Buffalo, N.Y. (WBEN) - As the wait continues on a decision from the U.S. Department of Justice to pursue the death penalty for the gunman of the Tops mass shooting on May 14, 2022, local lawyers and their legal teams are starting to pursue civil litigation against the entities that played their part in the lead up to the racially motivated mass shooting in East Buffalo.
However, a federal judge has denied a request for federal prosecutors to be able to share criminal evidence with lawyers hired by the families of the victims and survivors that can be used in civil cases.
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"It's obvious from the New York State General's report the social media platforms were responsible for radicalizing Payton Gendron, for introducing him to some of the White supremacist theories, including the Acceleration Theory. He learned from the Internet the weapon of choice, and was pretty much encouraged by some of these social media platforms contents to commit this mass shooting," said Attorney John Elmore, who represents four of the families directly affected by the mass shooting. "We have commenced litigation against some of the social media platforms, and we would like to have access to what Gendron had on his computer, among other pieces of evidence that were seized by the federal government."
Elmore believes if the U.S. Attorney General's Office had consented to it, the judge in this decision wouldn't have had to make this decision that is detrimental to the civil litigation he is pursing for the families. He says their goal in this lawsuit is to make the community at large safer.
"Every single week, there's another mass shooting somewhere in America, and many of these mass shootings are caused by disturbed individuals who have been radicalized by the Internet," Elmore said. "Gendron's parents could have consented to us seeing this information, even though we're suing Gendron's parents. And it would make sense if the United States attorney that is supposed to protect us all would have consented to us to see that information. But they chose not to, and we're very disappointed in our government."
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Attorney Terry Connors has also recently filed civil litigation for nine of the victims' and survivors' families of the Tops mass shooting. He is of the understanding, at this point, a decision is not final, as he believes the decision of the magistrate will be appealed to the District Court judge. At that point, a judge will make a determination as to whether or not it's appropriate to share the information with the families and their civil lawyers.
"We would hope to have it sooner rather than later, but this appellate process takes a little bit of time. They have to file certain objections to the report and recommendation of the magistrate, and that has to be considered by the District Court judge," said Connors. "You're probably talking 60-90 days before a definitive answer."
As to the decision of whether to pursue the death penalty for Gendron, there was some previous thoughts it would be made earlier than it has been. However, it still has to go through a series of different reviews in Washington, D.C. before the U.S. Attorney General's Office makes that final determination.
While Gendron is already serving a life sentence in prison without the possibility of parole, making him no further danger to the public, Elmore believes the danger right now is the continued radicalization of people that are being indoctrinated to White supremacy theories.
"Payton Gendron, he wanted to commit a race war, and he killed multiple people. So there's just a present danger of this happening again and happening again and happening again," Elmore said. "Fortunately, we have a civil justice system that can hold corporations responsible for dangerous activities, and that's what we're trying to do. We're trying to do this. The families, they just want to make this country safer. They don't want anybody else to join that club, to be the victim of a mass shooting again in America."
Despite the ruling from the federal judge, both Elmore and Connors will continue to move forward with their litigation.
"If you look, what has the federal government done? They haven't regulated and prevented AR-15s from getting in the hands of dangerous people, they haven't regulated social media to stop them from distributing dangerous, violent content on the Internet. So the civil lawyers have been hired by family members to stop it," Elmore said. "That's what we want to do, and that's what we're charged to do."
The lawsuit Elmore and his team has filed has an upcoming return date of Aug. 18, which is when all the defendants named in the case have to file their responses. Elmore further details this case has been assigned to New York State Supreme Court Judge Paula Feroleto.
With lawyers and the families unable to view criminal evidence against Gendron for their upcoming civil cases, Connors says it means it will slow down the process just a little bit.
"Ultimately, we hoped to get to all that evidence, but it would slow the process down. Obviously if we were permitted to look at the evidence, it would expedite things and make things a little bit easier," he said. "But we're a dogged team, and we have a lot of people working on it. We're going to do the best we can, whether we get that information or not."
What kind of evidence might be in the hands of the feds that the civil lawyers and families may not know about? Both Elmore and Connors have yet to figure out the extent of that going forward.
"There's four-and-a-half terabytes of information. Just imagine walking into the Erie County Library, all of that information, all of those books, that's less than a terabyte of information," Elmore explained. "We have experts and computer software companies that can analyze it and digitalize all that stuff in a usable, manageable way so that we can continue the litigation that we've commenced. Unfortunately, there's a protective order, but we'll have to get around it, whether it'd be issuing subpoenas, questioning executives from the various social media platforms. And maybe at some point in time, the federal case against generally will be resolved and then the protective order will be lifted."
"Obviously there's evidence they're using for the prosecution that will provide a peek into his background, a peek into his mental status, a peek into his efforts to prepare for the massacre. All of that information will be relevant for us, so we will do our best to move ahead," Connors added. "If we get it, that would be great, but we're going to move forward anyway."
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