in the eric garner chokehold homicide case. that was the incident here in new york that was caught on video which quickly spread nationwide. some people have begun to gather outside the staten island store where garner died. the district attorney is expected to speak at any time. we'll bring you that live as soon as it begins. msnbc's trymaine lee is at the d.a.'s office, outside. what can you tell us? >> reporter: so, the word is just starting to spread now there will not be an indictment in the case of eric garner -- chokehold case of eric garner. before the decision, many were gathering outside the courthouse and many said they were there to demand justice. not just the ruling elite, one man told me. talking with demonstrators and activists and organizers in the days leading up to this moment, they were hopefully optimistic there would be an indictment. that justice would prevail. many said that it seemed so clear to them. videotaped homicide of a police officer was armed, wrenched

around a man's neck until he dies. so folks are clearly incensed. there will be more around the death of eric garner. gerngs a lot of focus will also be around some of the local policy issues. remember, this began with police officers stopping eric garner for selling loose, untaxed cigarettes. so, again, in talking with folks who have been following this case, who care about this case, this is the beginning of something much bigger. >> trymaine lee, thank you. we're joined by "new york times" writer clay, also the author of "the bill of the century." you look at this case, and we've been following it for a while and people got a refresher in the ferguson grand jury. this was not about whether the

officer was guilty or not. we haven't even gotten near that question. the question before the grand jury, the question was, is there evidence here to say there was probably maybe a crime committed that would merit a full trial. the video alone combined with the homicide report for the medical examiner looks like that evidence. what do you make of what we're seeing here in this decision? >> i honestly almost don't know what to say. it seems so clear. i think very clearly, i mean, the public is unwilling to question police justice. they give a huge benefit to the officers on the street, regardless of the evidence or what eyewitnesss see or what we see in the video as being a complete overreaction. >> you say the people are unwilling to do that. by people, do you really mean the prosecutors, that prosecutors worked so closely with police officers that once again -- we've talked about,

it's a joke, right, in the legal community, you can indict a ham sandwich. that means you can get an indictment for anything you want. prosecutors are going to grand juries saying, we don't want an indictment here. >> i think you have to raise that question when it comes to this situation. that's obviously the question when it comes to ferguson. some of those, you know, obvious points about the ferguson prosecutor were not there this time. you know, the results speak for themselves. >> ari, i wanted to ask you, what are some of the factors the grand jury would have been considering here? as clay is pointing out, we can all see the video and it seems clear what happened, the medical examiner said this was homicide. what are some of the potential mitigating factors they could have been considering here? >> we know they heard from the officer directly for two hours. they have the ability to question the officer directly. they may have been considering mitigating factors the statement provided, was he fearful, was he

eric garner going to charge them, background information they may have brought. there's a lot the video doesn't show. a lot the officer may have known. they may have known about this individual when you do local policing. they may have brought in, we're not reporting they have, but what might they try to inject, a history here of, well, actually, i've seen this individual, others potentially be violent. those are the type of considerations you bring in. why that would be very fair game for a trial and might ultimately get someone off in homicide, the reason that's unusual here is we said in a grand jury context, you're usually stacking up enough evidence to go onto the trial. if you have enough there for probable cause, then you get your trial and you have that larger debate. most defendants in potential homicide investigations like this don't testify at all. >> let me add to what you say because people keep wringi inbr this notion that he was stopped for selling loose cigarettes.

police officers will tell you that has nothing to do with the threat or violence matrix that happened thereafter. quite often they might stop someone for something small and quickly that escalates into something else. that notion of, well, it was just this, so it shouldn't have ended up with that. that doesn't make a lot of sense. you think about, he was surrounded by, what was it, eight or ten police officers, clearly in control of the situation because there were so many of them, and he was all alone, he was not trying to flee. then that is the question of, why was this action taken? not the question of, you were just doing this small thing to start with. >> when you think about, what is the threat matrix, how do things escalate? that escalated really quickly. this isn't a situation where the cop tried a few different things, we are got violent. right away one cop, a little pushing and this guy jumps on his back. i can't think of a situation where that would be called for. >> i want to bring in anne bremner, who has represented law

enforcement and police departments in the past and k caleb mason. this case feels different. we see the video up. get a pretty clear sense of what happened. what is your reaction to the ruling today? >> you know, i think a lot of people are surprised and maybe thought this would be different from missouri but the fact is, you don't look at these cases with 0/20 hindsight, the supreme court said that. you look at these cases with split-second decisions police officers make. i've represented chokehold cases, seattle police, portland, oregon. and yet to find where a jury found against one of my officers in the last few decades. we have to look at that. finally, police officers die in minor cases. that's what the stats say. minor cases often lead to police officers' deaths, most often do. when someone forcibly resists or tries to escape, the officer can use all means necessary.

