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by Jeremy Miller
“Pre-crime is both hypothetical and tangible. It brings the real consequence of an imagined future into the present.” – Jude McCulloch and Dean Wilson
It is unfortunate how our knee-jerk inclination towards social Manichaeism tends to entrap us. In the face of violent tragedy we are guided, as if by a hidden hand, to seek heroes and villains. The corollary to this perspective is that once the roles are defined they take on a teflon aspect deflecting all contradictions in defense of the essential characterization. Hence, the media wars.
As we turn this lens towards the April killing of Banko Brown, so-called “conservatives” lament the difficulties of addressing “rampant theft” from retail establishments, casting the killer, Michael Earl-Wayne Anthony, as a tortured protector faced with potentially violent crime. In contrast, “liberals” speak to the character of Brown as a “generous person who put the needs of others before their own,” relying on the general ethical character of the deceased as the fulcrum upon which justice must find its balance.
Being clear, I make no pretensions to neutrality in this debate. The villains in this account are a homicidal retail security guard, a pathologically mendacious district attorney, a hopelessly feckless and classist mayor, and a multi-billion dollar retail corporation that puts disposable goods at a higher value than human life.
But what if there wasn’t particularly a hero? We lose something important when we base our sensibilities or acts of justice on interpretation of the sympathetic worth of individual lives as opposed to reliance on more universalized values. Calling the question, what if Banko was acting the fool? Does this make murder not murder? If you don’t like someone or their activities, does this make the extinguishing of a life less profound?
The way we collectively answer these difficult questions has ramifications that go far beyond the particularities of the case at hand, not least because this occurred in San Francisco. As a globally notorious metropole, what happens here has a tendency to be trendsetting if not outright norm-setting. And while Banko Brown’s killing and the legal sophistry used to justify it are certainly atrocities requiring individual accountability, his death over $14.64 worth of Walgreens merchandise also highlights structural violence in San Francisco that transcends the specific actors. Failure to address this all but guarantees an increasingly bleak future.
A baleful evening at Walgreens
The skeleton of the case is now a matter of undisputed public record. On April 27, 2023, shortly after 6 p.m., 24-year-old Banko Brown attempted to exit the Walgreens located at 901 Market St. in San Francisco. In his possession at the time was a small amount of goods sold at the drugstore of dubious provenance.
Specifically, Brown stands accused by the San Francisco District Attorney’s office, Kingdom Group Protective Services and Walgreens of shoplifting, subsequently rendered as robbery by D.A. Brooke Jenkins. A contrasting account claims that Banko Brown had a receipt for the goods in question. As of the time of writing there has not been a release of sufficient evidence to specifically corroborate either claim.
That being said, a security guard in the employ of Kingdom Group clearly believed a crime had occurred. This is the predicate for everything that would happen next. The security guard, 33-year-old Michael Earl-Wayne Anthony, under the impression that Banko Brown was stealing, attempted to prevent him from leaving the store by physically positioning himself between Brown and the sole entrance and exit.
As Brown continued to try to reach the door despite Anthony’s obstruction, a necessary albeit extremely limited physical confrontation occurred. Put bluntly, Brown shoved past Anthony with the same relative level of force as bumping shoulders with someone in a crowded hallway.
Based on released Walgreens surveillance camera footage, it would seem that the objective of Brown in this interaction was to continue his egress as opposed to initiating contact for more confrontational purposes. Anthony responded by first shoving Brown back and then almost immediately swinging on him. Following this punching spree Anthony succeeded in placing Brown in a chokehold. They subsequently fell to the ground where Anthony, still partially obstructing Brown’s airway, had his full body weight on top of Brown.
After a few moments, Anthony arose and unholstered a gun. At this point, Brown also got up, grabbed his bag and proceeded towards the exit. Incensed by the physical conflict, Banko Brown turned near the doorway and physically gestured towards Anthony in an alleged attempt to spit on him.
Within approximately one second of this movement, Michael Earl-Wayne Anthony fired his pistol and shot Banko Brown in the chest. Despite the rendering of emergency first-aid, the shot proved fatal. Anthony was subsequently arrested and subjected to the obligatory homicide interrogation.
