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The Five

'The Five' react to grand jury decision in chokehold case

This is a rush transcript from "The Five," December 4, 2014. This copy may not be in its final form and may be updated.

ERIC BOLLING, CO-HOST: This is a Fox News alert, I'm Eric Bolling. A decision has been reached by another grand jury in yet another case involving a white police officer and a black suspect who died after a confrontation. NYPD Officer Daniel Pantaleo will not be indicted for the death of 43-year-old Eric Garner. Garner died in July after being placed in the chokehold, Fox's Rick Leventhal is outside the courthouse in Staten Island -- Staten Island with more Rick, go ahead.

RICK LEVENTHAL, FOX NEWS SENIOR CORRESPONDENT: And Eric, the NYPD on high alert after that grand jury decision for no true bill or no indictment, no criminal charges, as you mentioned against Officer Daniel Pantaleo, and a chokehold death of Eric Garner back on July 17. Garner, a father of six had 31 prior arrests he was stopped that day for selling loose cigarettes, according to the NYPD. Other is cell phone video of the arrest, Garner's 6'3", 350 pounds, clearly resisting in the video. Officers attempting to handcuff him, Pantaleo put him in a chokehold which isn't illegal but violates the NYPD department policy. You could hear Garner on the ground saying, "I can't breathe. I can't breathe."

The grand jury has been meeting since late September 23, jury members heard evidence and testimony from more than two dozen witnesses including the officer. They ultimately decided that that officer did not break the law, even though the New York City medical examiner ruled the death a homicide caused by compression of the neck, compression of the chest and prone positioning during physical restraint by police.

The officer was suspended by the NYPD after the incident. He still faces possible disciplinary action by the department. There's also a possible federal civil rights case, it could come out of all this. And Garner's family had said they will file a $75 million civil suit against the city. But Eric, as far as criminal charges, there will not be any here in New York. Now, the big question is, will there be protests? There already are some, and the question is, how big will they get and will they turn violent?

BOLLING: That's what I want to -- neither protest in there right now, because I heard earlier there were people protesting saying, "I can't breathe." And that was their call or chant, I can't breathe.

LEVENTHAL: You know, not here outside to the D.A.'s office, not outside the courthouse. We heard and saw small group outside in the area where the -- where Garner was actually choked and died. But, there hasn't been any big demonstration here in Staten Island, at least not yet. We know the mayor is here, he's meeting with community leaders, clergy and he's expected to make some remark shortly, and he's been encouraging along with the police commissioner that all this protest remain peaceful and so far, for the most part they have.

BOB BECKEL, CO-HOST: And Rick, this is Beckel. If the medical examiner said this was death by choke, and the cop did that, and it was homicide, basically is what he said, what's the reason for saying that he wouldn't be indicted? I mean, it seems to me that it would be fairly clear.

LEVENTHAL: Well, they had a number of witnesses at the scene. They had forensics experts and other experts in police policies. If you watch that video, you see that they attempted to put hand cuffs on Eric Garner and he resisted arrest, he didn't allow them to do that in the way they wanted to. So that, precipitated that chokehold to bring him down, he was a very large man that must have come into the grand jury's decision process. Now, we don't know what happened in that grand jury room. The D.A. had said that he is bound by New York law not to divulge what happened inside that investigation. But, he has asked for permission to release that -- those details. So, if they allow him to do that, he's ready to come out and tell everyone, what evidence was presented and how that grand jury reached its decision.

GREG GUTFELD, CO-HOST: Rick, indulge me while I editorialize before I ask a question. My feeling is that this isn't about race or discrimination, it's about untaxed cigarettes. In New York City I believe, has the highest rate of taxation on cigarettes, $4.35 per pack, and you have the local tax which is $1.50. The tax rate has gone up 190 percent since 2006, smuggling is jump 59 percent. I don't think that's a coincidence, this guy died over a loose cigarette. My question is, you mentioned that he had 31 arrests, how many of those arrests were for selling loose cigarettes?

LEVENTHAL: I don't -- I couldn't tell you how many of them were for selling loose cigarettes, but I can tell you that there are a lot of people who are saying that no matter what the arrests were for, no matter what that particular arrest was for, there is no reason, there should be no cause for an unarmed man to be killed --

GUTFELD: Right.

LEVENTHAL: For a petty crime. In fact the New York Senator Kirsten Gillibrand came out with a statement calling it shocking, the grand jury is lack of indictment and saying that she would be one of those who pursue a federal case -- a federal civil rights investigation, some sort of case on a federal level because, she could -- was so shocked that there weren't any charges brought here. They could have come back with a lesser charge, not man slaughter or negligence homicide but, some sort of reckless in danger in charge and he has nothing to do any of those things.

KIMBERLY GUILFOYLE, CO-HOST: Hi Rick, it's Kimberly Guilfoyle. So in New York, if the indictment has to be agreed upon by 12 members of the grand jury and they can have but too about 23. But we don't know the exact composition or the decision, because those details have not been released yet, correct?

LEVENTHAL: Well, my understanding is 23 members of the grand jury, 15 were white and eight of them were black or Hispanic.

GUILFOYLE: No, but I mean, of the way that --

LEVENTHAL: They have to have majority --

GUILFOYLE: Right. The voting is what I'm going to say.

LEVENTHAL: The way the voting broke down, no, we don't know, but again that's something that the D.A. possibly could release, that's information they could release.