all those factors weigh in here. >> i don't know about forcible resistance in new york. usually there's some apprehension standard there, some proportionality. caleb, bring you into the part about potential charges. did you think there was evidence here for probable cause on criminal obstruction of breathing, the strangulation charge in new york, or on any kind of criminally negligent homicide? >> i do. looking at this case i, too, am surprised that there was not an indictment returned for a lower level of homicide. either side homicide with recklessness standard or a criminal negligent standard. that seems to be what the evidence indicates to me but, of course, we don't know impactexa what the grand jury saw. one thing i would want to note, as i think you alluded to, it is

not the case that an officer may use all means necessary to prevent the escape of a suspect. the case is called tennessee versus garner. it's been around for about 40 years. i think your guests have talked about it quite a bit in the context of ferguson. i don't think this looks to me like prevention of an escape either. and i doubt thafgs offered as a legal justification for what happened here. again, you know, this is going to be small consolation, i think, but the very least you can say is this was an obvious deviation from the standard of care that's expected of new york city police officers under their own policy and under new york tort law. and i think certainly this evidence would be sufficient for a section 1983 lawsuit. other than that -- >> say what you mean by that. >> i'm surprised by the lack of indictment. it's a civil rights lawsuit. it's a civil suit you can file for wrongful death when a law

enforcement officer uses excessive force. and excessive force will be evaluated under reasonableness standard. the jury will be asked whether the amount of force was reasonable. one of the factors the jury would consider in that case is whether the officer followed or deviated from established protocols. in prior chokehold cases, typically the chokehold has been allowed under departmental policy. we had some high-profile ones here in l.a. involving those policies. those policies have been changed here in l.a. as they have in new york. deeation from policy would be a significant factor. >> ann, let get you to respond to some of what caleb just laid out there. talking about if the suspect is trying to flee, it does not appear to many people that eric garner was trying to flee. we know police officers have wide latitude to use force and violence when they are faced with bodily harm or death or when people around them are, does not appear that was a

situation there. with those things in mind, what do you say? >> first, i agree with you on the proportionality issue. there's the necessary force using all means necessary to take someone into custody tempered by the instruction on the law and the right to use force. that's proportionality as you correctly point out. the fact of the matter also is, in a case like this, when somebody is dealing with a threat immediately upon them, then it's not tennessee versus garner. that's the old flee felg rule, stop or i'll shoot, and then it changed decades ago, you have to have threat to yourself or others if you don't apprehend that suspect. >> to that argument, what immediate threat did you see in the video? >> you know, i think we have to look at what the grand jurors heard. i'm looking forward to seeing the transcripts. it looks like there was a claim by the officer and he testified to the fact that he felt threatened, he was being overcome, a difference in size -- >> i'm interested in your view as someone who has represented officers -- you're right, we

don't have everything available yet. do you think from the video that is publicly available there is a threat there for mr. garner? do you see one? >> it looks -- depends on what the officer thought at the time. we don't look back under grand versus conner. with 20/20 hindsight that's the reasonable standard -- >> i'm not saying from 20/20 hindsight. it's important here, from a con temp rain yus view of the video, do you see action from the individual that pose a threat in that video? do you see that in your expertise? >> well, i represented officers for a very long time and my perspective is in favor of officers. i can see it being argued. that's a tough call but it's the grand jury's and they made it. >> on the phone we have former nypd officer, eugene o'donnell, now professor of legal studies at jon jay legal college. if you were listening in, i would love to get your reaction first to the decision by the grand jury not to indict but whether or not there seemed to

be a threat based on what we've seen in the video. again, we don't have all of the information the grand jury had. based on what we see in the video, do you think a police officer could have legitimately felt themselves under threat there? >> well, the reality is that we know how this ends. the cops never know how it ends. that hangs over all of this. watching a video, obviously, the cops don't have that luxury. as one of the guests indicated there, the predictability or unpredictability of these events is startling at times. i do think that beyond the legal conversation, which the legal reality is the police are going to have broad leeway. it's the police profession now that has to step up and impose on its officers a higher standard, a higher set of duties, as they do in many cases of deadly force. there needs to be an ethos and belief structure in the police business that preservation of life is really a paramount reason why you're out there.