He was released from custody on May 1 after only four days of incarceration and then two weeks later D.A. Jenkins announced she would not be filing charges in the matter on the grounds that she believed Mr. Anthony had a cogent self-defense argument. Who and what warranted defense as well as what the nature of said defense may legitimately be are the critical questions we must now address ourselves to.
The self defense claim
In the “Declination of Charges Report” issued by the San Francisco D.A.’s office on May 15, D.A. Jenkin opined, “Given the totality of circumstances, including the threat that Anthony believed, and could reasonably believe, the evidence shows that Brown’s shooting was not a criminal act because Anthony acted in lawful self-defense.” There are four material elements to this claim. To wit, a legitimate self-defense claim must include a reasonable belief that one was in imminent danger of death or great bodily injury, that the use of deadly force was necessary to defend against said danger, that the amount of force employed was proportionate to said perceived threat, and that “a person’s belief must have been reasonable and that person must have acted only because of that belief.” For the sake of coherence, we will address each element individually.
As regards the belief of imminent danger, the principal claim is that during the altercation Banko Brown allegedly threatened to stab Michael Earl-Wayne Anthony. According to Anthony, Brown stated: “I’m gonna stab you. I’m gonna stab your ass.”
Taken completely out of context, this could appear quite damning. Upon closer examination, however, several striking contradictions arise. The first contradiction is that no knife or bladed object was ever visible to anyone inside or outside of Walgreens and none was recovered from the subsequent crime scene. Put another way, Brown was unarmed.
Now this is not completely exculpatory as the verbal threat alone can be cited as justification for self-defense. The problem is that, based upon the currently released evidence, there is no independent verification of the existence of this verbal threat. The sole authority claiming its existence is the killer, who has a vested interest since it forms the crux of his defense.
Next comes the issue of timing. The entire altercation leading to the killing of Banko Brown took place in approximately 56 seconds. At no point in time did Banko ever physically have the upper hand. By Anthony’s own admission, “During the time she [Banko] was making the threats, we were already like wrestling.”
Now assuming, without any particular evidentiary reason to do so, that such threats were actually uttered, it should be noted that the point of the altercation during which this allegedly occurred would have been after Anthony had thrown multiple punches towards Brown’s head, put Brown in a chokehold, and during such time as he either had Brown in said chokehold or alternately had his full body weight (20 pounds greater than Brown’s) on top of Brown who was face down to the floor. If anyone was in imminent danger of serious bodily injuries, it would have been Banko since all three of these physical interventions (i.e. blows to the head, chokeholds, smothering) have historically at points resulted in serious injury or death to a receiving party.
Additionally, Anthony voluntarily released Brown from the ground which is not consistent with what one does if an imminent threat to life and safety is perceived. Finally at the point when Brown was actually shot, he was four to five feet away from Anthony with both hands visible and clearly moving backwards in contrast to Anthony who had, at that point, already brandished a firearm.
That lethal force was necessary to remove Anthony from danger is extremely dubious. Not only does it require a leap of faith that the reported verbal threats occurred, it also presumes that somehow there was not a less than lethal option for resolving the situation. Of course the obvious question is that with a 4- or 5-foot differential in space, a demonstrated superiority of physical stature, a loaded weapon as opposed to the complete absence of one, and presumably more training in physical confrontation options, why couldn’t Anthony have either just let Brown go or taken evasive maneuvers if he actually felt threatened?
Remember this particular element turns on necessity. It is not sufficient for lethal force to be a cognizable option for it to be legal. For self-defense it must, to a “reasonable person,” seem to be the only option. Now these first two elements implicate beliefs. The third element turns on events as they occurred. Specifically, even if one accepts the threat profile that Anthony suggests, with only a shove, alleged verbal threats, and a split-second gesture from several feet away while both hands were visibly empty, it is controversial at least to claim that Anthony’s shot constituted “no more force than was reasonably necessary to defend.”
The district attorney attempted to bridge this credibility gap by means of legal obfuscation, but before addressing Jenkins’s corruption we must deal with the fourth and most damning element. This is the requirement that the action in question be predicated solely on “reasonable” fear. A few pieces of evidence suggest otherwise.
