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Legal View with Ashleigh Banfield

New Wave of Protests Across the Nation; Officer Pantaleo Said to be a Good Cop; New Legislation in Wake of Garner Decision

Aired December 05, 2014 - 12:00   ET

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

(COMMERCIAL BREAK)

DON LEMON, CNN ANCHOR: Hello, everyone. It is Friday. I'm Don Lemon, in for Ashleigh today. Welcome to LEGAL VIEW.

We have to begin with this new wave of protests expected today from Connecticut to California to Washington state all over a New York's grand jury's decision not to indict Police Officer Daniel Pantaleo in Eric Garner's death.

(BEGIN VIDEO CLIP)

CROWD: We ain't gonna stop, until our people are free.

(END VIDEO CLIP)

LEMON: So with 219 people were arrested last night in New York. The outrage, of course, over this chokehold video we have seen so many times. But this is how Eric Garner's mother wants him to be remembered. She says he was her first-born, her life, a considerate person, a loved person and support for him and the family displayed through the peaceful protest is something that has truly blessed her.

(BEGIN VIDEO CLIP)

GWEN CARR, ERIC GARNER'S MOTHER: I appreciate all the protesters. Keep on protesting. Traffic was stopped last -- I was on my way home on the west side highway, the traffic was held up, the protesters was walking past us. I had to let my window down and, you know, some of them, the first person who recognized me was a white gentleman. He came and said, this is Eric Garner's mother. He came over. He went to shake my hand. Other protesters wanted to take a picture with me. I was sitting in the car. And I was so thrilled, so thrilled even to be held up in traffic and they were coming by and they were standing for my son. Thank them -- I thank them so very much. Keep up the good work.

(END VIDEO CLIP)

LEMON: So let's go now inside the protests. Alexandra Field at last night's protests. People of all races taking a stand.

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ALEXANDRA FIELD, CNN CORRESPONDENT: Why are you arrested? Why were you arrested? UNIDENTIFIED MALE: I was arrested for standing and protesting.

FIELD (voice-over): Protesters in cuffs across New York.

UNIDENTIFIED MALE: They wouldn't let us walk through Times Square.

FIELD: After some seven hours of marching, police cracking down as thousands of protesters gathered for a second night. Standoffs but no serious violence replicated across the country. Nationwide, outrage Garner's daughter says she appreciates.

ERICA GARNER, ERIC GARNER'S DAUGHTER: This is not a black and white issue. This is a national crisis.

FIELD: In Chicago, protesters clashed with police after shutting down a major thoroughfare. And in D.C., protesters staged a die-in only blocks from the White House.

CROWD: No justice. No peace.

FIELD: All of this after a grand jury declined to indict NYPD Officer Daniel Pantaleo in the chokehold death of 43-year-old Eric Garner. According to the New York Supreme Court, the grand jury sat for nine weeks hearing from a total of 50 witnesses, 22 civilians, also police officers and medical personnel. Sixty exhibits were admitted into evidence, including videos, records regarding NYPD policies and procedures, Garner's medical records and photographs of the scene. But the details of that evidence remain sealed.

GWEN CARR, MOTHER OF ERIC GARNER: What video was they watching? Because obviously it wasn't the ones that the whole world was watching.

FIELD: The Department of Justice launching a federal investigation.

BARACK OBAMA, PRESIDENT OF THE UNITED STATES: Too many Americans feel deep unfairness when it comes to the gap between our professed ideals and how laws are applied on a day to day basis.

FIELD: New York Mayor Bill de Blasio ordering the retraining of the NYPD's 35,000 officers.

MAYOR BILL DE BLASIO (D), NEW YORK: We're changing how our officers talk with residents of the city, changing how they listen.

FIELD: And Attorney General Eric Holder calling for reform.

ERIC HOLDER, ATTORNEY GENERAL: There are real, practical and concrete measures that can be taken.

FIELD: Reform, civil rights leaders say, is needed nationwide.

MARC MORIAL, PRESIDENT & CEO, NATIONAL URBAN LEAGUE: When we shine a spotlight on the criminal justice system, when we shine a spotlight on the experiences of people, it points to a very big problem. FIELD: In Cleveland, Ohio, a nearly two-year investigation by the

Justice Department found what they call a pattern of "excessive force" by police, caused by "insufficient accountability, inadequate training and ineffective policies." Three hours south, the NAACP and the Montgomery County Sheriff's Department are investigating racist text messages, allegedly exchanged by several deputies. Parts of the text red aloud by Dayton NAACP President Derrick Forward.

