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Legal View with Ashleigh Banfield

McDermott, Roe Speak on Shutdown; Shooting Suspect's Prescription Drugs; Biker I.D.d in Road Mayhem.

Aired October 04, 2013 - 11:30   ET

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

REP. JIM MCDERMOTT, (D), WASHINGTON: I'm going with the Democrats. Me and 25 Republicans and all the Democrats are going to pass a continuing resolution and a debt limit increase and that's going to be the end of it. He has lost but up to this point he hasn't been willing to come out and admit that he's lost. It's just a matter of time. He'll come.

ASHLEIGH BANFIELD, CNN ANCHOR: Can I just ask you, sir --

(CROSSTALK)

BANFIELD: Go ahead.

REP. PHIL ROE, (R), TENNESSEE: I'd like to say with that scenario just how long can Congressman McDermott hold his breath because that's not going to happen. And I can tell you who loses with this, the American people lose with the Affordable Care Act and we had an hour to discuss it. I would love to do that because that's the loser, not us. It's not a game up here. It's like the speaker said, this is not a game. This is real, real people out here.

BANFIELD: Speaking of that, speaking of the fact that it's not a game, sir, Congressman Roe, you said something during an interview on NPR -- I want to read the statement that you made to the interviewer regarding what's going on right now. You said, "You have to have some way to negotiate an issue, that the other side won't negotiate with. And running the federal government is one of them. The debt ceiling is another. This is nothing unusual. It's American politics. It's the way it works."

Congressman Roe, please don't tell me that you truly believe that holding the debt ceiling and holding the continuing resolution is truly just business as usual.

ROE: It's been usual like that for a long time. That's what we did in 2011 with the Budget Control Act. We passed it had in a bipartisan way. And --

(CROSSTALK)

BANFIELD: We didn't have a government shutdown in 2011. We haven't had a government shutdown in 17 years and prior to that, yes, in the Reagan years there were about six of them. Tell me, do you really believe this is right, this is honestly a good way to govern, that it's fair, that this is good politics to hold the faith and credit of the United States and actually the running of the government and people's jobs as a bargaining chip?

ROE: Let me say this as clearly as I can, as the speaker did this morning in the press conference and in our conference. We are not going to default on the debt. If that happens, there is enough money in the budget to pay for that. That will be the president of the United States' decision not the Republicans or the Democrats and the Congress. The president will make that decision. There's plenty of money to pay that so there will be no default on the U.S. debt.

BANFIELD: All right.

Let me ask you this, Congressman McDermott, I'm going to switch hats completely and take you to task for something you said and something I find near and dear, it's the constitution. I have a copy of it on my desk. When the shutdown began you issued this statement: "For a party that claims to love the Constitution, Republicans have no problem throwing it out when it doesn't suit they will. This is not how bills are passed or repealed, restarting the government -- or rather the GOP leadership and its fringe ought to be ashamed of this failure of governance."

So, first of all, it is not unconstitutional what your colleague beside you is doing. It is not against the law. The law actually does allow for it. Is it fair to just throw that out there that the Republicans are somehow misusing the constitution and, also, is it appropriate or moral to sort of refer to people as rabid or far wing?

MCDERMOTT: The Republicans have thrown away the regular order. The regular order established by the Constitution was a set of committees who passed bills and then they resolved the differences in a conference committee. The House passed the budget or the Senate passed the budget, excuse me, and it's been laying in the House for six months. Now every time the speaker comes out and says that the Senate won't negotiate, he is not telling the truth. I'm going to be very careful how I say that. He refuses to appoint conferees to go and sit down with the Senate. He hasn't done it for six months. And now he says with his back up against the wall when he's lost on this Obamacare ploy, he says oh, I'm ready to negotiate. I'll send some people over. Well, where has he been for the last six months? The Constitution lays out how the Constitution rules in this country. And the electorate chooses us and then the Congress operates in a very, very prescribed way. And he simply has refused to appoint six members to go over and negotiate with the Senate. You cannot say you want to negotiate.

BANFIELD: If hundreds of you on Capitol Hill can't come to any semblance of consensus, I'm certainly not the going to achieve that here in this interview.

But I do thank you both for your perspective.

Can I just say for those people during the commercial break, who were not the privy to the cameras, you two look very friendly. You look very affable, like you'll go to lunch after the interview.

(LAUGHTER) (CROSSTALK)

BANFIELD: Shake. Go ahead, shake on camera so we'll feel good going into the weekend. Shake hands, make up on camera.

