SF DA defends dropping charge against alleged killer of transgender activist Banko Brown

  • by John Ferrannini, Assistant Editor
  • Thursday May 4, 2023
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San Francisco District Attorney Brooke Jenkins is defending her decision not to prosecute the alleged killer of a homeless Black transgender man. Photo: Eric Burkett<br>
San Francisco District Attorney Brooke Jenkins is defending her decision not to prosecute the alleged killer of a homeless Black transgender man. Photo: Eric Burkett

San Francisco District Attorney Brooke Jenkins told the Bay Area Reporter the community should trust her decision not to charge the person implicated in the killing of Banko Brown. The young Black transgender man was gunned down outside of a San Francisco Walgreens last month.

Jenkins' decision has become a lightning rod in the city, touching on the already salient issues of race, class, homelessness, alleged shoplifting, and the LGBTQ community. In a phone interview Thursday, she noted that the investigation into Brown's killing is ongoing and didn't rule out making a different decision on bringing charges against the suspect, security guard Michael Earl-Wayne Anthony, 33, who was arrested by police and charged on suspicion of one count of homicide.

Jenkins had announced Monday that she was opting not to press the charge. She defended that decision during a brief, 10-minute interview with the B.A.R. May 4.

"What I would ask is that this city trust that because I have a dedication, and I've demonstrated dedication to victims of crime for years, that they would know if I believe someone is guilty of a crime and we can prove it, I would proceed with charging that case," said Jenkins.

But her opting not to press the charge against Anthony was swiftly met with condemnation from community members and local leaders. District 3 Supervisor Aaron Peskin, president of the board, requested this week that she reconsider.

When asked about those demands, particularly from Peskin, Jenkins told the B.A.R., "I'm not deferring to someone else's expertise or judgment call."

As the B.A.R. reported earlier this week, the 24-year-old Brown was fatally shot the evening of April 27 as he walked out of the Walgreens at 875 Market Street. According to police, he was unarmed.

Announcing her decision in a May 1 statement, Jenkins explained that the evidence in the case, so far, "does not meet the People's burden to be able to prove beyond a reasonable doubt to a jury that the suspect is guilty of a crime. The evidence clearly shows that the suspect believed he was in mortal danger and acted in self-defense."

Jenkins told the B.A.R. May 4 that though Anthony was released, the San Francisco Police Department is still investigating.

"While we opted not to charge this case earlier this week when we discharged it, we asked SFPD to conduct further investigation," Jenkins said. "It's still an ongoing investigation, still an open case, so I'm not yet at the point [when] I can publicly reveal all of the facts."

It is why, said Jenkins, her office cannot release the security camera video that relatives and colleagues of Brown's are demanding be released.

"It's not about me being open or willing - ethically that's not appropriate for me to do," she said. "It's an open case, an ongoing investigation. We don't release evidence to the public. ... Should we charge that case, I will open myself up to the defense saying we've tainted the jury."

Julia Arroyo, the co-executive director of the Young Women's Freedom Center, which hosted a vigil for Brown on Monday before Jenkins' decision, told the B.A.R. that the tapes need to be seen because of the "fearmongering" around Black and LGBTQ people, particularly those unhoused, that has marked public discussion of Brown's death and the events that led up to it.

"Folks are saying very mean, nasty, hurtful things that have no fact to it, and so by people not seeing the video, it's perpetuating violence against the trans and LGBTQ community and Black young people, people navigating poverty or houselessness," Arroyo said, when informed of Jenkins' remarks.

Jenkins said she has a record of supporting the LGBTQ community and asks for their trust, noting she spent over two years in the DA's hate crimes office. She was appointed to lead the office last summer by Mayor London Breed after Jenkins helped spearhead the recall of self-styled 'progressive prosecutor' Chesa Boudin - and elected by the voters in November to a term of her own.

"I certainly believe we, as a city, have to do more to be more supportive and to engage," she said. "You can't know what someone needs unless you engage with them."

Xavier Davenport, center holding microphone, helped lead a community vigil May 1 for Banko Brown, who was allegedly killed by a Walgreens security guard April 27 in San Francisco. Photo: John Ferrannini  

'They're disgusted with her'
Jenkins said she had a "long meeting" with Brown's father, Terry, and his step-mother, and that they were informed before the decision to drop the charge was publicly announced.

"I have had the opportunity to meet with Banko's father and stepmother. We had a long meeting. Prior to the decision being announced I made sure the office made contact with them over the phone," said Jenkins. "We could not get them into the office; we had trouble getting in touch initially. But we did not release anything about our decision till members of my office had spoken directly with the family."