GUILFOYLE: Right. But they're seeking to release. In terms of the people asking about federal civil rights, that's going to be incredibly difficult to pursue, in my personal opinion as a prosecutor, yet, we're not privy to the details of what was presented and proffer to the grand jury. This is the case where just by looking at the video, the actual incident is on tape, versus the case of Michael Brown and here it becomes a real question as to the number of officers taking down this individual, the deceased, and whether or not the force was excessive, that was used, especially in light of the crime that was being committed and the fact that he did not even possess a weapon or appear to be really be resisting is more of kind of subtle, you know movement. Which I think -- I'm just surprised --

LEVENTHAL: Well, I think --

GUIFOYLE: That shouldn't been considered more.

LEVENTHAL: I think, you know, it's important to point out the officer was suspended after the incident --

GUILFOYLE: He could lose his job.

LEVENTHAL: Aware of any other officers being suspended. He could easily lose his job, he could be just put in, in some other way there will be a disciplinarian internal affairs investigation of this whole episode. You mentioned the federal possible case and then there's a civil case, if the family is intending to bring and it's entirely likely, that the family will get some sort of settlement from the city of New York. But he will not be charge criminally --

GUILFOYLE: Right. LEVENTHAL: Here in state of New York, for his action on July 17th.

BOLLING: Alright, can we leave it right there, Rick. Thank you very much.

President Obama reacted to the Garner decision moments ago.

(BEGIN VIDEO CLIP)

BARACK OBAMA, PRESIDENT OF THE UNITED STATES OF AMERICA: Some of you may have heard there was a decision that came out today, by grand jury not to indict -- police officers who had interacted with an individual named Eric Garner in New York City. All of which was caught on videotape and speaks to the larger issues that we've been talking about now for the last week, the last month, the last year, and sadly for decades. And that is -- the concern, on the part of -- too many minority communities that law enforcement is not working with them and dealing with them in a fair way. There's going to be -- I'm sure additional statements by law enforcement. My tradition is not to remark on cases where there may still be an investigation.

(END VIDEO CLIP)

BOLLING: Alright, let's bring in Greta Van Susteren who's been closely following the case. Great -- last night I watched your fantastic coverage of the Ferguson trial. You said in a line that you repeated a couple of times, I've -- I paid the particular deference to grand juries. Do you still feel that way after the New York decision, grand jury's decision?

GRETA VAN SUSTEREN, 'ON THE RECORD' HOST: You know I -- look, I disagree with so many juries even on my own cases, whether I have won or lost, but it is deeply disturbing to look at this particular video. This man was unarmed --

GUILFOYLE: Right.

SUSTEREN: He was selling cigarettes. I mean, this wasn't robbery, selling cigarettes. He had several cops standing -- police officers standing around him. And when he said, "I can't breathe" that would have been a great invitation to stop. I mean, this one is very different than some of the other encounters people have with police officers on the street. I don't know but -- I don't know what Kimberly thinks, you know, I haven't been a prosecutor but, this one? I mean, they -- I mean, it's really quite stunning. Now, one of the reasons I'm very deferential, Eric, to grand juries is because I'm not in there for all the evidence. This is unique in that we sort of have all the evidence. We have a lot of the evidence and it's all caught on videotape so we can actually see it. Now, I don't know what else they were presented. But when he said, "I can't breathe" that would have been a great time to stop. We don't do the death penalty for selling cigarettes --

GUILFOYLE: Right.

SUSTEREN: Illegally on the streets.

GUILFOYLE: You know, Greta, I couldn't agree more and it is here. I mean, the whole -- the essence of what went down is all on tape for everyone to see, that's not really subjective to other outside interpretation, because you can see it right there on the video, you've got a good --pretty good angle of it. When you see the -- use of force which is in my opinion just watching the video is accepted, when you compare it to the very little resistance that he's giving, and very disproportionate in light of the crime. This man is not posing a threat or danger.

SUSTEREN: And he said, "I can't breathe"

GUILFOYLE: He said he can't breathe, yeah.

SUSTEREN: He said he can't breathe, so how about stopping at that point? I mean, the guy -- in terrible, you said -- terrible distress, I can't breathe? That would have been the first time I took my hands off him, and you know his unarmed. Remember, he doesn't have any weapon. He's unarmed. He hasn't threatened a police officer, he's just you know, all his mouthing off to them. But, you know, that's, you know, that's any and maybe obnoxious?

GUILFOYLE: Yeah.

SUSTEREN: But, that's certainly not a reason to -- we have excessive force.

GUILFOYLE: The officer is probably going to lose his job because, that is against NYPD policy, the reason why chokeholds are illegal, is for this very reasonable we for what we saw transpired on the tape.

SUSTEREN: So, I answer your question, yeah, Eric, Yes. I'm very differential to juries, a grand juries and I accept their verdicts even when I have disagree them in my own cases, but this is one of the unique situations where, you know, we don't have to peace much together, we actually have it ourselves and it's a very low threshold to indict. So, I am, I'm very surprised that this one and I'd love to know why they didn't indict.

GUILFOYLE: Yeah.

DANA PERINO, CO-HOST: And you know Greta, my question is, twofold. So, it's unusual for a grand jury proceedings to be revealed, but it looks like we might in this case and I wonder if you think -- you know, what sort of affect that might have on the grand jury system going forward. And the second question I have is -- do you think there's any federal jurisdiction here for any sort of department of justice case against either the officer, the police force itself? And I ask that because, in the Trayvon Martin case, the department of justice was looking into that case and Eric Holder said he was going to consider charges and those have yet to be brought.

