arrested right away.

At an event hosted by the National Urban League on Tuesday, the Manhattan district attorney, Alvin L. Bragg, was asked about his office’s inquiry into Mr. Neely’s death. Mr. Bragg said only that his prosecutors were investigating and that he was barred from providing substantive information.

“We carefully scrutinize, after we gather it, all available evidence and we do that work mostly behind closed doors,” he said. “And that’s important because we don’t want to impair investigations.”

Lawyers for Mr. Penny declined to comment. In a statement last week, they said that their client acted to protect himself and others.

In San Diego, where there were no protests or clashes with the police, Mr. McGaff’s mother, Angela McGaff, said it was agonizing to learn of Mr. Neely’s death.

“Honestly, when my son died, I died,” Ms. McGaff said. “And to see this happen again in New York, it just opens that wound. It wasn’t even healed; it just opens it even wider.”

Domenic Lombardo, a lawyer for Mr. Hilbert, said his client intervened to help a woman whom Mr. McGaff was attacking and robbing.

“This is a clear case of self-defense and defense of others,” Mr. Lombardo said.

Whether Mr. Hilbert acted out of self-defense or committed a crime is disputed, but there is general agreement about what happened on the bus on April 30, 2022.

After Mr. McGaff boarded the bus, he began arguing with the woman who was filming him on her phone and would not stop. Mr. McGaff’s mother said prosecutors have not shown her the videos of what took place but they told her that Mr. McGaff had swatted the woman’s phone away and then attacked her when she pulled out another phone and continued to film.

Mr. Hilbert intervened, and the fight escalated.

Mr. Hilbert put Mr. McGaff in a chokehold, holding on for eight minutes, according to a lawsuit Mr. McGaff’s family has brought against San Diego’s transit agency, “the grasp, getting tighter and tighter, as other passengers watched in horror and disbelief.”

Other passengers were “yelling and screaming on the bus,” the complaint stated.

Mr. McGaff’s family said the bus driver kept driving, instead of immediately stopping the bus and calling 911. A spokesman for the San Diego Metropolitan Transit System did not respond to messages for comment.

The police have not commented on the case beyond their initial statement. The San Diego district attorney’s office declined to comment.

In the years before his death, Mr. McGaff had been convicted of several crimes, including resisting a police officer in March 2018.

In December 2019, he pleaded guilty to a misdemeanor charge of battery against a current or former partner. Court records show that in 2018, the courts twice probed his competency to stand trial but that he was ultimately considered fit to proceed.

Ms. McGaff said she had worried he had not been getting the mental health support he needed. He worked as a barber and did other odd jobs like landscaping, but he was struggling with drug use, according to his father.

Mr. McGaff’s father, James Smith, said his son often stayed with him or slept at friend’s houses.

“I’m his father, so I was optimistic that he was going to find himself and eventually be successful,” he said.

He said he does not believe that Mr. Hilbert intended to kill his son.

“I’m not going to sit here and pretend the guy did it on purpose,” he said. “I simply believe that this guy overdid it and deserves to pay accordingly. People do commit crimes on accident.”

Jonah E. Bromwich and Kelly Davis contributed reporting. Sheelagh McNeill contributed research.

Source: Read Full Article