John Burris, the family's lawyer, told the B.A.R. Thursday that Brown's relatives strongly disagree with Jenkin's decision and are also upset at being denied access to the security camera footage.

"The family is not happy at all with her decision," Burris said. "They're disgusted with her. ... They thought her explanations and justifications for not charging were not supported by the evidence and they were disappointed that they didn't let her see the videos, which doesn't make a lot of sense since she decided not to charge the case."

When asked if a lawsuit will happen, Burris replied, "The family hired me to look into the case and that's what I'm doing."

First things first, he wants the videos to be made available for viewing.

Jenkins describes security camera videos
Jenkins did agree to speak to the videos.

"I can say that this began as an ordinary shoplifting, and at the point when the security guard indicated that the things didn't need to leave the building, it escalated to a robbery," Jenkins said.

The prosecutor then claimed it was an Estes robbery, referring to People of the State of California v. Estes (1983). This is a type of robbery where someone attempting to shoplift is approached by security at a store and the shoplifter uses force to get away. This led to an altercation, Jenkins said.

"During the altercation there were threats and the security guard, at a point, articulated that he believed he needed to act in self-defense," Jenkins said. "That's the most I can say with respect to the facts."

Arroyo said that in her experience, conflict between alleged shoplifters and security guards happens frequently.

"Young people go in, something is taken out of the store, and it's a tussle with loss prevention, and they get battery charges or robbery charges," she said, adding that she can't speak to this particular case because the video has not been released, but did note that "it's not Banko going in there, holding up the place."

"We have to create legislation that armed security guards should not exist in San Francisco," Arroyo said. "There's nothing of so much value in Walgreens to rationalize taking a person's life. It looks like it was $14 worth of candy and there's no excuse for a murder even, especially, if there was no weapon."

Jenkins told the B.A.R. that she's open to society figuring out whether armed security in stores is appropriate.

"I believe it's a discussion we, as a society or a community, need to engage in," Jenkins said.
"We've seen the tragedy that results on all ends of the spectrum," she added, before making a reference to the killing of gay security guard Gavin Boston in the city's Japantown in January, which the B.A.R. also reported on. "I don't feel I'm in a position to articulate at this moment what should happen but I'm willing to engage in a conversation as a community."

'Failures of systems'
Brown's killing touches on a number of issues San Francisco has been grappling with in recent years, with people on many sides of the issue agreeing the city has to do better. His death has received differing responses from the city's LGBTQ organizations and leaders.

In a May 3 statement gay state Senator Scott Wiener (D-San Francisco) said he was closely following the case. A lawyer, he previously worked for the city attorney's office and was then elected a city supervisor.

"San Franciscans are also closely watching how the investigation into this shooting death is being handled by local law enforcement. It is critical that the investigation proceed with urgency and transparency," stated Wiener. "I will be monitoring this process, and I have every confidence that District Attorney Jenkins and SFPD will conduct a thorough and transparent investigation."

The Alice B. Toklas LGBTQ Democratic Club and the Harvey Milk LGBTQ Democratic Club also released statements in recent days expressing outrage at the death of Brown. The Toklas club called his death "a tragic loss" and "preventable."

"Banko Brown experienced far too many failures of systems that were built to support marginalized communities," the Toklas club stated. "These systems must be reimagined to truly serve the people they purport to help, Banko Brown cared about his community, and despite his own struggles, was an advocate for improved access to housing and supportive services for his community."

Its statement issued May 3 did not directly address Jenkins' charging decision in the case. But Alice leaders did state, ​​"The call to action is clear - Black San Francisco residents, especially Black trans community members - deserve better."

Milk club leaders also called Brown's murder "tragic and senseless." The more progressive political group had issued its statement May 1 just prior to news breaking about Jenkins' discharge decision.

"We are outraged [to] see the targeted violence against the trans community continue even in San Francisco a historically safe space for the LGBTQ community," the club posted to Facebook. "We demand change NOW! Rest in Power, Banko Brown."

The Milk club also blasted city agencies, including the police and medical examiner, along with the media for initially misgendering and deadnaming Brown. It called on city officials and reporters "to do better" and issue apologies for making such "hurtful mistakes."

David Serrano Sewell, the executive director of the city's medical examiner's office, told the B.A.R. Wednesday that Brown was initially not known to be transgender; hence the deadnaming in the initial news releases about the incident.

However, his death certificate had been updated in the past two days, Serrano Sewell said.

He said upon time of death "we look at medical records, drivers licenses and any other ID." Upon learning Brown's first name from media reports, it was added to their report.

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