DERRICK FORWARD, PRESIDENT, NAACP DAYTON: What do apples and black people have in common? They both hang from trees.

FIELD: Alexandra Field, CNN, New York.

(END VIDEOTAPE)

LEMON: So, there's a lot to discuss going on around the country, but we want to circle back to New York now and the Eric Garner case. We're finding out more about the officer who put him in that chokehold. CNN's Brian Todd looks at what people are saying about Daniel Pantaleo.

(BEGIN VIDEOTAPE)

BRIAN TODD, CNN CORRESPONDENT (voice-over): Depending on who you listen to, the officer seen subduing Eric Garner is a reckless cop who disregards the rules, or an upstanding former Boy Scout with a good reputation. Officials with New York's police union speak glowingly of Daniel Pantaleo, who one union official says is, quote, "not a hot head."

PATRICK LYNCH, PRES. PATROLMAN'S BENEVOLENT ASSOCIATION: He's the model of what we want a police officer to be.

TODD: A union official says Pantaleo has over 300 arrests with very few citizen complaints, but now his gun and badge have been taken from him after the Garner incident and CNN has learned Pantaleo's record is not untarnished. He's been sued twice for false arrests and unlawful imprisonment. One suit was brought by two men from Staten Island, Darren Collins (ph) and Tommy Rice (ph), who alleged that in 2012, Pantaleo rounded them up on false drug charges and humiliated them.

JASON LEVENTHAL, ATTORNEY WHO SUED OFFICER PANTALEO: Pantaleo strip searched both Mr. Rice and Mr. Collins, in public, outside the car, right in the street, open to public view.

TODD: The complaint says Pantaleo and another officer, quote, "pulled down plaintiffs' pants and underwear and touched and searched their genital area or stood by while this was done in their presence." Pantaleo denied the accusations and the suit was settled for $30,000. The single 29-year-old Staten Island native attended Monsignor Farrell High School. He joined the force in July 2006 and comes from a family of public servants. His father, a retired New York firefighter, an uncle who was a city policeman. His supporters say Daniel Pantaleo's upheld the family tradition honorably.

LYNCH: He's a mature, mature police officer who's motivated literally by serving the community. He literally, literally is an eagle scout.

TODD: But now, with the Eric Garner case in the national spotlight, will Daniel Pantaleo have to follow the lead of Ferguson Officer Darren Wilson and quit?

HOWARD SAFIR, FORMER NEW YORK POLICE COMMISSIONER: Unlike Ferguson, which is a very small department, there are over 35,000 police officers in New York, in a city of 8 million people. I believe that if Officer Pantaleo is found to be retained with the department, he could continue in police work, yes.

TODD (on camera): And union officials tell us Pantaleo wants to go back to police work. One union official told me, Pantaleo got death threats in the early days after Eric Garner's death, but he says those threats have subsided. The official says Pantaleo is not in hiding, but is not living at his permanent residence at the moment.

Brian Todd, CNN, Washington.

(END VIDEOTAPE)

LEMON: Thank you, Brian.

For the legal view, I want to bring in now CNN law enforcement analyst Tom Fuentes and CNN legal analyst Paul Callan, and Daryl Parks, attorney for Michael Brown's family and Trayvon Martin's family.

Is he an eagle scout, do you think?

PAUL CALLAN, CNN LEGAL ANALYST: Well, I think -

LEMON: Literally?

CALLAN: I think it's unfair to get the scouts in trouble on this case. I mean, I don't know, maybe he was when he was a kid. But that's kind of not what the issue was in Staten Island.

LEMON: Yes.

CALLAN: It's all about chokeholds and not scouting.

LEMON: The Garner family is very upset that the other officers involved in this were granted immunity. Do they have -- how did this happen?

DARYL PARKS: Well, without question, Don, when you think about - you see the officers standing around doing noting as they see Eric Garner struggling on the ground. So it draws into question, why would they sit - stand there and watch an officer do the chokehold. But, two, stand there when they see Eric in distress and do nothing to assist him.

LEMON: Is that -- is that because it was a group arrest that they were granted - why were they granted immunity, Paul?

