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THE LEAD WITH JAKE TAPPER

No Indictment in NYPD Chokehold Death; Did NYPD Officer Violate Choke Hold Ban?

Aired December 3, 2014 - 16:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.


JAKE TAPPER, CNN ANCHOR: Welcome to THE LEAD. I'm Jake Tapper.

We are going to start, of course, with some breaking news in our national lead.

Another grand jury has decided not to indict a police officer. This comes just one week after that decision not to charge officer Darren Wilson in the death of Michael Brown in Ferguson, Missouri. Today, it's no indictment for a white New York police officer in the choking death of an unarmed black man named Eric Garner.

Now, the grand jury had this cell phone video to help them see exactly what happened. Eric Garner died when officer Daniel Pantaleo put him in a chokehold. The 43-year-old was down on the ground saying he could not breathe. His death was ruled a homicide. It was caused by a compression to the neck and chest during physical restraint.

Now, just minutes ago, we heard from officer Pantaleo through his police union's Facebook page. His statement reads -- quote -- "I became a police officer to help people and to protect those who could not protect themselves. It is never my intention to harm anyone and I feel very bad about the death of Mr. Garner. My family and I include him and his family in our prayers and I hope that they will accept my personal condolences for their loss."

Within the hour, we expect to hear from New York City Mayor Bill de Blasio. We will bring that to you live when it happens.

Eric Garner, who suffered from asthma, was stopped for selling illegal cigarettes, allegedly. He lost consciousness. He was brought to a hospital and pronounced dead. Some residents have taken to the streets in support of Garner, calling his death another example, in their view, of police brutality in the black community.

CNN's Alexandra Field has been closely following this case and she joins me live on the phone from the borough of Staten Island, right outside where the incident took place.

Alexandra, what are you hearing from the folks gathering there? How many people are there?

ALEXANDRA FIELD, CNN CORRESPONDENT: A couple of dozen people have been out here and they have been out here since they heard that the grand jury had concluded that there would be no indictment. This is a group of several demonstrators and they're mostly just chanting there. They're saying things like, don't shoot and I can't breathe, also holding their hands up in the air. I can't breathe, as we know, Jake, obviously referencing that video that so many of us saw of Eric Garner after he was wrestled down on to the sidewalk that they were standing on.

He told police officers who had tackled and brought him down to the ground, I can't breathe, I can't breathe. Right now, the demonstrators just gathering here together. They have been here for just about the last hour or so talking to each other, some people hugging each other.

This is a moment that's been very much on the mind of this community. People have been waiting for a decision here. A lot of people certainly were hoping for an indictment. Others felt that it wasn't likely or not expected and we anticipated that they would be out here on the streets.

In anticipation of demonstrations, the NYPD had said that they would step up their police presence in areas where demonstrations were likely. And, Jake, I can tell you that we have seen police cruisers around here. We have seen different police vehicles carrying barricades. They have been visible in the neighborhood, but we don't see any particularly concentrated heavy visible police force in the area where these demonstrators are right now.

And that's largely because all that they're doing is standing there chanting, something that they have every right to do and something that they were anticipated to do.

TAPPER: Alexandra, do we have any idea, any sense of why the grand jury chose not to indict?

FIELD: Jake, we don't.

And, frankly, we won't. And that's because of the laws here in New York State. The grand jury obviously falling under state laws here, and it's different from state to state, but in New York, the district attorney is not permitted to disclose specific details about what took place during the grand jury proceedings.

We know that they started meeting on September 29 and we know that they wrapped up today, December 3. We don't know anything about the grand jurors. It is a panel of 23 people, but we won't know the gender, the racial makeup or any of the things that were discussed or any of the evidence that was brought forth.

And this might be confusing to people. Obviously, we're coming off the heels of that highly-watched decision from the grand jury in Ferguson, Missouri, but that has different laws. They have got sunshine laws which allows for the disclosure of grand jury evidence, as well as grand jury testimony.

