An investigation by the California Attorney General's office found that San Francisco District Attorney Brooke Jenkins didn't abuse her prosecutorial discretion in declining to file charges against the Walgreens security guard who killed an unarmed Black trans man last year.
As the Bay Area Reporter previously reported, the office of Attorney General Rob Bonta was investigating perhaps the most controversial decision of Jenkins' tenure thus far — her decision not to pursue criminal charges against Michael Earl-Wayne Anthony, the security guard employed by Kingdom Group Protective Services who worked at the 825 Market Street Walgreens drugstore. He was initially arrested by San Francisco Police Department officers on suspicion of the homicide of Banko Brown, a 24-year-old unarmed and unhoused Black trans man, on April 27, 2023 but was released.
Bonta's office had been investigating after the San Francisco Board of Supervisors adopted a resolution asking the federal justice department and Bonta's office to determine whether to press charges against Anthony. The feds deferred to Bonta's office.
In a letter to the board dated June 4, Deputy Attorney General Peter E. Flores Jr. wrote that "Under California law, a District Attorney is given broad discretion to determine whether criminal charges are appropriate in a particular case because she is the official who has been elected by that County to act as its public prosecutor."
"In making crime-charging decisions, prosecutors must believe that the admissible evidence is of such convincing force that it would warrant a conviction of the crime charged by an objective fact finder beyond a reasonable doubt after hearing all of the evidence and considering the most reasonably foreseeable defenses such as self-defense," the letter continued.
"In this case, the San Francisco County District Attorneys' Office did not believe a prosecution would result in a conviction," the letter stated.
After reviewing the materials, Flores wrote to the supervisors that the office could not definitively find that Jenkins abused her discretion.
"We have carefully reviewed the investigative materials regarding the shooting, the District Attorney's Report on this fatal shooting, and your additional submissions. Based on that review and taking all of the circumstances into consideration, we cannot say that the San Francisco County District Attorney's Office abused its discretion in declining to file criminal charges against security guard Michael Anthony," the letter concluded. "Thank you for bringing this matter to our attention."
Jenkins issued a statement in response to the letter, defending her decision not to charge.
"Banko Brown's death deeply impacted me and our city," she stated. "While I wish this tragedy would have never happened in the first place, my office and I carefully reviewed all of the facts and evidence available and followed the law in making our decision to not charge the suspect in this case. We take our prosecutorial responsibilities seriously and recognize how important it is that we make decisions on facts, law and our collective prosecutorial judgment, without being swayed by politics."
She went on to state that the supervisors' call to review her decision was "for political expedience" and gave "false hope to a grieving community."
"Although nothing can be done to bring back Banko Brown, we must continue working together to ensure that vulnerable residents have access to meaningful opportunities and that the safety of the public is not compromised," she concluded.
An identical letter was sent to John Burris, an attorney representing Brown's family in a $25 million wrongful death suit against Walgreens, Kingdom Group, and Anthony in San Francisco Superior Court.
"I'm not surprised," Burris told the B.A.R. "Disappointed but not surprised. This is bureaucrats protecting one another. This is a situation where the attorney general could have decided it was abuse of discretion not to file charges, but chose not to. For that reason, it's disappointing but not surprising."
Burris said discovery has started in the civil suit, which is going forward with all the parties and could go to trial "within one to two years."
"Eighteen months is probably the shortest period of time," he said.
Brown was killed after allegedly attempting to shoplift $15 worth of candy. Anthony, the security guard, was contracted by Walgreens through Kingdom Group.
A 5-minute, 58-second store surveillance video released by the DA's office, taken from an overhead camera, shows that Brown, trying to leave the store, was pushed by Anthony, who punched Brown and subdued him as Brown tried to get away.
Other people can be seen nonchalantly going about their shopping.
Brown was subdued for about 50 seconds, at which time Anthony let him go. Then Brown grabbed his bag and left, backing out of the store and pointing at Anthony. Brown then put his arms to his side and moved slightly, at which point Anthony shot him.
Jenkins released the video following the public outcry after she declined to charge Anthony.
Announcing her decision in a May 1, 2023 statement, Jenkins explained that the evidence in the case at that time did "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."
Last October, the San Francisco Board of Supervisors passed an ordinance limiting security personnel from drawing their weapons. District 5 Supervisor Dean Preston cited Brown's killing as the basis to amend the police code to prohibit armed security guards from drawing or exhibiting firearms to protect property. The weapons may be in a holster.
Walgreens cut ties with Kingdom Group in the weeks after the shooting. Neither immediately returned requests for comment.
Updated, 6/11/24: This article has been updated with a statement from DA Brooke Jenkins.
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