Parlaying copaganda: The truth about San Francisco’s District Attorney and her attempts to coddle killer police

by Jeremy Miller

On Friday, Feb. 8, 2023, the office of San Francisco District Attorney Brooke Jenkins announced the intention of dismissing the prosecution of former SFPD officer Christopher Samayoa for the 2017 slaying of Keita “Icky” O’Neil. This occurred during a nationwide unsettling following two recent assassinations: Tyre Nichols on Jan. 7, in Memphis, Tenn., and Manuel “Tortuguita” Teran on Jan. 18, in Atlanta, Ga. 

The renewed public attention to lynching combined with the fact that the prosecution of Christopher Samayoa is understood to be the first ever homicide prosecution of a San Francisco cop for killing “in the line of duty,” made the announcement headline news around the country. This said, the majority of the coverage has tended to focus on a perceived political feud between D.A. Jenkins and her immediate predecessor in office, Chesa Boudin. Public reaction to the announcement has broken along similar lines with police enthusiasts parroting the D.A.’s talking points about “conflicts” and “political” prosecutions, while people seeking police reform/accountability, not to mention O’Neil’s family and their legal representation, castigated the decision as “baseless,” “vainglorious,” and “offensive,” among other appellations. A good general rundown on the proposed dismissal can be found here: https://missionlocal.org/2023/02/keita-oneil-family-attorney-general-bonta-samayoa-intercede/

While we make no bones about being aligned with the later interpretation, i.e., that the proposed dismissal is baseless and offensive, not enough attention has been given to the degree of absurdity involved, or how truly problematic Jenkins’s proposed “grounds” are. This opacity allows for a dangerous politic of legitimation insofar as it creates the false impression that the conclusion arrived at by the D.A. is coherent and defensible, even if on the opposite side of an ideological fence. In her letter of Feb. 8, 2023 to California Attorney General Rob Bonta https://s3.documentcloud.org/documents/23605983/jenkins.pdf which jointly announced the proposed dismissal and suggested the A.G. take up the prosecution, D.A. Jenkins made her case, or more accurately the defense’s case, on three different planks which are all riddled with logical and ethical holes.

A game of Paintball gone bad wrong

Before even opening the discussion of the so-called “conflict” (shorthand for conflict of interest, although in this particular case the amount of competing interests and intrigues makes the term quite inadequate), D.A. Jenkins took a swipe at the proposed prosecution theory for manslaughter, offering up ‘perception reaction time’ as a potential defense for the killer cop. A rough and dirty explanation of the perception reaction theory is that it asserts perception to occur temporally before reaction, and thus if you only focus on the window of time that an action/reaction happens you could be missing the window in which the “reasonable” threat appeared. 

There are several problems with this theory. For one, it relies on a reported time differential of .83 seconds. That is to say, we are asked to believe that in less than one second the material circumstances changed from a situation justifying the killing to one that did not. Without descending into the philosophical debate about what a justified killing would be, we must point out that this interval is largely unrecorded and thus ultimately speculative. Also, it is absurd in a legal context to attach more weight to a psycho-physical theory with no evidentiary basis than the clear and documented evidence of unlawful homicide that follows within the selfsame second! Of course, Jenkins doesn’t stop there. Citing this ‘perception reaction time’ theory she conjures a defense for Samayoa:

So basically the argument is that since Samayoa recently had failed in either judgment, reaction, or both during a paintball game, the resulting trauma would somehow justify the slaughter by live fire of a human being in a similar (as opposed to identical) series of events.

“To this point, it is anticipated that the defense will introduce with the above ‘perception reaction time’ opinion the fact of Samayoa’s last live-action-tactical-training scenarios at the police academy. This scenario, designed to inform officers-in-training about the dangers of vehicle stops, involved a traffic stop of a suspicious white van in a residential neighborhood from which two men abruptly jumped, then ran toward the police car with the officers still seated inside and the impact that training would have on the subjective prong for the lawful self-defense analysis. Of note, in that training scenario Samayoa was ‘shot’ in the head by a paintball.”