It simply doesn't exist here and that's why I have heard prosecutors say that he won't be speaking, he won't be having a press conference. However, we do know that Mayor Bill de Blasio will be speaking in a short while. He's headed to Staten Island now, we understand, where he will be meeting with different state leaders, activists and elected officials and community organizers, talking to them before he addresses the public.

And this is something that went on in the days leading up to this decision as well, Jake. The mayor and top NYPD brass were meeting with local officials in order to try and coordinate how they would respond if we heard that the decision was not to indict or to indict.

TAPPER: All right, Alexandra Field, thank you so much. We're going to come back to you in a bit.

For some analysis right now, I want to bring in Jeffrey Toobin and Sunny Hostin, both CNN legal analysts and former federal prosecutors.

First, Jeffrey, let me start with you. Are you surprised by the grand jury's decision?

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: Well, unlike in Ferguson, we don't have access to all of the evidence in front of the grand jury. So I don't want to be too categorical in what I think, because I don't have all of the facts.

But obviously we do have this video and we do know that he was arrested for just about the most minor crime in the state of New York, which is not selling illegal cigarettes, not selling pot, not selling any contraband, but selling regular old cigarettes, but not collecting taxes on it, an incredibly minor offense, so-called loosies That's what those cigarettes are known as.

So here you have a situation where this guy is arrested for selling -- for this very minor crime and somehow he winds up dead. And the only thing we heard from him was not offensive statements at the police, not taunting the police, but I can't breathe.

So it certainly seems like an indictment might have been possible or even justifiable in this case, but I just don't want to be too sure about that because I don't have all the evidence in front of me.

TAPPER: Sunny, the incident was caught on tape. We're showing the tape right now. Officer Pantaleo seemed to use a maneuver that the New York Police Department guidelines, patrol guidelines have banned for more than 21 years, is my understanding.

It pretty clearly says not to use chokeholds or anything that could obstruct breathing. Knowing that, knowing that obviously the police caused his death, how could there not be enough evidence to at least bring this to trial?

SUNNY HOSTIN, CNN LEGAL ANALYST: I'm going to go further than my good friend Jeff Toobin is willing to go. I'm stunned by this decision.

I look at the facts as we know them, right, Jake? He is unarmed. He was choked with a chokehold, which is a banned practice. He says 11 times, I cannot breathe. The medical examiner rules it a homicide. It is all on video, we watch him die, but there is no indictment.

I don't think we need to see what happened in front of the grand jury to know that, clearly, that there's enough probable cause. And I think what it does is, it calls into question what happened in front of the grand jury. I'm stunned, especially, not only as a former prosecutor, but quite frankly as a native New Yorker, because when I was in Ferguson, I have to tell you, I was thinking, you know, this wouldn't happen in my hometown of New York. This would not happen with the NYPD.

And I am -- I think people should be sickened by this. I think they should be concerned. I think what we are seeing now is a pattern and practice by police officers all over the country. And I used to think that body cameras on police officers, quite frankly, would make a difference, but, again, as I said, it is all on video and there's still no indictment.

TAPPER: Right.

Jeffrey, the district attorney in this case issued a statement moments ago reaffirming what you just said, saying he's prohibited from releasing the evidence presented to the grand jury, unlike was the situation in Ferguson. Does this create -- there are a lot of ramifications to what happened today, I suspect. Is one of them a question about whether grand jury proceedings need to be more transparent?

TOOBIN: Absolutely. That is one question that's raised.

Let me just put -- since Sunny is talking about New York and I think obviously that's a very important part of the story, for people who aren't from New York, which, of course, is most people, Staten Island is a very distinctive place in New York.

HOSTIN: True.

TOOBIN: It's the smallest of the five boroughs. It's the whitest of the five boroughs. It is politically the most conservative of the white boroughs -- of the boroughs. It's the only borough that is represented by a Republican in Congress.