CALLAN: Well, first of all, this is such a disturbing case when you see the film. When you see the video, you say, how could they not have been indicted on this fact pattern? But watch how it goes into the grand jury. The D.A. says, in order to make a case against Pantaleo, the guy with the chokehold, which is in violation of cop regulations in New York, the D.A. says, I'm going to give immunity to the other two cops involved in the arrest so they'll be willing to testify. If he doesn't give them immunity, they won't testify.

Now, what does immunity mean? It means if the evidence shows that they're involved or they're guilty, they can never be charged.

LEMON: So they're -

CALLAN: So now -

LEMON: So what happens? Will anyone ever --

CALLAN: OK, so here's what happens. No, one -- they can never be charged. And I'm thinking this is what happens in the case. The grand jury looks at it and they probably said, maybe it was a chokehold, maybe it wasn't, but he was still breathing when he was on the ground. And the most compelling part of the video is, he's on the ground, he's saying, I can't breathe, I can't breathe and they continue to subdue him. But that's not so much Pantaleo at that point, that's the other cops.

LEMON: The other officers, yes.

CALLAN: So maybe the grand jury says, those other guys are the guilty ones, but the D.A. gave them immunity and they can't be charged. So I'm wondering if a real strategic error was made by the D.A. in how he presented the case to the grand jury.

LEMON: Tom Fuentes, what do you -- what do you think of that? Do you think that was an error?

TOM FUENTES, CNN LAW ENFORCEMENT ANALYST: Well, I - yes, Don, I completely agree with Paul that the, you know, it appears that the D.A. was trying to zero in on Pantaleo but giving that immunity to the other police officers. So at least that goes against the question that Pantaleo was trying to be exempted or the D.A. wasn't serious about trying to have him indicted. But also, was the supervising police officer on the scene also granted immunity? As you see, when Garner's laying on the ground and Pantaleo has already let go of him and is standing up behind him, there's a female sergeant standing right over the body and she's in charge of the situation. She probably could have called off the arrest. I'm assuming she was there early on. But you see her plainly standing and overseeing this whole situation of the four or five officers that have hands on Eric Garner.

LEMON: So we're talking about the arrest now and the takedown, right? Let's talk about before. Let's talk about probable cause for selling loosies. Now, I know that there have been - they said that there were complaints - it's officially -- is there any record anywhere that shows that there was a complaint, that we've heard of, (INAUDIBLE) -

CALLAN: Well, here's what we know. LEMON: That we've heard of that there was actual probable cause for the arrest?

CALLAN: Here's what we know. In New York, about 50 percent of cigarettes, they're so heavily taxed, they're sold on the black market, especially in poorer neighborhoods where people can't afford to buy a pack of cigarettes, they buy individual cigarettes, untaxed cigarettes. Now, that's a crime in New York. A very minor crime, a misdemeanor crime. But probable cause, the cops have to see him selling a loosie before they arrest him. And it's not enough that he used to do it. so I've seen no evidence that they had probable cause.

LEMON: Daryl, have you seen it, because if they didn't have probable cause, that's - then that's a whole nother show there.

PARKS: I haven't seen it. Well, the whole question about whether they really had probable cause or not because -- to arrest him, and so obviously there exists a set of facts that they probably had no right to even lay hands on him, but they did so anyway.

CALLAN: In fairness, though, we don't know because we haven't seen all of the grand jury testimony as to what the cops say they saw before they start talking to him.

PARKS: Right.

LEMON: Tom, I just have one quick thing because I've got to run here, but his past - and you've heard Brian Todd talking about the other issues that he was involved with. How much does that play into a possible federal investigation or (ph) the federal investigation here?

FUENTES: Well, I think - I think his past would play in. It will also play into any future civil litigation because, you know, it shows that he had other incidents. The problem is, for most straight cops, a New York City officer that makes 300 arrests is bound to have some complaints. I think --

LEMON: It comes with pitfalls. There's - yes, right there. They're, all the time, they go up against these - right.

FUENTES: One of -- one of them was settled for $30,000 -

LEMON: Right.

FUENTES: Which tells me that the city just said, get rid of this lawsuit and the heck with it.

LEMON: OK. Thank you, guys. Thank you, Tom, Daryl, Paul, appreciate it.

FUENTES: Thanks, Don.

