you tomorrow night we're going to have some of the business owners, live, studio audience edition hope you'll joins us for that. that is all the time we have left tonight. thanks for joining us we'll see you back here tomorrow night. the royale factor. people need to know that black lives and brown lives matter as much as white lives. >> the mayor of new york actively undermining his own police department. tonight, the former mayor of gotham rudy giuliani will analyze. >> from looking at the video, the grand jury's decision here is totally incomprehensible. >> charles krauthammer, me, judge knap, all agree justice may not have been served in the eric garner case. we'll continue our reporting tonight. also ahead, the controversy over criticism of the first children and bernie goldberg write as a letter to the "new york "new york times" it it is does not publish but we will. caution, you are about to

enter the no spin zone. the factor begins right now. ♪ ♪ hi, i'm bill o'reilly. thanks for watching us tonight. what the eric garner case says about america. that is the subject of this evening's talking points memo. first of all, we received some letters criticizing me, charles krauthammer, and other fox news analysts for saying the grand jury's decision not to indict a new york city police officer in the death of eric garner may have been faulty. that's our position. writing from naples, florida larry ayers says, quote: regardless of the grand jury's verdict if michael brown and eric garner had not resisted and allowed themselves to be arrested they would both be alive today, simple as that but, of course it is not as simple as that. yes, both deceased men should have cooperated with the police officers who confronted them. but as we all know people do stupid things. in the ferguson case mr. brown did engage in

violence so i have no trouble, no trouble with the grand jury's decision not to indict darren wilson the police officer. but in the new york city case mr. garner clearly a low level offender was not a threat. american police are held to a very high standard because they have power. they have guns. they must control inflammatory situations not make them worse. as we proved on monday, generally speaking, american police do a great job across the board. the charlotte tons chaferlt tons who say police are tarlting young black men are completely shut down by the statistics which we have posted on bill o'reilly.com. but in the garner case excessive force may have been used. >> this has no connection with what happened in ferguson. from looking at the video, the grand jury's decision here is totally incomprehensible. it looks as if at least they might have indicted him on something like involuntary manslaughter at the very

least i will say upon seeing the video that you just saw and hearing mr. gardner say he could not breathe, i was extremely troubled. i would have loosened my grip. i desperately wish the officer would have done that. >> this ought to have been an indictment and it ought to have been indictment for some form of manslaughter. it's not first degree murder. it's not second degree murder. but it's certainly reckless manslaughter. >> unlike judge napolitano, i'm unwilling to say that officer daniel pantaleo committed reckless manslaughter. what i will say is there was a police overreaction to mr. garner. and that should have been adjudicated in a court of law. now, on to the bigger picture. last night here in new york city, the nypd did an amazing job of controlling protesters who wanted to disrupt the annual christmas tree lighting ceremony in rockefeller center. the protesters were chant nothing justice no, tree.

conducted themselves in a restrained and ultra professional manner, protecting property and the public. missouri governor jay nixon who totally botched the ferguson situation should take notice. and so should mayor de blasio who continues to denigrate his own cops. >> if you talk about the last decade or so in the city, was race a factor and a problem in the relationship between police and community? obviously it was. >> the relationship between police and community has to change. people need to know that black lives and brown lives matter as much as white lives. >> what an amazing insult to the nypd. now, can i tell you with certainty that many police officers new york city dessurprise mayor deblaz heio. they believe is he intimidated by the likes of al sharpton and does not support them. so now we have a situation where the nation's largest city has a mayor who has lost the support of his