MCDERMOTT: I'll do that.

(LAUGHTER)

BANFIELD: Phil Roe and Jim McDermott, thank you both.

ROE: Thank you.

BANFIELD: And good luck to you and your colleagues.

Coming up after the break, there was, a brief break from all of this foolishness on Capitol Hill to something very serious. It was a shooting. It was a serious shooting and it sent Congressmen, staffers, and hundreds of others scrambling for cover. One woman is dead and her baby now in protective custody. What happened and did everything play out as it should have? That's coming up in a moment.

(COMMERCIAL BREAK)

BANFIELD: So we have some new developments in the Capitol Hill shooting to bring to you. Investigators say they found two different medications in the apartment of this woman, Miriam Carey. One of the medications was for schizophrenia and bi-polar disorder and the other medication was an antidepressant. Carey is the woman who was shot and killed by police after this simply remarkably dramatic car chase near the White House yesterday caught on cell phone video. You hear the gunshots. And when you hear them, and you think inside the car was a 1-year-old child, it is remarkable that child was unhurt physically. Her boyfriend, Miriam's boyfriend, told police she apparently experienced symptoms of mental illness.

Crime and justice correspondent, Joe Johns, takes it from there.

(BEGIN VIDEOTAPE)

JOE JOHNS, CNN CRIME AND JUSTICE CORRESPONDENT (voice-over): A heart- stopping scene unfolding outside the U.S. capitol. The dramatic moments caught on tape by a camera crew. Watch as a woman, reportedly 34 years old, speeds away in a luxury car, careening through the streets with police in hot pursuit.

(GUNFIRE)

UNIDENTIFIED LAW ENFORCEMENT OFFICER: Reports of gunfire on Capitol Hill.

If you are in an office building, shelter in place.

JOHNS: Officers, politicians, staffers and bi-s bystanders sent running.

UNIDENTIFIED LAW ENFORCEMENT OFFICER: Everybody get down now.

JOHNS: Hunkering behind whatever they could find.

Secret Service says the incident began at 2:14 after a verbal exchange with one of their uniformed officers. The woman ramming her black Infinity sedan into a security barrier about a block from the White House. After police asked her to get out of the car, she drove away leading them to a high-speed chase down Pennsylvania Avenue all the way to the east side of the capitol. Secret Service on her tail.

ED DONOVAN, SECRET SERVICE SPOKESMAN: This unauthorized vehicle approached the checkpoint. Our officers acted appropriately. The vehicle then fled and, in fleeing, struck one of our officers as it departed that initial scene.

JOHNS: The suspect drove around Garfield Circle, careening toward the capitol's east front, one of the most secure areas in the country. Just moments later, her car crashed outside the Hart Senate Office Building. Perceiving a threat, police opened fire. No weapons found inside the Infinity.

UNIDENTIFIED WITNESS: When I heard the gunfire about five or six rounds, my wife and I dropped to the ground.

DYLAN PRICE, WITNESS: I was walking towards the capitol building. About 30 seconds later as I hit this point, there was about three or four cop cars that sped past me. About another 30 seconds after that I heard a series of loud pops, guns going off.

JOHNS: Inside the vehicle, a 1-year-old girl, believed to be the woman's daughter. An officer pulled her from the car and took her to a hospital.

One of the two officers injured was hurt after hitting this barricade during the high-speed pursuit.

CATHY LANIER, CHIEF, METROPOLITAN POLICE: This does not appear to be in any way an accident. This was a lengthy pursuit, multiple vehicles rammed, officers struck, and two security perimeters breached.

JOHNS: Officials say both officers are in good condition and recovering as the city is still reeling from the navy yard shooting.

(on camera): The U.S. capitol police officer injured in the shooting has been released from the hospital. Miriam Carey's 1-year-old is in protective custody and in good condition.

Joe Johns, CNN, Washington.

(END VIDEOTAPE)

BANFIELD: And as we just saw the terrifying incident was all captured on various different cameras. I want to play again a piece of it so that you can significantly see where the mindset of the police may have been before the shots began to ring out because it's critical when the question comes up, were they justified it in opening fire? So have a watch.