SUSTEREN: Alright. I tell -- but Dana, what makes this one so different to me is the fact that some videotape, you know. Those are the ones that's many cases are he said/ she said, and we don't know who saw what and they have things happen in you know, very -- you know, in a very -- the blink of the eyes. What happened, this one actually took a little while.

And it's not a he said/ she said in that we can actually see it. And one of the things police officers are not supposed to do is use excessive force, and I think when someone says, "I cannot breathe" and you've got several police officers there, I think they have now passed that threshold where, you know, where we really do need to have it looked into. This is you know, and I know this is a very bad time to have this happen, you know to say in light of what happened in Ferguson. But you know, we know, this one is on videotape, unless there's some other evidence out there. This one, which is, "I can't breathe."

GUILFOYLE: That's it.

BECKEL: Greta, you said that, you don't have access to all the evidence. Give me an example the kind of evidence that you think you would find strong enough to overcome this tape?

SUSTEREN: You know Bob, I don't even know what and the reason I say I don't have all the evidence is because, you know I look at this with my eyes, and I think to myself, I know grand juries, they work really hard and they're very serious about the work and they do a really good job. So, I just have to assume that they saw something or they didn't have something that I imagining. Because, as I looked at this, and see him say, "I can't breathe" you know, I don't know what else is more unique for a very low threshold --

PERINO: Right.

SUSTEREN: To simply indict. So, Bob. I'm just, because I have so much respect for grand jurors, I think there's, there's got to be something else or there's a big missing piece of evidence that I don't have.

GUTFELD: Greta, this is Greg. Forget the grand jury, what worries me is about how in the press will lump all these cases together, and the way President Obama which I find fault with these with -- he says that this particular case speaks to larger issues about unfairness. I don't believe it is about unfairness. It is about a nanny state that punished a man for selling a loose cigarette. He was supplying a demand, he was working for a living, he was doing something good on the street and he got killed for it. This is not about race discrimination and I don't think it should be lumped together with any other of, any other trends that are going on. This is a separate and devastating story.

SUSTEREN: I -- you know I think, Greg, that this is very unfortunate timing. But I think that it's always an important issue to be discussing, you know, how we have justice, law enforcement -- being a police officer is a tough job. And you're out on the street and a lot of people are obnoxious to you too. But you know there's new -- but we expect police officers still, human people are obnoxious to them, we -- you know, we do expect them to -- do their jobs appropriately, so. And it is just very difficult about this, I don't know whether it's a nanny state on the cigarettes, I don't even smoke cigarettes, so I mean, you know, whether someone sells at me well it doesn't even bother me now. But the things like robbery, those things bother me --

PERINO: Right.

SUSTEREN: A whole lot.

GUTFELD: But this is --

SUSTEREN: I don't know --

GUTFELD: Greta, my point is, if we didn't have this law that arrests people for loosies (ph) this man would be alive, the police wouldn't have been in that situation.

SUSTEREN: You know what though, but you what the thing is that high a lot of it -- probably a lot of police officers look the other way on a lot of silly crimes.

GUTFELD: Right, true.

SUSTEREN: I mean, they probably just do it. And they see a lot of stupid stuff --

GUTFELD: Yeah.

SUSTEREN: And they just stop it, and they use their judgment. They use good judgment thinking like we going to clog the system up with you know, ten people selling cigarettes illegally --

GUTFELD: True.

SUSTEREN: And were -- kids underage drinking like, you know one bottle of beer or something.

GUTFELD: Good point.

BOLLING: Greta, is the grand jury system, does it need to be fixed? I mean, we know that, that, that the grand jury is picked from the community that, that the case is going to be heard or not heard. And there are a lot of people are pointing the finger at the way these grand juries are made of.

SUSTEREN: Well actually, they actually I like the grand jury system, because it historically was a way to protect someone who's accused from an overbearing prosecutor. Because at the prosecutor charges is you know, in theory the citizens were there to sort of protect the individual. And I tell you, is the grand jurors work very hard though. Now, the -- they're -- Kimberly will tell you this, is that there's sort of at the beck and call of the prosecutor. We know we don't know what the prosecutor presented to this grand jury. You know, I still admire grand juries, and I still think it's a great idea, and it's like -- and I really trust it. Is that, you know but, look, you know it's like democracy, you know, democracy isn't perfect. Grand jury is not perfect but you tell me a better system.

GUILFOYLE: Right. No, she's right about that, grand jury work very hard. You know, when you get called for grand jury did you are in for it. Because you don't even there for just one case, you hear a bunch of them and you could be in there, 30, 60, some of these you know, 90 days serving, you know, time as your civic duty. I tell what Greta, in this case, if I was given this case and I had to put it forward and proffer it to the grand jury. There's two pieces of the big evidence or, that I would present.

One, the video, it sort of tells the whole tale. Two, the medical examiner report, what a lay-up -- matter of that homicide that tells you. But, for the officer actions, Eric Garner would be alive today, and then you look at the video and then you have the fact that he asked for, you know, essentially medical attention saying that he couldn't breathe. That's what the survey, I'm really not certain what other evidence could come forward besides some kind of utterance where the officer felt in danger for his life, because the guy said, "Hey, I'm going to kill you" or something like that. Or he patted them and he felt or thought he had a weapon on him. But none of that has come out.