And a lot of cops live in Staten Island. So, remember, the grand jury -- and we don't know its composition specifically -- but it was certainly drawn from Staten Island. And I think the sort of more white, more cop-friendly environment of Staten Island may have had something to do with how this case -- with why this case came out the way it did.

TAPPER: Well, sure. And we all remember from 9/11 how many of the heroes of 9/11, the police officers and fire department officials lived in those outer boroughs such as Staten Island.

But I guess I'm just wondering, I'm not familiar with the evidence in this case, like everyone else who is not on the grand jury, but that videotape is very stunning. There must be more that I'm not comprehending, Jeffrey. What -- it doesn't appear -- obviously, this was a very large man, but

he doesn't appear to be threatening the officers in any way. What possible reason could there be for there for the grand jury to reach a conclusion it did?

TOOBIN: Well, just to play out what...

(CROSSTALK)

TAPPER: This is clearly just devil's advocate here, please.

TOOBIN: OK.

What the officer's lawyers and supporters have said is that Eric Garner was not a healthy person. He was overweight and he had asthma, and what they say is a normal arrest turned into an unfortunate death not because of illegal tactics used by the officer, but because of the preexisting medical conditions of Eric Garner.

That is the argument that's been put out there. Given the videotape, it seems like a pretty hard argument to make, especially since the -- since Eric Garner is saying repeatedly that he can't breathe, which is what the problem that people with asthma have. But that's the context of the defense in this case.

TAPPER: Sunny, obviously, there is another context, which is the grand jury decision in Ferguson, the shooting of the 12-year-old boy with the BB gun, I believe, in Cleveland.

A lot of people are very -- I'm sorry. I have to stop. Right now, the mayor of New York City, Bill de Blasio, is taking questions. Let's take a listen.

(JOINED IN PROGRESS)

QUESTION: Are you ready and what again will the NYPD be doing?

UNIDENTIFIED MALE: Well, like -- I mean, the mayor's comments that we have had quite a bit of time to prepare for the events that will unfold here over the next several days.

This is a department that is very well experienced in dealing with demonstrations of all sizes. On an average week, we have almost 150 events that we police, and I think, as we referenced yesterday in yesterday's news conference, that the events over the last 10 days in the city that we had a total of, I think, 31 arrests and multiple events, that we will take very forceful and effective action against those that are committing crimes, particularly vandalism and crimes of violence.

But at the same time, we will seek to allow people to have their First Amendment rights, to demonstrate and demonstrate peacefully. Those who would seek to agitate, we will certainly focus efforts on them to ensure that that agitation remains within the legal bounds.

TAPPER: The mayor of New York City, Bill de Blasio, earlier today. We are expecting fresh comments from the mayor of New York City.

Let's go back right now to CNN's Alexandra Field. She joins us now live in Staten Island, where crowds have started to gather. I don't know if she's prepared for us.

Alexandra, if you can hear me, I'm wondering if you can describe for us the scene behind you. This is where the death of Mr. Garner took place.

FIELD: That's right just back in July.

We have seen that video. You saw Eric Garner who was wrestled to the ground in front of a beauty shop that is just down the street there. This is the place where people have been coming for the last hour, hour-and-a-half now. They have been gathering. These are, many of them, supporters of Eric Garner who feel that justice was not served when an indictment wasn't handed down.

And these are people who have seen the video. They don't understand it. They see Eric Garner taken down. They know that this is a 43- year-old man who died out here and they simply don't understand why there was not an indictment.

This is a peaceful crowd. We cannot say it enough. They have been chanting. They have been out here demonstrating. They have been saying things like I can't breathe. They have been saying don't shoot. They have been saying hands up. They have been saying no justice, no peace.

A lot of people out here telling us that they want this to remain peaceful, that this is about anti-violence, that they're against violence, but they do want to come out here and express their feelings and they feel like they weren't heard, some of them, by the grand jury that decided not to indict officer Pantaleo and that's why they have been out here right now.