LEMON: And tonight on CNN, we're going to dig deeper into the issue of aggressive policing from the perspective of police and the communities they serve. Make sure you watch "Black in America: Black & Blue." It airs at 11:00 p.m. Eastern right here on CNN, 11:00 p.m. Eastern. That's my colleague, Soledad O'Brien. Make sure you tune in.

The video of the chokehold is difficult to watch, very difficult, but the aftermath, Eric Garner lying on the sidewalk, dying, even tougher. Coming up, we're going to talk to a medical expert about the EMS response. Don't go anywhere.

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LEMON: So that chokehold may have been the chief cause of Eric Garner's death, but what about the medic seen on this video seemingly not helping Garner after he becomes unresponsive? Richmond University Medical Center tells CNN that four emergency responders were suspended without pay immediately after Garner's death. Two paramedics were cleared for full duty soon after and continue to work with patients. Two emergency medical technicians remain on, quote, "non-direct patient care assignments."

So let's take a closer look now at Garner lying motionless on a Staten Island sidewalk. And this was back in July, July 17th to be specific. Afterward, we will have a medical expert who's going to tell us what they saw and what they believe would have been an appropriate medical response. We edited the video to give you the best possible view of Garner's chest. And I want you to look carefully at whether or not you see him breathing. And again, I have to warn you, that this video is very disturbing because essentially what you're seeing is the last moments of a man's life.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: That's crazy. He can't breathe.

UNIDENTIFIED FEMALE: Sir, it's EMS. Come on. We're going to help, all right? We're here to help you. We're getting the stretcher, all right?

UNIDENTIFIED MALE: We're going to try to get him up on the stretcher. It will take like six of us.

(END VIDEO CLIP)

LEMON: So let's have an honest discussion. Everyone's being so careful about this, right? Let's have an honest discussion about this. And emergency physician Sampson Davis is here.

So I took the stairs today, right? Right. Right. So he was just in this major altercation with police.

DR. SAMPSON DAVIS, EMERGENCY PHYSICIAN: Right.

LEMON: And as you're looking at him on the ground there, this is me, I don't see a - I don't see anything. Is he breathing?

DAVIS: Right. He's not. There's no chest wall movement. You don't see his abdomen moving. I don't know if he had a pulse. The EMT felt for a pulse. But if he did have a pulse, was it a shallow pulse? Was his a bounding pulse? Was his airway at all secured? Did she take the air and listen to any breath sounds? Was it a stethoscope placed on his chest to see if his lungs were changing or if he was breathing at all? You know, at this point, from what I see with the video, I don't see any signs of him breathing at all.

LEMON: OK. Because he said, "I can't breathe. I can't breathe." So no one, it appears, is trying to help him breathe, but they're checking his pulse. Just because you have a pulse doesn't mean you're breathing.

DAVIS: That's correct. That's correct. Because your pulse will usually, if you stop breathing, then your pulse will continue until a few minutes and then eventually it will stop, it will slow down and stop completely.

LEMON: So what should he have - so you're saying there should - should he have been given chest compressions? Because you hear the -- someone there - I don't know if it's the guy who's taking the video, someone says why -- no one gave him CPR, why aren't you giving him CPR? And the person on the scene says, he's still breathing.

DAVIS: Right. I mean it's unfathomable how things unfolded here. There should have been some leadership, some ownership. Someone should just step up and say, what's going on? Why isn't he breathing? What happened? And after accessing what happened, then the EMT on scene should have assessed his airway.

LEMON: So is this a matter of semantics, because they're saying he died right on -- in transit. Is that correct?

DAVIS: Right. Correct.

LEMON: All right. So then would this be in transit? Because if he's not breathing there on the sidewalk, he technically may still have a pulse.

DAVIS: Right.

LEMON: Or we don't know because we're not there.

DAVIS: Right. Right.

LEMON: But are we looking at someone who is transitioned or is --

DAVIS: I think he transitioned. I mean the -- there's a difference between the time that we pronounce someone dead versus the actual time of death. So someone can be without a pulse, someone can be not breathing and we can be going through the process of medical intervention, chest compression -

LEMON: I'm asking you, was this man dead on the sidewalk?

DAVIS: I mean, from what I see, all signs of the visual would say yes. But without being there on the scene to listen and to assess him directly, it's hard to say. But, I mean, I think that, from what I'm seeing, the man is not breathing. I don't know if a pulse was ever confirmed, but CPR should have been started. He should have been intubated. LEMON: And they can't pronounce him.

