The police were right to free Daniel Penny. They were wrong to arrest Tracy McCarter.

By Zachary Margulis-Ohnuma

Police encounter someone trying to subdue a violent attacker. Within moments, they realize the attacker is dead. They are not sure what happened. The subduer is completely cooperative and forthcoming. No one wanted the attacker to die, but force was needed to stop the violence.

Should the police investigate or make an immediate arrest?

NYPD officers answered that question one way when they needlessly arrested ZMO Law client Tracy McCarter in 2020 after Tracy’s husband came at her in a drunken rage and fell on the knife she was holding to protect herself. They answered it quite a different way three years later when they briefly detained ex-Marine Daniel Perry after he applied a chokehold to Jordan Neely, who had been ranting on the subway, until Jordan died.

Tracy was arrested on the spot.

Daniel was freed.

I would love to think that the difference in the two cases is that the NYPD had learned its lesson and made a decision to investigate more carefully before precipitously arresting people who claim to act in self defense.

But that seems unlikely.

What the police did was apply an unspoken racial double standard.

Tracy is black and her husband was white. Daniel is white and Jordan was black. Neither Tracy nor Daniel was a flight risk. Both had deep ties to New York. Both worked at good jobs. Both gave statements to the police. The police had no reason to doubt either of their claims that they acted out of fear for their safety and they did not intend to cause anyone to die. Tracy, a nurse, was applying CPR, desperately trying to save her bleeding husband when the police arrived. Daniel, an ex-Marine, was seen on video choking an unconscious man.

But the police arrested Tracy and they let Daniel walk, pending investigation.

Tracy’s case, of course, was dismissed last December because the district attorney was unable to disprove that she acted in self defense when she held the knife.

Daniel was eventually arrested after video revealed that he continued choking Jordan even after Jordan defacated (a sign he was dead or dying) and bystanders warned the chokehold was killing him. Daniel will get a chance to address a grand jury in his case. Good that he can do that from the comfort of his home: Tracy never had that chance because she was illegally in custody for seven months (yes, we are planning to sue police who lied about the evidence to detain her). Daniel will get to go on with his life until the charges are resolved. It was reported that he is attending college but it is not known whether, like Tracy, he was suspended due to the arrest. White supremacists and their apologists have raised well over a million dollars to defend him.

By contrast, even after Tracy was released from jail in the summer of 2022, she was not allowed to work. Columbia would not let her continue her studies. She only got her life back after—with the help of a dedicated group of attorneys working pro bono —she persuaded DA Bragg to drop the charges. On Tuesday, to the sound of screams and cheers, less than six months after her ordeal ended, she graduated with her masters degree in nursing from Columbia University. As she walked through the armory on Ft. Washington Avenue to receive her diploma, she unfurled a banner with white letters on a black background: “Columbia U failed to support this criminalized DV survivor. I GRADUATED ANYWAY.”

Tracy will return to save lives, even better than she did before.

What will Daniel do with his freedom? How will he respond to the family of the man whose life he ended?