Neely, a 30-year-old homeless man, died on May 1, 2023, after Penny restrained him in a chokehold for nearly six minutes on a crowded subway. The civil lawsuit was filed Wednesday at the New York Supreme Court by Andre Zachary, Neely’s father, and coincides with jury deliberations in Penny’s criminal trial over the high-profile incident.

Zachary’s civil suit came just before the jury entered its third day of deliberations in Penny’s trial on Thursday. They are weighing whether to find him innocent or guilty of second-degree manslaughter and criminal negligent homicide, charges that carry up to 15 years in prison.

The lawsuit by Neely’s father, first reported by the Independent, alleges Penny’s actions directly caused his son’s death. The father seeks damages “exceeding the jurisdictional limits” of lower courts.

Zachary and Christopher Neely, an uncle of Jordan Neely, have been at the trial and have witnessed repeated footage of Neely’s final moments, according to the New York Times.

Penny’s lawyer argued the civil lawsuit was a distraction given that the jury had not even reached a conclusion in the criminal case.

“The timing is unfortunate as Danny is awaiting a verdict from the jury where the potential consequences are far greater than any civil suit could threaten,” he said in a statement to the Associated Press, adding that Penny had not yet been served the complaint. “We will not be distracted by this attempt to attack Danny while he is under such tremendous stress.” 

Witnesses testified that Neely was shouting aggressively inside the confined subway car last year, claiming he didn’t care if he went to jail and threatening passengers before Penny reacted and placed Neely into a chokehold.

Penny, 26, told detectives he acted to protect others, saying, “I wasn’t trying to injure him … that’s what we are taught in the Marine Corps.”

During the four-week trial, prosecutors argued Penny’s response was reckless, claiming he continued to hold Neely even after he stopped moving. Assistant District Attorney Dafna Yoran told jurors, “You cannot kill someone because they are ranting and menacing.”

The defense counters that Neely’s death was influenced by preexisting conditions, including schizophrenia and synthetic drug use. Penny’s lawyer, Steven Raiser, characterized his client’s actions as a selfless attempt to protect passengers.

“Daniel Penny was the one who moved to protect them,” Raiser said during closing arguments.

The case has drawn national attention, sparking debates on public safety, race, and vigilantism. Penny, who is white, has been both criticized as a violent vigilante and lauded as a hero for restraining Neely, a black man.

The jury, composed of seven women and five men, has reviewed bodycam footage and Penny’s police interrogation, among other evidence presented and trial, but has yet to reach a verdict as of noon on Thursday. Their central task is to decide whether Penny was justified to place Neely into a chokehold after witnesses said Neely was threatening passengers in the subway car.

While it’s unclear how the jury could rule, members have sent six different notes to the judge requesting pieces of evidence since deliberations began on Tuesday.