Buffalo Mass Shooter Arguing to Avoid Death Penalty

Federal attorneys filed arguments against rejecting Tops shooter too young for death penalty consideration. 

After driving several hours from central New York to Buffalo with the intent of killing as many people as possible in May 2022, the person responsible for killing 10 people in the Tops on Jefferson Avenue was 18 years old, a legal adult under U.S. law.

His attorneys have argued that given his age at the time of his crime to — which he has pleaded guilty — he should not face the death penalty on the federal level.

In 2005, under the second administration of President George W. Bush, the Supreme Court ruled the death penalty was not to be considered for those facing federal criminal charges who were under the age of 18 when the crime was committed. In the case of the Tops shooter, he was almost a full year over that age at the time of the attack, which he plotted specifically in a predominantly Black neighborhood.

Now 20, the shooter is already serving life in prison without the possibility of parole for the 15 charges filed against him in New York State, which no longer has the death penalty and for which he also pleaded guilty. His attorneys say his mind was not that of a fully developed, rational adult at the time of his actions.

Federal prosecutors, on behalf of the U.S. Department of Justice, have filed two motions arguing in support of consideration of the death penalty.

“The Constitution expressly authorizes the death penalty as a form of punishment,” the DOJ writes. “While the defendant attempts to marshall evidence of changing attitudes as a basis for declaring the death penalty unconstitutional, the Supreme Court has not altered its views or its rulings, consistently recognizing that capital punishment is, indeed, constitutional.” If the Supreme Court decided to reconsider this stance, it would need to evaluate the case and medical arguments and law pertaining to mental development progress according to age, but unless and until the court does so, this remains the standard, the attorneys write. They note that it doesn’t matter that federal prosecution “inconsistently” applies or calls for the death penalty or that other, similiar cases had the punishment removed from consideration; because the law has not changed, the ability to have that option available during the federal case against the Tops shooter still stands and should not be dismissed.

The shooter’s attorneys also argue that the Federal Hate Crimes Prevention Act is unconstitutional and have asked to have those indictments dismissed.

Any discussion of the shooter’s mental state or capacity, his age, and whether that impaired his judgment in making the pre-meditated drive to Buffalo to carry out the attack, can be presented to the jury at the time of sentencing, the prosecuting attorneys say.

The court documents can be viewed here and here.

During the court proceedings in Buffalo, reactions from those who lost loved ones in the attack were mixed.

Zeneta Everhart, whose son Zaire was injured during the shooting, said at the time that while she wouldn’t wish the death penalty on anyone, “I’ve also said that if the U.S. attorney general decided to go that route for the death penalty, then so be it. Because for me, I believe in the greater good of that. There should be a trial. The country should see what happened that day. They should know what led up to that. They should hear all about the manifesto and the guns that he used and modified.”

Mark Talley, who lost his mother Geraldine in the attack, said he “understand(s)” why the death penalty would be considered. “It’ll make some people happy, some people glad. With me, I’m more of a dark person. If, God-willing, I live to 80, he lives to 80, I would have preferred to see him tortured for the rest of his life in prison, particularly here….I would’ve preferred he spend the rest of his life in prison, suffering every day.”