SUSTEREN: Well you, well you raise a good point. Is that you know, is that any death at the hands of another person is a homicide.

GUIFOYLE: Right.

SUSTEREN: And so, people think homicide they think automatically that's murder. Not necessarily, if there's, if there's a legal defense, for instance, self-defense. If he were --

GUILFOYLE: Right.

SUSTEREN: Raising a gun at the police officer.

GUILFOYLE: Right.

SUSTEREN: But remember, he didn't -- he wasn't armed and there were several police officers standing around him, time to assess him. And I mean this is a little bit of standoff. We got to watch this little dance between, between him and the police officers leading up to this. And there was, so there's plenty of time.

GUILFOYLE: He was outnumbered for sure.

SUSTEREN: There -- you know, I don't see the legal defense to this.

GUILFOYLE: Right.

SUSTEREN: That's the problem. It's like taking -- what's, what's the defense? The police officer is scared? The only thing you can say is possibly that it was accident. But if it was an accident, why didn't he stop when he said, I can't breathe?

GUILFOYLE: And he had backed up, it's the only key (ph) which is in struggle, you know, one-on-one on the street and he had a significant number of people around them.

SUSTEREN: I should say in one thing is it, in my wildest dreams, I don't think that police officer intended to kill him that day.

GUILFOYLE: Right.

SUSTEREN: I don't that --

GUTFELD: Correct.

SUSTEREN: That is not -- this officer never intended to. I mean, this is grossly unfortunate. However, you know, there's place between not intending to do it --

GUILFOYLE: Manslaughter.

SUSTEREN: And excess of force, excess of force.

PERINO: Greta, I think we have time for another question. So, in Ferguson, one of the accusations immediately was that the Ferguson area had rampant and systemic racism for decades and generations, which I -- with an accusation, what I'm saying that is true. But in New York City, where you have many minority cops, this is not -- the situation honestly, it's a white officer and a black victim.

But, when you have a majority/minority, I mean -- the majority of applicants to the police department in New York City are minorities, and they done -- I think an amazing job of implementing all, to different cultures and sensitivities all throughout. The most professional police force in the world. What would you suggest to, either the prosecutors or the law enforcement to do something to keep the situation calm?

SUSTEREN: Oh, I'll tell you what I think. I tell you what really awful Dana, is that not every confrontation between two people, two different races is racism. It's just not. To call every single interaction which is - - it goes -- goes are alike like this, racism is racism -- I think. Look, you know, I'm not there -- I think each one should simply be examined on the facts. You know what happened here and what I think the race here is irrelevant. Now, I know there's always been sort of simmering tension, but I'm not so sure if it's between races on the streets, but actually people on the street and police officers. I mean, you could pull over by a cop when you're speeding, you don't like the cop?

GUILFOYLE: Right.

BOLLING: Right. Greta, we got to go, we really appreciate your time, clearing up a lot of stuffs for us, thank you very much. We'll be right back.

SUSTEREN: Thank you.

BECKEL: Would you.

BOLLING: We're awaiting a news conference soon from the mayor of New York City on the Garner case. We'll keep you posted on what Bill de Blasio says when that begins ahead. Did Michael Brown stepfather commit a crime in Ferguson, the night of the grand jury's announcement?

(BEGIN VIDEO CLIP)

LOUIS HEAD, MICHAEL BROWN'S STEPFATHER: Burn this mother (beep) down. Burn this (beep) down.

(END VIDEO CLIP)

BOLLING: The details of that investigation --

(CROSSTALK)

GUTFELD: No.

(COMMERCIAL BREAK)

GUILFOYLE: Michael Brown's stepfather may be in trouble with the law after he was caught on tape doing this.

(BEGIN VIDEO CLIP) HEAD: Burn this mother (beep) down. Burn this (beep) down. Give me the mic, give me the mic. Burn this (beep) down. Burn this (beep) down.

(END VIDEO CLIP)

GUILFOYLE: Well, local officials are investigating whether Louis had attempted to incite a riot by calling for protesters to burn down Ferguson last week. Head is now apologizing for his actions. He said his emotions got the best of him that night. But he argues, that he's shouldn't solely be blamed for the community and country's condition after the grand jury's decision. I won't (ph) stick around, Bob.

BECKEL: Listen, I think this case where the guy should be given a pass. I mean, he was obviously emotional, he said to -- and he admits it that he shouldn't have said it. And I don't even begin to -- I can't even fathom the idea of bringing this guy in front of a grand jury. I mean, can you imagine that actually indicted him after they bring him down. (ph) Talk about an introduction to more rioting, I mean, I just, I just find it amazing.

GUILFOYLE: Bolling.

BOLLING: So, first the man who say, you can say what you want when you want to say it. But, there are limits today, you can't yell fire in a crowded movie theater, you can't yell bomb on an airplane. Because, it creates panic and panic creates possible injury. In this case, he is basically saying the same thing. He's yelling fire in a crowded movie theater. He's telling burn this B down, meaning the city down. That's means, people listened to that, maybe they got agitated and maybe they did things that could have hurt people. So, yes, there are lots true --

GUILFOYEL: Inviting a riot.

BOLLING: Inciting a riot, I think he needs to at least -- at least be -- I don't know what you can do without, you know if you two indict him, and then you look at Officer Wilson not indicted but this guy indicted, you could create tension.

