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PoliticsNation, Wednesday, December 3rd, 2014

Read the transcript from the Wednesday show

December 3, 2014

Guest: Hakeem Jeffries, Jonathan Capehart, Jim Cavanaugh, Paul Henderson,
Kendall Coffey; Jonathan Moore; Gwen Carr; Esaw Garner

REVEREND AL SHARPTON, MSNBC HOST: Good evening, Ed. And thanks to you for
tuning in.

Breaking news tonight, no indictment in the NYPD chokehold death of grand
jury not bringing charges against Officer Daniel Pantaleo in the death of
Eric Garner. In July, Garner was confronted by police officers in Staten
Island for selling loose cigarettes, a minor, nonviolent offense. And it
led to this.


ERIC GARNER, 43-YEAR-OLD: Don`t touch me. Do not touch me. (bleep).


SHARPTON: You can see the officer with his arm wrapped around his neck.
Garner died a short time later. The medical examiner ruled it a homicide
caused in part by compression of the neck. This case has been a flash
point, the first in a string of recent high profile deadly incidents
involving police and unarmed black men.

Unlike the shooting of Michael Brown, the Garner encounter was caught on
tape. The justice department saying today will conduct an independent
civil rights investigation of the Eric Garner`s death.

And late today, President Obama reacted to the grand jury decision.


I`m interested in action. And I am absolutely committed as president of
the United States to making sure that we have a country in which everybody
believes in the core principle that we are equal under the law. So this is
an American problem and not just a black problem or a brown problem or a
native-American problem. This is an American problem when anybody in this
country is not being treated equally under the law, that`s a problem. And
it is my job as president to help solve it.


SHARPTON: Here`s what New York City mayor De Blasio said a while ago.


MAYOR BILL DE BLASIO, NEW YORK: No family should have to go what the
Garner family went through. And the tragedy is personal to this family but
it has become something personal to so many of us. It conforms to
something bigger that you`ve heard come out in the protests in Ferguson and
all over the country. This is now a national moment of grief, a national
moment of pain and searching for a solution.


SHARPTON: Today`s decision raises deep and painful questions about justice
in America.

I`ve been involved in the last four months in dealing and rallying and
supporting the call for justice in Staten Island, in Ferguson, and in other
parts of the country. Why? Not because we want to show where the country
can`t and doesn`t work, but to challenge with it work. There is a
difference between activist and anarchist. Anarchists want to burn and
loot and show where the country can`t work. We`re trying to make sure it
works for everyone. And state grand juries tend to be too compromised with
local politics because local prosecutors run for office, and they tend to
have to depend on local police for their evidence.

The federal government must step in. The federal government must step in
like it did in the `60s and `50s before my time. We have this last hill to
climb in the criminal justice system. I believe we can do it. And we will
not do it with violence but we are not doing it by not questioning thing we
see in our own eyes.

You build a police state when you`re told you can`t question anything.
Many people disagreed with the verdict on O.J. but they had the right to
question it even though a jury made a decision. Don`t we have the right to
question grand juries when we`re looking at a video or looking at things
that don`t make sense?

The same way others have the right. Don`t make us looters. Make us
patriots for saying in a peaceful way, this doesn`t make sense. Let the
federal government come in.

Joining me now is Esaw Garner, Eric Garner`s widow, Gwen Carr, Eric
garner`s mother, and Jonathan Moore, attorney for the garner family.

Thank you all for being here at such a difficult time.


SHARPTON: Esaw, we have been working together since this tragedy happened,
me and your mother-in-law. I saw you the day when you came into my office
after riding up, the tears in your eyes. And then I saw you gather
strength and you and I talked to the attorney general on the phone. And
you seemed to somehow start encouraging me. I mean, explain how you feel
tonight. You haven`t talked to anybody.

ESAW GARNER, ERIC GARNER`S WIFE: No. I feel now after the verdict, you
know, of course I was disappointed, angry, you know. But after talking to
Eric Holder, I feel some type of hope that we still have hope and we still
have a fight to fight to get this justice for my husband. Because
regardless to what he will not die in vain. You know, he has children. He
has grandchildren that miss him a lot. I miss him every single day. And I
try to keep myself busy, but you know I have to stay strong and fight this

SHARPTON: Now, when we talked to Eric Holder, it was him assuring, Ms.
Carr, this that there would be an independent federal investigation. We
don`t know where it will go. But at least we know it will be independent
and it will not deal with the local politics. And this is not a young
black man, as Esaw said, this is a father and a grandfather that your son.
He was in his 40s.


