Second Circuit Reinstates Death Penalty Charges in Buffalo Supermarket Federal Murder Trial

Payton Gendron killed ten Black people in Buffalo, New York in an effort to spread racial hatred and incite violence. A grand jury subsequently indicted him on twenty-seven counts of (i) committing hate crimes resulting in death or involving an attempt to kill, in violation of 18 U.S.C. § 249(a)(1)(B); (ii) 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); and (iii) 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, filing a notice of intent that listed various statutory aggravating factors justifying such a punishment. That notice also included, as relevant here, three non-statutory aggravating factors: (i) the effect of Gendron’s crimes on the surviving victims; (ii) Gendron’s racist motive for the shooting; and (iii) Gendron’s hope of provoking further violence.

The district court struck all three of these factors. It concluded first that the government could not point to the surviving victims’ injuries because only the shootings resulting in death constituted capital crimes. It then found that 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. Finally, it held that the First Amendment protected Gendron’s statements about his goal of inciting further violence and that the incitement aggravator unconstitutionally punished Gendron’s speech.

[B.] The District Court Erred in Striking the Surviving-Victims Factor.

[T]he FDPA [Federal Death Penalty Act] allows juries deciding whether to impose a death sentence to weigh any relevant aggravating factor of which the government has provided notice. And 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.” … “Traditionally, sentencing judges have considered a wide variety of factors … in determining what sentence to impose on a convicted defendant.” …

The surviving-victims factor is clearly relevant. By alleging that Gendron “caused serious physical and emotional injury, and severe psychological impact to individuals who survived” the attack, the factor “direct[s] the jury” to an important “individual circumstance[ ]” of Gendron’s conduct: Gendron went on a mass shooting spree, killing some victims and maiming others. Indeed, death-penalty cases often involve such acts of widespread violence, and the fact that this conduct injures large numbers of survivors may often be one of the most important “circumstances of the crime.”

Gendron resists this logic by arguing that section 3593(a)(2) implicitly restricts the use of potential aggravating factors related to a crime’s impact on victims. That section explains that the government “may include factors concerning the effect of the offense on the victim and the victim’s family.” … But even if the term “victim” describes only deceased victims, Gendron’s argument overlooks the rest of the statutory text and our own precedents. Section 3593(a)(2)’s plain text does not limit the use of aggravating factors; on the contrary, it simply lists factors that the notice “may include.” …

[C.] The District Court Erred in Striking the Attempted-Incitement Factor.

As discussed above, 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…. “Deeply ingrained in our legal tradition is the idea that the more purposeful is the criminal conduct, the more serious is the offense, and, therefore, the more severely it ought to be punished.” …

The attempted-incitement factor here highlights a particularly heinous motive. It explains that Gendron, “in preparation for and in committing the acts of violence charged in this case, attempted to incite violent action by others.” That aim—to inspire copycat killers to gun down crowds of people—made Gendron’s behavior even more culpable, and the government may permissibly point to that goal as a reason to impose a death sentence. Furthermore, the fact that the government plans to rely on Gendron’s constitutionally protected manifesto and journal to prove that motive makes no difference, because “it is beyond cavil that ‘[t]he First Amendment … does not prohibit the evidentiary use of speech to … prove motive or intent.'”

Gendron resists this chain of logic by arguing that the government is seeking to punish him for his speech, not his motive. Gendron insists that his “words [are not] being proffered to prove another valid aggravator—they [are] the aggravator.” … But the government is not seeking to punish Gendron because he expressed odious views. 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.”

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. If Gendron had committed wire fraud, the government could not seek a stiffer penalty simply because he separately happened to be a racist whose writings displayed an unrelated “abstract belief[ ]” in the need for violence. But Gendron is alleged to have carried out a mass shooting in part to inspire others to commit similar acts of violence, and that alleged motive was “tied” to—and indeed lay at the heart of—his crime….

[D.] The District Court Erred in Striking the Racist-Motive Factor.

While the government may present a wide range of aggravating factors, not everything is fair game: section 3593(f) prohibits the jury from “consider[ing] the race … of the defendant or of any victim” when determining “whether a sentence of death is justified.” That bar means that the government may not present an aggravating factor that requires the jury to take account of a victim’s or defendant’s race. Cf. Zant v. Stephens, 462 U.S. 862, 885 (1983) (noting that death-penalty regimes may not “attach[ ] the ‘aggravating’ label to factors that are constitutionally impermissible,” “such as … race”).

A jury may, however, weigh a defendant’s racist motive. As discussed above, the defendant’s motive plays a starring role at sentencing. See Wisconsin v. Mitchell (1993) (“[I]t [is] permissible for the sentencing court to consider the defendant’s racial animus in determining whether he should be sentenced to death.”). And a jury evaluating a racist motive is simply analyzing a defendant’s particularly culpable, hate-driven rationale—without any need to assess his race or that of his victims. For this reason, similar hate-crimes cases have involved aggravators virtually identical to the one that the district court struck here.

{As the government ultimately conceded at oral argument, section 3593(f) would clearly prohibit a jury from finding that animus against one racial group was more culpable than animus against another. But the aggravating factor at issue here does not encourage a jury to do that.}

Gendron advances two main arguments against this line of reasoning. First, he contends that section 3593(f) broadly outlaws all “race consideration” and that a jury evaluating a defendant’s race-connected motive would necessarily have to take account of the defendant’s or his victim’s race. But a jury is perfectly capable of punishing a defendant for his racist motivation without considering the race of his victim, which in fact has no bearing on the defendant’s culpability. If Gendron had inadvertently killed a group of non-Black victims while intending to target Black victims, his racist motive would still make him more blameworthy than a garden-variety killer. The aggravator here thus permissibly points to Gendron’s “bias,” “hatred,” “animus,” and “contempt”—all neutral terms describing internal states of mind that do not depend on Gendron’s race or that of his victims….

Second, Gendron contends that even if a jury may consider a defendant’s generalized racial animus, the factor here uses targeted, “facially race-based terms.” To be sure, Gendron is correct that the proposed factor refers to a particular race by noting that Gendron’s “bias, hatred, and contempt toward Black persons and his animus toward Black persons played a role in the killings of [the ten named victims].”

But the factor here focuses expressly on Gendron’s “bias,” “hatred,” “contempt,” and “animus,” with the phrase “toward Black persons” simply giving context to those race-neutral terms. And to the extent that Gendron is concerned that the reference to a specific race might risk confusing the jury, the way for the district court to cure that problem is by issuing a limiting instruction—not striking the entire aggravator. The district court should give such an instruction to dispel any potential ambiguity by explaining to the jury that (i) neither Gendron’s race nor that of his victims could play any role in its decision whether to impose the death penalty; (ii) the racist-motive factor described only Gendron’s generic racist motive; and (iii) it should thus sentence Gendron because of his generalized racial hatred and the role that hatred played in the killings—not because of the particular group or individuals whom he targeted….

The First Amendment analysis strikes me as quite correct. I can’t speak as confidently to the other items, since I’m not an expert on the FDPA, but the court’s analysis seems right to me there as well.