A lot of anger out here as well. It's getting heated. You can certainly hear that there's a lot of passion in people's voices. Here's one thing that we're not seeing out here, Jake. You see these protesters out here, these demonstrators? What you don't see is a line of police officers.

NYPD, they were prepared for these demonstrations. They knew these demonstrations would come and they have been telling us over the last week or so that they would be stepping up the police presence in areas where demonstrations were likely, but we aren't seeing it in a very visible way.

And that's because, frankly, there's nothing going on here that police officers would need to break up or want to break up. These are passionate people who are feeling that an injustice was done, and they want to come out here. And they're expressing their right, which is to express their opinion, to make their voices heard right now.

We have seen officers that are driving around this area. We do know from the NYPD that they are extending duty for a lot of officers today and also ready to move some people who would normally be on desk assignment into the streets if necessary. We've got Staten Island, which is the one they focus on right now, this was obviously the home of Eric Garner, it's where his friends, his loved ones are, and these are people who want to speak out for him.

But they also have to look at Manhattan. This is a big night in New York City. It's the annual tree lighting ceremony at Rockefeller Center. It's a big public event. It's a celebration in the city of New York. They want that to be peaceful, as well.

So, Jake, we know that officers planned to have a stepped-up presence there tonight, as well.

TAPPER: Alexandra, before I let you go. Can you tell me, what are they chanting behind you? We can't really make it out here?

FIELD: A lot of "I can't breathe. I can't breathe."

TAPPER: "I can breathe", the last words.

FIELD: That's what most of the crowd has been saying. Since we got here, a couple of other chants about "no justice, no peace," but "I can't breathe".

TAPPER: Right, the last words of Eric Garner as captured on that cell phone video.

Alexandra Field, thank you so much.

As Alexandra just mentioned, tonight, thousands are expected at the Rockefeller Center tree lighting and police are preparing for a possible protest and in minutes, we are expecting New York Mayor Bill de Blasio to speak about the grand jury decision. We'll have all of that live, ahead.

(COMMERCIAL BREAK)

TAPPER: Welcome back to THE LEAD, and our continuing breaking news coverage of a New York grand jury's decision not to indict a police officer in the death of Eric Garner.

Garner died while in a police chokehold back in July. The incident was caught on cell phone video and it spread via social media causing much outrage. While police chokeholds are not illegal, they were banned by the New York City Police Department back in the '90s.

At the time, New York City Police Commissioner Ray Kelly said, quote, "Chokeholds which are potentially lethal and unnecessary will not be routinely used", the exception being when an officer's life was in danger and there were no more safer options. The definition of a chokehold being anything that would obstruct the ability of an individual being taken into custody to breathe.

The grand jury's decision also comes, of course, on the same day that New York City Mayor Bill de Blasio launched a pilot program, a new body camera program for the NYPD, arming police with cameras is theoretically supposed to cut down on complaints of excessive force by police. Of course, now, there are questions about what if anything will change by videotaping confrontations given the outcome of the Garner case. We've heard that complaint.

Joining me by phone is safety and security expert and former police officer, Bill Stanton.

Bill, let me just start with the question about chokeholds. What exactly is a choke hold? Why did the NYPD ban their practice 21 years ago?

BILL STANTON, FORMER NEW YORK CITY POLICE OFFICER (via telephone): Well, because many years ago there was a case when an officer took his night stick and he put it around the neck and he was in back of the assailant, the perpetrator, and he took the night stick in both hands and squished it into his throat severely cutting off his oxygen flow and that was banned. And hence, that rule of no chokehold.

TAPPER: Now, one of the things that we see in this video of Eric Garner's tragic death is that the officer behind him has one arm around his throat and the other arm around Eric Garner's right arm, is that different technically from a chokehold or is it all, if you obstruct the wind pipe, you obstruct the breathing, that's considered a chokehold?