SHARPTON: And this is a situation that really begs for a real examination.

CARR: Yes. I was so disappointed with the (INAUDIBLE). It just tore me
up to see. I couldn`t see how a grand jury could vote and say that there
was no probable cause. What were they looking at? Were they looking at
the same video that the rest of the world was looking at?

SHARPTON: Jonathan, I`m one that has said for many years the federal
government needs to take over these cases. In fact, just for people around
the country to know, Esaw and Gwen Carr and I met with the federal
government twice on this case because I had no confidence in the Staten
Island grand jury. And when they met with the Staten Island prosecutor, I
wouldn`t even go to the meeting because I said I didn`t think they would do
anything and they didn`t.

Explain why a federal investigation, whether it is Ferguson, whether it is
Cleveland, and I talked to the father of that 12-year-old last night,
whether it is Staten Island. Why is this important now?

JONATHAN MOORE, GARNER FAMILY ATTORNEY: Well, we`ve seen in this case over
the years that the local prosecutor is so closely insinuated with the
police. They rely on the police, (INAUDIBLE), to make their cases that
when the police become the defendants, when the police become the purported
criminal, they just -- they can`t be objective. We`ve seen that in other
cases. And it is playing itself out here.

And that`s why you need the independent review of it. We`ve called for
many years for an independent special prosecutor in New York, permanent
independent special prosecutor who could look at these cases throughout the
state. And that`s fallen on deaf ears. We`ve called now for the federal
government to do their independent investigation. And we hope that they
will do that and achieve the a-just result.

SHARPTON: Now, let me put up this picture a minute here because I want you
to look at this. This is his arm. This is the police department`s arm
around your husband, Esaw, where he can`t defend himself, he not by, he is
down. How can a jury say that shouldn`t at least go to trial? There`s not
a trial jury now. We`re not saying that he should be held guilty. But how
can they say there`s nothing probable about going to trial in this?

MOORE: I mean, the word -- the picture speaks for itself. His arm is
around his neck, not only before he takes him down but when he is on the
ground. And he doesn`t remove his arm from his neck. And in addition to
that, it is not just neck compression that probably killed him, it is the
officers who then piled on his back because the medical examiner said two
things about caused his death -- neck compression and chest compression.
And together, those were the cause of his death.

And so, it is not just one officer who we say should be prosecuted here.
You should be looking at all the officers. And one of the most outrageous
things that this prosecutor did in Staten Island is that he gave immunity
to all the other officers who are on the scene.

SHARPTON: So all of them but this one.

And let`s be real clear. Because I was involved in the Abner Louima (ph)
case as well as Rodney King, excessive force is a federal civil rights
violation and clearly that could be considered excessive force by federal
grand jury.

MOORE: Remember the Anthony Baez case. He was killed by a chokehold
Livoti up in the Bronx. The federal government stepped in.

SHARPTON: Right here in New York.

MOORE: In New York and at least brought an indictment for assault. They
didn`t even -- that`s the most basic charge -- simple assault, even a
misdemeanor assault. Give us something here. You know, there is a whole
range of charges they could have considered here. The fact that they came
up with nothing is really -- judgment is outrageous.

SHARPTON: But let me ask you, as you sit here and you stood last Wednesday
night, a week ago tonight you stood on the stage at Mass Action Network
with the family of Michael Brown Jr. and this young lady who is the mother
with the young man who was killed in the stairwell.

MOORE: Kimberly --

SHARPTON: Kimberly in Brooklyn who we are doing the funeral Friday night.
He`s not even buried yet. As you stand here, and people around the country
are looking at you. Forget me. People know I`m a public figure. Forget
him. He`s a lawyer. As a human being, tell people what it means to you to
lose a husband to law enforcement and to watch that. And beyond the
politics, what this means. I think people don`t get the human side of

GARNER: It is so lonely, so sad. And then every day, I try to look at TV
to keep my mind off you know, thinking about what`s going on and what had
happened and everything. But every time I turn the TV on I see that video,
I see that video and then for them to come out with this verdict, like they
not even seeing what I saw, you know.