and the concern is always that officers are using force because they have the ability to use the force and the authorization to use the force rather than there actually being absolute necessary to use the force. that's what we need to look at. that doesn't have to be done by point scoring or political ideology. there's ways to protect police officers given them maximum protection and also never having a repeat of a situation where basically somebody ended up dead for a tax crime, for a few cents of tax revenue. there are policy issues and all that. but nobody should be celebrating this. this is a tragic set of events that everything should be done to avoid a repeat in this city and in the country. >> eugene, please stay with us. we have many more questions for you, as with all of our guests. clay from "the new york times" is still with us. this happens at an interesting time in the nation's history as well as in new york's history. mayor de blasio recently coming

out saying there's a 4.4% drop in violent crime in new york city. stop and frisk a major issue he campaigned on. stop and frisk down sharply. the percentage of black and brown people in this city being stopped by the smaller number of stop and frisks remains quite high, pretty much the same place where it was before. so, put this in the context of what's going on in new york city with a drop and stop and frisk. a drop in crime. but still serious problems between police and black and brown communities. >> yeah, it's funny because there is this sort of disconnect between the reality, which is very low crime across the board. and the ideology of law and order and police militarization and this kind of -- you know, the remnants of the broken windows theory. this is all still pretty dominant both in the way the police approach their job, but i think also in the way that a lot of the public approaches -- approaches the issue of, you know, justice on the streets. i mean, i think have you to

wonder what the grand jury was thinking when they refused or declined to question what this officer was doing when he went in for a chokehold. >> we now have breaking news. a statement from daniel pantaleo. he says, i became a police officer to help people and protect those who can't protect themselves. it's never my intention to harm anyone. i feel very bad about the death of mr. garner. caleb, i want your thoughts on this. he goes on to say, my family and i include him and his family in our prayers and i hope they will accept my personal condolences for their loss. for national audiences, who aren't as new york focused and think back to ferguson, this is a different tone and outreach to the family than we heard from officer wilson after no true bill was issued. walk us through how folks who are defendants or suspects in these kind of cases, in officer context, how they go back

communicating after you have this kind of nonindictment, as we're reporting today. >> first of all, i think that's a wonderful statement and gesture for him to make those remarks. it certainly shows the sort of sympathy that we hope police have and it is possible the grand jury accepted that as his view f he said something like that to the grand jury, this was an accident and he deeply regrets it. that certainly does distinguish it from what happened in ferguson and the officer's subsequent characterization of what happened in ferguson. it may well be he made those statements against the advice of his lawyer. as i'm sure ann will tell you, when there's a pending lawsuit, and here there's almost certainly a pending civil case -- >> you mentioned -- let's go to ann because i want to read as well a statement from the pba

president patrick lynch on this case that we just received on the very issue you were just mentioning about what the officer may have been trying to do. he says, it's clear the officer's intention was to do nothing more than taking mr. garner into custody as instructed and he used the takedown technique he learned in the academy. when mr. garner refused. no police officer starts his shift intending to take another human being's life and we're all saddened by this tragedy. your thoughts on that? >> i think that's appropriate. i think it's -- it's a situation where i think it goes a long way to talk about someone's feelings and empathy and even apology and i've emphasized it in many of my cases. i think officers are taught and trained that officer safety is number one. that they have to come home. those are all factors to consider. no officer wants to use deadly force. i respond to the scenes of these shootings over and over. i have over the years. i have yet to see an officer that felt good about what they

did or in any way -- in any way other than emotionally very upset and not wanting to have done it and feeling very empathetic to the family of those involved. >> ann, earlier you said something interesting, you said it's rare to see an indictment in these chokehold cases and you've been involved in a number of them. why is that? is that because of the way the law is written, it gives police officers broad latitude or because of the general sympathy that grand juries have for police officers. >> i think it's both. of course, under new york policy, chokeholds are disallowed, as they are many places. have you to look at the fact that the state has to disprove self-defense beyond a reasonable doubt in missouri, in new york. the fact of the matter is, these type of cases i've yet to have a jury indict or find an officer should be tried criminally in decades, ever. >> eugene, you know, when we look at this video there's two

moments i want to talk through with you because at the beginning it seems that the two officers that are approaching in the beginning, they have control of the situation. i want to get your thoughts on their awareness of how in control they are when they are in front and back of him. but once the neck is beginning to be restricted and they bring him down to the ground, then you have five officers surrounding eric garner. he's down on the ground. it seems that moment, they have complete control of the situation and the neck could be released and they could put him in handcuffs. should they not at the beginning moment or that later moment have a certain awareness of their control, their domination of the situation and respond to that? >> it's really hard to say because they're doing it in real time. and there's no script. and they do think worst case scenario and they do think of the fact they could be disarmed. they bring deadly force into all these situations.

