Caution, you are about to enter the no spin zone. The factor begins right now. Hi, im bill oreilly. Thanks for watching us tonight. Fails to prosecute a Police Officer who killed an africanamerican. That is the subject of this evenings talking points memo. A viewer warning. We are going to show you graphic video of the confrontation. On july 17th, new York City Police confronted 43yearold eric garner in staton island. Garner a low level street dealer of illegal cigarettes was not happy to see the police. Everybody standing here. I didnt do nothing. I did not sell nothing. Every time i see you want to harass me. They want to stop me selling cigarettes. Im minding my business, officer. Im minding my business. Please, just leave me alone. I told you the last time, please just leave me alone. The officers wanted to place handcuffs on mr. Gardner who and the officers were initially cautious. But when they moved in, the worst happened. Hold on. Dont touch me [bleep] do not touch me [bleep] damn, man. Put your hands behind your back. I cant breathe. I cant breathe. Mr. Gardner died at a hospital a short time later. The medical examiner calling his death a homicide. Thus the grand jury. Mr. Garner had a record, mostly nonviolent offenses, was out on bail at the time of the confrontation. New York City Police policy is the stroke holds are not allowed and mayor bill de blasio is clearly on the side of the garner family. We will get to that situation, which is volatile in the next segment. Now, the officer who used the hold, Daniel Pantaleo was called before the grand jury and testified for two hours. Is he now are free and clear of any local and state charges. Feds say they will investigate the case. Talking points does not know what happened. Until he we read the grand jury transcripts which are sealed right now, nobody can know. But that does not stop some agitators from stirring up controversy. However, however i will say that upon seeing the video that you just saw hearing mr. Garner say he could not breathe. I was extremely troubled. I would have loosened my grip. I desperately wish the officer auto would have done that eric garner was obese. He had asthma. He was no condition to absorb what befell him. Yes, he should not have resisted but all americans, every one of us should pity mr. Garner and his family. He did not deserve what happened to him. And i think officer peantd and o pantaleo and every other Police Officer would agree with me. He didnt deserve that thats the memo. Now for the top story reaction. Joining us tavis smiley. Is my assessment of the situation fair first of all . I didnt know what to expect when i came on tonight, bill. Im pleased to hear you say some of what you had to say the bottom line for me is when you sullinger earlier that we dont know wanted what. No, you werent there and i wasnt there but that video camera is abundantly clear to anyone who will watch it what happened that day what we have here is as you already noted illegal chokehold caught on tape coroner says this is a homicide, end of story. There is no way in my mind or anybody elses mind i believe thats looking at this for what it is that we can justify a no indictment from this grand jury. It just doesnt add up, bill. Let me play devils advocate. The chokehold is not illegal. Its against Department Policy. Its not illegal. Thats illegal. Thats illegal. Against Department Policy is not a criminal offense its a disciplinary action. You are splitting hairs. No, no, no. Just let me explained officer was docketed. He lost his shield. He lost his gun. When you violate new york city Department Policy that is what happens to you. You are not prosecuted. Now prosecutor in staton island took it a step further because the medical examiner rightly said it was a homicide because the man died in a violent confrontation. So, the grand jury sits, as many as 25. Its far more than ferguson. You have got to get 12 grand jurors in new york state to say yes, there should be an indictment. They said no. Im with you that i saw happened and it was very troubling. I dont think the Police Officer meant to kill mr. Garner. I dont think he went in with that. He meant to stop him from resisting arrest. Are you with me so far . Do you agree with me so far . I disagree in the sense that the grand jury saw evidence i dont know what they saw in addition to what we saw, there is no way, bill, you could look at that vape and come back with a no indictment, period. We can go all around the block here when you are applying something thats against Department Policy, its caught on tape. The coroner once again says its a homicide. How do you come back with no indictment . Hereby is my point. In grand jury system is becoming a fraud. Prosecutors now, because they want to act like this was done under due process, they turn to these grand juries grand juries continue to turn back it to send out these no indictments and the value of black life in this country continues to continues every day to have less and less respect. Thats the bottom line. I want to hear from the grand jury. And the prosecutor over there, the da in staton island is trying to get the transcripts relessed. They are sealed right now under law. I think he will. I think the public is going to have to seat rationale behind it i suspect it has something to do with the man resisting arrest and the Police Officer is trying to get him under control and that the