35,000 member police force. that's a recipe for disaster. so let's sum up. many analysts here at fox news believe the stiltd grand jury made a mistake in the eric garner death. the mayor of new york city is putting all residents in jeopardy by alienating his own police department for political reasons. that's the memo. now for top story tonight the former mayor of new york city rudy giuliani. and you say? >> well, first of all, i think the mayor's insertion of race into this case is absolutely unwarranted. whatever you think of the merits of the grand jury deliberation, this was not a racial case. the sergeant in charge of this entire operation, as i have been told, was an african-american woman who i think is one of the witnesses in the grand jury who did nothing to stop it. nothing to interrupt it. i don't know what the grand jury testimony is. >> no one knows yet. >> i'm assuming she supported the police officer. that's a true assumption. and i think everybody is being so opinionated about

this is a little premature. haven't read the grand jury testimony. >> you say it's not based on race but the thesis of mayor de blasio, sharpton and all the activists is if you are a black man on the streets, the police are more suspicious of you and more likely to take aggressive action against you than they would be if a white man were in the same position. >> suppose that man -- he was like 6'4", 300 pounds. >> 350 pounds. >> suppose he was a might man a and he refused to comply with the orders of the police. don't you think they would have done the same thing? >> the activists would say that if the white man were selling loose cigarettes, he wouldn't even have been bothered. >> that's not true at all. there is a quality of life crimes are dealt with all time. let's take a simpler example. let's say you are stopped for a speeding ticket. you are doing 80 miles per hour. the police officer comes over and says please give me your license and registration and you item him to go to hell. what is the police officer supposed to do? walk away?

he is going to pull you out of the car. so, in essence, he created this situation by not complying. >> mr. garner? >> yes. >> let me stop you there agree with that and i think any sane person would agree. >> police can't just walk away. >> right. the police officer are -- they felt, their judgment was and you pointed out, the squad was headed by a black police sergeant. >> correct. >> this man was breaking the law on the streets of new york and, therefore, they asked him, clearly asked him before they -- this confrontation we are see now took place to put his hands behind his back so they could take him in. they knew the record. >> 31 arrests. >> so then they take him down. what troubled me is when you hear a man say "i can't breathe." you have got to stop. >> well, you know, bill, yes, maybe. we don't know. there are 60 witnesses or so. >> that's what he said. >> we have to read the grand jury testimony. >> i don't know yet. >> to figure out what actually happened. first of all, the fact that he said "i can't breathe, i can't breathe, i can't

breathe," suggests that the chokehold they are talking about hadn't been applied yet. if a real chokehold is applied it cracks your larynx and you can't say i can't breathe. >> you are right we only need -- what i'm saying to you is that there is a possibility there was a mistake made. right? >> i grant you that. also a possibility there wasn't. the possibility that there was a mistake made then ignites the protester who's believe in their some of them sincere and some of them are. >> everything is unfair it blacks and they are targeting blacks. as i said, we got the stats and they are posted on bill o'reilly.com and it shows there is no epidemic of police violence towards black people in america. that's the fact. now, you were mayor of this town. >> right. >> all right. i believe that the de blasio, he has only been mayor for a short time has now lost the whole police

department. >> he has. the decade he is talking about. >> was you. >> was actually mayor bloomberg. i'm the decade before that. >> um-huh. >> for the last 20 years, between bloomberg and me, we have saved more black lives than any mayors in the history of the city. >> because the violent crime rate has dropped. >> 75% of the people that are murdered in this city, almost invarying statistic, even when crimes were 2200 on the david continue -- dinkins. >> mr. dinkins was black. >> 75% were black. whose lives are saving. >> collateral damage of stop and frisk other aggressive police tactics to bring the crime rate down. incarcerating blacks for dealing drugs on the streets, that's unfair. you can't do that that's a civil rights violation. >> first of all, they were doing nothing about the 1800, 1900, 2,000 murders that we had when i took over the city. and if it weren't for the

things that i did with bill bratton and mayor bloomberg continued quite effective whether i ray kelly, four, five, 6, 8,000 more people would be dead and 75% of them would have been black. these people, we were concentrating on the real problem. the 96% of blacks killing other blacks. and what they want to concentrate on is less than 1% problem. we should con sion sen trait on that. there shouldn't be police misconduct. if this police officer was wrong,. >> he is he will never be back on the street. >> should be punished. >> and he has been. >> that's not the rule. and if you are a father and you have a son, and you are trying to keep your son safe, the thing to keep them safe from is black violence. >> that's exactly. >> not police officers. >> de blasio said the opposite his son half black can't walk the streets without fear. i want to say one thing and i'm going to bring the mayor back because we have a lots more to talk about. i have known the mayor a long time. i know ray kelly the former police chief and i know bloomberg the former mayor.