SHARPTON: What kind of guy was Eric? Tell us.

GARNER: Eric -- that`s funny you ask me that. Eric was the sweetest, for
him to be so big and stuff. He was only angry if he drank something. So I
used to have a joke that he couldn`t drink because he was an angry drunk,
you know. That was the only time he would ever tell me no.

SHARPTON: So he had faults.

GARNER: Yes, he had faults. Of course he did. He wasn`t perfect.

SHARPTON: But they`re saying your son was there because he is selling
looses (ph). Is that a reason --

GARNER: That`s not a reason to kill him.

CARR: Looses (ph).

SHARPTON: Not even marijuana which is cigarettes.


CARR: He wouldn`t have been selling if it wasn`t in demand.

MOORE: And Eric Garner should be honored as a family man. He was married
for 27 years. He raised five kids. He like many people in this economy --

SHARPTON: And had grandkids.

MOORE: And had grandkids, forced to go in sort of an underground economy.
But he worked hard every day to support his family.

SHARPTON: But we`re not even justifying the underground economy. What I`m
saying is he was not violent. There was no violence threatened to the
police. And even when the police are down, he`s still choking him 11 times
we count on the video he said I can`t breathe. So at what point do we
have, that the law says there is at least probable cause to go to trial.
That`s all we say. How do you plea?

GARNER: There is no explanation. And for them to say, you know, they`re
on his back and he`s saying he can`t breathe, and you didn`t let up for not
one second. It was like I said, a modern day lynching. They had it out
for him.

MOORE: Yes, it is a sad day.

SHARPTON: Let me read you this statement from the officer, Pantaleo. He
said I became a police officer to help people and protect those who can`t
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. What is your reaction to that Ms. Carr, the

CARR: They should have asked for our apology while they had him down them
should have let him up. They should apologize to him while he was down
there. So let him up. That would have been the apology.

GARNER: The condolences and the remorse should have been when he was on
the ground asking to let him breathe, OK? His apology to me now means
absolutely nothing because my son is left without his father. My grand
kids are left without their grandpa and I`m left without my husband.
Somebody I planned on spending the rest of my life with. Now I have to be
alone and raise the rest of my children and grand children without him.

CARR: And he goes --

GARNER: Yes, he home to his family. He is still feeding them and all
that. My husband is six feet under. He can`t do nothing for us no more.

SHARPTON: Marc Morial, the National Urban League, other national civil
rights leaders coming into town in the morning. We`re talking about having
a national rally on the 13th of December in Washington to -- from Ferguson
to New York, everybody coming together. What are the next steps legally?

MOORE: Well, the next step legally is to try to push for this federal
investigation. That`s high on our agenda. You know, we have -- we will
pursue a civil lawsuit to get justice for Eric and his family. But as the
president said today, he said something very important. He said, and
you`ve been saying all along. This isn`t a local problem. It is not a New
York problem. It is a national problem. We have a national problem here
that has to be addressed.

CARR: That`s true.

SHARPTON: Well, I want, again, the attorney general did speak with the
mother and I, and there is an independent federal investigation. But it is
a national problem. We`re going to Washington on the 13th to raise the
national issue, of probable cause. All police are not bad. Most are not
bad. But you cannot have a nation where you can`t question police action.
And you can`t question it violently. And I go out and tell people, less
protests or protest nonviolently. Let me say I`m a minister but I don`t
stay inside the pulpit. I`m a TV host. I don`t stay in the studio. I go
out there and talk to the people.

It`s easy for people to sit up in comfortable studios or big cathedrals and
lecture people. It is different when you`re on the ground. I`m on the
ground and that`s why I can tell people, let`s do this the right way. And
they can call us names. But Doug (ph) will say that we won`t raise the
right of Americans to ask the questions.

Esaw Garner, Gwen Carr, and Jonathan Moore, thank you for your time

GARNER: Thank you, Reverend Al.

SHARPTON: The decision raising so many questions about this grand jury and
about justice in America. We`ll look at the legal issues in this case.
Why wasn`t a chokehold homicide enough for the grand jury to indict?