Taking a step back from granular analysis to recapture the general narrative, the basic self-defense argument is that some guard (Anthony) just trying to collect a paycheck, when faced with a volatile situation, used lethal force for the sole reason that he felt his life threatened. For most retail security personnel, ridiculously rendered in this instance by Kingdom Group as a position entitled “robbery suppression officer,” this could be a plausible state of affairs.
Problem is, Michael Earl-Wayne Anthony is not representative of most retail security guards. Dude thought he was Rambo. At the time of Banko’s killing, Anthony was armed with two handguns and seven magazines of bullets. Both guns had been customized. The murder weapon had no less than six after-market structural modifications and was loaded with hollow-point bullets, an expensive ammunition popular amongst police officers for extra-lethality – and for the same reason illegal in international warfare since the end of the 19th century!
These are not the accouterments of a peace-monger or even the basic gear of a store security guard. This materiel suggests provocatively that Anthony viewed himself closer to a warrior preparing for battle than a civilian turning up for a job.
Further evidence supports this interpretation. In his homicide interview following the shooting, Anthony proclaimed his interest in a federal firearm license, which authorizes the bearer to manufacture, import, and/or sell guns and ammunition. He also spoke of seeking a concealed carry permit.
In fact, during Anthony’s homicide interview he expressed remorse for the possibility that he might lose access to these permits and/or his weapons long before he showed any explicit concern about the fate of Brown! And if the armed to the teeth effusive gun-lover aspect is not sufficiently convincing, there is always the testimony of eyewitness Donald Washington, who stated that immediately prior to shooting Banko, Anthony said, “Damn, shit. I’m tired of this, man. Not today.” All of this information should mitigate against the quick assumption of innocence unless of course you are Brooke Jenkins or London Breed.
The corruption
District Attorney Brooke Jenkins has been in elected office for just over one year. Her ascension to the position of San Francisco district attorney followed an extremely well funded (to the tune of nearly $7,000,000) recall campaign against her predecessor, Chesa Boudin, who broke ground by attempting to address gross race and class disparities in the local criminal justice system.
Of particular significance were his now thwarted attempts to hold law enforcement criminally responsible for illicit use of force. Jenkins’s job in the recall campaign, compensated to the tune of over $150,000 (much of which is the subject of multiple ongoing ethics violation inquiries) was to be the public megaphone falsely proclaiming that Boudin was soft on crime and virulently anti-cop.
She rhetorically tied Boudin’s belief in incarceration alternatives for eligible defendants to alleged rising crime rates. Appointed by Mayor London Breed within hours of his recall, Brooke Jenkins was instantly catapulted into one of the most high-profile and lucrative political offices in San Francisco, which netted her another $141,000 and change not counting fringe benefits. To say that she has debts to repay is thus an understatement.
And not that it has had any appreciable impact on crime rates, but Jenkins has come through in spades for her benefactors’ political vision. During the last year, felony charges and convictions resulting in incarceration have increased appreciably. She has also systematically undermined and dismissed the criminal charges in two major (eminently winnable) cases brought against police officers for illicit officer-involved killings, namely those resulting in the deaths of Keita “Icky” O’Neil, and Sean Moore.
Jenkins has thus burnished her credentials as a cop-loving, “tough-on-crime” prosecutor. This dovetails nicely with Mayor Breed’s long held “tough love” approach to law enforcement (back-channel appeals for leniency concerning her murderous brother notwithstanding) as well as her perennial war on the most vulnerable San Franciscans.
What neither Breed nor Jenkins has been able to achieve, however, is an actual decrease in violent crime or for that matter any semblance of “public safety.” The class divide in San Francisco has reached record proportions, and violent crime has gone up roughly 5% during Jenkins’s tenure as district attorney compared to where it stood under Chesa Boudin. Notably, reported robberies have spiked by 12%.
This state of affairs creates enormous political incentive for District Attorney Jenkins to seek the appearance of being tough on theft-related crimes and may have played a role in the way she handled the charging decision for the killing of Banko Brown.
