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ERIN BURNETT OUTFRONT

No Indictment for Officer in Chokehold Death; Protests Break Out in New York and Across the Country

Aired December 3, 2014 - 19:00   ET

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


ERIN BURNETT, CNN ANCHOR: OUTFRONT tonight, breaking news, a grand jury decides not to indict a white police officer in the chokehold death of an unarmed black man in New York. Reaction tonight around the country.

And in New York City police gearing up for major protests. We are live around the city for you.

And the president promised change in the wake of Ferguson. Now with another federal investigation underway, how will this time be different?

Let's go OUTFRONT.

Good evening. I'm Erin Burnett. And OUTFRONT tonight, breaking news, people across New York City gathering to protest a grand jury decision not to indict a white police officer in the death of an unarmed black man.

Their struggle is all caught on video.

Right now I want to show you live pictures of these protests. They are large and growing in response to the decision not to indict.

The story comes down to this. Cell phone video captured in July. What it shows is a 43-year-old man, Eric Garner, who he was suspected of selling cigarettes on a street in Staten Island when police moved to arrest him as you see there. Garner raised his hands in the air but he told officers not to touch him. And as you see they then tried to subdue him, including one, Officer Daniel Pantaleo.

You see him here. He is the one grabbing Garner in what looks like a chokehold, a tactic that is prohibited by the New York Police Department. Garner weighs 350 pounds, he was asthmatic, he had a heart condition. You can hear him there, saying, I can't breathe, I can't breathe, I can't breathe. He died. Police say Garner had a heart attack on the way to the hospital, he was declared dead there.

The medical examiner later ruled his death a homicide, but the grand jury decided not to indict. New York's police department is out in full force tonight in anticipation of major demonstrations. Day shift officers were placed on over time. There is an especially heavy police presence in Midtown where the annual Rockefeller Christmas Tree Lighting is scheduled to be broadcast across the nation within the hour.

We are covering this story from all angles tonight. Joe Johns lives in Staten Island near the site where Eric Garner was killed. Alexandra Field is in Midtown, New York. We begin, though, with Deborah Feyerick in Times Square.

And Deborah, what is the scene where you are?

DEBORAH FEYERICK, CNN NATIONAL CORRESPONDENT: Actually, you know what, Erin, we walked from Times Square. We're now close to Rockefeller Center. A lot of these demonstrators are trying to get to the tree lighting. They're yelling, shut it down, shut it down. You can hear them saying no justice, no peace, no racist police.

You can also see, Erin, just there are barricades that are set up. Can you what they're doing? They're basically penning people on to the sides, making it very difficult, and funneling everybody in the same direction to -- to try to keep crowd control. And they've set up a complete perimeter all around Rockefeller Center.

We couldn't get -- Radio City Music Hall, we couldn't get anywhere close to the tree lighting. The police were about three forward deep. We also have barricades that were set up. And they were moving those barricades so that's -- so as the protesters came, they were (INAUDIBLE) areas.

And they are -- and they are going to be here for a while. A lot of them older folks, students. From what I'm hearing that there are also going to be protesters coming out at 7:00. So there's going to be a second wave of all of this going on through the night, but as far as getting towards that Christmas tree, the police aren't going to let them pass -- Erin.

BURNETT: And, Deb, you know, I hear them behind you, I believe yelling no justice, no tree. I mean, this lighting of the Rockefeller Center Christmas tree will be broadcast around the nation. I know that many protesters want to get there. There are some who want to disrupt that.

What did police do to try to put a barricade up there?

FEYERICK: Yes. Absolutely, I mean, you can see, there is massive crowd control going on here. We even saw a corrections vehicle being brought in where they used to transport prisoners. We did not see anybody being put into that van but we are now approaching Fifth Avenue and the crowds were such that at one point they actually dispersed because everybody got lost and went in different directions.

So now everybody is close to Fifth Avenue. You can see some of the stores here and they're all lit up. You've got a combination of people who have come to see the tree lighting. They are not going to get anywhere near it but neither are the protesters, Erin. So a very fluid situation but the police right now definitely keeping everybody funneled and together and making sure they don't get near that tree. BURNETT: All right. Thank you very much, Deb Feyerick.

And the family of Eric Garner expressing their outrage over the grand jury's decision not to indict the officer who killed the 43-year-old father of six.

Joe Johns is OUTFRONT live in Staten Island where this incident happened.

Joe, what has the family said so far since the grand jury decision came down late today?

JOE JOHNS, CNN SENIOR WASHINGTON CORRESPONDENT: I think the reactions are about what you would expect, Erin, quite frankly. Yes, this is the place where a lot of people have been showing up. It's not quite as loud as where Deb Feyerick was, and not quite as boisterous, but people want to be heard.

I saw just a few minutes ago the New York Councilwoman Deborah Rose here speaking. Earlier, though, the father of Eric Garner came out here and he addressed this crowd very briefly. He didn't have a lot to say. He said he was hopeful that the federal investigation will give them a little bit more than what they wanted in terms of justice as it progresses.

But when I talked to him, he also expressed concerns that he didn't want anything here in New York to turn violent. He's concerned about that. He doesn't want people here to go through what his family has gone through since July when that altercation occurred out here in the street. Listen.