Also the federal case, what can we expect from the justice department civil
rights division? We`re seeing peaceful protests in New York as people
react to the grand jury decision.

We will be right back.


UNIDENTIFIED FEMALE: I`m not surprised but it should have been -- he
should have been indicted. And I really feel disappointed.

UNIDENTIFIED FEMALE: Wrong decision. He should have lost his job. Fire

UNIDENTIFIED FEMALE: I`m truly a sin (ph). I have a (INAUDIBLE) son. And
you know, I feel for them | as well. God forbid if they get caught doing
something wrong.



SHARPTON: Is that a chokehold? The grand jury voted not to indict. We`ll
talk about that next.


SHARPTON: Back with more on the breaking news. A grand jury has decided
not to indict a New York City police officer in the death of Eric Garner.
Here are the key dates in the case:

On July 17th, Eric Garner died after Officer Daniel Pantaleo used a
chokehold during an arrest on.

August 1st, the city`s medical examiner ruled the death a homicide.

More than two weeks later, on August 19th, the Staten Island district
attorney announced a grand jury would consider charges.

On September 19th, a forensics expert hired by the Garner family agreed
with the autopsy.

And on October 7th, the Garner family filed a $75 million civil lawsuit
against New York City and the NYPD.

The entire incident was caught on cell phone video. It is clear Officer
Pantaleo used a chokehold to bring Eric Garner down. And the NYPD has
banned the use of chokeholds. So why did the grand jury decide not to
bring charges? What evidence did they look at and why didn`t they think
this was a crime?

Joining me now are the former prosecutor and MSNBC contributor, Faith
Jenkins, and former U.S. attorney Kendall Coffey. Thank you both for being



SHARPTON: Faith, the grand jury in this case had to determine there was
probable cause to believe that a crime had been committed. Wouldn`t that
be enough to show probable cause?

JENKINS: You would think. The video speaks for itself. As they say,
pictures are worth a thousand words and that video told the story.

Here you have a man committing one of the most minor crimes someone can
commit in the state of New York which is selling these loose cigarettes. I
mean, selling cigarettes that aren`t taxed. And then you have someone who
is pleading with the police. People say resisting arrest? This was a man
pleading with the police, trying to state his case on the street. He
wasn`t threatening them. He wasn`t cursing at them. He didn`t just commit
some violent crime. He is pleading with him and they know him. This was
someone known to the police in this precinct because he had been arrested
for it for a number of times for selling these looses. And then he ends up

And you look at the video and how that happens. I don`t see how you watch
that video and come up with any other conclusion that there was excessive
force, that that man did not have to be taken down by that many police
officers, in that manner by a banned practice, a chokehold which has been
banned in New York since the 1990s when another police officer used on it a
civilian and that person died.

SHARPTON: Kendall, you`ve done a lot of work with grand juries as a
federal prosecutor. What do you think in terms of this video, is it enough
to show probable cause of a crime? Tell us how this possibly could have
gone in front of a grand jury and not establish probable cause.

COFFEY: Well, and of course, sometime you wonder if probable cause is
clearly explained because it is not the concept of ultimate guilt or
innocence as you`ve discussed many times on this show. It is simply more
probably than not based on the prosecution`s own evidence, is there
evidence of a crime.

This video and some of the circumstances that we know to be undeniable seem
to establish probable cause. We know the chokehold as was just described
is a banned, prohibited practice. In effect, this officer knowingly used
what amounted to prohibited and excessive force at the very time he began.

There are also a group of officers, obviously an unarmed man, and then you
add to that the component that he was repeatedly saying he can`t breathe.
And yet the police action continued. So this is a very, very tough one to

Yes, juries at the end of a trial do acquit officers, even in situations
like this. But understanding why this grand jury found there was no
probable cause to charge him for anything is difficult to understand.

SHARPTON: Now, I want to pick up on that point, Faith. Because let`s talk
about some of the charges the grand jury could have considered in this
case. And again, they`re not determining guilt or innocence, only whether
there was enough reason to go to trial, to see if one was guilty or
innocent of these charges.