the truth is mr. garner had some history in the criminal justice system and would have presumably known how to acquiesce whatever they were doing. again, it was a stupid arrest they were ordered to make, in my view. but what would have known how t acquiesce and apparently on the video didn't acquiesce. again, how much time they should have spent finding to find alternative ways to resolve this, the emergency unit -- >> but the video -- we're playing the video while you're speaking. i want to make sure you have the benefit of knowing that. we're watching the footage where he is -- he is not convention alley resisting arrest. he's a very large man. >> but he's disagreeing, ari. >> they're having a verbal altercation that becomes physical and the chokehold comes on pretty quickly. so, i guess from a police per speck tifr, the question for you

is, what would he have needed to do differently? a lot of people talk about what the officers needed to do differently, as you believe it's a chokehold, as some law enforcement have said, that in itself is a violation, but what would you want him to say differently? >> he says something like, it ends today. there's active resistance and passive resistance. it is true, it's hard to draw a line. sometimes the police misread that someone is actually cooperative. so, that's the difficulty. what is the magic way you signal to the police that you're acquiescing? but i don't think it's unreasonable to conclude when you look at the video there were periods of time where he did not appear to be responding to what they were asking. over this trivial crime. >> you call it a stupid arrest, trivial crime. do you think the core, underlying problem of this is the broken window theory of policing and if we didn't have that, we wouldn't have this

altercation to begin with? >> i do. i think it's a huge issue. i think an overly legal conversation, i don't think most prosecutors in the country would be a bit surprised these cops were not indicted but that shouldn't be what the conversation is about. the black community doesn't want to hear point scoring and sort of, you know, how technical legal stuff is important. you have to disprove a case beyond the reasonable doubt when police are involved, which makes it virtually impossible. i don't think this is a day to get overly legal, though. we need to find a -- >> i appreciate that. i want to disagree strongly. the reason why i think some of us are looking at it legally is because the conversation in the public domain at these times often says, who was right? was the officer right to shoot him? and that is -- i mean, excuse me. i was thinking of ferguson. in this case, is the officer right to take him down this way? that is not the legal question today. what we're reporting on journalistically is the grand

jury found no probable cause to have a trial over those issues. when you talk to folks in some of these communities, the concern is not that there isn't a police perspective on this, but that the police aren't even forced to go into open court and have a day in court the way a lot of other people are. it sort of gets short-circuited very early. do you think that's a fair concern about the way some of these grand jury proceedings have come down or not? >> i do. i have said before, i would commend the district attorney in st. louis for releasing all the materials from the grand jury, as you know, ask as those of us who follow this have been studying the last week or so, people have pored over those materials. there's a tremendous amount of analysis available for anyone to see about exactly what the grand jury in ferguson saw, why it might have made its decision, what the evidence was, how the physical evidence lined up with the stories of the various witnesses. to my mind, those legal discussions are tremendously

important. i think one of the reasons there is distrust of police practices in many parts of the country is the suspicion or belief that the legal system is not going to respond properly to uses of excessive force. in ferguson, we have a chance for anyone to go and see exactly how the legal machinery operates. i think a release of the materials from this case would be useful as well. now, we're never -- you know, obviously, we're never going to, you know, have agreement on the outcome of these decisions, but i think it would be a tremendous step forward if the public were able to see and evaluate exactly how those legal decisions were made. maybe the prosecutor could make a public statement about his or her decisions about whether to charge and how. i think transparency is still going to be the most effective resolution here, as well as body cameras.

admittedly we had a video here. in 99 out of 100 cases where there's a death, we don't. so, the more videos, the better. >> i want to -- >> more the public is able to evaluate these decisions, the better. >> i want to bring clay back in. we might not all agree on the decision, but i think what many people agree on and what we've spoken so much on this show is the mistrust between the community and the police. what people are doing in many cities, putting forward programs to put cameras on all police officers, including mayor de blasio. here's what he said this morning about that. >> the body cameras, again, they will go live in three commands this friday, this week, starting on friday, body cameras will be piloted in three commands. so, this is going to become a new and important part of what we do here in this city. >> this is a big week for de blasio. you could argue, this is one of the biggest steps that have been taken to bridge this trust gap. here you watch this video with

eric gardner. i don't know what a camera on the police officer or any of the police officers for that matter what have done to change what we see and what happened. >> you do have to feel bad for de blasio on this one, just the timing. you know, the only difference i can see is maybe if there was some sort of psychological difference for a grand jury, they see official police evidence versus, you know, a crowd, you know, crowd-produced video. i don't know why that would be much of a difference in terms of the material. but that would be the only distinction. you do have to wonder what a video would -- why a video would make a difference in any other case if something like this, yeah, obviously we can debate what happens in this video, but it's pretty clear, you know, you see all the relevant actions. >> we would not even be talking about this situation if there were not a video. obviously, it wouldn't change if there were body cameras on these cops because someone else was videotaping. this is one out of hundreds of thousands of stops, millions of stops we have in new york every