(BEGIN VIDEO CLIP)

BEN GARNER, FATHER OF ERIC GARNER: I don't want no reason for nobody to get locked up and go through the same (EXPLETIVE DELETED) that we have all of the time.

JOHNS: What do you think happens next? Have you talked to the lawyers a little bit about, you know, where --

GARNER: Well, the feds are going to take over.

JOHNS: And you are hopeful that the federal government --

GARNER: Yes. I'm quite sure they'll give us the right decision.

(END VIDEO CLIP)

JOHNS: Now the widow of Eric Garner has also spoken out. She was spoken to apparently on the telephone by one of the local newspapers and here is what she said in part. "Oh, my god, are you serious? This was apparently a reaction to learning the news of what the grand jury had decided." She said, "I'm very disappointed. You can see in the video that he was dead wrong." That's referring to the officer involved in the altercation. "The grand jury kept interviewing witnesses but you didn't need

witnesses, you can be a witness for yourself. Oh, my god, this is," and then used an expletive, "Apparently, this is crazy" -- Erin.

BURNETT: All right, Joe Johns. Thank you very much.

And now our political commentator Marc Lamont Hill, our legal analyst Sunny Hostin, and Roorda who works for the City of St. Louis Police Officers Association. Joining me on the phone is Michael Skolnik, the editor in chief of GlobalGrind.com. He's marching with the protesters tonight.

What I want to do, though, here first is I want to play that video. I have to tell you, no matter what you think about it, it is hard to watch. Brought tears to my eyes, as I watch it again and again.

I want to play it, I want to play it with the sound up so everyone around the country who hasn't seen this before can see it, get your own point of view and then we're going to talk about it. Here it is.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: Hold on.

ERIC GARNER, VICTIM: Don't touch me. (EXPLETIVE DELETED). Don't touch me. (EXPLETIVE DELETED) .

(CROSSTALK)

UNIDENTIFIED MALE: Damn, man.

UNIDENTIFIED MALE: All right, stop, stop.

UNIDENTIFIED MALE: Let me see your hands, buddy.

UNIDENTIFIED MALE: Put your hands behind your head.

E. GARNER: 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 MALE: Once again, police beating up on people right here.

UNIDENTIFIED MALE: Back up. Back up, and get on that step.

UNIDENTIFIED MALE: OK.

UNIDENTIFIED MALE: Back up.

(END VIDEO CLIP)

BURNETT: As I said, that is hard to watch. No matter what you think of it. It is incredibly difficult to watch and what happened before you saw that was a back and forth where Mr. Garner is talking to the cops and basically saying, leave me alone, you guys are always arresting me. He did have an arrest record for a petty crime. In this case they

were saying he was trying to illegally sell cigarettes.

Sunny, you're a lawyer. You watched that videotape from start to finish. You know the charges. Were you surprised the grand jury chose not to indict?

SUNNY HOSTIN, CNN LEGAL ANALYST: I was absolutely stunned. I mean, when you look at the videotape, what else do you need? Clearly to me you see excessive force, you see an overreaction from the police department, and so many people, Erin, are talking about the fact that he was resisting arrest.

I mean, this officer took him down with a chokehold from behind when his hands were actually up. So what I see when I see the videotape is I see an unarmed man who is being nonaggressive, a chokehold which is a banned practice. I hear Eric Garner saying, 11 times, 11 times, I cannot breathe.

I know that a medical examiner ruled it a homicide. It's all on video. We see him die. Yet no one is held responsible. There is no indictment. I mean, I see an indictment of our legal system at this point. This just doesn't make sense to me. I'm still stunned.

BURNETT: Jeff, I mean, when you look at it, it is hard to really understand how this possibly could have happened. Again, this is a conversation where he's saying hey, guys, leave me alone. Leave me alone. I mean, he's obviously -- it's not just that he's unarmed. He's not even being aggressive. Should the officer been indicted?

JEFF ROORDA, BUSINESS MANAGER, CITY OF ST. LOUIS POLICE OFFICER ASSOCIATION: Well, clearly Mr. Garner didn't want to submit to arrest and the officers are left with a decision, how do we take this gentleman into custody using the least amount of force necessary. They chose to use open-hand tactics and sometimes even nonlethal force has a bad outcome. We've seen people tazed that have unfortunately died.

I mean, the lesson to learn in Ferguson and New York is comply to police. If you don't like the outcome, you have -- you'll have your day in court. But -- I mean, these are very unfortunate outcomes that could have been avoided.

BURNETT: So this means, Marc Lamont Hill, if you take -- if you take that argument, you're not even able to have a conversation with them, which is what he was doing before the man came up from behind him, as Sunny pointed out, put him in the chokehold.

MARC LAMONT HILL, CNN POLITICAL COMMENTATOR: I mean, that's the problem here. Should you resist the police? No. Fine. Should you sell loosies on the street? No. Fine. But the lesson here apparently is that if you are black and outside, it can be a capital crime.

The police use -- did not use the least -- the path of least resistance here. They came up behind him and choked him out, and we all saw it out on videotape, and now we are having a conversation about how what we saw isn't what really happened here.