BECKEL: What that mean?

BOLLING: But you still got to go with what's right, and what's right is in, to have some sort of recourse for doing that because he shouldn't done it.

GUILFOYLE: Dana, with footballing is saying is true, which is very easy to understand, which is at this type of prosecution of a grieving stepfather could further fan the flames and incite another riot, of sort. Is it enough because he had the suffering and the emotions were high to use what you were mentioning to me earlier, prosecutorial discretion, I don't --

PERINO: Well, I think that.

GUILFOYLE: Read that phrase.

PERINO: Judges, OK. So, one of the things about a judge is not just always black and white, that you are empowered to make a judgment call.

GUILFOYLE: Right.

PERINO: So you have the discretion to be able to decide, OK, I think with this, or not that, this is the type of punishment you should have or not. And in this case, I could see why you would want to punish the insider, because, where's the justice and the restitution for the shop owners? But however, having said that, the overarching problems of the community I think that the judge would be right or the prosecutor would be right to say, we're going to have to let this one go, even though I don't want to have to do it.

GUILFOYLE: Greg, she brings up the point. What about the people, the families, the small business owners that have been very damaged but what happened --

GUTFELD: That's -- I mean, yeah. I mean, I would focus all my attention on arresting and punishing every looter and asking yourself why no one was there to protect those businesses to begin with and let everybody there watched their livelihood, be destroyed, because they were too scared to enforce the law. I'm also interested in why so many in the media are more perplexed by Charles Barkley calling looters scumbags. And they are over -- some pretty obvious encouragement to loot. BECKEL: It wasn't. The question I was this, did his comments lead to any looting? That's the question.

GUTFELD: Well, the place burned down.

BECKEL: No.

(CROSSTALK)

BECKEL: I don't think they have, you can necessarily say it was his comments and looting took place.

(CROSSTALK)

GUTFELSD: What would have happened anyway?

BOLLING: That's why he saying -- did -- if you go on an airplane and you yell bomb or I have a bomb and no one actually gets hurt by that, Oh, then let's not, let's not prosecute -- that moron that would do something like that. It's not what -- it's who did it had happened? Not, did it actually happen. I guess if it did happen you have a case -- cut and dried. It may or may not have happen. You don't know how many of those people who -- they're 24 buildings that went on fire.

GUTFELD: Yeah.

BOLLING: In Ferguson.

GUILFOYLE: And the question is -- right.

BOLLING: Any of those who are lit (ph) because of hearing the father say --

GUILFOYLE: No we don't. There has to be nexus (ph) between the two. To show some kind of causal link is it too great burden to put in this individual to say that his action alone resulted in this whole domino string of effect of property looting and burning and destruction in Ferguson. You'll never get a jury conviction on this. I agree with our colleagues --

PERINO: The question --

GUILFOYLE: Prosecutorial discretion.

PERINO: The question I would ask if I were the prosecutor, and if I was a shop owner and a citizen, and I was a paying taxpayer in Missouri is I would be asking the governor, and the administration, the White House, why was the National Guard not there? Because, it's not like -- it's not like somebody just came in unannounced and they didn't have any preparation that somebody was going to come in and yell fire in a crowded theater. They knew for months that this was going to happen. It wasn't just the stepfather that caused it.

GUILFOYLE: Right.

PERINO: They -- there was -- there was planned action all along, and there was no planned response. It was -- that is the question --

GUILFOYLE: It was a serious omission.

PERINO: That has not been answered.

GUTFELD: Yes. This is --

PERINO: And I would -- I don't think we should let up on it and I think that -- both the governor and the White House needs to explain why that did not happen.

GUILFOYEL: Alright.

BECKEL: You know what tells what we get at?

GUILFOYLE: She do, but it's been on. (ph) Alright. Ahead, Greg has been keeping close tabs on the mainstream media and has discovered a glaring trend --

GUTFELD: Yes.

GUILFOYLE: That he's going to tell you about. Stay with us, that's next.

(COMMERCIAL BREAK) GUTFELD: Here's some stuff that's received less media coverage than Elizabeth Lauten, that low-level Republican who criticized President Obama's kids over their clothing. Jonathan Gruber's boasting about hoodwinking morons on Obamacare. Not a good story. A store owner murdered in Miami on Thanksgiving Day. His wife was about to give birth. Not a big story. That Bosnian man beaten to death with hammers. He was unarmed. Where's CAIR? The Black Panther plot to murder cops and blow up monuments. It's terrorism, but in a few years they'll be professors. A D.C. staffer pleads guilty to numerous sex assaults. Terrible. Wait, but he's a Democrat? Oh, OK. Move along. The death of Ferguson commerce, if somehow they aren't marginalized.

Look, maybe what the lady said about the Obama kids is worse than all that stuff. Maybe networks were right to park vans in front of her parents' home, and papers were right to have hired staff to vet her past. But CNN blames this obsession on her on a slow news cycle. Yes, Iran, ISIS looting, it's been a real drag.

The fact is, it's the media picks the good guys and the bad guys. And it's their bias that shapes what you see. And the consequence that brings -- the mayhem, the suffering -- it's all sanctioned by the media's campus- ingrained never ending guilt.

Lauten didn't shoot anyone, hammer anyone, rape anyone. She didn't burn down any businesses. She did worse, as far as the media is concerned: she was a Republican.

