BUFFALO, N.Y. (WIVB) — The racist online screeds believed to have been left behind by the 18-year-old suspect charged in May’s shooting massacre at the Tops grocery store on Jefferson Avenue in Buffalo paint a disturbing picture of a person hell-bent on murdering Blacks.
But did 18-year-old Payton S. Gendron act alone? Was he egged on by others? Could anyone else be in legal jeopardy?
Federal agents are searching for additional suspects, including an investigation of a former federal agent who may have had advance notice of the attack that left 10 dead and three more injured.
What would constitute a crime if the suspect were communicating with others about his plans?
“Given the outrage over the shooting itself and what happened, I think prosecutors are going to be looking at every type of conspiracy statute they can find to try to cast a wide net here,” said Anthony Rupp, a defense attorney.
Gendron was already indicted at the local level on 25 counts, including committing a domestic act of terrorism motivated by hate in the first degree and 10 counts of first-degree and second-degree murder as a hate crime.
On Wednesday, the U.S. Attorney’s Office for the Western District of New York announced 26 new federal charges against Gendron, including 10 counts of committing a hate crime that resulted in death and 10 counts of using a firearm to commit murder. An affidavit with the complaint states that the defendant picked the 14208 ZIP code because of its large concentration of African Americans. On the same day, U.S. Attorney General Merrick Garland met with family members of the shooting in Buffalo.
Garland said Wednesday that the affidavit for the complaint against Gendron quotes from the defendant’s writings that his goal was “to kill as many blacks as possible” and outlines how the defendant spent months preparing for the attack.
“We will use every legal tool at our disposal to investigate and combat these kinds of hate crimes and the collateral impact that they have on the communities that they hurt,” Garland said.
The federal complaint states that at about 2:30 p.m. on May 14, Gendron, who lived with his parents 2½ hours away in Conklin, New York, arrived at the grocery in a blue Ford Taurus. He was armed with a military-style, semi-automatic rifle, and multiple loaded magazines.
Authorities believe he fired at least 60 shots during the attack before he surrendered.
Buffalo police officers took Gendron into custody outside the store without incident. He was wearing body armor, camouflage clothing and a military-style helmet with a GoPro camera attached. Police recovered a loaded 12-gauge shotgun, a loaded bolt-action rifle and three loaded rifle magazines from Gendron’s vehicle, the federal complaint states.
Not long after Gendron was in custody, authorities became aware that the suspect left behind more than 700 pages of writing, some of which were published online about 30 minutes prior to the attack. It is in these writings that authorities believe Gendron reveals his motive for the attack: To prevent Black people from replacing white people in an effort to eliminate the white race, which is a key belief of a conspiracy known as the Great Replacement Theory. Also clear from the writings is the defendant’s idolization of past mass killers.
A spokesperson for Discord, an online messaging tool, confirmed that a small group of people had access to the writings about a half-hour before the rampage, but it is unclear whether any of them reported anything to law enforcement. In addition, Gendron live-streamed the attack on Twitch, which said it removed the video within a few minutes.
Jonathan Lacey, a former FBI agent, said some of the social media sites used Gendron are “like the wild west of hate and extremism speech.”
“The FBI will be interested in who viewed this content and who the subject was communicating with, and those people could be witnesses and they could be potential subjects of an investigation,” Lacey said. “Certainly, the investigation will let us know if somebody did report this. Equally important is whether somebody close to this killer was aware that they were spiraling down a pathway toward violence over a many-month-long period.”
Anthony Bruce, a retired federal prosecutor, said no statute can conflict with a person’s right to free speech, “no matter how abhorrent the speech may be.”
“You need some sort of affirmative activity on the part of others,” Bruce said. “Did they help him in any way? Did they purchase a gun? Make a straw purchase of a gun? Did they make a straw purchase of ammunition? Did they help him plan his route? There has to be some activity on the part of the others. Just sitting and listening and soaking it in is not a crime.”
Chris Pannozzo, an attorney, said assisting the shooter could come in several other forms that would trigger a potential enforcement action, including providing surveillance for the attack or helping plan it. He said it is likely law enforcement will attempt to speak with everyone who may have entered the Discord chatroom and Twitch stream of the attack.
But Pannazzo said there are not any legal ramifications for anyone who may have had prior access to the suspect’s screeds but chose not to contact law enforcement. That’s not a crime, he said.
“It’s a terrible moral wrong,” Pannazzo said. “The question is whether or not it’s a legal wrong or a criminal wrong, and that’s the difficult part of prosecutions in situations like this.”
Bruce said there is a federal statute that is rarely prosecuted that requires proof that someone else knew that a felony had been committed and failed to report it.
“It doesn’t kick in, unfortunately, until the felony is actually committed,” Bruce said. “So, if I know someone is going to rob a bank, I have no obligation to report that. If I know they robbed a bank seconds after they start that robbery, that obligation kicks in and under federal law a person can be prosecuted for that.”
In addition to the free speech issue, Rupp said there are other constitutional issues that are at play in a case like this one. For example, were any conversations the suspect had prior to the attack in private online message rooms where the information shared is often encrypted?
“Are the people who are on the internet having private conversations?” Rupp said. “Are they entitled to Fourth Amendment protections such that without a warrant and probable cause that they’ve committed a crime, can you even go and read their private communications? It’ll be like if an email is like a modern-day equivalent of a letter, it would be like the police intercepting your letters and reading them before you did.”
Paul Abbate, FBI deputy director, said the investigation is still very active, but they continue to look for any additional potential suspects.
“We’re leaving no stone unturned,” Abbate said. “That’s something we continue to look at anyone who is connected with, associated with, in communication with this individual. We’re continuing to pursue that, and we’ll see where it leads. If it leads us to a place where justice is warranted, we’ll go there.”