year. this one there's a video. cops are aware there are cameras on almost everything happening all the time. if there were cameras on literally every single stop, that would change policing. >> it would, but it would depend how immediately available all that video is. one reason we talk about eric garner is because someone not part of the cops, not part of the city, government, had a video and released it immediately. we could all see what happened. i doubt that the police would be that forthcoming with, you know, with evidence like this. >> part of what we've seen in terms of the numbers we have on body cameras is it actually changes the nature of the police and community. i want everybody to stick with us and bring in nbc's luke russert right now. he's live on capitol hill where members of the new york congressional delegation are just about to speak. luke, what are you hearing right now? >> well, we're going to see about five members. one is akeem jeffries from new york's eighth district. he's been on the record along

with folks like -- opening up a doj investigation by eric holder. they have say they have seen broken windows in new york. they think it's overly aggressive in the black and latino communities. at some point can even be unjust to a degree. so, expect to hear that type of language today at the press conference. this is something that came up on the house floor a few days ago, the congressional black caucus had a long order of speeches about what happened in ferguson. mr. garner's name was something that happened in new york. it plays into ferguson as you're starting to see real congressional reaction on these types of cases. ordinarily a lot of politicians don't want to touch because it pits interest groups against one another. latino and black communities against police unions. in this case because these incidents have been so out front and have garnered such a media

ground swell, they really are trying to make their voices heard on this one. i'll be anxious to see how much they try to push getting something out of doj. that was mentioned in the summer when this first occurred. >> luke russert on the hill, thank you for that. trymaine lee is still at the d.a.'s office today. what have you got going on? >> reporter: outside of the courthouse there is a small group gathering. and i spoke with a few of those folks who said they're not necessarily shocked but hurt. i talked to one 23-year-old father who was out there with his 1-year-old daughter. he looked down at her and said, you know, i'm 23 years old. when when she is my age, will they still have to deal with this? he said after ferguson, there was no hope. after this case, there is even less hope. now they're all hoped out. where do they turn? another mother, 40-year-old mother said, now it's time to organize. but the downside is many of the young people who could make up the body of a movement are young, black and latino men who

themselves are fearful. and that the outcomes like this kind of prove to them and restate to them that their lives don't have value and don't matter. so, she said she's been marching for weeks. she's been protesting. she's been attending meetings. there are days of action planned. still, without any sense of hope, where does the community turn from here? this outcome so far at least here on the ground is not playing out well. people are feeling dejected. they're feeling hopeless. quite frankly, they're hurt. >> trymaine, thank you for that. clay is still here with us. you know, we booked you originally to come on to talk about the kerner commission, which president johnson convened in 1967 to investigate the cause of the race riots that were happening across the country. we're going to talk about the similarities between that commission and their report and still things that are going on to this day. i can read a quote to you from that report that just seems very

eerily truthful today, to some negros the police have come to symbolize white power, white racism and white repression. and the fact is, many police do reflect and express these white attitudes. and when you have a police force seeming like these sort of actual arm of white supremacy coming into black communities, that is a very dangerous situation. >> i think the kerner commission was correct at the time. in fact, in los angeles you had a situation where a lot of cops actually were affiliated with the klan and many of them had -- were recent migrants from the south. that's not metaphorical. that's quite literal. one thing people in the '60s thought, the problem is, you have an overwhelmingly white force that's largely racist and uneducated. and a black community. they said, let's have better education for the cops.

let's have more black cops. that worked. today we do have a better educated, more diverse police force in general. yet, we still have these problems. so, i think that one of the things the commission and the sort of the thinking in the '60s didn't get to is the role policies play. certainly the law and order and the war on drugs and things like that introduced a whole new level of required police vigilance and aggression. >> absolutely. it is extraordinary to hear that language before the war on drugs is authored. it started by richard nixon and president reagan takes it in another direction. we still have policing issues in quite often police don't live in or really near the areas where they're policing. a lot of times you have mostly white police officers policing black areas. and then -- urban areas and then living in the suburbs. so, they see the people they're policing as entirely other from them. >> yeah.

