Buffalo, N.Y. (WBEN) - The state court case relating to the Tops mass shooter came to a close on Wednesday with 19-year-old Payton Gendron being sentenced to life in prison without the possibility of parole for killing 10 people and wounding three others in a racially motivated attack.
However, the federal case surrounding Gendron's massacre on May 14 continues, as the shooter agreed to a temporary transfer to the custody of the U.S. Marshals Service on Thursday. This transfer will likely last until the federal aspect of the case is concluded, or there is another agreement to fully transfer custody from state to federal.
The biggest question surrounding Gendron's case, at this time, is whether or not the U.S. Attorney General, Merrick Garland, will pursue the death penalty. If so, there will be a trial scheduled to likely start later this year. If no death penalty trial is sought, Gendron is likely to plead guilty to all counts he faces in his federal case and still serve life in prison.
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As the families of the victims and others await a concrete decision on the potential for the death penalty, Wednesday's closure of the state case surrounding Gendron now signals a new beginning for the community and the nation in the fight against racism, gun violence, and much more.
It also marks the beginning of the process for the victims' families to find civil justice from this racially motivated attack. With the help from local attorneys, the families who suffered a great deal from the May 14 shooting at the Tops on Jefferson Avenue will be able to hold others accountable for their roles in Gendron carrying out his attack with the help of civil lawsuits.
"Who contributed to the education of the shooter? Who provided the method and means for the shooter? Who was, in any way, instrumental in enabling him to accomplish this horrible massacre? That's what we're focused on, and that's what we will look at as we prepare to file this lawsuit in the near future," said Attorney Terry Connors, who represents a number of the families affected by the shooting, including seven of the 10 families who lost loved ones.
Connors and fellow Attorney John Elmore are teaming up to help the families of the 5/14 shooting, as they have been there since Day 1 representing them in all legal matters. Elmore represents the other three families who lost loved ones in the Tops mass shooting,
"We are working every day on this case," said Elmore on the impending civil lawsuit. "When the cameras are gone and the publicities are gone, we're meeting with grieving families. We have sophisticated software that is going through what we can find about Gendron in the Internet. We have letters, preservation of letters to various corporations, preservation of evidence. We're working on this case every day as a team, and even though the Connors firm and my firm are different firms, we represent different people, different victims. They're victims of this community that we love. We're working together for the good of our community, and for the good of the victims that we represent."
While a decision on the part of the prosecution to seek the death penalty at the federal level is irrelevant to any determination of who should be held accountable from a civil standpoint, there is a significant roadblock keeping Connors, Elmore and the other lawyers who have teamed up to take immediate action.
Erie County District Attorney John Flynn was very open during his Wednesday press conference after Gendron's sentencing about continuing to help the families of the Tops shooting well-beyond the cases against the shooter. However, he explains what is holding up the process with getting the civil attorneys the proper materials to get the ball rolling along.
"There right now are two protective orders in place. There is a state protective order in place that precludes me from giving any of the information away to the victims or their attorneys. That protective order on the state side does not automatically go away today by operation of law. That continues on until we change it. So I will be making, in some form or fashion, or a motion to the court to get that protective order lifted, or asking it to be lifted," Flynn said.
"On the federal side, the problem is that I'm gonna guess that 99.9% of all the investigative materials that I have, the feds also have. We have the same stuff. If there's five sheets of paper that are different, I'd be shocked. So the problem is going to be that while that federal case is pending, it's going to be difficult for the feds to release that documentation to the families. So, like I mentioned, there is a federal protective order in place that has my name on it. I was never a part of that at all, I never consented to that at all, but somehow, the Erie County DA's Office name got put on that protective order. So I will be also, in some fashion, making a motion that a federal court to get my name removed from that. I am hopeful that we can work out an agreement that's somehow judicially supervised, where the materials can be turned over to the civil attorneys so they can review it and prepare their lawsuits, and then a protective order put on them where they can't disclose to the public."
Now it's all about whether or not there will be cooperation from the federal government to allow for the District Attorney to clear his name from the protective order and allow the evidence and other materials necessary for a civil suit to get to the likes of Connors and Elmore.
"They should be working hand-in-hand, and if District Attorney John Flynn says that there's no need for the protective order, with regard to the evidence that he's accumulated, that ought to be given serious weight and serious consideration. After all, his prosecution is over. His job is done, and he has no reason to hang on to this evidence. And in fact, he is willing to release it to the attorneys who are handling the civil case, because the families want these questions answered," Connors said. "They want to know who was he talking to, the shooter? Who was he getting help from? What [were they] doing to assist him? That's important information for them to have, as they deliberate whether or not they will recommend to the prosecution the death penalty, or if they decide to go forward with a civil litigation. They should have access to this information. There's no reason not to."
Despite Flynn' good intentions, Elmore feels his hands tied because a lot of the information used for the prosecution of Gendron at the state level of court was provided to him by the FBI.
"The [federal protective] order says lawyers like myself and Terry Connors can go into the federal public defender's office, sit there and not take notes, not record anything, and look at their computer with two lawyers from the federal public defender's office to make sure that we're not violating any of those restrictions, and expect us to look at their computers and go through four terabytes of information. Do you know how big a terabyte is? If you take all of the materials in the Library of Congress, that's one terabyte. There's four terabytes of information that were given to the defense lawyers on thumb drives, and they want to turn it over to us, but our federal government is telling us, 'No'," Elmore said. "My clients, the victims that I represent, feel that they're being victimized by people in Washington that are supposed to protect them."
So how will the process look once attorneys are presented the opportunity to file these civil suits against social media platforms, gun manufacturers, and others?
"Essentially what will happen is that the litigation we filed, in the form of a summons and complaint, will outline the claims that we make on behalf of the families that we speak for, and that litigation will be filed in State Supreme Court," Connors explains. "Then we will run the normal route of litigation. The defendants who are named will have an opportunity to answer. There will be exchange of discovery, there'll be some motion practice, and ultimately, we hope expeditiously, we will get this matter in front of a jury."
In terms of any kind of timetable for when they hope to file these civil suits, Elmore says it's going to be determined based on when they feel like enough facts and enough evidence has been collected to go to battle.
"We're going to go into this battle with guns blazing," he said. "You don't go after major corporations that are worth billions and billions of dollars and have some of the best law firms that money can buy. You don't go into that gunfight with a water pistol. You go into that gun fight blazing, and we're making preparations for that big fight that is going to last a long time, every day."
As for the legal battles and the time to follow, both Elmore and Connors know it will likely be a lengthy process that could last several years. While every fight is different, one of the more recent examples came with a civil suit regarding the shooting at Sandy Hook more than 10 years ago.
"This one, I can't tell, but we're ready to fight because this is a community that we love," Elmore said. We have victims, families that are grieving that we care about, and however long it takes, we're up for the fight and we're up for the battle. And we're going to win the battle."
"The prediction of the length of a civil piece of litigation is dependent upon a lot of terms that we don't have control over," Connors added. "We don't know, for example, whether or not the case calendar the judge its assigned to will be congested. We don't know if there will be motions that will be proposed as the case proceeds to try to slow it down, or to seek some type of relief or judgment. So it's very difficult to predict it. ... These are cases that take some time before they can percolate. Our hope is that our case is clean and clear enough that we will be able to avoid a substantial delay."