What we see consistently with the case of Michael Brown, what we hear and see with Eric Garner, with Oscar Brandt, well, the list is so long, Renisha McBride, is the extrajudicial killing of black bodies in public space. Yes, some people commit crimes. No people aren't perfect. But you don't have to be perfect not to die at the hands of law enforcement. And that's what we saw here. And that's why so many people's hearts are broken.

I'm up here in Harlem in front of the National Action Network and people aren't just angry. They're heartbroken. They're devastated. And I just, Sunny, only slightly, I agree with her analysis completely. But I can't even say that I'm surprised and stunned. After Michael Brown, this is exactly what I expected.

BURNETT: Sunny, in terms of the grand jury, there were 14 white members, there were nine non-white members. That was the breakdown of this grand jury in Staten Island. In the county where this happened, the population overall 78 percent white, 12 percent black. Do you think that that played a part in this?

HOSTIN: You know, without more transparency, quite frankly, with this grand jury, without knowing how it was presented to the grand jury, I can't definitively say that. We do know that in New York -- and I'm a native New Yorker, Erin -- that Staten Island is the most conservative borough. It is predominantly white.

And we do know also that New York City has a history of terrible police practices, including the stop and frisk that a federal judge has found to be in excess. Interestingly enough in September our Police Commissioner Bratton told the city council that officers are too aggressive when policing minority neighborhoods. So we do know that there is a racial component whether or not that component was part of this grand jury decision, I just -- I don't know.

But I do know that there must be a special prosecutor, quite frankly, when you have police officer-involved shootings or deaths. You must have it. Because you can't expect prosecutors who have a very close relationship with police officers to present grand juries case.

BURNETT: And Jeff, when we look at that video and you see the officer, Pantaleo, who has not been indicted, come up behind Eric Garner, put his arm around him in that -- in that chokehold and then you hear multiple times Eric Garner saying, I can't breathe, I can't breathe, but they don't remove the chokehold.

How is that defensible? I know it's hard; you weren't there, but when you saw it, what did you think about that?

ROORDA: Right. Yes. You're right. I don't claim to know as much about this case as I do the Michael Brown case. And Sunny shouldn't pretend like she knows that are some sinister things going on behind closed doors in the grand jury just like I don't pretend to know what evidence was presented there. I mean, those grand jurors heard the evidence and they deliberated and they reached a verdict, and that's how our system works. I hope that the prosecutors in New York release information from the

grand jury proceedings so we can have the same sort of transparency we did in St. Louis. But that didn't do anything here to keep the crowd response from developing to terrible violence.

BURNETT: Of course, we -- all eyes are on New York City tonight as these crowds gather.

Thanks very much to all three of you.

And next we are live on the streets of New York. Protests around the city are growing by the moment. Heavy, heavy police presence on hand.

Plus we are standing by in Harlem, the family of Eric Garner will be joined by the Reverend Al Sharpton. The first time we will hear from the family since the decision.

And one minute he was allegedly selling cigarettes illegally on a street corner. Less than an hour later Eric Garner dead at the hands of police.

Ahead, who was Eric Garner?

(COMMERCIAL BREAK)

BURNETT: Breaking news. Protesters gathering across New York City and across the nation tonight after a grand jury decided not to indict a white police officer in the death of an unarmed black man. New York City police officers are out in full force tonight in anticipation of huge crowds.

We are standing by for two major press conferences. The attorney general of the United States, Eric Holder, is about to address the grand jury's decision, and the Garner family, Eric Garner, the man who was killed, his family will make a statement. That is all coming up. We are awaiting both of those. The minute they start we're going to bring them to you live.

But the fatal encounter that led to all of this was caught on tape. Eric Garner raised both of his hands, officers put him in a chokehold, as you can see. The officer from behind him, Pantaleo, put him in that chokehold. He was pulled to the ground. The medical examiner later ruled Garner's death a homicide. The grand jury heard that as well as other evidence and decided the officer, though, would not be charged.

OUTFRONT now, our legal analyst, Paul Callan and Sunny Hostin, former NYPD police officer Harry Hawk, and CNN political commentator Marc Lamont Hill, who is live in Harlem where the family will be shortly addressing the nation.

All right, Harry, let me start with you. When you watch the video, you can see this incident -- really accelerated very quickly. I mean, there was a conversation. He started saying leave me alone. You guys are always picking on me. Frankly, a pretty harmless conversation. Then all of a sudden a guy comes from behind him. Officer Pantaleo puts him in a chokehold, they're down on the ground. And he's saying, I can't breathe, I can't breathe.

HARRY HOUCK, FORMER NYPD OFFICER: Right.

BURNETT: Appropriate use of force?

HOUCK: Certainly, because what he's doing now is resisting arrest. When a police officer tells you, you're under arrest, you are supposed to comply. OK. Not only this man didn't comply when the officer -- when they saw him starting to get a little restless, all right, the officer came behind him and basically that's not a chokehold.

I used to wrestle, that's not a chokehold. All right? That is a kind of hold we can take a large man like that down. All right? And when he was screaming down when he was on the ground that he couldn't breathe, if he was in a real chokehold, he would not even be able to say that because what it does is it crushes your throat here. And it cuts off the blood.