i think that's right. and it goes against the question of, well, how professional are the police? i think the police are more professional than they were in the '60s but you still have these sorts of problems where you just don't have the kind of relationships between communities and the people who are policing them that you need to avoid things like this. >> right. you talk about those relationships, caleb, i want to bring you back in. for folks just joining us, we're following breaking news this hour. staten island grand jury deciding not to indict eric garner, the gentleman killed in that now famous viral video case of a new york city police officer putting him in a chokehold that ended his life. you look at this, critics from the beginning who said they didn't expect what they considered a fair process in staten island and they wanted the feds to get involved. you look at eric holder's role in ferguson. as you know, it's not eric holder but his potential replacement, loretta lynch, who is the federal prosecutor for this area. so, this is a conversation that

was already mentioning her. now it will turn toward the question of whether a federal u.s. attorney investigation, the kinds you used to do, would be a proper or possible step here. what do you make of that call and what, if anything, can you tell us about how loretta lynch might approach this? >> well, she was a legend even when i was in the office years ago, so i think she's going to make an excellent attorney general. she certainly takes very seriously the problem of race and policing. typically an investigation by the d.o.j. would look for, as i think you know and you've discussed in the case of ferguson, a pattern or practice of civil rights violations. this would be excessive force, racial disparity in policing. that certainly has been talked about in the context of stop and frisk. in fact, there are at least two

different lawsuits involving stop and frisk that have resulted in district court decisions already, in federal court. these have been based on statistical analyses of the race of the people who were stopped, that have been carried out by some professors in the new york civil liberties union analyzing millions of stops, and coding for a number of factors. that's the sort of work the d.o.j. can piggyback on. and it could well be that the stop of mr. garner here was part of a pattern and practice of disproportionate use of these broken windows types stops for minor offenses on minorities. that would be the focus of any such investigation. here, i would not be surprised if one is already under way, at least in its formative stages. certainly, that's the sort of thing she would take seriously,

i'm sure, when she assumes office, if she assumes office. >> ann, one thing we talked a lot about with ferguson was the process that the grand jury operated under, the length of time that they took to weigh the ef evidence, the fact they did weigh every piece of evidence in the case of michael brown and officer darren wilson. talk to us about the process of this grand jury. they began hearing evidence in late september, obviously, coming back today with the decision of no indictment. is that a typical length of time? did this process unfold in a typical way or an atypical way? >> well, it's fairly typical. it depends on the case and how often the grand jurors are meeting. keep in mind, a lot of these grand jurors are hearing other cases. that's part of what they do in their session. it's not just this particular case. i believe that was the case in missouri. you know, that having been said, there are public inquest proceedings. we have them out here, transparency, transparency, transparency. our use of force cases, deadly use of force cases are vetted publicly, tv cameras to a jury,

not a grand jury, but a jury that's public, a six-person jury. there's a lawyer for the family, a lawyer for the officer, which i've been many times a prosecutor and a judge. they decide the who, what, when, where how of the case. they go to the prosecutor and the prosecutor decides whether or not to charge in the state system. also, there's the pocket of federal civil rights, and d.o.j. pattern or practice type of case in this case. >> ann, caleb and clay, thank you very much. stay with us. we'll have more ongoing coverage here of this breaking news. no indictment in the eric garner case. there's a lot happening right now. we have members of the congressional delegation from new york who, as we speak, are setting up a press conference for their first reaction. that's live in washington. we have a new statement from the d.a. we're expecting as well a presentation from the d.a.'s office there in staten island, the center of this controversy, as well as mayor de blasio, who just announced he is canceling what was going to be his appearance at a tree-lighting ceremony at rockefeller center

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statement here. it begins by saying, i first want to express condolences to eric garner's family. acknowledge the heart ache of his mother, wife and children. it expresses the d.a.'s concern about the victim here. it goes through the process they undertook. the d.a. here emphasizing this was a dedicated grand jury. they heard from civilians, and emphasizing its independence they heard from investigators and worked with investigators who had no reporting in connection to the officers involved here. then the biggest news that we're reporting now for the first time at this moment, he is now saying he is going to something you mentioned earlier this hour, the d.a. is requesting now, has put in a court order, requesting he get permission from a court to release grand jury investigation. talk to us about how rare that is and what that means. >> so, if you remember when we were on the night of the ferguson grand jury announcement. i think it was one of your

fellow host chris hayes said something along the lines of, there are thousands of other cases out there where attorneys will be asking for the darren wilson treatment. i think there's another way to look at this which is that the ferguson case, the darren wilson treatment, could come to be a precedent for how other district attorneys aren't tound the coun deal with controversial police shootings. it's undoubtedly the decision in ferguson to release all of that information will influence what the district attorney here decided -- >> you would call this the ferguson effect? >> sure. i think it's undoubtedly a response to ferguson. and i think it is a very positive step for -- for progression toward constitutional policing in this country and reform of police use of force. if scholars can immediately analyze the evidence presented to grand juries -- i cannot emphasize this enough. if people are interested in the