So basically the argument is that since Samayoa recently had failed in either judgment, reaction, or both during a paintball game, the resulting trauma would somehow justify the slaughter by live fire of a human being in a similar (as opposed to identical) series of events. Reformists really need to sit with this violent and illegitimate sophistry as they call for more police training! For more on the training fallacy as it relates to this case please refer back to a previous article : 

A question of reason

The District Attorney expounds on this absurd argument with a narrow interpretation of Graham v. Connor, a 1989 U.S. Supreme Court case. For those not as familiar with legal matters, Graham is where the reasonability standard for law enforcement use of force is couched in federal jurisprudence. The part of the case that she cites, (quoting an earlier case Terry v. Ohio), states that “the reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” The implication is that Samayoa’s homicide would somehow be reasonable in a particular fraction of a second on Dec. 1, 2017, if not now. Of course in emphasizing this aspect of the Graham decision Jenkins opportunistically neglects the very next section of Graham which states, “An officer’s evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force; nor will an officer’s good intentions make an unreasonable use of force constitutional. (emphasis mine.) But an even larger problem looms behind this selective use of case law.

Dethorne Graham was a diabetic Black man who, in 1984, was brutalized by Charlotte, North Carolina police after an unwarranted traffic stop. Mr. Graham was having an insulin reaction, more commonly known as a low blood sugar condition, and attempted to self-medicate by purchasing orange juice from a convenience store. When he realized that the checkout line was too long he raced out of the store, without the orange juice, asking to be driven to a friend’s house instead. 

The racist pigs, assuming that a Black man hurrying out of a store automatically implied criminal behavior, pulled over the vehicle he was in and when presented with the effects of a diabetic condition, that their unwarranted contact was exasperating, responded by battering Graham to the extent that they broke his foot, injured his head and shoulder and induced a chronic tinnitus (ringing in the ears.) The Rehnquist Supreme Court, despite rejecting the analytical standard used by the district court which first heard the complaint, ultimately upheld its finding that the amount of force was “appropriate under the circumstances.” In short, the entire constitutional standard for a police officer’s “reasonable” use of force is predicated on the “reasonableness” of police viciously assaulting a disabled Black man who had committed no crime! It should be noted here that this standard has recently been challenged in California by AB-392, a bill signed into law three and a half years ago and endorsed by Attorney General Bonta, which attempted to change the standard from “reasonable” to “necessary in defense of human life,” but between the amendments designed to render it impotent and the fact that it was not state law at the time of the killing of O’Neil, Graham remains what D.A. Jenkins is relying on to defend the criminal killing of Keita “Icky” O’Neil.

Conflicts

Before discussing the final plank of D.A. Jenkins’s argument, it is incumbent upon us to briefly address the so-called “conflict” in the case. Apparently different investigators came to opposing conclusions about whether or not Samayoa’s shooting of O’Neil was a case with enough merit to move forward on. During the course of this debate various arguments were made rhetorically by advocates of each position. This type of dialogue happens regularly, and is to be expected in a case as controversial as homicide charges against a former cop. Eventually, perhaps through a circuitous route, the pro-prosecution side won the day and a charging document was composed leading to an arrest warrant signed by a judge. All of this was internal to the San Francisco District Attorney’s office, something bureaucratically referred to as “work product.” Suddenly, five years after the killing, this dialogue is being cited as exculpatory evidence (i.e. evidence that could clear Samayoa of criminal responsibility,) and its “withholding” from the defense is being cited as a justification alternatively to delay preliminary hearings or to outright dismiss the homicide charges. The sheer absurdity of this latter argument has been clearly articulated both by former District Attorney Chesa Boudin https://kpfa.org/player/?audio=396172 and by Brian Ford, the personal attorney of April Green, Keita “Icky” O’Neil’s aunt who stated, “The opinions of the D.A. Inspectors are not evidence, and they are not relevant, nor are they exculpatory.” https://s3.documentcloud.org/documents/23606001/2328-ltr-to-ag-req-ag-assume-prosecution.pdf. But what is even more astounding is the case law that Brooke Jenkins cites to support these spurious claims.