BURNETT: So you're saying, a real chokehold would have been worse?

HOUCK: A real chokehold, yes. If it was a real chokehold, but it was not.

BURNETT: All right. When you see it, Paul, a real chokehold?

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

BURNETT: Distinction without a difference?

CALLAN: Well, it makes a big difference because obviously NYPD regulations prohibit police officers from using chokeholds. By the way, the chokehold is not illegal in New York, but the cops say we don't want you using it because it's a dangerous kind of hold.

I don't have the expertise to characterize whether that was a chokehold or not. I do have to agree, though, that this was a suspect who was placed under arrest and they have -- the police have the right to put the cuffs on him and take him into custody.

BURNETT: OK. But, Sunny, the minute he starts --

(CROSSTALK)

BURNETT: Yes. Please go ahead.

HOSTIN: You know, I think we're playing semantics with words, as to chokehold or not chokehold. The bottom line is, when you look at the medical examiner's report, the medical examiner found and ruled death by homicide, compression of neck, chokehold, compression of chest and prone positioning during physical restraint by police.

And so, you know, I think we're sort of getting in the weeds in terms of whether or not this was a chokehold, whether or not it wasn't. I do believe when I look at it from a -- former prosecutor's perspective, it is clear to me that that was the use of excessive force. I don't know, and I'm sure, Officer, you're going to disagree with me,

when you talk about resisting arrest, I've seen a lot of resisting arrest cases. We're talking about a man that had his hands up that is saying, you know, don't touch me. I don't think you can say that it's not excessive for an officer to come up from behind, choke him, use a tactic that has been banned by police procedure -- in police procedure and somehow say that that was an appropriate use of force. I'm sort of surprised at that.

BURNETT: How do you -- OK.

HOUCK: Let me say something. First of all, what a lot of people don't understand is that man was a big man. OK. Now I'm a big guy, all right. 6'4", 220 pounds, and I worked up in Harlem back in the early '80s. OK. Now, when you're going to take a guy like that down, the only way you can take him down is by the neck, all right. Unless you want me to beat him with a night stick.

BURNETT: But he's -- I mean, those guys were all in great shape.

HOUCK: It doesn't matter.

BURNETT: He was overweight and clearly not a fighter.

HOUCK: Erin, Erin, I've had cases where little guys and four or five guys like me couldn't handcuff the guy.

HOSTIN: But why do you have to take him down? What about the escalation of force? Why didn't that occur here?

HOUCK: The law clearly states, and as you do know, also, Miss Prosecutor, OK, that a police officer may use what force he needs to effect a legal arrest. OK. Once the police officer started to feel themselves in danger by saying, you know, get away from me, why are you guys always bothering me, all right. You've got to take this guy down. All right. He could have just turned around, he could have just turned around and put his hands behind his back and got handcuffed and he'd be alive today.

HOSTIN: Was he being -- was he being aggressive?

HOUCK: Of course that's being aggressive. All right. Of course that's being aggressive. If you have a police officer working the street, OK, and you don't know now what's he going to do? Pull out a knife? Was he going to pull out a gun? You don't know as an officer what that man is capable of doing against you.

BURNETT: OK. So let's have a little bit of context here.

Marc Lamont Hill, we know that he had been arrested more than 30 times most of it for petty crimes. At least to my knowledge, and none of those times was he armed, these officers sort of knew him, being armed, I don't really believe was a question here, was it?

HILL: Being armed wasn't a question and his police record wasn't necessarily a question. We know that now and the police officers didn't have the benefit of that information when they were standing there. And again, I'm no law enforcement official but I do think that it's difficult to reach for a gun or a knife with your hands in the air.

We somehow lock ourselves into a choice now -- the officers had to choose between beating him with a night stick or choking him to death, and I'm saying, perhaps as a third option, they do neither. We're somehow deciding what Eric Garner could have done differently. And surely he could made a different choice. He could not have left the house that morning. Everyone could have made a different choices. But in that moment, selling loose cigarettes with his hands in the air, saying, why do you guys always bothering me, should not subject him to lethal force.

BURNETT: So --

HILL: Well, this isn't a chokehold. It's just a hold that we're using where he's choking. It's to me, again, is semantics here.

BURNETT: Right. So let's put the word aside for a second here. But let me ask you about this. When he's on the ground and he -- what appears to most surely a chokehold, you're saying it isn't. OK. Again forget the word.

HOUCK: Right.

BURNETT: He's on the ground. He says I can't breathe. He clearly is having trouble breathing, and they push his head into the ground. Why not release him at that point?

HOUCK: He's probably -- first of all, he's probably -- first of all, you got to get the man handcuffed. All right. You can't just release him now.

(CROSSTALK)

BURNETT: But he's like, I can't breathe, why would you not just back off for a second?

HOUCK: And what do you think? The guy is going to run away. Now you're going to have to take him down again? All right. Just because he says he can't breathe.

BURNETT: OK.

HOUCK: When you say you can't breathe, you're breathing. A lot of people don't understand that. But you are breathing when you say you can't breathe. All right.