ferguson case, go online and look at numerous analyses that have been done by prosecutors, law professors, interested attorneys, analyzing the evidence in the ferguson case. that is absolutely unprecedented as far as i can recall. in the case of a controversial police shooting that we've been able to look as a public, as a nation at all the evidence so soon after events. if that can be replicated in future cases, i think that's a huge step forward. i'm glad to hear he's doing it and i look forward to reading the transcripts. >> caleb makes an interesting point about the sort of nationalization of both what happened with the ferguson grand jury, the ferguson prosecutor, and what's happening here. i have to think police officers nationwide are looking at these cases and other things that have happened recently. does it send or what is the message send to police officers nationwide when they see these

controversial incidents happen and repeatedly they are not indicted? >> well, on the one hand they know that's the case in general across the nation, police deadly force cases you don't see a lot of indictments. the other thing is, i think they feel isolated. everyone is prejudging us as a whole before we even got the transcripts or even knew what was going to happen with the indictment in the ferguson case. so, now it's kind of coming out about what the true evidence is, what the real evidence was. and i think they feel somewhat -- in some ways better about the view of the public of them. because they really feel like, wait, we'll get attacked based on no information. there was no evidence about that case, truly evidentiary basis for the decision, until we started seeing these transcripts, which i think is very important to have those released there and also here in this case. >> you're absolutely right, of course, it's extraordinarily rare for a grand jury to indict a police officer. that goes back historically. but you start to get into a situation where the public says, well, they never indict a police

officer, so what does that matter? we have a sense of, we know -- we feel we know what happened, so we're going on that and feel distanced from the system and it further deepens the chasm between communities and police officers. >> i think that's true, but there are clearly indictments of police officers. i've defended police officers criminally and in other types of case. so, they are prosecuted in certain cases. keep in mind, you're dealing with police law. we've had a discussion earlier, there was one about should this be so much legal speak in terms of this discussion. but with police officers, there are different standards, privileges to use force, duty to use force and other continuum and other things we look at in their policies and in the law that make their cases far different than those of individual civilians that may be prosecuted for use of force or other crimes. >> clay, we're waiting on a news conference from new york lawmakers' reaction to this decision not to indict in the case of eric garner.

clay, one of the things that's been said in terms of what we can expect from a public response to this nonindictment decision in contrast to ferguson, what's been said is that new york city is different. people feel like they have more outlets. police officers are better trained in terms of crowd control. do you think that's true? >> well, i really can't speak to them personally. i mean, i live here and seems pretty good, but then i'm not the kind of person that police officers tend to -- tend to go after. and i can only speak, you know, what i see in news reports and anecdotally but it does call into question situations like this and tragedies like this, how different is new york from other places? >> i've spoken to some police officers who feel that there are already cameras everywhere, not just the city cameras, the state cameras that might be around, but everybody has a phone with a video camera on it. we would not be talking about this eric garner situation if a

citizen, his friend, had not videotaped this. so, has the you bik wety of cameras in america changed the mindset or the behavior or actions of police officers nationwide? >> well, i mean, sure. look what happens with cameras in the courtroom changed lawyers' behavior for sure in a courtroom. sure, it will change suspect behavior. it will change police behavior. there's a rally here today in seattle for having body cameras, a protest. what about cameras in the holster? you can do that, too. there are all types of alternatives. of course, everything in the future will be on video. it is now. in fact, this case was. but i think all assurances question have about transparency, after the fact of deadly use of force or during the deadly use of force, would be most helpful to mend this chasm we have in america. >> clay, luke russert said a moment ago, as we're waiting for these new york representatives to come out, the fact they're speak being it says this is

quite a big deal. i heard a guest earlier say, if ferguson was not a wake-up call, then today should be a wake-up call. we know mayor de blasio was reported -- was planning on going to the christmas tree lighting. he's now changed his plans. he's going to staten island. what does that tell you? where do you see this going? to me that tells me this is just the beginning of potentially something that's going to last for quite a while. >> i would like to think so, but you compare it, you know, to the way that a few years ago we had a series of mass shootings and people were so energized about it and so sure this was going to lead to big change. of course, it didn't. i hesitate to say we'll see anything different this time. the difference, of course, is i think what people themselves do. i think that if the public is more energized and continue -- i mean, that's something that -- where you can videotape police actions more often. you can create community groups that try to interact with police. can you do things that don't

rely on, kind of the political or media ground swell. i think that's where you'll see real change coming out of this. >> some of the most significant reactions when you look at ferguson and this situation are the peaceful day in, day out movements that are around the country. krystal, we were talking about this. over 30 states are organic dm s demonstrations. and sadly, and we, of course, in the media, we are partly to blame, clearly f we're going to be cleefr about our analysis. but most of them weren't covered as much as the fires. so, i wonder as we look at these moments not only as individual cases, but as moments where the country talks to itself about its policing. something the president talked about, something even conservatives talked about, something bill o'reilly said the other day. of course, people are protesting, bill o'reilly said, because that's how you change things. >> i think that's absolutely right. the significance and substance of those protests, peaceful