So I want to just throw a little montage of the rampant news coverage of Ms. Lauten.

(BEGIN VIDEO CLIP)

BRIAN WILLIAMS, NBC NEWS ANCHOR: Because one of the few rules that the news media and the mob usually both adhere to: leave families out of the fight. However, tonight a Republican staffer is out of a job after something she wrote on social media about the first daughters.

UNIDENTIFIED MALE: Back here at home tonight to that firestorm over this image of Sasha and Malia Obama there at the annual turkey pardoning. Now a Republican aid sparking a firestorm when she posted criticism of the first daughters.

UNIDENTIFIED MALE: Also resigning today was Elizabeth Lauten, congressional aide whose Facebook post about President Obama's daughters, Malia and Sasha, sparked a firestorm.

(END VIDEO CLIP)

GUTFELD: Sparked a firestorm! You hacks!

All right. Dana, what she did was dumb. If she worked for me, I would have fired her or suspended her.

PERINO: A hundred percent.

GUTFELD: But what the media is doing is worse.

PERINO: I immediately thought because she is supposed to be in P.R., and she's supposed to have judgment and she's supposed to be -- know about reputation management, that when you work for a congressman, even if it's a congressman that no one has ever heard of, Republican from Tennessee, you have a responsibility to be smart.

And this is a great lesson for any staffer. If you're a manager of a business, I would make everybody read the news articles about her and then initial it before they get the job, because you represent not only yourself, but also where you work.

So I thought that it was right that she resigned, and I think she should have been fired.

However, the media and the left took it so far, just one step too far, just being so ridiculous. And you showed just the network news coverage. The social media was insane.

GUTFELD: They love this stuff.

PERINO: And now they went so far that now they almost look more ridiculous than she did.

GUTFELD: So Eric, Google News search, for her, if you Googled her, 2 million hits. The Democratic rapist, 326 hits. That's no sign of media bias.

BOLLING: No, no.

Can I just talk about her for one second? So this happened. I happened to be with my son, and he -- and I showed him, I told him what happened. And he said, "You know, Dad, I hate it when you put my picture on TV." He said, "I can't imagine what those two are going through, being the president's daughters." So in that respect, they did everything right. The Obamas did everything right; there's nothing wrong with that. Lauten should resign for what she did.

But your point is so well taken. You realize that we showed a clip of Brian Williams at "NBC Nightly News" talking about this. Fourteen days after Gruber's tapes were exposed...

GUTFELD: Yes.

BOLLING: ... zero. NBC News had zero mentions of Gruber and something that's affecting 100 percent of the economy and the people watching. Zero references. One, the first night with Lauten.

GUTFELD: Lauten, yes. We don't even know how to pronounce her name. She's mid- to low-level, Bob. NBC spent three times more time on this GOP staffer than the Gruber scandal. You're OK with that, I'm sure?

BECKEL: I'm fine with that. Listen, it's one thing in Washington.

GUILFOYLE: Bob, the media got it right.

BECKEL: And it's a given that you don't go after the children of the president of the United States.

GUTFELD: Wait, the Bush kids? Come on.

BECKEL: Wait a second. Wait a second.

GUTFELD: Constantly drinking?

PERINO: What?

GUTFELD: No, I'm saying that was the impression.

PERINO: Oh, yes.

GUILFOYLE: Somebody at this table's going to break up.

BECKEL: A staffer going after the Bushes for...

PERINO: They're on the cover of "People" magazine.

BECKEL: You're talking about media. I'm talking about the Democrats who didn't go after him on that.

PERINO: Why do you think they did, though? Because the Democrats loved it.

BECKEL: NO, come on. Plus the fact she was loaded in that bar.

PERINO: No. You know what? Now you're being...

(CROSSTALK)

BECKEL: Anyway, can I get back to this woman for a second?

GUTFELD: Yes, you can.

BECKEL: I think that I can sort of understand why they would find this a more interesting story, why the public would find it a more interesting story.

GUTFELD: But I don't think the public does. This is a media obsessed story. I don't know.

K.G., is it too late for the media? They are too far in the tank that they'll never come out.

GUILFOYLE: There is no antidote, there is no cure. There is no brain pill or vitamin for them or elixir, in fact. There is no help for them.

The only thing I want to say is we really ruined it for her. Because she was in the picture there with blond hair, and then she saw her with her hair colored, dark, so she has nowhere to go except try to find a fiery shade of red...

GUTFELD: Yes.

GUILFOYLE: ... to avoid any kind of public identification going forward.

BECKEL: That wouldn't happen with you, right?

GUILFOYLE: Who would want...

BECKEL: If you had a bunch of cuts of you, you wouldn't see red (ph).

GUTFELD: We've got to move on, they're telling me. By the way, social networks have killed more jobs...

PERINO: Yes.

GUTFELD: ... than President Obama.

All right, could you pass a U.S. citizenship test? High-school students in one state may be required to take them soon in order to graduate. Dana's got some of the questions for you ahead.

(COMMERCIAL BREAK)

PERINO: Can you name the number of amendments in the Constitution? What about the power of the federal government? And if you can't answer those questions, you might not be able to graduate from high school in North Dakota if a new bill is passed. Lawmakers there have unveiled legislation that would require students to pass a citizenship test before getting their diploma.

Seven other states are considering a similar bill. Just going to give you three examples of the questions. The first one is who was president during the Great Depression and World War II? You see it's actually multiple choice. The answer, of course, Franklin Roosevelt.