STANTON: Well, Jake, let me answer your question, but first let me build up to it and tell you what I actually saw. I saw a huge individual who was disobeying lawful orders and he wasn't listening to the cop and he was towering over both those cops initially, and in order to subdue him he went behind him and he put an arm around his neck to bring him down and he was holding his hand my guess was to bring him down to put on stable, to bring him down to get his hands behind his back and also to prevent him from possibly reaching a weapon.

Now, mind you, I'm not defending the police department I'm giving this as an investigator as to what I saw. And what I saw was officers trying to subdue a person who was given orders who did not obey those orders.

TAPPER: You mentioned the possibility of a weapon, but Eric Garner had no weapon, are you saying that just because police are trained to always suspect that all individuals are having a weapon?

STANTON: Oh, Jake, absolutely. Statistically, you go to the most mundane of calls or if you have domestic disputes. Cops get hurt when they bring their guard down. That was a large gentleman. They did not have the opportunity at least not from what I saw from viewing the tapes. They didn't have the opportunity to frisk him so there are many different weapons including biting and hypodermic needles and razors and guns that could be used against cops.

So, you know, they have families they need to get home to just like everybody else. And if a perpetrator or a suspected perpetrator is given a lawful order, and if they just comply, a lot of incidents like these -- TAPPER: Right.

STANTON: -- wouldn't have to happen.

TAPPER: But, Mr. Stanton, I mean, he was -- he was stopped because he was accused of selling loose cigarettes. I mean, it wasn't as if he was committing any sort of violent crime, I don't even know if he was committing a crime, but the accusation that he was selling loose cigarettes and while he was in this chokehold, he kept shouting, "I can't breathe. I can't breathe."

STANTON: Right. Did you count for the amount of seconds that he had his arm around his neck?

TAPPER: I did not.

STANTON: It was for a brief period of time. I'm not saying who was right and who was wrong, and I'm not saying who was right.

But I will say, who was escalating the incident? It is easy for us, you know, sitting in our armchairs, sitting in front of the TV to say what they could have, should have or would have done, but when you have a man of this size getting agitated and he is raging and there is a crowd forming and I've been in that situation, you want to either question him nice and calm or if he's getting agitated and it comes time to put the cuffs on him, get him cuffed, get him to the side, get him in the squad car ASAP.

He did not want to do that. He was told to calm down. He was getting agitated. His hands were in a defensive position and, you know, obviously the grand jury saw things neither you nor I did and they agreed not to indict.

TAPPER: So, Mr. Stanton, just before I let you go, I just have to ask you -- so, you don't think there was anything excessive about this fatal confrontation? I think in retrospect, what needs to be done is cops -- Jake, if it was a smaller person and they used a taser and he's got a heart attack, would we be having the same conversation?

What's the answer? He's agitated, he doesn't want to talk to the police, you just let him walk away, or do you bring half the precinct and the hostage negotiating team to ask him for his ID?

Yes, there may have been issues in retrospect, and retrospect, there is hindsight, but I think the way, I don't think this cop should have been indicted. I think it was the right charge, I think it was right not to bring charges, I think the grand jury did their job and I think the court of public opinion will put pressure to bring other charges against this officer and I don't think that's right.

TAPPER: There was a poll earlier this year, I think in august from Quinnipiac saying that 61 percent of New York City voters, I believe 61 percent thought there should be criminal charges against the police officer.

Bill Stanton, I suspect a lot of people watching this don't necessarily share your views, but I appreciate your coming and sharing them with us and I suspect that's what a lot of police officers think, as well. Thank you so much.

STANTON: Thank you, sir.

TAPPER: Coming up, this grand jury decision came on the exact day that New York announced its police officers would start a pilot program to wear body cameras. Will cameras change anything, though?

Plus, New York City Mayor Bill de Blasio is expected to speak shortly on the grand jury decision. We'll have that live ahead.

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