protests, has been encouraging. there have been specific demands, things like body cameras which we have been talking about today. eugene o'donnell, who we had on earlier, former nypd officer, said something really interesting. it's not so much a policy change we need. we need change in the police departments. there needs to be a cultural shift in the way that police officers are valuing the preservation of life, his exact words were, there needs to be a higher standard on the preservation of life. that in a sense is a much more difficult thing to change. >> i mean, you know, part of what you're talking about with these peaceful protests and obviously we want people to protest peacefully, but you're just talking about talking. we're just talking about a national conversation. we're not talking about doing anything. we referenced earlier the kerner commission. this is almost 50 years of us talking about why are people in black and brown communities exploding and having riots and getting so frustrated and angry,

largely because of police actions, which stem also from generations of frustration around housing, jobs, educational problems. you know, these protests are good. this is the american way. but this is not enough. we need real policy change. we need real change within our police departments and the way that we approach black and brown communities. caleb, the idea this will lead to a significant change, that this will be the moment, i don't know why we would see that. >> well, it may not be the moment but it may well be a catalyst for body cameras in most, if not all, major departments. and that, i think, in itself would be -- would be a huge step forward. obviously, a lot of people have cell phones. you would be shocked at the number of cases, which when you're looking to put together the evidence, you don't have a clear video.

if you had a clear video of every single minute of every single shift, of every officer in a major department, that would be an enormous step forward. yeah, this is not going to single-handedly overcome the problems of race and police use of force policies. but i think it can do a lot. the other thing we could definitely do at the cultural level is departments around the country can revisit their own internal use of force policies. every single department has a use of force policy. it sets out in great detail what officers are allowed to do and are not allowed to do. if you've seen the lapd's use of force policy, it runs 200 pages or more. >> i want to jump in. two points on that. on the news, number one, the nypd out saying that this nonindictment does not affect the fact that they're continuing an internal review about whether this or other officers violated any rules.

there's been a discussion about chokeholds, which have been banned for some time. the second, caleb, we've got up on the screen, waiting to hear any minute from members of congress from the new york delegation, who may speak to policy and reforms. third, i want to read and get your response again, because we have so much new information coming in here from the d.a.'s statement about this proceeding. he says, this matter was of special concern in that an unarmed citizen of our county had died in police custody. and he goes on to praise the work of this specially impanelled grand jury saying that everyone fulfilled their commitment from september on through december, a long process. and then he goes on to say something that i want you to explain for our viewers because it ranges -- the rules range in different places. he says, unlike other places, which may or may not be a reference to ferguson, he says i cannot make public statements beyond what a court allows. the d.a. saying, new york law, quote, does not permit a district attorney to engage in such disclosure. only upon a showing of compelling and particularized

need can he do it. and then as we have up on the screen what we're reporting this hour, he is asking a court for more ability to dot release. so, we are going to hear from the d.a. at some point. do you know what he can tell us? >> probably -- probably nothing about the details of what went on in the grand jury. grand jury proceedings are typically secret by state law. i understand that the district attorney in st. louis consulted with outside counsel and arrived at the conclusion that that state's sunshine law allowed him, indeed compelled him, to release the material. many states have laws, old laws generally, that require the grand jury proceedings remain secret. those two laws have not generally been deemed in conflict. it appears in the case of the ferguson proceedings, the district attorney made a decision to go with the sunshine

law over the grand jury secrecy law. as to the details of new york law regarding secrecy, i'm going to defer to the district attorney. to see the evidence the grand jury saw. >> the d.a. in staten island saying he's filing just this afternoon a request there with that court order. we will have all breaking news on that. i want to thank our guest, clay, and anne bremner from seattle, thank you on this busy news day. of course, reporting on the grand jury deciding not to indict the officer in the eric garner case. awaiting the new york congressional delegation. our coverage continues with alex wagner after this. [ narrator ] mama sherman and the legion of super fans.

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[tom]and they'll tell me..."you oughta quit." [chris] not so. just tell them you're ready to quit. then,they'll tell you how. [tom] really? you wouldn't have that number on you,would you? because this was captured on video. it is inskplikable that this grand jury could not return a single charge. couldn't return a charge for

assault. couldn't return a charge for involuntary manslaughter. couldn't return for criminally negligent homicide. this grand jury couldn't return a charge for wreckless endangerment of human life. this grand jury couldn't even see fit to charge this officer with a misdemeanor. what more does america need to see? i'm struggling because i'm also a father of two young african-american boys. and i don't know what to say. about what is happening in this country right now. we're better than this as a country. so i'm product proud