When San Francisco District Attorney Brooke Jenkins affirmed her decision Monday not to pursue charges against a Walgreens security guard in the fatal shooting of Banko Brown, a wave of critics called for prosecutors at the federal and state level to take an outside look at the case.
Among them was SF Board of Supervisors President Aaron Peskin, who hopes that the U.S. Department of Justice will weigh a criminal civil rights case against security guard Michael Earl-Wayne Anthony, 33.
“We have all seen instances where justice was not served in states like Georgia, and the Feds stepped in and, under their powers to pursue civil rights violations, did so,” Peskin said. “It’s heartbreaking to think that this could be happening in San Francisco, but this feels like a civil rights case.”
While California Attorney General Rob Bonta could be in a position to second-guess Jenkins and consider charging Anthony with manslaughter or murder, experts in criminal law do not see a pathway for the U.S. Department of Justice to prosecute the case against the security guard.
That’s because federal authorities need jurisdiction to prosecute a case, such as by the crime occurring on federal land or involving a bank robbery or civil rights violations. For instance, the U.S. DOJ used hate crime statutes to prosecute a father and son in Georgia for the killing of Ahmaud Arbery, and the police officers who killed Breonna Taylor and George Floyd.
None of those circumstances seem to apply to Brown’s killing, according to Tony Brass, a criminal defense attorney who previously worked as a federal and state prosecutor in San Francisco.
“The AG’s Office would be the best hope,” Brass said. “But it’s a long shot.”
“The case comes across as solidly a state case with self-defense as the issue,” he added.
Anthony shot and killed Brown after confronting him for allegedly shoplifting at the Walgreens drugstore at Fourth and Market streets on April 27, video of the encounter released Monday shows. While Anthony said Brown threatened to stab him during the violent scuffle that ensued, police did not find any weapons on Brown. Security camera footage from the store captured the physical encounter, but there was no audio on the recording.
Jenkins said she was refusing to prosecute Anthony because the evidence showed that Anthony shot Brown in lawful self-defense.
Randall Knox, a criminal defense attorney and former San Francisco prosecutor, said Bonta and Jenkins share “concurrent jurisdiction” and have the same options when it comes to filing a criminal case.
That means Bonta could consider filing manslaughter or other homicide charges against Anthony, according to Knox.
Knox said he could only see federal authorities taking over if there was some sort of allegation that Anthony deprived Brown’s rights.
“I do not have any indication that Anthony behaved differently toward Banko Brown because he was transgender,” Knox said. “So I don’t see a federal connection.”
While Brown was a Black transgender man, there is no indication that Anthony shot and killed him because of his race or gender identity. Anthony himself is Black.
And unlike the officers in the Taylor and Floyd killings, Anthony worked for a private security firm—not a government agency.
READ MORE: Calls Grow for State, Federal Review of Banko Brown Case After DA Declines To Charge Shooter
Robert Weisberg, a criminal law professor at Stanford Law School, said he does not see an avenue for the U.S. DOJ to take over the case.
For Anthony to be charged with violating Brown’s civil rights under the color of authority, for instance, Weisberg said he would need to be connected to a public police agency, not a private security firm.
He also said there was “no reason to think federal hate crime law applies.”
Peskin plans to introduce legislation Tuesday formally calling for the U.S. Department of Justice and the California Attorney General’s Office to each review the case. So far he has the support of supervisors Shamann Walton, Hillary Ronen and Connie Chan.
Bonta has declined to take over San Francisco cases in the past. Shortly after Jenkins came into office, Bonta denied her requests to take over two cases that posed potential ethical conflicts for the district attorney because they involved her relative and Mayor London Breed’s brother.
Bonta is still considering taking over another case that Jenkins is declining to prosecute over the police shooting of Keita O’Neil.
Asked about the state taking a look at the case against Anthony, a spokesperson for the California Attorney General’s Office said only that the office was “not currently involved in the matter.”