They could have considered criminally negligent homicide which would mean
the death was caused by reckless and careless actions and is punishable by
up to four years in prison, reckless endangerment which is knowingly
creating an unjustified risk of death and showing a depraved indifference
to human life and is punishable by up to seven years. And second-degree
manslaughter which would mean the officer knowingly took reckless actions
and is punishable by up to 15 years. How high is this burden to show
probable cause for each of these categories?

JENKINS: Well, it is not high. And when you have a banned practice that
means the police have been trained not to use a chokehold. So when this
officer did it anyway, he is on notice that he is using a dangerous police
tactic to take someone down. When he chose to use it any way, you can
argue that alone was reckless. And that reckless action resulted in a
man`s death.

So when you look at it under those circumstances, again, and the low
threshold for probable cause, it is shocking that this officer was not
indicted. It is also shocking that his supervisor was there. Six or seven
other police officers were there. Let`s talk about mentality here.

SHARPTON: Well, others came and didn`t do anything.

JENKINS: He had no problem using that chokehold in front of his
supervisor. No problem using that tactic in front of his other officers.
What does that tell you?


You, Kendall, let me go back to you. As a prosecutor, of course, we don`t
know what happens in grand juries because they`re secret and this was
secret. Does anything that I`ve read of possible charges seem something
that could not have been established as probable cause based on what we
know and based on that video?

COFFEY: Based on what we know, especially the crimes of recklessness seem
to be established by the video itself and by the evidence from the coroner.
So that should be a starting point for probable cause. There are a lot of
things we don`t know. But remember, probable cause doesn`t require a
consideration of everything. It is not the ultimate determination of guilt
or innocence beyond a reasonable doubt. And that has got to be so
mystifying and so upsetting for many people.

SHARPTON: That`s the point. This is not the trial.

COFFEY: Exactly.

SHARPTON: But let walk through quickly, Faith. There is an intrinsic
relationship between local prosecutors and local police which is one of the
reasons people like we have always said you have to get feds in. Explain
to people, laymen that are just watching at home, why there is this feeling
that there is a conflict when local prosecutors to have deal with local

JENKINS: Well, because there is the appearance of impropriety sometimes.
As a prosecutor in Manhattan, I work with NYPD officers in Manhattan every

SHARPTON: That`s where you get your cases.

JENKINS: That`s how we prove our cases. That`s how we get our cases.

SHARPTON: Whereas the feds do not deal with local --

JENKINS: Right. And so, that`s why and I`ve said this earlier today, at
this point, because the process is not working at this point. So you have
to examine the process. That`s why you need special prosecutors to come in
when there is a police shooting, or when a police cause the death of
another person, you have to bring in special prosecutors.

SHARPTON: Faith Jenkins and Kendall Coffey, thank you both for your time

Tonight, NBC news confirming the justice department will conduct an
independent civil rights investigation. What will it look like?

Also, how the Garner case can and should change police tactics and

Stay with us.



REP. HAKEEM JEFFRIES (D), NEW YORK: What more does America need to see to
understand that we have a problem in this country as it relates to the
relationship between the police and communities of color. Eric Garner did
not deserve to die.


Jeffries on what may be the key civil rights issue of our time. He`ll be
here live, next.



PRES. BARACK OBAMA (D), UNITED STATES: And I`m not interested in talk.
I`m interested in action. And I am absolutely committed as President of
the United States to making sure that we have a country in which everybody
believes in the core principle that we are equal under the law.


SHARPTON: President Obama today responding to the grand jury`s decision in
the Eric Garner case. Talking about the need to make sure everyone has
equal protection under the law. The Eric Garner case, like the Michael
Brown case, is raising serious questions about whether police involved
homicides can be handled at the local level. And tonight, NBC News reports
the Justice Department led by Attorney General Eric Holder will conduct an
independent civil rights investigation into Garner`s death. Obviously,
there are many potential conflicts of interest when you have local
prosecutors overseeing homicide investigations. Were local police involved
to make sure everyone has confidence in the process, it is time we rethink
the role of the federal government in these cases.

Joining me now is New York Congressman Hakeem Jeffries and Jonathan
Capehart of "The Washington Post." Thanks for being here.


JEFFRIES: Good evening, Rev.

SHARPTON: Congressman, is it appropriate for the Justice Department to
investigate Eric Garner`s death?