The most accurate description of Brown’s alleged criminal activity immediately preceding his untimely death would be shoplifting. Again, the total value of the items in question was reportedly $14.64. Shoplifting is a misdemeanor charge carrying a maximum penalty upon conviction of $1,000 in fines and/or six months in county jail. Critically, there are no circumstances under which it legally warrants lethal force.
But these facts do not lend themselves to a politically useful outcome for either Breed or Jenkins. Both are heavily invested in using carceral interventions to uphold a pretense of public order and neither wants to be seen as “persecuting” a cop, even if it’s a rent-a-cop who just murdered someone! Nonetheless, inventing a crime to fit “alternative facts” takes work. In order to buttress her narrative of justified self-defense, District Attorney Jenkins had to resort to a three-part subterfuge.
First D.A. Jenkins had to amplify the uncorroborated stab threat claim. The primary purpose of this was to instigate moral panic surrounding Brown’s alleged criminality. This is a classic technique for the cover-up of law enforcement murder where the social opprobrium that could be expected from an actual brutal killing is displaced onto phantasmagorical possible violence that supposedly could have been authored by the victim.
Next, Brown’s alleged crime needed to be elevated from shoplifting to robbery so as to give legal cover for the use of lethal force. This was accomplished by relying on a cynically narrow definition of robbery divorced from context and injury. In California, robbery is “the felonious taking of property in possession of another carried out by means of force or fear.”
D.A. Jenkins ridiculously construed Brown slightly attempting to shove past Anthony as this requisite use of force or fear inducing event. Such a hyperventilating interpretation of minor physical contact opened the possibility of legally justified killing by catapulting the alleged crime into a category of forcible and atrocious.
Now the list of crimes so described presents in great relief the rank absurdity of Brown’s actions being included. Specifically forcible and atrocious crimes are: murder, mayhem, rape and robbery. To follow the district attorney’s logic, utterly in contradiction of California’s legislative intent, one would have to somehow claim equivalency in violence between shoving past a security guard and rape.
Clearly, the inclusion of robbery in this list is more referential to a stick-up or a mugging than theft with force (focusing on the push) that barely approximates the term scuffle. Brooke Jenkins knows this, which is a second reason why she had to overemphasize the uncorroborated stab threat.
The third part of the deception was to underplay Anthony’s violence against Brown. As an example, Jenkins implied on Page 7 of her “Declination of Charges Report” that Anthony was swinging his arm to grab Banko Brown as opposed to punching him. This is not only obviously untrue to anyone watching the footage, but it is also contradicted 15 pages later in the same report as well as in the SFPD incident report!
Elsewhere in the declination report, D.A. Jenkins refers to the chokehold Anthony placed on Brown euphemistically as “Anthony holding Brown from behind while Brown resists!” These intentional factual distortions are clearly political moves to justify Jenkins’s decision not to prosecute.
Finally, if D.A. Jenkins’s general political interest in not prosecuting Michael Earl-Wayne Anthony for Banko Brown’s killing and her easily identifiable mendacity in the service of this are not enough evidence of corruption, it was also exposed in May that she has a longstanding professional and personal relationship with attorneys directly lobbying on Walgreens’s behalf.
A word on identity
It is indisputable that our experience of life and law are deeply colored by aspects of identity such as race, ethnicity, gender, socio-economic status etc. In fact these days it is difficult to conceive an event of any public notoriety that does not inspire a cacophony of commentary on the significance of different intersectional markers. What is often less acknowledged are the unequal ways such analyses are applied.
In this case, early reports emphasized that Michael Earl-Wayne Anthony is a poor Black man who had struggled with homelessness. This was supposed to garner sympathy for him as a tragic character. It took advocates and friends of Banko Brown to quickly point out that the same exact attributes could be found in Banko.
The symmetry is of course not accidental. We have been hired as our own overseers for generations. But despite the structural targeting of Black people for enforced poverty and differential application of attention and/or violence from law enforcement, it should be noted that outside of Walgreens and Kingdom Group executives, every key player in this killing is Black. The killer is Black, the victim is Black, the D.A., police chief and mayor are all Black.