grand jurors believe that they were not doing it in a malicious way. The intent wasnt bill, honestly, let me ask you, my friend. Does it really matter that he didnt intend to kill him . Does it matter done maliciously. Charges are concerned. Bill, what matters is he violated Department Policy. We saw it on tape the coroner i repeat for the third time homicide certain explanations have to be made. I think this would have happened to a white guy doing the same thing. I dont think it had to do with skin color. I think it had to do with poor judgment made by the group of Police Officers. But heres the problem. What you just offered now is speculation. It is. Let me put on the table. Speculation too, tafts. No its not, bill. What you are offering is speculation. What im putting on the table for america to see, what america does, in fact see every day are the facts. The facts are that Travon Martin was not speculation. Michael brown was not speculation. Mcbride is not speculation. Sean bell is not speculation. Eric garner is not speculation. These are facts and black life is being there is no respect for the humanity and dignity of black life in this country, bill. Let me ask you a couple of questions, tavis. Sure. Do you know how many blacks were killed by police by gunfire last year in 2012. I do not he know that. Number. The number is 123. Do you know how many whites were killed . 326. There are 43 million plus black americans, 123 were killed by police gunfire. And the garner thing is most of those Police Deaths are gunfire and not the other. So there isnt an epidemic of this. I mean its not. When it happens its extremely troubling. I could be wrong. Bill, there is respectfully i think you are wrong. There is a pattern here and you are too smart and too bright. Not minuscule. Bill, bill. Close to 43 million is minuscule. Bill, bill. Tell the parents of these precious young children. Every one is valued a life. Bill, if it were child. You would not call this minuscule, bill. Thats disrespectful, friend. You are taking my remarks out of context. Its not minuscule that the man died. The amount of Police Shootings are minuscule. And more whites three to one are killed than blacks. Bill. Do you not see in in the era of the first black president , i might add, do you not for thooing to live in a post racial america elected which was nonsense then and obviously nonsense today. Do you not see a pattern here where black life is being devalued, bill . I dont because statistics dont say there is a pattern. Once again, 123 deaths out of 43 million plus is minuscule. Every death is a tragedy. Im with you. Exactly. Three times as many whites are shot dead by police than blacks. Bill, there are more white folks in this country than there are blacks not for too much longer. I think there is a message here tonight that most americans see that its open hunting season on black men. I disagree but i respectfully disagree and you are a standup guy for coming on. In tavis book death of a king about Martin Luther king is available everywhere. Next why grand juries are prone to giving Police Officers a break. How will cops react to new york city mayor bill de blasio not supporting them . Back to iraq, the factor has learned startling new information about the war on terror. Terror. Were coming right back. Out for i didnt think id have a heart attack. But i did. Im mike, and im very much alive. Now my doctor recommends a bayer aspirin regimen to help prevent another heart attack. Be sure to talk to your doctor before you begin an aspirin regimen. Up to 27 more brush movements. Patented Sonic Technology with get healthier gums in two weeks. Innovation and you Philips Sonicare save when you give Philips Sonicare this holiday season. Im saving a ton of time by posting them to my wall. Oh, i like that one. Its so quick its just like my car insurance. I saved 15 in just 15 minutes. I saved more than that in half the time. I unfriend you. Thats not how it works. Thats not how any of this works. [ male announcer ] 15 minutes for a quote isnt how it works anymore. 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Listen, these things have symbolic meaning obviously to the Police Department. They obviously feel supported here. Mayor also make outreach. Almost too late though al sharpton and the police i know enough because my grandfather was an nypd. The police have seen enough to say this mayor is not on our side. He doesnt have our backs. What are the unintended consequences of that. I dealt with this all the time as a county prosecutor. Many of the areas people are asking for Law Enforcement to come in because they are ravaged by crime. Murders, you know, people being killed. Drug dealers, gang members all the time. When the police come in to those places and do the interdiction in order to eradicate those problems, then they are being mocked and made fun of. Demoralizing mayor de blasios overall point of view is on the force. Speculation. Were you surprised the grand jury did not indict in the garner case . Really . I was surprised. So was negative began kelly. Going to trial where a prosecutor cant prove a case yawrpd. Police officers given a wide latitude of discretion use of force. Look at that video very critically you see they were trying to do mechanical use of force or continuing use of force. I understand the guy was saying he couldnt breathe, he couldnt breathe. At that point had i been