JEFFRIES: It`s absolutely appropriate. The decision by the grand jury not
to indict the officer responsible for the homicide of Eric Garner is a
gross miscarriage of justice. It`s a blow to the integrity of our
democracy. And Americans all across the country should be shocked by the
ability of the grand jury not to move forward with a simple charge of
manslaughter, criminally negligent homicide, of reckless endangerment
toward human life. And so justice delayed, however, will not be justice
denied. And the Department of Justice in this particular instance, I am
pleased that had they`ve made the decision so swiftly after today`s
developments to move forward with an investigation. I`m confident there
will be a full and fair investigation. And hopefully it will result in the
presentation of evidence before a grand jury. And Officer Pantaleon should
be forced to stand trial.

SHARPTON: Jonathan, you used to live in New York for a long time. But
you`ve covered cases around the country. How do you view this?

CAPEHART: Shocking. I mean, this case, the Eric Garner case, is so
elementary because of everything that we know. That a chokehold was used,
that a chokehold is against NYPD regulations, that it was all on video tape
which we`re looking at right now, where it is clear to anyone with eyesight
watching what`s going on what`s happening. We know that the medical
examiner, independent, comes back and says that the chokehold contributed
to Eric Garner`s death and therefore his death was ruled a homicide. Those
things right there would lead anyone, no matter where they are on the
political spectrum no, matter what they think about race, no matter what,
would look at those things and say, yes. This police officer is going to
stand trial. The fact that he`s not going to stand trial, I think, is
mystifying. It is enraging.

And I think it is going to be something that will lead a lot of people to
take a step back and think, what`s going on with our criminal justice
system. And then when you look at what`s happened to Eric -- what`s
happening tonight in the larger picture of what happened in Ferguson, what
happened in Cleveland, what happened in lots of other places over just the
last six months. People, I think, would going to take a step back and
wonder what is going on with our criminal justice system. Is it indeed
fair? When something like this can happen.

SHARPTON: Well, let`s dig into that a little deeper, Congressman. Because
federal stats show the number of justifiable homicides, by police have been
rising steadily in recent years. Last year there were 461 justifiable
homicides by police. That`s the highest number in nearly two decades.

JEFFRIES: Well, this is an epidemic of police violence all across the
country and it is compounded Reverend Sharpton by the fact that we have a
broken criminal justice system. That in case after case after case fails
to deliver accountability. And so, that sends a terrible message to law
enforcement officers. Essentially, you can get away with using excessive
force in a criminal justice system, at least at the state level, will not
hold you accountable. That`s why we need a robust Department of Justice
civil rights investigation in this case. But we`ve also have to take a
step back and ask the question. Can we ever really receive justice when a
state prosecutor is involved? Because of the close relationship between
state prosecutors and local law enforcement. And perhaps we need some type
of legislation to allow for special independent prosecutors to step in
these types of cases to make sure that you can get a full and fair

SHARPTON: All right. Now you mentioned legislation. That goes to you and
your colleagues. What role is it for you and members of Congress to do
about what you`ve now called an epidemic?

JEFFRIES: Well, the Congressional Black Caucus has made clear this week
here in the holes of Congress that we`re not going to allow people in the
House and the Senate to run away from this problem. We`ll going to run
towards this problem. We need to look at refunding community policing
programs that were working. That we`ve largely abandoned. And that has
helped strain the relationship between the police and the community. We
need to really look at outlawing racial profiling, particularly as it
relates to law enforcement officers. That`s a conversation that Attorney
General Holder begin to have in Atlanta. And we need to work on that issue
as well. And we need some real reporting in terms of the instances of the
excessive use of force. This occurs every day in America. It results in
homicides, unfortunately, in far too many instances. But the reason why we
see so many young people all across the country reacting is because this is
their daily reality. And as Eric Garner said, this ends today. It must

SHARPTON: Congressman Jeffers, Jonathan Capehart, thank you for your time.

CAPEHART: Thanks, reverend.

JEFFRIES: Thank you.

SHARPTON: Still ahead, how to change police tactics in this country. Can
the Eric Garner case help transform how police interact with the
communities they serve? Right now protesters are marching peacefully here
in New York chanting, "I can`t breathe." Eric Garner`s final words. Stay
with us.