i know them all. none of these individuals have any animus towards black. none of them. all right? and so all of that is garbage. we'll have more with the mayor in a moment. and, later, a firestorm of controversy over criticism of the first children. of the first children. president obama'sing... a pm pain reliever that dares to work all the way until... the am. new aleve pm the only one to combine a safe sleep aid plus the 12 hour strength of aleve.

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vaginal bleeding and vaginitis. estrogens may increase your chances of getting cancer of the uterus, strokes, blood clots or dementia so use it for the shortest time based on goals and risks. estrogen should not be used to prevent heart disease, heart attack, stroke or dementia. ask your doctor about premarin vaginal cream. continuing with former mayor of rudy giuliani tense situation all over the country. last week there was this exchange. >> how about 70 to 75% of the crime in my city. >> how about your attitude reinforces the problematic that. >> this is a debate. >> how about you reduce crime. this a s. a debate. >> wait. let's not make this. >> police officers won't be there if you weren't killing each other 5% of time. >> had work in your. >> so, mr. dyson who teaches at georgetown clearly disrespectful to you. you saw his body language. he is dismissive.

he thinks that you you are a white -- not that you are a white supremacist. >> he accuse dollars me of that. >> i think what you were saying it white supremacist overtones. to be fair to him i don't think he is he calling you that he was clearly dismissive of you despite the fact that you just pointed out that you saved thousands of lives in the minority community. so what is it in your opinion that drives people like dyson? >> the narrative that the police are the cause of everything is first of all gets great attention. it gets them great attention. if we're talking about the sharptons and other people, it's the reason why people pay attention to them. these incidents become make them very, very famous. the other problem for the 96% being killed is too difficult for them. assuming responsibility is really hard. most people don't assume responsibility. they point the fingers somewhere else. so you start talking about 7 5% of the murders killing

other blacks, 96% of blacks are killed by other blacks. white murder is 4%, 5%, 6%. you start asking those questions, those are very very tough questions they have to answer it has to do with family. it has to do with the people brought up. it has to do with education system. that is a disaster that mayor de blasio won't change. is he not in favor of vouchers. he tried to get rid are of charter schools. >> there is a lot of controversy about how slavery and the deprivation of black economics over the years effect what happens now. but i don't want to get that that what i want to get into is when you were mayor, had you a deal with al sharpton. had you to deal with him personally. he was around in new york city. how did you deal with him? de blasio's best friend. >> so i watched the crown riots happened in brooklyn. four days, sharpton i think had a lot to do with inciting those riots. the mayor and police commissioner made all the same mistakes made in

st. louis and fergs. ferguson. they had what they call a venting period. three or four hours where people could break windows and throw rocks. >> do whatever they wanted. >> i read the gentry report done for governor cuomo. talked about one of the mistakes. he said a cooling off period becomes a heating up period. you have got to stop the first stone, the first rock, the first window. i also realized that by dealing with sharpton, mayor dinkins was elevating him the same level of the mayor. here was my role i am not dealing with you. i will only deal with people in legitimate interest in solving the problem. i never found any of the problems i had that al sharpton had a legitimate. >> you froze him out? you had nothing to do with him. >> i froze all of them out who had no legitimate interest in solving the problem. >> therefore, they hated you. >> they hated me. >> demonized you as some racist guy. >> i turned new york city from the crime capitol of america to the safest largest city in america four