(BEGIN VIDEO CLIP)

(GUNFIRE)

(END VIDEO CLIP)

BANFIELD: Take another look it at this video and you can see that the car is at the barrier near the White House being approached by Secret Service officers and that's when the driver decides to pull away and in doing so rams the marked cruiser behind her. At this point behind that obstruction, you don't know how close some of those officers came to being hit by the car. You could certainly hear the big thump when that happens. The speeding, of course, also takes into account that there were crowds of people. So there were a lot of people who might have been in the path of that speeding vehicle. You start to hear the gunshots and then you can see the car speeding away. At that point it is out of the camera's view where it ended up crashing into more barricades and we do not the have video to show you at this point where the woman who was the driver of the car ends up being shot to death by the Washington police.

I want to bring in CNN legal analyst and defense attorney Mark O'Mara.

You were one of the first people I thought of when I wanted to feign out your take on all of this. I think everybody who watches this network and many others knows that you argue justifiable shooting in the Trayvon Martin case and yet I was stunned to hear your take on this case. You don't think that the police were justified in shooting here, do you?

MARK O'MARA, CRIMINAL DEFENSE ATTORNEY & CNN LEGAL ANALYST: Well, first of all, I have to say I would be afraid to be a police officer. They put their lives on the line every day walking up to their vehicles, walking into buildings not knowing if they're going home that night if they're going to get shot. It's a difficult job to do, one that I would not be up to doing. However, when we look at any police shooting, we have to look at it in context. Had the police officers shot at her as they did when she first left the White House area and shot and killed her, it could have been a justified shooting because at that point there was an immediate occurrence. She was at least aiming to some of the officers with the car, a deadly weapon. And if it had happened during the chase, I think it also would have been a justified shooting.

Here is my concern. When the car was stopped, at that point, whether it's a national security interest to begin with or whether it's just now a fleeing felon, when that car is stopped and the woman got out, at that precise moment, if the police did not see an imminent threat to themselves, if she did not turn on the police did not see an imminent threat to themselves, if she did not turn on them, looked like she was going for a gun, something to, at that point, say the threat is ongoing and it is immediate and imminent, then maybe the police should have taken a breath, waited. She was running away from the area -- she was running away from Congress -- and seeing whether or not that continued. Unfortunately, as it turns out now -- and I know in the cold light of day it's easy to say -- we now know we realized an unarmed, no destructive device, a mentally ill woman probably reacting to her mental illness ended up getting shot when it may have been an occasion to take a breath or two and not shoot and kill her.

BANFIELD: Good point. Imminent threat. Your client, George Zimmerman, saw an imminent threat in the flash of a moment and he took action and shot. In the light of day he probably they ever would have done that knowing what he was dealing with. None of us was there. In this case can't we also say location, location, location? Imminent threat is different in Peoria than it is between the White House and the capitol with two injured police officers in the wake of this car.

O'MARA: Without question. We have the navy yard shooting and police are there on the good gracious because of the shutdown. Emotions are running high. Had there been a shooting that occurred, between the White House and Congress, at that point it's a national security event. I think without question and they have a heightened responsibility if not obligation to react.

My only concern is that when the car stops and when there's those few seconds where we empower police officers to use deadly force if and only if they have to that it may have been handled in a calmer way that may have avoided shooting a woman.

BANFIELD: OK, Mark O'Mara, stay there if you will. Thanks for those comments. I will get you to weigh in on another case in a little bit. Don't go away.

Police in New York say that they have identified one of the bikers who played a direct role in this now infamous video showing the beating of an SUV driver whose wife and baby are in the car. The latest details on the investigation plus the "Legal View" of what you should do if you're in that predictability and what the bikers should have done in their predicament next.

(COMMERCIAL BREAK)

BANFIELD: Good news into CNN. Alex Rodriguez, baseball giant, has filed a lawsuit against Major League Baseball. That New York Yankee slugger is suing the league and its commissioner, Bud Selig, alleging that they tried to destroy his career. You will probably remember that all of this comes in the wake of a-rod being suspended and not just a little suspension, a 211-game suspension for alleged violations of baseball's drug policies. Their agreement. He has appealed that suspension. So this is a separate issue. An arbitrator is going to decide if the suspension will remain intact, but that lawsuit has now been filed against the league and the league commissioner.

So now I want to take you through some video you've probably seeing a lot of playing on cable news. It happened in New York City. A lot of people called it a pack, a biker pack, some called it a gang. It was very violent. It involved a family in an SUV being surrounded and ultimately the driver being pulled out and beaten. What's critical here is when you break that video down and you show it in sequence, you might start seeing a legal argument that you didn't expect. Let me start right away with the very first thing that the video shows. And it is this. The biker in the blue is slowing down. He'll go in front of the SUV. He'll slow down and there will be a bump right there. That's the first incident. And you can see that clearly something has happened before. We do not know what it is. But they're surrounding this SUV and there is some and the antagonism going on and there's a bump.