In an uncanny collaboration with Christopher Samayoa’s defense attorney, Julia Fox, D.A. Jenkins gives credence to a motion filed by the defense on Jan. 27 called a Murgia motion. Based on a 1975 case, Murgia v Municipal Court, this motion seeks “evidence” of “selective and invidious prosecution of the defendant.” The claim essentially is that were it not for some diehard anti-police prejudice Samayoa would not be facing prosecution. Of course, much of this relies on the eye of the beholder. To the police, the fact that no other San Francisco cop has been charged with homicide for killing “in the line of duty” smacks of discrimination. They would argue that Samayoa has been singled out. This would be in contradistinction to the People’s position that law enforcement’s arbitrary execution of our community members has gone on for too long without adequate accountability and that finally a D.A. had the courage to charge one of them! 

The legal argument turns on the word invidious. Invidious means unjustified, i.e., arbitrary. Arbitrary is clarified by the Murgia court to be defined as a factor that “bear[s] no rational relationship to legitimate law enforcement interests.” In this instance the fact that Samayoa was a cop is the only reason he was present at the scene (thus able to conduct the killing,) and subsequently the only reason he was not immediately incarcerated and charged with murder. As such there is no coherent way to separate Samayoa’s identity as a cop from the presumptive crime that occurred and has been charged. Beyond this, we have the video evidence implicating Samayoa in an illicit killing, the actual primary basis of the charges, which clearly fulfills the law enforcement interest standard and renders ridiculous the assertion that were it not for an anti-police political position charges would not be filed. 

But if the running of this argument was not bad enough, it must be noted that the Murgia case itself was about discriminatory law enforcement abuse! United Farm Workers in Kern County, that is to say predominantly Latin(x) agricultural workers (organized by Dolores Huerta and Cesar Chavez among others,) were being systematically targeted for political repression in 1973. To quote the case:

“The initial set of affidavits describes numerous instances of serious criminal conduct — primarily violent assaults — committed by agents of the growers, members of the Teamsters Union and “private security groups” against picketing UFW members in the immediate presence of, and under the observation of, the sheriffs’ deputies; according to the affidavits, the deputies took no steps either to prevent such assaults or to arrest the assaulting individuals, but rather “ratified” and encouraged such conduct and, indeed, often arrested the UFW victims of such assaults. Other affidavits attest to the pervasive use of excessive force and brutality by sheriffs’ deputies against nonviolent UFW members, to numerous racial slurs directed at UFW workers by law enforcement officials, to numerous instances of unjustified arrests of UFW members followed by the imposition of especially harsh and atypical conditions of confinement, and finally to several incidents of intrusive surveillance and general harassment of UFW supporters.

“Defendants also filed additional affidavits relating to the alleged participation of higher-level law enforcement officers in the discriminatory enforcement scheme. One affidavit, filed by a defense counsel, described a series of meetings at which members of the district attorney’s office and sheriff’s office discussed with growers and their lawyers various legal stratagems for dealing with anticipated UFW labor activities.” [Emphasis mine]

Brooke Jenkins actually has the temerity to cite a case which opened the courtroom doors to claims of discriminatory violence conducted along racial lines via collusion between law enforcement and district attorneys to, in effect, collude with the the defense (and SFPOA) in letting a cop walk for killing an unarmed Black man in Hunters Point.

So yes, we here at the San Francisco Bayview Newspaper do echo the call of the family of Keita O’Neil (and ironically the office of the San Francisco District Attorney,) for Attorney General Rob Bonta to exercise his power under Article 5, section 13 of the California Constitution to take over the prosecution of Christopher Samayoa for O’Neil’s killing. But we do so not on the basis of some contrived ‘conflict.’ We charge that District Attorney Brooke Jenkins has exhibited such rank malfeasance, untinctured pro-cop bias, and general ethical incapacity, as to render her not only unable to do the job, but unfit for the discharge of any public office. 

It is 2023. It’s long past time that lynching ceases to be an accepted status-quo and we can no longer tolerate public officials who believe otherwise.

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. 

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