SF supervisors ask DA to release video in Brown killing

  • by John Ferrannini, Assistant Editor
  • Tuesday May 9, 2023
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San Francisco District Attorney Brooke Jenkins is under pressure to release video in the shooting death of Banko Brown. Photo: Eric Burkett
San Francisco District Attorney Brooke Jenkins is under pressure to release video in the shooting death of Banko Brown. Photo: Eric Burkett

The San Francisco Board of Supervisors voted unanimously Tuesday to approve a resolution urging District Attorney Brooke Jenkins to "release police reports, witness accounts and video information" in the death of Banko Brown, the 24-year-old unarmed Black trans activist shot outside of a downtown Walgreens by a store security guard last month.

The resolution, which is nonbinding, came about after Board of Supervisors President Aaron Peskin (District 3) first asked Jenkins to reconsider her May 1 decision not to file charges against Michael Earl-Wayne Anthony, 33, who was initially charged with one count of homicide. Jenkins dismissed that charge May 1 because she said the evidence showed self-defense.

The vote came after an hourslong, emotional meeting. The resolution was amended to urge the police to also release the evidence, which Peskin said occurred after dialogue between District 5 Supervisor Dean Preston and gay District 6 Supervisor Matt Dorsey, as well as District 2 Supervisor Catherine Stefani.

"I hope this gets us to a unanimous agreement so the Board of Supervisors can get to one voice and get what we can for justice for Banko Brown," Dorsey said during the meeting. Dorsey said that the criminal justice system works best with transparency, "as with every aspect of good government."

Peskin confirmed that the board does have the power to subpoena third parties "and maybe we'll go that way," but that this particular resolution "really transcends politics." Stefani agreed, saying "it's our job to bring as much peace as we can to this situation" and "it's important we speak with one voice today."

"This is what gun violence is doing in our community," Stefani said. "We have a community reeling with trauma, anger, who feel dismissed and unheard. This transcends politics."

District 9 Supervisor Hillary Ronen said she worried that another proposed change Tuesday, asking for "publicly disclosable" reports, statements and video, "takes away" from the original meaning of the resolution. Preston responded that there is no rule that she can't disclose the tape, which he assured "is going to come out."

Dorsey said it was "important to add" that amendment due to public expectations, because "there are portions of police reports that are not disclosable" and that it wasn't intended to "give anybody cover."

Ronen did not change her position, but Dorsey said he'd be willing to omit the change she had an issue with.

Gay District 4 Supervisor Joel Engardio, a moderate from the westside who's been a major backer of Jenkins, was one of the co-sponsors of the board's resolution. Engardio told the Bay Area Reporter Tuesday that he worked with Peskin to amend the resolution "to remove a line that called for the district attorney to reconsider and reevaluate her charging decision."

"It was premature to call for a different decision when we had not seen all of the evidence," Engardio stated. "There is also the question of administrative interference, which supervisors are not allowed to do under the city charter. It's important for each branch of government to respect the other's process and autonomy."

Engardio stated that in spite of those concerns, transparency has to win out in such a contentious case.

"At the same time, I believe that an open government is an accountable government," Engardio continued. "I worked as a journalist for many years and I fundamentally believe in transparency. This is an extraordinary case, and I believe it is in the public interest for supervisors to call for the release of the video and evidence."

As the B.A.R. reported last week, Brown — an unhoused, unpaid intern with the Young Women's Freedom Center — was fatally shot the evening of April 27 as he walked out of the Walgreens at 875 Market Street.

District 10 Supervisor Shamann Walton, a straight ally who is the only Black person on the board, also co-sponsored the resolution. He sent a letter of inquiry to Jenkins' office asking for the tapes' release.

"I disagree with the district attorney's opinions and have been informed by our deputy city attorney that my request has no interference with the investigation and it is not at all unethical," Walton stated ahead of Tuesday's board meeting. "I also know that videos are released all the time during investigations and in some cases even required. We are asking for transparency around the killing of Banko Brown and release of this video will most certainly help with that transparency.

"I hope the district attorney will reconsider her decision and I hope that her initial decision on May 1 and subsequent change of mind on May 8, does not compromise the prosecutorial integrity of the case," Walton added.

The supervisors have an ally in gay state Senator Scott Wiener (D-San Francisco), another Jenkins backer, who on Sunday called for the release of the video evidence after not doing so in an earlier statement last week.

What changed was an interview with Anthony in the San Francisco Standard. In that interview, Anthony did not elaborate on anything Brown had done to threaten him.