And while the truism, “all skinfolk ain’t kinfolk,” seems germane, it appears to this Black author that race is not the most helpful lens through which to analyze Banko’s death. There is however another identity that is of clearer relevance, but it has largely been presented merely as a group affiliation for purposes of collective grieving as opposed to an efficient cause of the killing.
Banko Brown was a transgender man. According to Anthony’s testimony, he believed Banko to be male until after he had shot him. While this corresponds with how Banko self-identified, it leaves unanswered questions concerning the salience of this aspect in the killer’s decision making process.
During the homicide interrogation, Anthony, reflecting on the gender question, stated, “I noticed she was female because we had to cut her shirt open and that’s when I realized it was female.” Despite clearly exhibiting transphobia, there was not even the beginning of a line of questioning proffered by detectives to attempt to discern whether the killing of Banko Brown could have been a trans-bashing incident or in other words a hate crime.
This is a wild omission. Nuance is critical here. Even if Anthony generally understood Brown to be male throughout the majority of the altercation, it is not impossible that Brown, by exhibiting traits challenging narrow patriarchal conceptions of maleness and masculinity, presented a psychological threat to Anthony that resulted in an extra vicious response. Additionally, there has been very little acknowledgement after the killing of how the lack of accountability creates psychological terror for trans-folks collectively, regardless of whether it wound up being an operant cause of the murder. So much for identity.
The future is the past
There is much still up in the air concerning the fate of this case. Despite a double fisted effort at suppression by District Attorney Jenkins, the California Attorney General’s office is currently investigating whether the decision not to file criminal charges against Michael Earl-Wayne Anthony was an abuse of prosecutorial discretion. Additionally, the law office of John Burris has filed a multi-million dollar lawsuit against Walgreens, Anthony and Kingdom Group for the wrongful death of Banko Brown. But even if both civil and criminal cases are successfully pursued and prosecuted, actual resolution of this crisis would remain elusive.
Banko Brown no longer walks this Earth. His friends and family can no longer hug him or experience the joy of his active presence in their lives. Problem. Brown was a homeless and poor San Franciscan. He was struggling to create better material circumstances for himself and was essentially left stranded, like thousands of others, by one of the wealthiest cities on Earth. Problem.
Walgreens, the most prominent drugstore in San Francisco, has for years adopted a muscular and paramilitarized retail security regime that regularly employs armed men, including sworn SFPD, to prevent petty theft (shoplifting) with overwhelming force. This is entirely about class warfare, as the actual property loss is already factored into end of year write-offs by the corporation. Problem.
Incidents of violence against transgender people are regularly dismissed as unworthy of sustained attention or action. This is violence by omission. Problem. Public officials under multiple investigations for malfeasance and ethical violations continue to lie, collect paychecks and enforce policy with impunity. Problem.
Finally, and perhaps most consequentially, there is the normalization of on the spot capital punishment for uncommenced theoretical crime. Big problem. Banko Brown was not killed because of evidence of shoplifting or evidence of threat. Banko Brown was killed because Michael Earl-Wayne Anthony chose to do so. This was then justified by authorities who relied on spurious claims which amount to saying Brown had the character of someone who could possibly have committed extreme violence in a counterfactual account to what actually occurred.
This displacement of real crime by criminalized identity has been referred to in both popular culture and academic criminology as pre-crime. It entered most people’s lexicon through the 2002 dystopian sci-fi film, “Minority Report.”
And while dystopian futurism is an appropriate lens for a city that has nearly 300 active surveillance cameras in its subway system and is attempting to impose driverless cars on its population, there was an earlier term for identity based murder. It was called lynching and, much like in this instance, one of the principle features that made lynching so virulent and intractable was the collusion of government in its commission and cover-up.
So here we find ourselves yet again. If we do not quickly redress the lynching of Banko Brown, it won’t matter whether your gaze is to the future or the past. Either way we will be moving backwards at warp speed with no good end in sight.
Investigative reporter Jeremy Miller is co-director of the Idriss Stelley Foundation, part of the POOR Magazine family, organizer with the Black Alliance for Peace and a graduate of San Francisco State University. He can be reached at djasik87.9@gmail.com.
