As described by NBC News, “(e)very day it seems there’s another violent attack on a subway or bus in New York City, a crime wave that has set many residents on edge…(w)hether it’s a mass shooting on a train… or a string of random knife attacks…transit crime has been at the forefront of many people’s minds. In fact, statistics show that crime on subways and buses is up more than 41 percent in 2022 compared to the same time period in 2021.”
Probably the most frustrating aspect of the crime increase, is the overt discouragement of acting in defense of self or others – the punishment of a “good deed.” As Bob McManus, writing in the New York Post states, “(h)ere’s the thing about self-defense in the big city: You can be damned if you do, but maybe dead if you don’t – and you can never know which in advance. Do you risk it? Think of this as Daniel Penny’s dilemma – and New York City’s into the foreseeable future. Penny chose to defend himself and other F-train passengers…(w)hen it was over, a career criminal with a long history of violent behavior was dead — and the former Marine Corps sergeant was under arrest.”
Now, yet another subway incident has occurred to remind would-be Good Samaritans of the price to be paid in New York for making any effort to halt a crime.
“A vigilante gunman was arrested,” according to the New York Post, “as wild surveillance video emerged showing him brazenly opening fire in a Manhattan subway station in what officials called an ‘outrageous’ and ‘reckless’ attempt to thwart a robbery. John Rote, 43, of Astoria was taken into custody at his Manhattan job shortly after 2 p.m. after he was recognized by someone who saw the footage of him allegedly opening fire on the homeless man who was trying to rob a woman on the platform of the Times Square station…Rote, who has no prior arrests, was charged with criminal possession of a weapon, criminal possession of a firearm, reckless endangerment and menacing, the NYPD said.”
Sure enough, Rote can be seen on video, standing on the train platform, pointing his gun down the platform. As reported by Fox5, “inside the N-R-W subway station at West 49th and 7th Avenue, a panhandler had opened the emergency gate and threatened to steal the purse of a woman if she didn’t give him money. According to police, Rote told officers he was watching and pulled out a gun he was carrying and fired warning shots in an attempt to stop the mugging.”
Of course, there are drastic differences between the charges Rote is faced with and the case brought against Penny. Penny did not use a weapon; Rote did, but his actions did not result in physical harm to anyone. In fact, the person threatening the female subway rider, 49 year old homeless repeat offender Matthew Roesch “was arrested at the scene…charged with attempted robbery and was given supervised release.” Meanwhile, Rote was eventually released after posting $10,000 bond. h
Another difference involves the reaction of those each tried to protect. While his fellow subway riders praised Penny and thanked him for protecting their lives, Rote’s victim has a different view. “Of course, I am happy that that man tried to help me and that nobody was injured during this incident, but it’s scary to think that people are carrying guns around the city,” the 40 year old unidentified woman told the New York Post. “The gun was pointed in my direction, and that’s all I saw. It was a feeling of pure terror that I don’t wish on anyone.”
Remember the explanation given earlier of the proverb, “no good deed goes unpunished?” “You try to help someone, then they respond by hurting or betraying you.”
Nonetheless, as the victim points out, the discharge of the firearm is the most significant difference between the two cases. “Straphangers like Rocket Clayman are now making their own statements about this kind of intervention. ‘I think that we need stronger gun control across the board in this country. So I certainly would not be in favor of somebody firing a shot,’ Clayman said.” Meanwhile, “71-year-old Hell’s Kitchen resident Percy Palmer is supportive of Rote’s alleged actions. ‘I don’t think it was too much, though, because you don’t know what that person had that’s attacking that woman instead of asking her, may I have a dollar or something like that,’ Palmer said.”
It’s clear that the authorities take a very dim view of Rote’s actions. According to NYC Mayor Eric Adams, “this is not a Charles Bronson era with ‘Death Wish’…(l)et the police do their job – don’t think you can do their job without the proper training that comes from law enforcement.” Then there is this statement from Richard Davey, the President of NYC Transit; “I want to be clear: we don’t tolerate this kind of conduct in NYC Transit, period…Once again cameras recorded a perpetrator, and we are grateful the NYPD made an arrest within hours. Thank goodness nobody was hurt here – but what occurred was outrageous, reckless, and unacceptable.”
Of course, these comments ignore the fact that there were no police in the vicinity. In fact, since the “defund the police” movement in the wake of the death of George Floyd, “New York has seen record departures by police for each of the past three years…(i)n 2022, about 3,700 departed (an increase of 32 percent over the previous year), and fewer than 2,000 were hired. And it wasn’t only uniformed officers exiting. According to the Detectives Endowment Association, in June 2022 alone, more than 100 detectives left the job. Based on the first two months of 2023, the NYPD is likely to continue bleeding blue. In January and February, 239 officers left—almost 40 percent more than in the same period in 2022, and a 117 percent jump over 2021. If the pace keeps up, the department could lose more than 5,000 officers this year.”
Less police officers overall means less police officers available to patrol the subways. Yet, the Mayor and Police Department leadership have tried to put a positive face on their dwindling available police resources. “New York City has a new strategy to make riders feel safer on the subway: Alerting people at certain stops that police are stationed there in case they want to get off the train and report a crime,” according to Bloomberg. Which means after you’ve been menaced, robbed or assaulted on the train, you can report the crime once you get to a station where a police officer is present. How comforting!
The sad fact is that “(i)ncreased policing on the subway has not led to increased safety on the subway,” according to Ileana Mendez-Peñate, a program director with Communities United for Police Reform.
It is not unreasonable to express some level of concern over a firearm being fired in a subway station. However, much like Daniel Penny, John Rote might also be facing more serious charges than are warranted.
At Rote’s arraignment, his public defender claimed that Rote had bought the gun he fired legally. But this ambiguous description could mean several things. It remains unknown if Rote had any valid handgun license, whether it be for concealed carry, or if his license allowed him to transport his pistol to and from a firing range.
Whatever “legal status” Rote may claim in his possession of the gun he fired also does not change the fact that New York’s restrictions on the right to bear arms guaranteed by the Second Amendment to the US Constitution are overly burdensome. As we noted in June, the statutes used by Bragg are unconstitutionally inspecific and overbroad; “(U)nder New York Penal Law Section 265.01(1), a person is guilty of a Class A misdemeanor if “(h)e or she possesses any firearm,” which is defined at 265.00(3)(a) as “any pistol or revolver.” Then there is the more onerous PL Section 265.01-b, enacted under former Governor Andrew Cuomo, which makes it a Class E felony to possess “any firearm.” There is no qualitative difference between the language used in the felony charge or the misdemeanor quoted above…how is one to know whether one will be charged with the felony, or the misdemeanor, if one is found in possession of a pistol in a public place in New York City? Your guess is as good as mine – and I was a Criminal Lawyer for 20 years, and a Criminal Court Judge for 10 more.”
The issue at the heart of both Penny and Rote’s cases is New York’s open and obvious policy of discouragement of the exercise of the right of self defense, or the defense of others. This is no secret; just ask anyone on X, formerly known as Twitter. “So, NY keeps showing us that if you see something, do nothing,” one poster writes. “They wonder why crime continues to rise.” Another writes, “So basically. Don’t try save someone… cause NYC will arrest you and charge you. Awesome. If you wanted to put people Off from helping people NYC, you just did it.” Yet another states, “So, this is how you’re rewarded for being a model citizen in New York? What a dump it’s turned into. When did it become detrimental to help someone being robbed?!” In other words, both Daniel Penny and John Rote have discovered the same truth – in New York, no good deed goes unpunished.
Judge John Wilson (ret.) served on the bench in NYC
Photo: Pixabay