"In recent days, a steady stream of information has become public regarding the shooting death of Banko Brown, resulting in significant public doubt about the security guard's claim of self-defense," Wiener stated. "This shooting has caused profound and growing concern in the community, particularly among Black and transgender San Franciscans. Transparency with the public is critical. Therefore, I am calling for evidence concerning Banko Brown's death — including video and witness statements — to be released to the public."

Changing tacks

Jenkins herself has changed tacks, though that doesn't mean the videos will be forthcoming anytime soon. In her first statement May 1, she emphasized that "the evidence clearly shows that the suspect believed he was in mortal danger and acted in self-defense. We cannot bring forward charges when there is credible evidence of reasonable self-defense."

When she spoke to the B.A.R. May 4 during a 10-minute phone interview, she emphasized the ongoing nature of the investigation.

"While we opted not to charge this case earlier this week when we discharged it, we asked SFPD to conduct further investigation," Jenkins said at that time. "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."

Jenkins issued another statement May 8, stating, "Last week, I announced that charges were not being filed as careful review of all of the evidence gathered at that point did not meet the prosecution's burden to prove beyond a reasonable doubt that the suspect in the case was guilty of a crime.

"Although the investigation was ongoing, we had to make a charging decision by 4:00PM on May 1st because the suspect was being held in custody," Jenkins added. "By law, a suspect that is in custody must be charged within 72 hours and can not be held indefinitely as that would violate due process. At that time, we discharged the case, and asked the San Francisco Police Department to gather more evidence before making a final decision."

Jenkins was set to appear at a meeting of the Alice B. Toklas LGBTQ Democratic Club at Manny's in the Mission neighborhood May 8 for a discussion, featuring Engardio and others, about the "crisis in our streets." The event was postponed at the last minute — but not before protesters from the Young Women's Freedom Center showed up. The agency has been facilitating vigils and rallies regarding the case.

"Due to last minute scheduling conflicts, we are unfortunately rescheduling this evening's program," Alice stated in an email sent out 18 minutes after the event had been scheduled to begin. "We are currently working on a new date for this important conversation."

The club told the B.A.R. that the event's postponement was not due to Jenkins but to another speaker they didn't want to identify.

Jenkins describes videos

Jenkins did agree to speak to the videos during her call with the B.A.R.

"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 DA 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."

Julia Arroyo, co-executive director of the Young Women's Freedom Center, 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."

Preston, a straight ally, introduced legislation May 9 to limit the use of guns by security guards. Engardio told the B.A.R. that while he's not yet read it, "so I can't speak to it directly," he does not believe that security guards should be allowed to carry lethal weapons.

"They haven't had the rigorous training of police officers who follow strict protocols overseen by an independent police commission," he said. "There is no item worth protecting at the cost of human life. A non-lethal taser could be considered for extreme cases when someone needs to be subdued after posing a physical or lethal threat to people in the store."

Gay District 6 Supervisor Matt Dorsey, who represents the district where the killing happened, told the B.A.R. he also had not had the chance to read it yet as of May 9.

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, on which the B.A.R. also reported. "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."

'I'm not deferring'

Jenkins told the B.A.R. May 4 the community should trust her decision not to charge Anthony, one which 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 the phone interview, she noted that the investigation into Brown's killing is ongoing and didn't rule out making a different decision on bringing charges.

"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.

When asked about demands she change her mind, Jenkins told the B.A.R., "I'm not deferring to someone else's expertise or judgment call."

Jenkins had stressed to the B.A.R. last week that her office "ethically" 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."

Arroyo 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 its 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," Jenkins said. "You can't know what someone needs unless you engage with them."

Meeting with Brown family

Jenkins said she had a "long meeting" with Brown's father, Terry, and his stepmother, 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. May 4 that Brown's relatives strongly disagree with Jenkins' 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 said that he wants the videos to be made available for viewing.

Messages urging the recall of San Francisco District Attorney Brooke Jenkins were written in chalk outside Manny's May 8, where the DA was scheduled to appear at a public safety meeting that was postponed at the last minute. Photo by John Ferrannini  

Community responses
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 responses from the city's LGBTQ organizations and leaders.

The Alice and the Harvey Milk LGBTQ Democratic clubs released statements in recent days expressing outrage at the death of Brown. The Alice 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 Alice 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 Office of the Chief Medical Examiner, told the B.A.R. May 3 that Brown was initially not known to be transgender; hence the deadnaming in the agency's first news releases about the incident.

However, his death certificate has since been updated. 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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