CALLAN: Y, Erin, I think --

BURNETT: Paul, are you shocked by this decision when you put it altogether? Or not?

CALLAN: Listen, I was shocked by the videotape when I first saw it. And -- because it clearly looked like excessive force. However, when you started looking into the back story, and you start speaking to police officers, they do say, listen, he was being arrested, it was a lawful arrest, and unlike what Marc Lamont Hill just said, that he had his hands up in surrender, he didn't have his hands up in surrender. His hands were like saying, you're not --

BURNETT: Back off. Back off.

CALLAN: Back off.

BURNETT: Leave me alone, sort of, right.

CALLAN: And he said -- well, the things he says in the tape is, you've harassed me before and it's going to stop today. Now that sounds like to me someone who's saying, I'm going to resist you, and he does that by putting his hands up. But all of that aside, all right, the thing that's most troublesome to me about what happened.

BURNETT: Yes.

CALLAN: Is the thing about him saying he cannot breathe. I understand they have a right to bring him down. But when he is saying, please, I can't breathe, I can't breathe, it seems to me you could say that it's reckless conduct not to accommodate him, if he's having trouble breathing and certainly a 400-pound guy on the ground, it's not surprising that he would have that problem.

And I just want to focus on one other thing because we talked about the chokehold, and people are saying, how could the grand jury not have indicted in this case? The autopsy says cause of death, chokehold, suspect in prone position. Well, that means the suspect was on the ground. Well, there's nothing illegal about a cop putting a suspect on the ground. That's standard operating procedure. And chest compression.

So I suspect the grand jury was saying well, we can't indict one cop who allegedly did a chokehold when maybe because he was on the ground that he had chest compression was the cause of death. So the medicine here is not as clear-cut as people would like to have you believe.

BURNETT: OK. All right. Please stand by, all of you.

HOSTIN: (INAUDIBLE).

BURNETT: Right. Yes. As I know many do.

HOSTIN: I think it's pretty clear.

BURNETT: Many on the streets obviously of New York tonight. But next we are standing by. We've got these two live news conferences. We are expecting a statement from the attorney general of the United States, Eric Holder. Also the Garner family is going to speak on today's decision not to indict an NYPD officer on the chokehold death of Eric Garner.

We are waiting for both of those live events. One live here in Harlem and one of course in Washington. Plus the death of the unarmed black man is now the focus of civil

rights protests, just days after the Ferguson protests began. Who was Eric Garner? We'll have a full report.

(COMMERCIAL BREAK)

BURNETT: Breaking news and welcome to our viewers in the United States and around the world.

You are looking at a live picture right now of where -- of New York City, these are protests that re going on as we speak. Mass, mass crowds have been gathering here in New York in response to a verdict -- an indictment, a choice not to indict a white police officer in the death of an unarmed black man.

We also want to show you Attorney General Eric Holder. He will be speaking live hopefully in moments at that podium you see there. Eric Garner, the unarmed black man who was killed when that police officer put him in a chokehold is expected to speak any moment now in Harlem. His family will be speaking.

And we want to update our viewers on this breaking news story.

Earlier today, a grand jury in New York cleared the white police officer in the death of Eric Garner. Again, Eric Garner was not armed.

We are seeing heavy police presence here in New York City Times Square and Rockefeller Plaza, that's where the Christmas tree lighting will be taking place this hour, broadcast around the nation. We are monitoring reports on social media that protesters intend to shut that lighting ceremony down.

And right now, as we're getting ready for the attorney general of the United States to speak, I want to bring in Van Jones, Paul Callan, L.Z. Granderson and Sunny Hostin.

Van Jones, let me begin with you -- shocked, surprised or neither about this decision?

VAN JONES, CNN POLITICAL COMMENTATOR: Actually, shocked. If this was OK, something is desperately wrong with our country. If this is OK for a man to be choked to death over selling cigarettes and I don't care -- you have that Orwellian double speak from law enforcement, it is very bad for law enforcement to come out and defend that kind of thing. Come out and say maybe he was within his rights.

But what kind of judgment are you showing as an officer when you have a big man on the ground and choking him and he said he can't breathe and you don't give him any relief. That is unlawful. It's excessive force, but also just so inhuman and horrible.

We have to have an honest conversation about what is human life?

Listen, I'm from a law enforcement family. My dad was a cop in the military. My uncle is a police officer. I don't want any cop to get hurt.

But at a certain point, you keep lowering the standard. This officer has already been sued before and he's cost the city $30,000. He was using a technique that was outlawed -- banned in the department, and you are still defending him and this man is now dead.

This is the kind of thing that has to stop.

BURNETT: Sunny, what can the attorney general say? And I think for people around the world to understand the significance of this moment, that the attorney general of the United States is about to speak, as darkness is falling and crowds are gathering in New York, on the back of another grand jury deciding not to indict a white police officer?

SUNNY HOSTIN, CNN LEGAL ANALYST: Well, you know, I think it is significant and it is significant that he is likely to say that there is a federal investigation underway into this death. We have seen historically successful federal investigations and prosecutions after unsuccessful state investigations and prosecutions. We saw it in Abner Louima. That's right. You saw it in Rodney King.