years. major beneficiary of that was the black community. and what have they done for the black community for 30 years except watch a lot of people get killed and blame it on the cops. >> all right. well, here is the crux of the matter, do you feel that sharpton and the people like him are evil? >> sharpt. do you think they know what they are doing is wrong? >> i think they are game. >> if your game hurts people and tears down law and order -- >> -- right. >> that's an evil game. >> i think the ability to rationalize for the human mind is tremendous. >> do you think he knows, sharpt what he is doing or do you think he thinks is he some self-righteous savior like louis farrakhan does? >> i don't know the answer to that bill. maybe somewhere in between. if you say something often enough you can start to believe it. can you start to rationalize the fact that you're really helping people but if you look at the facts. how little was done for the black community in 30 years of 1500, 1600, 18 h, 2,000

murders until i came into office and bloomberg who was really saving black lives? they yelling and screaming about police murders, you know, there are two or three a year. we were talking about 2200 murders. >> look what's going on in chicago under the permissive rahm immanuel. >> gun control laws they have three times the murders per capita in new york. >> thanks for coming. in that's straight talk. we appreciate it. >> great show. >> bernie goldberg writes a letter to the nimsz on race. they ignore the letter. we'll allow bernie to read it tonight. also, laura ingraham on what she thinks about the feds investigating the deaths ♪

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what should we think about people on both sides of the race controversy who form judgments before all the facts are. in obviously charlotte like al sharpton do it all the time. andrea tantaros one of the co-host of "outnourished" how do you see this. >> i wasn't on the the grand jury and i'm not a cop. watching that video it's pretty horrific. tough to watch. >> you agree with me that the visual evidence probably should are led to some kind of explanation in a courtroom? >> look, bill. i am very pro-police, i'm sympathetic to police. especially in areas high crime to. me it seemed over the top. it seemed overly, overly forceful for something so, to me, so small unpacked cigarettes. >> gentleman niece, i'm sure you agree with andrea and me on this. >> absolutely. >> we have protesters right this second running around

new york. i was out there last night watching these protesters. they were partying. that's what they were doing. they were partying. taking pictures of themselves, smoking pot. drinking. running around, having a gay old time. all right? not all of them. but more were doing that than were worried about eric garner. that's the fact. how do you process that? >> well, i process that with a different fact. there is a dead man who wasn't armed. who was a married father of six children. with 31 arrests. >> we have all agreed. even in the previous block you mentioned he was not a major offender. how is that -- let's talk about the protesters because you brought that. >> yes, that's what i i want to talk about. >> they were peaceful. >> last night? >> this is not ferguson. >> no, but that was thanks to the nypd not to the protesters. >> waited, wait. let's backtrack to the credit of stepfather because i saw that video.

mr. garner's stepfather -- his mother, who had said whatever you need you must do do you that peacefully. >> this is garner? >> his family. >> yes. but michael wilson's said the same thing. >> it's faceful. all right. it's faceful. >> only way we're going to find an answer. >> what i'm trying to get at here is there are a lot of people involved on both sides because we have gotten letters, andrea from, conservatives who say o'reilly, you are throwing the police under the bus, i will read some of them to you, you are this, you are that come on. i have been doing this 19 years. i think i'm the most popular broadcaster among the police agencies in the country because i do give them the benefit bownt. benefit of the doubt. because he resisted he deserves to die. they are doing the same thing on the left. because is he a cop and because is he dead. the cops are bad. i think they are both wrong. go. >> i think you are absolutely right.

you the bill de blasios and al sharptons of the world. bill de blasios hikes up tax on gressments creating this black market. what's next choke holds for big gulps. he hates tobacco. the deblaz he gross of the world and progressives, bill, they don't want the police to be able to question anybody. michael brown should have just kept walking in that street. if you question him, then you are are a racist. >> they. >> then to your pint the conservatives real quick. the conservatives as you point out, they just say there has been nothing done that's wrong. the cops had every right there. has been no mistakes made. they are wrong, too. we don't know. >> right, what do you say to rudy giuliani who says, look, i am the real protecter of the blacks? my thought policy saved thousands of lives and so did michael bloomberg where lead to all kinds of chaos because they have already demoralized policies the whole police department. what do you say that to