How many justices are on the Supreme Court? Out of those, 9.

BECKEL: Now Hoover was...

PERINO: During World War II?

BOLLING: It says during the Great Depression.

PERINO: Yes, I'm sorry. Hoover and Roosevelt.

BOLLING: Hoover during the Great Depression and Roosevelt during World War II.

PERINO: one question, so that's a tricky one.

And what did Susan B. Anthony do? I think this would probably be a hard one for students unless they had studied this. This is a woman who worked for women's rights.

GUILFOYLE: Doesn't everyone know that?

PERINO: Well, here's my question. You only have to -- I don't think -- no, not everyone knows that, Kimberly. And that's one of the reason that the state legislators are deciding to put forward this test. You only have to get six right, so six questions out of ten. That's not too bad, right?

BECKEL: You know, I watched them build the Freedom Tower from my apartment. It's 1,776 feet high. I asked 20 people, why is it 1,776 feet high? Not one.

BOLLING: Couldn't figure it out.

GUTFELD: Well, it could be because they were tourists from, like, Asia.

BECKEL: No, no.

GUTFELD: Or Brazil.

BECKEL: They got it right.

BOLLING: The English knew.

PERINO: They actually might know.

GUTFELD: But isn't this part of American history class? Don't you -- shouldn't you already be getting this? I don't know, but I think -- I feel at least our president should know the number of states, so I'm for this.

BOLLING: That's true.

GUILFOYLE: I don't have a problem with this. If you're asking people coming to this country to pass this test, then we shouldn't be too good for it. We should know it, as well.

PERINO: But also, there are, Bob, at high schools across the country now there are requirements for a community service credit in order to graduate. So is it really too much to ask to be able to get 60 percent on a test?

BECKEL: It's -- it's an indictment of their education system and their teachers if they don't know the answers to this.

GUILFOYLE: Yes.

BECKEL: They're pretty simple questions.

PERINO: I'll tell you, some of them are. But I think if you've worked in government, some of them are. You don't know which 10 questions you're going to get. So you have to study for all of them.

BECKEL: Remember, we tried to get them all the answers and we got, what, 10?

PERINO: We got to about 66, and then we ran out of steam.

BECKEL: We got -- we overrode the veto, and that was it.

BOLLING: Have you seen the test for immigrants?

PERINO: Yes.

BOLLING: It's difficult. And the cool thing is, once you pass that, and you're an American citizen, you know more probably than 80 or 90 percent of Americans walking around.

GUILFOYLE: You know who could answer all these questions? J

PERINO: Peter.

GUILFOYLE: Besides Peter. Jonathan Hunt. Another man who...

PERINO:  Yes. Because they just went through their citizenship test. I remember Peter studies all -- you can take an online test. In fact, you can go to our Facebook page, you can take some of these tests.

BECKEL: It's only 10 questions, right?

PERINO: And quiz each other over family dinner tonight.

GUTFELD: What's the capital of New Dakota?

PERINO: Hmm?

GUTFELD: What's the capital of New Dakota?

PERINO: New Dakota? It's not called New Dakota.

GUTFELD: Oh. It's a trick question.

PERINO: Well, I'm glad I got it right. OK.  Coming up, a little girl with an enormous heart does something for a stranger that's warming a lot of our hearts. It's a story about giving you won't want to miss this holiday season, ahead on "The Five."

(COMMERCIAL BREAK)

BECKEL: There's a FOX News alert. Protesters are starting to gather in New York's Times Square after a grand jury's decision was announced on the Eric Garner case. The police officer was not indicted.

New York City Mayor Bill de Blasio just held a press conference and says the federal government will now start an investigation.

(BEGIN VIDEO CLIP)

BILL DE BLASIO, MAYOR OF NEW YORK CITY: I received a phone call from the United States attorney general, Eric Holder, and from U.S. Attorney Loretta Lynch. They made clear that the investigation initiated by the U.S. attorney would now move forward; that would be done expeditiously. It will be done with a clear sense of independence; and that it will be a thorough investigation.

(END VIDEO CLIP)

BECKEL: What are they talking about? Are they talking about an investigation to do what? Indict him on...?

GUILFOYLE: Yes. Basically, they want to see if they can get some public support, so people feel a little bit calmer about this, to say we're investigating it. We're going to make sure that we cover all of this and be thorough. Because otherwise, people might get upset: what are we going to do about it? We're going to riot, unless we feel there's something else going.

And like Dana pointed out earlier, look at the Trayvon Martin case. People were saying there's an investigation that's ongoing. Eric Holder's always saying that. Nothing's ever come of it. And people don't understand, the federal standards are so difficult to meet.

So what exactly is he going to do? The only thing that's going to happen with respect to this Michael Brown -- Eric Garner case is going to be that that officer is going to lose his job.

BECKEL: Do you buy into the notion it's to take the heat off?

BOLLING: Well, I think they did that in Ferguson. We haven't heard what the outcome of whether or not they're going to investigate or indict Officer Wilson in Ferguson. I'm not sure what -- OK, so in Staten Island, they said no, there's not enough evidence to indict. If they do indict him on a federal level...

BECKEL: Right.

BOLLING: ... would that make people more likely to protest? Because it would indicate jury bias?

GUILFOYLE: Or would that satisfy?

BOLLING: I don't -- boy, I don't...