Here's where it gets very strange. It's only 30 seconds later from that bump that the SUV is stopping almost right where you see it. The videographer has turned back and this is what happened. 30 seconds after that bump, that driver took off from that crowd. The driver, through his family, said this was a terrifying moment that he needed to escape from, but it was just 30 seconds after that initial bump that this actually happened.

So let's go to what the next issue is in sequence. The next issue is further along the road, they are stopped, and that biker tries to open the door. The door for some reason four minutes after that whole incident is not locked. That driver has his door unlocked. Four minutes after, apparently, he is so terrified he needed to escape from that congregation of bikers. You see what happens next. Doors opened. He takes off. As we all know, in Manhattan, let's go to frame four, because traffic gets very thick. Ultimately, there were not open roads. That SUV couldn't move. Another biker gets off, smashes in the windows. Other bikers besiege this SUV. Again, a baby in the back. They ultimately drag him out. The video stops. We don't have any more video. He's beaten. And that's that.

CNN analyst and defense attorney, Danny Cevallos, joins me to talk about this, as well as HLN legal analyst and criminal defense attorney, Joey Jackson.

Joey, everybody seems to think with all that violence, why wouldn't you flee and mow down everybody in your path. But all that violence happened a long time. I mean six, seven, eight minutes after.

JOEY JACKSON, CRIMINAL DEFENSE ATTORNEY & HLN LEGAL ANALYST: It did. And you no he what, Ashleigh, as exactly as you did it, I think exactly what will be the prosecution, what they do in terms of analyzing the video to see if there's any substance to potentially filing charges against the driver. It will turn on two things when a grand jury investigates the case. It will turn on the reasonableness of the conduct of the driver. Number two, the imminence of the threat. Did that driver act as a reasonable person would under similar circumstances who felt, did he have a reasonable fear and belief that he needed to protect himself by using deadly force to get out of there. If the answer to that question is yes, he'll be exonerated. If the answer is no, there will be charges forth coming

BANFIELD: I've made a big deal about the fact that after the initial bump, 30 seconds later this driver is so terrified allegedly mows down and injuries a number of bikers. Danny, if premeditation could be formed in a split second in a murder case, can't terror and fear also be formed in a split second? 30 seconds may be ample, maybe not. DANNY CEVALLOS, CRIMINAL DEFENSE ATTORNEY & CNN LEGAL ANALYST: This case demonstrates what a fine line there is for law enforcement between suspect and victim. This case is a perfect example. Just as Joey said, the law enforcement is going to look at the video and say was his apprehension of fear reasonable. Remember, in New York, and in any state, fleeing the scene of an accident is a crime and a potential felony.

BANFIELD: Even fleeing for your life.

CEVALLOS: That's the question. And that determination will be made by law enforcement when they decide who if anyone to charge, and oh, what a difference it makes just subtle things. You can't see that much on the video. So the question becomes --

(CROSSTALK)

BANFIELD: Witnesses.

CEVALLOS: Absolutely. Was that fear reasonable.

BANFIELD: We are going to talk about this at length more. But John Boehner has taken up a lot of this program with his news conference.

Thank you, Danny.

Thank you, Joey.

I appreciated that.

And thank you all for watching our coverage today. The government shutdown coverage on CNN continues right after this break.

(COMMERCIAL BREAK)

SUZANNE MALVEAUX, CNN ANCHOR: Welcome everybody. This is CNN NEWSROOM. It is day four of the shutdown showdown. I'm Suzanne Malveaux.

MICHAEL HOLMES, CNN ANCHOR: And I'm Michael Holmes. Thanks for you company.

The fierce verbal attacks, and let's face it, toxic atmosphere in the Washington that forced the government shutdown, well, kind of intensified today.

MALVEAUX: We heard moments ago from Republican leaders one after the other simply slamming the president as well as the Democratic Party. We heard from House Speaker John Boehner setting the tone now in Washington. Listen to this.

(BEGIN VIDEO CLIP)

BOEHNER: I was at the White House the other night. And listened to the president some 20 times explain to me why he wasn't going to negotiate. Sat there and listened to the majority leader in the United States Senate describe to me that he's not going to talk until we surrender. And then this morning, I get the "Wall Street Journal" out and it says, "Well, we don't care how long this lasts," because we're winning. Now, this isn't some damn game. The American people --