that. >> that's not what offended me the most. no say anything to that. what did i was that maybe there was saysive use of force. for crying out loud there is a man dead today so, yes, of course, this is beyond maybe. it's clear we have the evidence, we have the video. so for anybody don't want to talk about the big picture, you just want to stay with garner. because the big picture is that rudy giuliani did save thousands of black lives but branded a racist. >> you are saying other mayor's didn't. >> dickins didn't for sure. >> i don't think any one mayor can claim that credit fully. we are a city that needs to work together with the police department. >> i am. mayor david dinkis a black man a disaster for the black community. crime so out of control. i was a local reporter for channel 2 on the streets. you couldn't even walk in the streets. rudy giuliani took over and cleaned it up. because he used very tough measures. so that's. >> last word. >> his record is his credit,

granted. you know what, mayor today him saying you know what? maybe there was excessive use of force is not going to heal the city and bring it together. >> all right, ladies, good debate. thank you very much. >> thank you. >> bernie goldberg writes a letter about race relations to the "new york times," which does not publish it. bernie will tell us what he said. but next. the presidential daughters criticized. the media goes wild. we'll take a look at that and we hope you stay tuned to those reports. [ female announcer ] hands were made for talking.

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personal story seeing wanted tonight, recently the communications director for congressman steve fincher from tennessee breathe lauten said publicly that sasha and maliyah obama were poorly dressed and did not have much class. the media went wild and she was forced to resign. for the record, i don't believe the underaged children of politicians should be subject to any commentary at all. nothing. unless they commit a crime or some other antisocial action. joining us now from washington laura ash burn a contributor to the hill. howard kurtz seen sundays 11:00 eastern right here on fox news. you compared the criticism of the first children to the media coverage of jonathan gruber in the obamacare thing, right? >> i did. and i will tell you why. look. what elizabeth lawten did was mean and egregious, the president's kids should absolutely be off limits and clearly a story.

look at the volume. all three network newscasts, the "new york times," the front page of the "the washington post" covering this obscure staff same organizations though took four, five, six, seven eight days to even mention gruber the architect of obamacare caught on tape saying the plan was sold deceptively because of the public wants stupidity. >> the story about obamacare is a lot bigger than the sphwor maliyah and sasha, lauren. >> no. >> the stat we came up with 70% of more coverage of maliyah and sasha than gruber. you just said. no are you going to sit there and tell me and millions of people watching you, all right, that subterfuge alleged used to pass the national healthcare law is not more important than how two teenagers dress? are you going to make that argument? >> are you going to tell me that children are not more important than politics? i think that sasha and maliyah definitely should be off limits.

we are a country. >> we all agree with that nobody disagrees and the woman who did it has been fired. >> she has fired. lauren, nobody is saying it's not a story. what we are saying. >> as big a story as gruber, not gotten denying that. >> as big a story as gruber. they are the same. >> attacking president's children, yes. what he did, what gruber did, bill was to attack the american people and call them stupid. that is called. >> no, but he also designed the affordable healthcare law using subterfuge, come on. >> he called the american people stupid and that's what everybody got up in arms about we both heard, kirtz and i agree which makes me queazy and fright. >> just wait another moment. >> now i have to get to michelle malkin column about

a man who gave barack obama the democrats $500,000 and rode in air force one with the president. terry beaten, 66 years old. mr. bean is charged with sexual crimes against a 15-year-old boy in oregon. all right? mr. bean founded the human rights campaign. this is a big story, lauren, and had has not gotten any coverage outside of cnn. cnn covered. >> and the local newspaper. the oregonian. >> that doesn't matter because people though know what the oregonian is doing. >> explain thousand could possibly happen. >> i can't explain it to you. i'm dumbfounded. it's a double standard. i'm agreeing with you. >> all right. i like that. i like the sound of that now, kirtz, you worked for the pinheaded "the washington post" very left wing newspaper, which hasn't covered this story. tell me why. >> this absolutely should be a national story, bill, but