(CROSSTALK)

BURNETT: It hasn't happened with Trayvon Martin.

HOSTIN: It hasn't happened but I think, you know, historically, it has been successful. So, I think that will give people some relief. And I also think he needs to set the tone because we know people are fed up. This is a continuum now we are seeing. We saw Trayvon Martin. We saw Jordan Davis. We saw Eric Garner. We saw Michael Brown.

I mean, the list goes on and on and on. And as a community, for people of color, as the African-American community looks on and on and on, we are looking for real leadership here in terms of law enforcement and let's remember, he is our chief law enforcement officer.

BURNETT: For the United States.

And, L.Z., what is the significance of the attorney general speaking tonight? And does it show hesitation, perhaps uncertainty at the highest levels of the U.S. about what the reaction on the streets might be to this grand jury decision after what we saw in Ferguson last week?

L.Z. GRANDERSON, CNN CONTRIBUTOR: I think it is very important for Eric Holder to make sure that once he gets done talking about the emotional part of people's response to this, that he makes very clear some definitive steps that the federal government can take. And not just addressing what is happening here in Staten Island, but again, nationally.

We've said this time and time again, this is an American problem, it is not a Ferguson problem. It's not a Staten Island problem, it is an American problem. So, it is important for him to lay out some very concrete steps that are going to happen next so that people know this isn't about rhetoric but about action.

BURNETT: How are they going to, Van, though, make the point about rhetoric and not about action? You know, you have the president of the United States, he said this is going to be different this time. But this is now at least the third time that the world has very publicly seen this sort of thing happen?

JONES: Well, I think we've got to deal now with the fact we have a lack of checks and balances here. Any human system with no checks or balances tends toward corruption and abuse. That's true -- that's why you have meat inspectors, that's why you have building inspectors, but not because you hate butchers or you hate construction workers, you just have to have somebody overseeing.

What's happening now is that you have police and prosecutors policing themselves. The federal government has to step in. Until someone goes to jail and has handcuffs put on them, there will be an atmosphere of impunity.

Everybody is concerned about lawless protesters tonight. I am too. But I'm also concerned about lawless policing. And when you send a signal you are more concerned about the protesters and they've got to obey the law, then you are concerned about police obeying the law, that is a very dangerous road for a country to be on. A very dangerous road.

BURNETT: And, Paul -- all right, and Eric Holder is coming out to speak. Let's us listen to the attorney general of the United States speak live.

ERIC HOLDER, ATTORNEY GENERAL: Good evening.

I want to update regarding the case involving Eric Garner, a Staten Island resident who died tragically in July of this year. Since Mr. Garner's death, the United States attorney's office for the eastern district of New York, the civil rights division and the Federal Bureau of Investigation have been monitoring the local case closely while allowing the local investigation led by the district attorney's office in Staten Island to proceed first.

Earlier today, the grand jury declined to return an indictment in this case. Now that the local investigation has concluded, I'm here to announce that the Justice Department will proceed with a federal civil rights investigation into Mr. Garner's death.

This afternoon, I spoke with the widow of Eric Garner to inform her and her family of our decision to investigate potential federal civil rights violations. I've also been in touch with President Obama as well as Mayor De Blasio regarding our decision.

Prosecutors will conduct an independent, thorough, fair and expeditious investigation. In addition to performing our own investigative work, the department will conduct a complete review of the material gathered during the local investigation. Now, we've all seen the video of Mr. Garner's arrest. His death, of

course, was a tragedy. All lives must be valued. All lives. Mr. Garner's death is one of several recent incidents across our great country that have testified the sense of trust that must exist between law enforcement and the communities they are charged to serve and to protect.

This is not a New York issue. Nor a Ferguson issue alone. Those who have protested peacefully across our great country following the grand jury's decision in Ferguson have made that very clear.

As a brother of a retired police officer, I know in a personal way about the bravery of the men and women in uniform who put their lives at risk every day to protect public safety. The vast majority of our law enforcement officers perform their duties honorably and are committed to respecting their fellow citizens' civil rights as they carry out their very challenging work. It is for their sake as well that we must seek to heal the breakdown in trust that we have seen.

Early this week, I traveled to Atlanta to begin a series of interactions to begin this process and officials around the country and at every level of the United States department of justice will continue this vital ongoing work. As the Justice Department's independent investigations into the deaths of Michael Brown and Eric Garner proceed, I will continue these conversations as we seek to restore trust, to rebuild understanding and to foster cooperation between law enforcement and the communities they serve.

Now I know that substantial numbers of people in New York and across the country will be disappointed and will be frustrated by the outcome of the state grand jury proceedings today. I know many will plan to voice their disappointment publicly through protests.

This is the right. This is the right of all Americans. But as I have said before, throughout our history, the most successful movements have been those that adhere to the principles of nonviolence.

I urge all of those inclined to demonstrate tonight and in the days ahead, to remain peaceful in their demonstrations and not to engage in activities that deflect our attention from the very serious matters that our nation must confront. Thank you.

BURNETT: And that was the Attorney General of the United States Eric Holder announcing that the Justice Department is going ahead with a -- a federal investigation into whether civil rights were violated in the Eric Garner death.

