Second Circuit reinstates death penalty charges in Buffalo supermarket mass shooting case

The U.S. Court of Appeals for the Second Circuit has reversed a district court's decision to strike three non-statutory aggravating factors in the federal death penalty case against Payton Gendron, who killed ten Black people in Buffalo, New York.

Background

A grand jury indicted Gendron on twenty-seven counts, including:

• Committing hate crimes resulting in death or involving an attempt to kill, in violation of 18 U.S.C. § 249(a)(1)(B)
• Discharging a firearm to commit murder, in violation of 18 U.S.C. §§ 924(c)(1)(A)(i), 924(c)(1)(A)(iii), and 924(j)(1)
• Using and discharging a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. §§ 924(c)(1)(A)(i) and 924(c)(1)(A)(iii)

The government sought the death penalty on the "discharging a firearm to commit murder" charges and filed a notice of intent listing statutory aggravating factors. The notice also included three non-statutory aggravating factors:

1. The effect of Gendron's crimes on the surviving victims
2. Gendron's racist motive for the shooting
3. Gendron's hope of provoking further violence

District Court Ruling

The district court struck all three factors, concluding that:

• The government could not cite surviving victims' injuries because only the shootings resulting in death constituted capital crimes
• 18 U.S.C. § 3593(f), which bars juries from "consider[ing] the race" of capital defendants or their alleged victims, prohibited the government from arguing Gendron's racist motive as an aggravating factor
• The First Amendment protected Gendron's statements about his goal of inciting further violence, and the incitement aggravator unconstitutionally punished Gendron's speech

Appeals Court Decision

In U.S. v. Gendron, written by Judge Richard Sullivan and joined by Judges Joseph Bianco and Alison Nathan, the Second Circuit disagreed with the district court on all three points.

Surviving-Victims Factor

The court held that the Federal Death Penalty Act (FDPA) allows juries to weigh any relevant aggravating factor of which the government has provided notice. An aggravator is "surely relevant" if it helps the jury "consider all of the circumstances of the crime in deciding whether to impose the death penalty" and "direct[s] the jury to the individual circumstances of the case."

The court found the surviving-victims factor clearly relevant, noting that Gendron "went on a mass shooting spree, killing some victims and maiming others." The court rejected Gendron's argument that section 3593(a)(2) implicitly restricts the use of potential aggravating factors related to a crime's impact on victims, stating that the statute's plain text "does not limit the use of aggravating factors; on the contrary, it simply lists factors that the notice 'may include.'"

Attempted-Incitement Factor

The court also found that the district court erred in striking the attempted-incitement factor. The FDPA generally authorizes the government to present any relevant non-statutory aggravating factor, and "[t]he defendant's motive for committing the offense is obviously relevant to determining his level of culpability."

The court emphasized that the attempted-incitement factor highlights a "particularly heinous motive"—Gendron's aim "to inspire copycat killers to gun down crowds of people"—which made his behavior even more culpable and may permissibly be cited as a reason to impose a death sentence.