not because this guy gave a bunch of money to obama and the democrats and got a ride and got a picture with the president. a lot of donors turn out to be crooks and creeps. but there is hypocrisy angle here and usually the press loves hypocrisy stories. he co-founded gay rights organization and now allegedly accused of stomach turning charges involving underaged kid and why that's not a story is hard for me. >> we don't want mr. bean to be convicted in the media as cosby has been. >> he has been charged. >> he has been charged. that's the thing. the only conclusion that we can draw from this is that if mr. bean had been given $500,000 to george w. bush's campaign -- >> -- i don't agree that if it's a bundler who sits in st. louis, missouri, and isn't a high profile person, it's not that big of a

story. the story bill here is this guy is head of the humor rights. >> this is a multi-faceted story. fat cat big money donor rides with the president in air force one, found the gay rights organization and is now charged with heinous crime. cover it. >> if at the had ban conservative activists he would gotten a lot more coverage. >> that is right. >> howard, thank you. when we come right back, bernie goldberg writing a letter to the "new york times" which the paper ignores. bernie will read us that letter next.

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and i don't. and national lets me choose any car in the aisle. control. it's so, what's the word?... sexy. go national. go like a pro. . . . . . . . . . . thanks for staying with us. i'm bill o'reilly weaning days with bernie segment tonight. let's get to the purveyor of bernard goldberg.com who joins us from miami. you wrote a letter to the "new york times" and ha paper ignored the letter, correct? >> yes. but i want to clear right from the jump, i'm not whining over that. >> i am. i'm whining. >> it's their newspaper. they could ignore it it it's their paper they could do whatever they want. here is what happened. >> let me set this up. how long ago was this? >> thanksgiving morning.

>> thanksgiving morning you emailed it to them? >> yes. >> you didn't hear anything back, right? >> i just got an auto reply that they received it. >> okay. so you know they received it now, what i want you to do is read the portion of the letter that you feel is important. we will put the words on the screen. go. >> okay. so, here's what the story was about. story was about the things that officer darren wilson in ferguson could have done differently to deescalate the situation that led to michael brown's death. i wrote that this was a legitimate journalism news story. and what i said in the letter, in the beginning of the letter was this is important journalism because if we follow the advice of the experts who had advice on how to deemphasize and reduce the tensions, that might save the life of some young man in the future. so far so good. and then i wrote: now times editors might want to consider doing a story on

what michael brown might have done differently. given how many needlessly provocative things he did that led to his demise. then i said that story, mike, if you decide to do it, also save some young man's life sometime in the future. okay. so for whatever reason, the "times" decided not to publish it. no harm, no foul, no problem. the point i was trying to make on thanksgiving morning and the point i would like to make tonight is this: that too many liberals both inside the media and outside the media will look at what the police officers should do differently, which again, is legitimate and important. but they won't look at what the michael browns of the world should do differently, which is also legitimate and important. >> and. >> okay. it's a good point. >> they treat black people generally. generally as hot house flowers who can't stand up to any kind of criticism.

as a result of that we don't see nearly enough coverage of dysfunction. >> sympathy toward the plight of the. >> something you and i talked about. >> sympathy toward the plight of the african-american overrides any kind of personal responsibility call which is why your letter ended up in the dumpster. >> maybe. maybe. >> it gets a little more complicated with eric garner because, unlike michael brown. >> yes, it does. >> who was violent. eric garner was hapless, hapless. all right? he was just selling cigarettes, very low level beef he didn't want to be taken into custody. he was out on bail already. then he winds up dead. it's a different situation there. >> absolutely. absolutely. every word that i wrote in that letter had to do exclusively with ferguson. i want to make very clear and i'm glad you made this transition. i want to make very clear that nothing i'm saying here so far has anything to do