(Protesters chanting): "I can`t breathe." "I can`t breathe." "I can`t
breathe." "I can`t breathe." "I can`t breathe." "I can`t breathe."


SHARPTON: The breaking news tonight. No indictment in the NYPD chokehold
death. The wake of this video put new scrutiny on police tactics. Police
Commissioner Bill Bratton called for a new training aimed at changing the
culture of the department. The department`s yearly training and the use of
force over the 35,000 officers in New York. And today, Mayor Bill de
Blasio said the Police Department is speeding up efforts to outfit police
with body cameras. I can`t breathe, the final words of Eric Garner, is
still ringing in our ears.


ERIC GARNER, PLACED IN A CHOKEHOLD: I can`t breathe. I can`t breathe. I
can`t breathe. I can`t breathe. I can`t breathe. I can`t breathe. I
can`t breathe.

UNIDENTIFIED MAN: Once again, police beating up on people.


SHARPTON: Joining me now, retired ATF agent Jim Cavanaugh and Prosecutor
Paul Henderson. Thank you both for being here.

PAUL HENDERSON, PROSECUTOR: Thanks for having us, Reverend.


SHARPTON: Jim, 11 times Eric Garner said, he couldn`t breathe. Was this
proper police work or was it a crime?

CAVANAUGH: It`s excessive force because you can only use the force
necessary to make the arrest. You know, the officer clearly has his arm
sunk deep in Mr. Garner`s throat. He is choking him. Mr. Garner says, he
can`t breathe. The medical examiner says the chokehold in the chest
compressions resulted in his death. If that`s not a chokehold, then you
know, I`m the queen of England. That`s a chokehold. Now, you can argue
that it was perfectly said or it wasn`t mixed martial arts proper hand
positioning or something. But it gets to be ridiculous. It is like
someone showing you a picture of a camel and telling you it`s a horse.
That`s a chokehold. The question is, is it excessive force? Well, we know
it is against the NYPD policy because it results in death. So it clearly
is excessive force. And the civil rights division at the department has to
step up. Look at this closely. If it is excessive force, if they see it,
you know, to get a warrant and bring a civil rights prosecution.

SHARPTON: Paul, it violated the policy of the Police Department with a
chokehold. It violated laws, the excessive force and it clearly seem to be
at least probable cause to go forward. And where is the humanity? How
does a human being hear somebody say 11 times, I can`t breathe, and you
don`t stop? When does your humanity kick in? If the police manual book
didn`t kick in, if the law didn`t kick in, where`s the humanity? Where`s
your humanity of four or five other policemen standing around there hearing
the man saying, I can`t breathe.

HENDERSON: Well, you`re making all the argument that`s presumably were
made within that grand jury. And then if you compound that with the
information from the medical examiner that this was a homicide. You have
just made the argument that was presented or should have been presented to
the grand jury.

SHARPTON: That we don`t know if it was presented.

HENDERSON: We don`t know. And this is part of the problem I think in
having this backdoor associated with this subjective decision associated
with prosecution. To use grand jury which is by definition a tool of the
prosecution. And what you`re hearing from these communities of color is
that they feel like they do not see, and we do not hear the aggressive
advocacy associated with prosecution with their communities and our own
communities, and it is a different standard when it is applied at least
when there is the potential of misconduct with police action involving
African-American men. And as you have just said, you just have made the
argument that should have been presented, that we had not yet reviewed
because the entire process is secretive. This is the same narrative that
we`re seeing again and again and it`s calling for further action.

SHARPTON: Jim, I mentioned the body cameras. But here we have a video.
What else can be done?

CAVANAUGH: Well, we need some courageous prosecutors. We`re not seeing
anybody`s willing to step up here.

HENDERSON: Or independent.

CAVANAUGH: And say, you know, there`s probable cause. That doesn`t mean
that the trial will result in a conviction. It means there will be a
contest with advocates on both sides for the officer and for Mr. Garner,
for the prosecution. So, there will be a fight, there will be a court,
there will be a trial. A cross-examination. Evidence presented. A judge
ruling on it. That`s what the public is asking for. And probable cause is
such a low standard. You know, every single arrest made in the country by
every officer, city, county, state and federal, is based on the premise of
probable cause or a warrant sworn out with probable cause. Every single
arrest. And every single search. That`s from the constitution. Where the
words probable cause appears. So, it is a very low bar. It is
unbelievable that it can`t be achieved in a case where there`s video here.