Sunny, I know you expected him to do that.

HOSTIN: Sure.

BURNETT: His choice to do so tonight in prime time live as protesters are gathering shows -- as he talks about he wants nonviolence, a fear that that is not how things would go?

CALLAN: Well, no question about it. I mean, remember, we're right on the heels of Ferguson where we saw the rioting, where we saw looting, where we saw the fires, where we saw actions that we don't condone, of course, but actions that reflect a true frustration and disenchantment with the justice system. And so, now, we are seeing this again.

And it's smart I think to set the tone to explain that the federal government is now looking at this but to explain that while protesting is your right as an American, it's your constitutional right, you've got to do it peacefully.

BURNETT: Paul Callan, the last time a police officer was charged with a chokehold in 1994. That officer was quitted in state court. The federal system went ahead with a charge, ended up charging him to seven years in prison.

Could that happen to Daniel Pantaleo, the officer who today, the white officer who was not indicted?

PAUL CALLAN, CNN LEGAL ANALYST: Yes, in that case, the Baez case is directly on point, very, very similar to this case. Baez was overweight, he was subdued by a police officer in the Bronx who used a chokehold and he died as a result of it. He was indicted, tried before a judge in the Bronx and the Bronx judge found him not guilty. The federal government indicted for civil rights violations, his name was Officer Livoti. He was convicted. He went to federal prison, sentenced to seven and a half years --

BURNETT: So, you think there's a real chance, the fact it happened in this case --

(CROSSTALK)

CALLAN: Absolutely, a chance. This was directly on point, the Baez case. And, by the way, there was a civil suit of $3 million was awarded to the family of the deceased. So, there's precedent.

But bear in mind, I don't know all of the facts in this case and nobody in this room knows because the grand jury heard the case for three months. We saw the film, which is about, what, a 30-second film, a one-minute film. I'd like to know what else the grand jury heard before we lift to conclusions. And I don't know if we've heard from the D.A. Donovan, yet. He's got a reputation as a straight shooter and an honest guy. I want to hear what he has to say about what kind of a presentation was made to this grand jury.

BURNETT: All right. We're going to talk more about this in a minute.

For so many watching, you watch the video, you say is there anything more you need to see? The grand jury did. They were looking at this for months.

Next, we are standing by for the family of Eric Garner, the unarmed black man who was killed in the chokehold, they are expected to speak after the grand jury decided not to indict the NYPD officer in his death.

We are also watching protesters gather in New York City tonight with their arms up as you can see in that video that Eric Garner's were. Of course, the context of his hands, whether they were up in surrender or not is very important.

We'll be right back.

(COMMERCIAL BREAK)

BURNETT: Welcome back to our viewers in the United States and around the world. Our breaking news tonight: a grand jury has decided not to indict an NYPD officer in the July chokehold death of Eric Garner. This was all caught on video tape.

Now, for about who Eric Garner is, now the 43-year-old died, Joe Johns is OUTFRONT.

And, Joe, I know you have been there in Staten Island where the decision came down, just near where Eric Garner was killed this summer. People are very upset there.

JOHNS: Yes, I think you can see, this is the street side memorial that popped up at the place where the fatal altercation occurred back in July. Eric Garner's father was out here a little while ago calling on the crowd to remain calm, calling for nonviolence as the city continues to react to the grand jury decision.

(BEGIN VIDEOTAPE)

(CHANTING)

JOHNS (voice-over): Tonight, New Yorkers take to the streets to protest a grand jury's decision not to indict Police Officer Daniel Pantaleo over his actions in Staten Island in July.

MAYOR BILL DE BLASIO (D), NEW YORK CITY: It is a very emotional day for our city.

JOHNS: The outrage is all a result of Garner's altercation with police that was videotaped by a bystander.

ERIC GARNER: Don't touch me. Don't touch me.

JOHNS: Cries from Eric Garner, a 350-pound black man, and father of six, who was taken down by police, suspected of selling cigarettes tax-free.

Pantaleo put Garner in a chokehold, a move prohibited by the NYPD.

GARNER: I can't breathe. I can't breathe.

JOHNS: Moments later, Garner who suffered from asthma lies limped in the pavement. He's taken away on a stretcher and later declared dead at a nearby hospital. The New York City medical examiner ruled the death a homicide. The cause of death was, quote, "compression of neck, chokehold, compression of chest and prone positioning during physical restraint by police. JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: This was an arrest for an

extremely minor crime and it certainly seems to many people the police should pay a price for that kind of arrest ending in a death.

JOHNS: Following the grand jury decision, Officer Daniel Pantaleo released a statement extending his condolences to the Garner family. Quote, "It is never my intention to harm anyone and I feel very bad about the death of Mr. Garner."

It's a case that's drawing parallels to Ferguson, Missouri, where fiery protests erupted less than two weeks ago after a grand jury did not indict a white police officer, Darren Wilson, after he shot and killed the black unarmed teenager Michael Brown.

New York City Mayor Bill de Blasio promises a full airing of the facts by both the NYPD and the federal government. Eric Garner's mother called for calm.