with staten island, which, as far as i can see, is a completely different matter than what happened in ferguson. >> if you were to write a letter to the "new york times" about eric garner, because he should have, he should have complied with the police and put his hands behind his back and then gone in and that's what he should have done. what would you say in the letter? >> i think i might say that something you said earlier in the program. i think i might say that there are too many conservatives who have a knee jerk reaction to something like this. and i'm not one of them. what i saw on the video and i don't know what happened, what testimony was given inside the secrecy of the grand jury, but what i saw and what everybody else saw on the video leads me to believe that this was a miscarriage of justice. that there should have been an indictment and it should have gone to trial. that's what i would have

written. what the police apparently did in staten island is not officer.ael brown did to michael brown went after the officer. >> that's what the ballistics show. >> this guy was selling loose cigarettes. it's perverse, guy is selling loose cigarettes and he winds up dead. >> awful. >> that's wrong. that's really wrong. >> but what complicates it further and i got to go. i want everybody to know where i stand on this. what complicates it further is i don't think the police had bad intent. i just think things got out of control. bernie, thank you. laura ingraham on deck. should the federal government get involved with the eric garner case here in new york? ms. laura moments away. introducing the new philips norelco shaver series 9000 with contour detect technology that flexes in 8 directions for the perfect shave at any angle. go to philips.com/new for savings on shavers and trimmers.

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back of the book segment tonight. week in review from the ingraham angle. the federal government will now investigate the eric garner 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. now, prosecutors will conduct an independent, thorough, fair and expeditious investigation. >> that's what they are doing in ferguson as well. joining us now from washington, laura ingraham. do you support that investigation? >> well, i think that as someone who is on the defense side of the law game and i was a criminal defense attorney and i clerked for the supreme court. you know, you look at this case, bill, and it is, as you said, different from ferguson, right? i mean you have the video, you have the way the guy was thrown down. you have against the

pavement. and for the civil rights claim. and for the civil rights investigation, you don't have to prove intent. but you do have to prove that basically the officer was not acting reasonably. and in the standard is kind of difficult to meet, right? because you have to show that reasonable officers under the same circumstances would not have engaged in this behavior. so, even if the officer had had good intent, like no racial animus or just good intent, or evil intent, that's irrelevant. and the federal civil rights arena. so, it's very different from the criminal case. so i think people just jump to say well, there is no federal civil rights claim. it's a bit different. although i think it's still difficult. >> it's not about skin color, all right? >> civil rights means any americans' rights may have been violated by the authorities. it's not about skin color. it's about behaving

responsibly toward a fellow citizen. >> well the excessive use of force comes under this civil rights claim. the argument is that the officer actually deprived this individual of his constitutional right. the right to be free from a fourth amendment claim, an unreasonable search and seizure. >> lose on that though. there is enough testimony put forth. >> 50 witnesses. >> right. that the man was committing an illegal act. albeit it was a illegal act, albeit it was a very small act. >> although, bill, i'll say on the way you weigh these standards, and the case was graham versus connor in 1989, scalia, kennedy, justice white, they were all in the majority. i think it was marshal blackman were in the dissent. you have to -- again, you have to take into account different circumstances. the severity of the crime at

issue. the guy was selling, you know, cigarettes. so the severity of the crime not so much. was he a flight risk? was he posing a danger to the police officers? those are all circumstances that can be taken into account. and those are all mentioned in that graham versus connor case. >> so to me you feel this federal investigation is legitimate? >> well, it could be. again, i don't know what the grand jury saw. look, when eric holder gets involved in these kinds of cases, because of his past statements on race, it makes me as someone who wants everybody to get protection from the law regardless of your political background or your racial background, ethnic background, i look at eric holder frankly with suspicion on this. but i'm just saying as an objective observer and with my criminal defense background, could you make a claim? could you make a civil rights claim? i think you probably could in this case. but again, there's a lot of different factors involved.