GUILFOYLE: I just think it's very difficult. A high standard.

BECKEL: I don't think it makes a thing out of it. Dana, what do you think? Just a little bit of a public relations effort to try to take the steam out of things?

PERINO: No. I think it is standard and good practice, and the keyword to me was "expeditiously."

BECKEL: Expeditiously, right.

PERINO: But that means different things to different people, like the wheels of justice turn slowly and sometimes not as fast as people would like.

BECKEL: You know, Greg, this -- It seems to me this is the right thing to do. I mean, why not?

GUTFELD: You know, it just feels like the right thing to do, but it feels like the same old faces are going to be involved in this process. And there are often people that infuse politics into -- race into politics and vice versa.

I'm going to go back to what I said earlier. This is the symptom of another unnecessary law that forces police to enforce the law that they don't have to enforce, which creates situations that end badly. If you didn't have this law, this wouldn't have happened.

BOLLING: You know what the essence of that law is, though? Tax.

GUTFELD: Yes.

BECKEL: All right. Here's a tax: "One More Thing" is up next.

(COMMERCIAL BREAK)

BOLLING: All right, time for "One More Thing." K.G.'s first.

GUILFOYLE: OK. Well, I have a very heartwarming story, when you think about generosity of spirit, and it can be seen in even a 3-year-old little girl.

And in this case it was seen in Arianna Smith, who decided to donate her long hair to charity, to Locks of Love. She was inspired by seeing a photo of a young little girl who was suffering from cancer and had her head -- you know, all her hair was gone. She was bald. So she decided to give her own. You see there, that's with her new sporty haircut, and it's such a great lesson to teach and to share with your children to do something like this to give back. So...

BOLLING: Awesome.

GUILFOYLE: So God bless her. What a little angel.

BOLLING: Absolutely. Bob.

BECKEL: You're not going to tell them about my giving to -- never mind.

The Donald, you know who that is? Donald Trump, who decided he was going to run for president in 2000, 2006, 2008, 2010 and tried in 2012. Well, not to be outdone, the Donald has decided he is seriously now considering running in 2016.

Now, Donald, here's the problem, my man. I have a candidate already. And that's Teddy Cruz, and I don't think you ought to get in his way. So I have an idea. Here's the perfect ticket for the Republicans: Cruz-Trump.

GUILFOYLE: Where's your poster?

BECKEL: Couldn't beat it.

GUILFOYLE: My man.

BECKEL: I haven't put this poster together yet. We will, though.

BOLLING: All right. Greg, you're up.

GUTFELD: Well, somebody's been married today for ten years. That's me.

GUILFOYLE: Yay!

GUTFELD: I'd like to wish my wife a happy anniversary. That's the one in the middle.

BECKEL: You look really excited.

GUILFOYLE: Whoa!

GUTFELD: We met 11 years ago.

BOLLING: ... right there.

GUTFELD: We met 11 -- that's the justice of the peace. We were in line getting married at city hall. And we're going to celebrate tonight.

BECKEL: You took this the other night?

GUILFOYLE: So this is your wedding photo?

GUTFELD: Yes, that's my wedding photo.

GUILFOYLE: Wow.

GUTFELD: I'm taking her out tonight. There's a special buffet at Applebee's in Times Square.

GUILFOYLE: Oh, location.

GUTFELD: And we're going to go home and watch "Space 1999" DVDs. The way everybody treats -- does their 10th anniversary.

GUILFOYLE: You said you were having beef jerky for dinner tonight.

GUTFELD: Well, that's a euphemism.

GUILFOYLE: Big spender, huh?

PERINO: Gosh.

BECKEL: Who's that?

BOLLING: Oh, boy.

GUILFOYLE: I can't.

BOLLING: All right. We'll end this very quickly then.

GUILFOYLE: I can't.

BOLLING: We'll just throw right to this. Something cool happened last night. I was giving him a hard time, but let's just watch instead.

(BEGIN VIDEO CLIP)

WILLIAMS: Two weeks ago, President Obama signed an executive order that granted temporary legal status to 5 million undocumented workers and provided a path to citizenship for those that meet certain criteria, thus giving immigrants a new way to enter our country.

JIMMY FALLON, HOST, NBC'S "THE TONIGHT SHOW WITH JIMMY FALLON": Oh, yes. President Obama's taken a hard stance on immigration. He wants to let everyone inside. You got to do it the right way; you can't go in through the backdoor.

(END VIDEO CLIP)

GUILFOYLE: Oh, my gosh.

BOLLING: Moving right along. Dana, you're up. You're up.

GUILFOYLE: That was really...

PERINO: OK. Well, there is a mystery in Texas today. At the University of Texas, it was discovered that 100 brains that had been in jars of formaldehyde were missing. They didn't know where they were. This is like a big thing on campus. The brains were there for research, and then all of a sudden they were disappeared. So can you imagine me in the P.R. department getting a call this morning?

GUTFELD: They belonged to MSNBC. That's where they were for the last 10 years.

PERINO: Very good. That's what we're looking for. Where'd they go?

BECKEL: House Republicans...

BOLLING: They went to Texas A&M.

PERINO: See, very good. I knew you guys could play along. They came out later today and said that they found out that -- the P.R. people found out they were destroyed in 2002 by environmental workers.

BOLLING: All right. We've got to go. That's it for us. "Special Report" is next.

GUILFOYLE: Brain activists?

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