GWEN CARR, ERIC GARNER'S MOTHER: I won't want them to tear up the town, but, you know, this has to stop.

(END VIDEOTAPE)

JOHNS: People obviously want to know more about how the grand jury reached the decision, but the district attorney, the prosecutor, here says he can't release any more information until he has a court order because grand jury deliberations are secret. He has asked for that order -- Erin.

BURNETT: Joe Johns, thank you very much. And we are standing by for Eric Garner's family. We are expecting them to speak at any moment in Harlem. We are awaiting that. You are looking at a live picture.

We're going to be right back with that, after this.

(COMMERCIAL BREAK)

BURNETT: These are live pictures here in New York City. This is Columbus Circle, one of the main circles in the city. Time Warner Center where CNN is, is right on the side of this circle. On the other side, you have Central Park, really the gateway to the west side and all of midtown.

You can see protesters coming through. Traffic obviously affected by this. It's an incredibly heavy police presence in New York gearing up for this protest.

Paul Callan, as you start to see these crowds gather and gather, it's worth reminding people what's at stake tonight. That the importance of all of this remaining peaceful, under control, there not being altercations between police and protesters.

CALLAN: Well, yes. We do know when you get the destructive behavior by crowds that it doesn't accomplish anything. It's not going to increase the likelihood of a federal indictment. It accomplishes really nothing and everybody has the right to express opinions. And peaceful demonstrations are a good thing in this country but they have to stay peaceful.

BURNETT: Michael Skolnik with the Global Grind is actually outside where you are looking right now in Columbus Circle marching.

Michael, what is -- what is the goal? What is happening down there?

MICHAEL SKOLNIK, GLOBAL GRIND (via telephone): Look, I wish I could be up there with you guys but I have to be with the incredibly young people who are marching in the city. Young and old, kids, older folks exercising their First Amendment rights, a lot of pain happening right now. A lot of folks are upset and trying to express that in a peaceful way. We're marching in the city and so far, everything has gone OK.

It's a very difficult for a lot of people and certainly for the Garner family, which we extend our love to, and we're going to march in this city as long as we can and show that we will not stand for injustice.

BURNETT: Michael, where are you going? What is your plan? Obviously, we can see that some of the crowd just moved through Columbus Circle now. I guess, tell me exactly where you are headed.

SKOLNIK: We are headed, right now, below you guys, and we are about 500 of us traveling walking west at the moment but we will be going through the city by showing the entire city that we're deeply disappointed with the decision of the grand jury and won't stop until we get justice.

BURNETT: Paul, when you hear Michael say this and he's down there leading this, 500 people in this one part of New York City. For people to understand there are protests in Times Square and Staten Island, many places of this city tonight. What is -- what do you see when you see these crowds going through traffic at this point? Obviously not in any sort of crowd controlled zone.

CALLAN: I'll tell you, the thing I find about it, and I find to be most disturbing about it is we've got a system in the country that has been working for, you know, since 1776, I suppose, you know, when the revolution started and it's based on this idea that we have a grand jury that's reflective of the community that looks at cases to decide whether charges should be brought or not.

Now, the system fails sometimes and it fails horribly sometimes. But I don't know what a better system would be. Who would decide whether an arrest was made, the mayor? The governor? Somebody else, some political figure? Certainly not the crowd in the street.

I think in the end, I want a system where ordinary citizens are listening to evidence and making a decision, the best decision they can. That's the system we have now. It makes mistakes but hope in the end it gets it right in this case.

BURNETT: Michael, how long do you plan to be out there tonight?

SKOLNIK: Look, to the gentleman's point, that is no excuse not to fight for a better system. The fact that you may have the best system in the world doesn't mean you can't fight for a better one. Young people, black and white, we fight until the day we die for a better system in this country until we have the best system all across this world.

It's absolutely no excuse not to exercise our First Amendment right in our Constitution, to grievances against our government, and willfully and peacefully assemble, and that's what we're doing tonight and we'll continue to do it until justice serve of Eric Garner, Mike Brown and all of the young people who (INAUDIBLE) across this country.

CALLAN: But, you know, what is the better system? It's easy to say we could have a better design. We've got to design one and I'm not hearing a suggestion about how we make it work better. I mean, we can train the police better and New York certainly tried to do that. We're banning the chokehold in New York. It's illegal in terms of police regulations. The law hasn't made it a crime in New York.

In a lot of states, by the way, it's still being trained. Police officers are trained to use the chokehold. So, maybe this case will send a message to other parts of the country that it shouldn't be used at all if it is used. So, there are lessons that are going to be taken from this case.

But in terms of the criminal justice system and how we make it work better, you know, it's a system of human beings and we just have to work with the system and structure we have to make it reflect everybody's sense of justice.

BURNETT: All right. One thing we know tonight is that there are many, many people, thousands, hundreds of thousands, perhaps millions who feel disenfranchised, they have they are not being heard. You heard the attorney general of the United States speaking live this hour calling for calm tonight, saying there is now a federal civil rights investigation into this case as the protesters are gathering and marching here in New York City, the world will be watching.

Thank you so much for joining us tonight. We have much more of our breaking news coverage continuing right now with "AC360."