and it's an objective reasonable standard regardless of what the tape says. a police officer under the same circumstances have restrained him in this fashion? that's the question. >> all right, laura, thanks as always. "the factor" tip of the day, some sage advice from a "the factor" viewer. the tip moments away. amamamamamm nobody told us to expect it... intercourse that's painful due to menopausal changes it's not likely to go away... ...on its own. so let's do something about it. premarin vaginal cream can help it provides estrogens to help rebuild vaginal tissue and make intercourse more comfortable. premarin vaginal cream treats vaginal changes due to menopause and moderate-to-severe painful intercourse caused by these changes. don't use it if you've had unusual bleeding, breast or uterine cancer, blood clots, liver problems, stroke or heart attack, are allergic to any of its ingredients or think you're pregnant. side effects may include headache,

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i saved 15% in just 15 minutes. i saved more than that in half the time. i unfriend you. that's not how it works. that's not how any of this works. [ male announcer ] 15 minutes for a quote isn't how it works anymore. with esurance, 7 1/2 minutes could save you on car insurance. welcome to the modern world. esurance. backed by allstate. click or call. "the factor" tip of the day in a moment. first, business is booming at the billoreilly.com store. mugs, hats, shirts, all kinds of gear, pens. i'm using a pen right now. then there are my books especially killing patton, killing jesus flying on out of here. if you want them signed you only have eight more days to get those orders in. check out the bill o'reilly doiko'reilly.com christmas store. bill, like the mayor of new york

city you are throwing police officers in the garner case under the bus. that's just bull, william. i'm delivering honest analysis. nobody gives the police benefit of the doubt more than i do, and the cops know it. but we do not kneejerk here. the tape tells the story that should have been adjudicated in court, in my opinion. los angeles, mr. garner's dead but not necessarily from an illegal chokehold. that's why a trial should have been held. so the people could hear the medical evidence presented and scrutinized by both sides. that's the best i could do, sterling, virginia. bill, your talking points on the garner case were spot-on. you showed your fairness and class. florida, come on, this is just the homicide police abuse. pathetic. you stated in the tip that if you raise your voice these days you're considered a maniac. i've seen you raise your voice many times.

i rest my case. hazel township pennsylvania. bill, you and charles krauthammer must be mad as hell. the "new york times" left you off the most notable books of the year list. that's because those despise the fox newschannel. charles and i are both fine. each have sold more than a million copies. they don't appreciate us. a lot of people do. mark, florida, bill, i love dennis miller and hope i can see a don't be a pinhead show next year. we should be down in south florida in the fall, mark. in the meantime, miller and i will do live shows in dallas at the verizon theater march 14th, new mexico april 11th. wesbury, long island may 2nd. details on billoreilly.com. link you right over to the office. all the other shows including boston this weekend sold out. florida, i know my little boy reagan loves me, but he doesn't

ask me to tuck him in anymore. he just says, daddy, can you put on o'reilly? obviously a brilliant lad. congratulations. a big thank you to john -- who together bought five track chairs for disabled vets in honor of their late parents. you guys are patriots. and your parents would be very proud. finally tonight, "the factor" tip of the day which comes to us from dean mathis, after hearing my tip about confronting someone, dean offers up advice, never bet against a sicilian. never get involved in a land war in asia. and never ever confront a zealot on facebook. that is it for us tonight. we'd like you to spout off about "the factor" from anywhere in the world. o'reilly@foxnews.com. name and town if you wish to opine. word of the day, do not be a

tatterdemalion. don't be one. again, thanks for watching tonight. ms. megyn is next. o'reilly. please remember the spin stops here. we're looking out for you. breaking tonight, mass protests erupting for a second straight evening and spreading across the country over the deaths of black men at the hands of white police officers. and the question of whether race was a factor. and now president obama's point man on this is calling for big changes to the united states justice system. welcome to "the kelly file" everyone. i'm megyn kelly. all across the country tonight we are seeing large-scale protests, demonstrators shutting down roadways and bridges in new york where eric garner was killed a few months ago by a white police officer. boston where we are being told thousands have now gathered near city hall. and president obama's