the Police Officer involved its easy for me to say i know i will get letters on this but i would have looived it up. Counselor brown, you see it as a clear cut case of homicide against the Police Officer . Well, i see it in the same way that the medical examiner saw it. I see it the same way that we saw it look at the video. We see officer using illegal technique that causes someones death. Again, it isnt illegal against Police Department it policy as i told tavis smiley. Its not illegal. Thats why we have something called negligent homicide. Even when you dont intend someones death and do something against policy which shows that its unwise to do so. Its a negligent homicide. Okay. Could you have prosecuted this case as a negligent homicide as a counselor suggests . I think where people are making mistake, could you have prosecuted this case with the tape . Could you have done it . I could go in and dry to prosecute a case of in this magnitude. I dont know as a prosecutor whether i would have believed. But you could have done it, right . Powerful evidence. We van ethical obligation only to bring cases we believe we can prove yard there is a lot of wide discretion here it. It depends a lot on the autopsy report. The chokehold. Medical examiner has ruled it was a homicide because the man died and by the way, just because you ruled homicide its a crime. Exactly. Just means you die from unnatural forces. Exactly. Thats what it means. Counselor brown, i believe if i were a prosecutor that i could bring this case. That i could bring it in front of a grand jury and i could make a compelling case that what you just said there was negligence because when the man was suffering and saying i cant breathe, i cant breathe. Just those words mean you loosen up a little bit. Right . I think i could bring it. Job whether i would win because he was resisting arrest. He was. The resistance that we are talking about happens at the beginning there are three officers at the scene and chokehold. You yourself bill noted its disturbing when you watch that video and this man is going down with officers on top he cant breathe. I think anyone that sees that tape and really takes it into consideration would be able to return a verdict of guilty. Im not sure about that. I think you could prosecute it in an honest way. I dont know if the i cant say we would have to see more from the grand jury and get inside what their mind was and i hope we do. Bill, can i just make one modern point. Yeah. First of all, the fact that he is speaking, the police are trained, means that he is breathing. I know. Is he desperate. And was a short period of time if you look at that video from what he was saying that that that officer was off him and the chokehold was no longer deployed. We dont want to try it here we do want to see the grand jury transcripts. He gentlemen thank you very much. If anything breaks on the story in new york city. We will bring it to you immediately. Next on the run down, back to iraq. The factor has learned the 82nd airborne returning to that awful place. Later, the best of miller. The autumn edition up ahead. 3rd and 3. 58 seconds on the clock, what am i thinking about . Foreign markets. Asian debt that recognizes the shift in the global economy. You know, the kind that capitalizes on diversity across the credit spectrum and gets exposure to frontier and emerging markets. If you convert 4quarter p e of the s p 500, its yield is doing a lot better. 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Estrogen should not be used to prevent heart disease, heart attack, stroke or dementia. Ask your doctor about premarin vaginal cream. The holidays can be an especially difficult time. Everythings different now. Sometimes i feel all alone. Christmas used to be my favorite. I just dont expect anything. What if santa cant find me . To help, sleep train is holding a secret santa toy drive. Bring your gift to any sleep train, and help keep the spirit of the holidays alive. Not everyone can be a foster parent, but anyone can help a foster child. Impact segment tonight. War on terror escalates. Colonel david hunt has learned that 250 paratroopers from the 82nd Airborne Division will soon be deployed to iraq to fight isis terrorists. In addition, there are reports that the wife and child of the isis leader baghdadi have been taken into custody. Joining us now from washington ace fox news correspondent james rosen and from boston the aforementioned colonel hunt. Tell me what you know about the paratroopers. Yeah. As you mentioned, the unit from the First Battalion 82nd Airborne Division deploying to iraq at the end of this month that will bring the number to close to 4,000 u. S. Soldiers and advisors, gun carriers on the ground. So that we are bombing and we have got going to have close to 4,000. Thats war. We have really upped this whole thing. This hasnt broken. You are breaking the story. This isnt, you know, the pentagon hasnt announced it or anything not going to put anybody in danger. Not paying attention to the number of soldiers deployed there now. By the way will have to go more to support the bun ones already there. Not to mention the amount of bombing we are doing. Spending 8 million a day. Back at war in iraq. Okay. Its interesting because you say that 250 paratroopers have to have at least 1,000 other military people backing them up with supply lines and medical logistics and all of that.