Second Circuit reinstates racial hatred factors in Buffalo shooter’s death penalty trial

MANHATTAN (CN) — A Second Circuit panel on Monday allowed motivations of racial hatred as aggravating factors into the upcoming federal death penalty case against Payton Gendron, the white supremacist who killed 10 Black people at a Buffalo supermarket in May 2022.

Gendron, 23, is currently serving out a sentence of life in prison without the possibility of parole after pleading guilty in November 2022 to multiple state murder charges arising from the live-streamed massacre.

Jury selection began in June in a parallel federal case against Gendron on death penalty-eligible hate crimes and weapons counts, set to stand trial this fall.

The three-judge panel for the Manhattan-based Second Circuit restores a trio of aggravating circumstances that jurors could mull during the penalty phase of the trial: injury to surviving victims, racially motivated killings and attempt to incite violence.

The appeals panel firmly rejected Gendron’s defense argument that the First Amendment protected his statements about his goal of inciting further violence and that the incitement aggravator unconstitutionally punished Gendron’s speech.

“Rather, the aggravating factor here explicitly focuses on Gendron’s motive in committing the crime; the factor seeks to punish Gendron more severely because he ‘attempted to incite violence’ in ‘preparation for and in committing the acts of violence charged in this case,’” U.S. Circuit Judge Richard Sullivan wrote in the 20-page opinion. “In other words, the government is seeking the death penalty not because Gendron said terrible things or is an avowed white supremacist, but because he murdered people allegedly so as to inspire other shootings.”

In advance of Gendron’s federal trial in the Western District of New York, U.S. District Judge Lawrence J. Vilardo tossed out several of the aggravating factors, which had initially been included in the government’s notice of intent to seek the death penalty.

The Department of Justice filed an interlocutory appeal to the Second Circuit, seeking to have those additional aggravating factors reinstated when offering information to the jury.

During oral arguments before the Second Circuit in May, Sullivan noted the predicate offense for the death-eligible count is a hate crime.

“So, clearly Congress understands that hate crimes are worse than other kinds of crimes that might have the same result,” he said.

Sullivan, a Donald Trump appointee, asked the federal prosecutors if they would consider rewriting the proposed aggravating factors to quell any potential confusion.

“It seems to me that, nonetheless, the way you’ve written the factor here sort of invites the jury to be focused on the race of the victims, and it seems to me you could have written it a little differently to make less of a tension between §3593(f) and your permissible objective of getting the jury to focus on what were the motivations for the crime,” Sullivan said, referring to the section of U.S. Code governing special hearings to decide whether a death sentence is justified.

The U.S. Attorney’s Office had argued that they specifically used the language of incitement because Gendron himself had used such describing how he was inspired to commit his attack after watching a video of another white supremacist, Brenton Tarrant, who livestreamed himself killing 51 people at a mosque in Christchurch, New Zealand.

“He wanted to incite violence and retaliatory action and inspire similarly like-minded people to follow in his stead, as he was inspired by the Christchurch shooter, and that’s why he live streamed his event, his mass shooting at the Tops supermarket,” Assistant U.S. Attorney Tiffany Lee told the Second Circuit panel during oral arguments in May.

Sullivan was joined on the panel by U.S. Circuit Judges Joseph Bianco, a Trump appointee, and Alison Nathan, a Joe Biden appointee.

Lawyers for Gendron previously said he would have considered pleading guilty to the federal charges if the death penalty factors were excised from the indictment, but prosecutors affirmed in a filing formally notifying their seek the death penalty, their belief “a sentence of death is justified."

On May 14, 2022, Gendron attacked shoppers and workers with a Bushmaster XM-15 .223 caliber rifle at a Tops Friendly Market in Buffalo after driving more than 200 miles from his home in rural Conklin, New York. He targeted the supermarket because of its location in a primarily Black neighborhood, and livestreamed the massacre online from a Go-Pro camera attached to his tactical helmet.

Gendron had inscribed his rifle with the names of white supremacist mass murderers — Dylann Roof, Robert Bowers, Brenton Tarrant — and racial slurs and phrases like “Here’s your reparations!” and “The Great Replacement.”

Those killed in the Tops supermarket mass shooting ranged in age from 32 to 86. Three others were wounded.

The surviving victims will be allowed to testify both at the guilt phase of the federal trial in support of the attempt to kill hate crime offense, and during the penalty phase to prove that Gendron’s actions created a grave risk of death to one or more persons, and that he attempted to kill more than one person in a single criminal episode.

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