DAVIS: They can't pronounce him there because no intervention has been done to try to save him. You see, they just scooped and go.

LEMON: Right.

DAVIS: Someone should have did chest compressions. Someone should have listened to his lungs.

LEMON: Yes. Thank you, Sampson Davis.

DAVIS: Thank you.

LEMON: Appreciate it.

Prosecutors work with police all the time. Some people question whether they can be impartial when a cop is suspected of a crime, or suspected of a crime, excuse me. An New York state lawmaker wants to change that and set up a special office to investigate police cases. She joins me next.

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LEMON: Welcome back. Don Lemon, in for Ashleigh Banfield today.

New York officials are responding to the wave of outrage sweeping the nation, the city and the nation in the wake of Eric Garner decision. Yesterday, Mayor Bill de Blasio and Police Commissioner Bill Bratton announced a three-day retraining course for more than 20,000 NYPD officers. The mayor said, quote, "the way we go about policing has to change."

(BEGIN VIDEO CLIP)

MAYOR BILL DE BLASIO (D), NEW YORK: We're changing how our officers talk with residents of the city, changing how they listen and the training that's going to happen here in this building will change the future of this city. It will have not just an impact on thousands of people, it will have an impact on millions of people.

(END VIDEO CLIP)

LEMON: So the mayor didn't go into too many details about how that training for the city will happen and if the city will pay for it, how the city would pay for it. But many wonder whether retraining will be enough. Critics point to other problems. A seemingly lack of accountability and a conflict of interest when prosecutors investigate the same offices they depend on and work with daily. One lawmaker is pushing legislation to address both problems, and that's New York State Senator Andrea Stewart Cousins. And she has drafted a bill that would provide funding for police body cameras. It would also create a special office under the state attorney general to investigate officers in the death of unarmed suspects.

So, Senator Stewart Cousins joining me now. What a -- thank you very much for coming in.

ANDREA STEWART-COUSINS (D), NEW YORK STATE SENATE: It's good to be here.

LEMON: Because you're a parent, you're a grandparent, right?

STEWART-COUSINS: I'm a parent, I'm and grandparent, yes.

LEMON: So this touches what's - before we go into that, what's the possibility of this happening, do you think? What do you think the likelihood is?

STEWART-COUSINS: I think the reality is that people are talking all over the nation, certainly from a federal level, every level is talking about what we can do to create an atmosphere so people feel that when they're in the system there's justice. And I think on a state level, we are extremely sensitive. I know the governor and my colleagues in government, obviously the mayor, everyone's talking about what we do.

LEMON: Yes.

STEWART-COUSINS: So the reality is that this is our moment to take a look at the grand jury process, to take a look at the role that we can play in helping people feel they're achieving justice.

LEMON: You want transparency?

STEWART-COUSINS: Transparency.

LEMON: OK.

STEWART-COUSINS: We have to figure out why what we saw and what we thought was going to result in a finding, didn't.

LEMON: I wonder how much -- this is a mission for you?

STEWART-COUSINS: It is.

LEMON: I wonder how much of this has to do with - because you are a mother, you're a grandmother, you have two black sons, you have two black grandsons.

STEWART-COUSINS: Yes.

LEMON: And you worry - you heard the mayor in the press conference after the announcement saying, parents all over the city worry about their children, not only for the crime that happens in the - you know, random crime that happens in their neighborhood, but from the people that they want to give their trust to.

STEWART-COUSINS: Well, absolutely. And i think that we've all seen the conversation. So we've heard the conversations.

LEMON: But, I'm asking you, are you - are you scared and how much of that fear and that, you know, mother, grandmother, how much has that affected you?

STEWART-COUSINS: Well, you know, I'm a parent and, like you said, I raised - I have three children, two of them men, and they're all adults now, happily. But, certainly, both of my sons have had interactions with law enforcement and they were told that they don't win in those kinds of confrontations and so just -

LEMON: Did you tell them that?

STEWART-COUSINS: Well, yes. You know, you tell them that it's OK. Just, whatever it is, go through it. And more often than not, the interactions have not resulted in any bad things. But the fact is that they've had to interact. And I've got two grandsons. One is a kid who's 12 and he's a big guy and I think people may perceive him as being someone that he isn't, older than he is.