And the force really is excessive, given that there are six officers
standing there. Mr. Garner is not armed. His resistance Reverend is
passive at best. He is not striking the officers. He is not wanting to be
handcuffed. He`s upset. Certainly he is passively resisting with no
weapon. And so, with six officers there to choke him like that. You know,
I think the department has to really step up. Unfortunately, I spent
almost four decades trying to slow down cops and speed up prosecutors and
it is kind of a hard thing to do. But I would hope the department would
really look at this, the President, the Attorney General and say, look, we
need to do something. We need to move. You know, Lee Iacocca said, the
speed of the ball is the speed of the team. So, you know you can move on
this. There`s no reason for, you know, to draw it out.

SHARPTON: Paul, the commissioner in New York said that they would be
retraining the mayors talked about cameras. We all met with the President
the other day. Civil rights leaders and mayors at all. He is talking
about some concrete things in terms of cameras. But it also is in the
opinion of many of us in dealing with how prosecutors on a local level deal
with local police and feel conflicted and compromised. In the grand jury
room, and you have conducted grand juries, we really don`t know what
happens. That`s really up to the prosecutor and there is no adversarial
representation there.

HENDERSON: That is correct. It is secretive by nature. And even if we
have the cameras, we had video cameras in this case. We saw the video
cameras. We saw the tape. The real issue when you get down to it is how
the aggressive advocacy is defined by the prosecution in that room. And
again, I think this raises the flag about inclusion. We need more
communities of color on the team of prosecution, at the table, making
decisions. Because then it speaks to the lack of transparency. It speaks
to inclusion in the decision making process associated with our criminal
justice system. And that`s why we`re having so many challenges and so many
problems with communities, specifically the communities of color that do
not trust the system or feel as though the system works against them when
they are in fact victims, or could be perceived as the victims by the law.

SHARPTON: Jim, you worked to law enforcement over 40 years. You know
police. What will it take for a lot of Americans who don`t live in these
communities, that these questions are raised? How do they begin to
understand people that Paul just described that distrust police? That is
absolutely beyond their scope of even imagining how you can`t trust. How
do they get it when you see a video like this? What will show them why
there is such outrage and anger from Ferguson to Staten Island to

CAVANAUGH: Well, a few things, Reverend, it`s a great question. And it
needs to be worked on in the police service. It is the history first of
the civil rights era and knowing that we can elaborate on that. But
secondly, it is to put your loved one, your son, your brother as would be
in Mr. Garner`s position who committed some minor offense. Very, very
minor offense. And winds up dead from a chokehold. How would you feel
about that? And then there would be no even arrest or prosecution at all
that would just be okay. And I think that`s what got communities upset.
But we also and you brought about, Reverend and talked about it with Paul,
too. The tactics of policing. We can do so much better. If we look at
all these cases. We see these tactics from Cleveland with the 12-year-old
boy to Dayton with the young man shot in the Walmart. You know, just
rushing in and it is too fast. There needs to be a little more
circumspection, a little more negotiation, a little more of maneuvering.
We can stop a lot of these things by being a lot smarter than the other.

SHARPTON: A lot more work to do. But we`re going to get it done. We
must. Jim Cavanaugh, Paul Henderson, thank you both for your time tonight.

HENDERSON: Thanks for having us, Reverend.

SHARPTON: We`ll be right back.


SHARPTON: Eric Garner killed in a chokehold on videotape. Michael Brown,
Jr. shot at 12 times. Hit six times. Akai Gurley, the young man shot in
the dark coming down the stairs doing nothing. A policeman had his hand on
the gun, shot in the dark. Twelve-year-old Tamir whose funeral was today.
All in the last 120 days. Police were always right? We don`t get to ever
ask a question? Nobody goes to trial? Think about it. We don`t live in a
police state. We have the right and the obligation to ask the questions.

Thanks for watching. I`m Al Sharpton. "HARDBALL" starts right now.


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