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Tops gunman's lawyers file to exempt him from the death penalty

Payton Gendron speaks to the court before sentencing
Derek Gee
The Buffalo News via AP Pool
Gunman Payton Gendron reads an apology to the court at his sentencing under state charges before Erie County Court Judge Susan Eagan Feb. 15, 2023.

Attorneys representing the Tops massacre gunman are trying to exempt their client from the death penalty.

Payton Gendron is already serving a whole life sentence under state charges for killing 10 people and injuring three others at the Tops grocery store on Buffalo's Jefferson Avenue in a racially motivated mass-shooting.

The attack took place on May 14 2022.

In a separate federal case, the Department of Justice filed a notice to seek the death penalty for Gendron back in January. But lawyers representing Gendron argue he should be exempt from that punishment on account of his age at the time of the alleged capital crimes.

Gendron was 18 years old at the time of the attack, and so meets the minimum legal age limit to face the death penalty when tried for capital offences in the U.S..

But in court documents filed Monday, Gendron’s lawyers argue that there is now general scientific consensus that the human brain may continue its development until a person is in their early 20s, citing research regarding decision-making linked with brain maturation. Therefore - his lawyers argue - the government should be barred from seeking the death penalty in the case.

Gendron's legal team also filed a motion to strike the death penalty as a possible punishment, arguing that it is “prohibited by the fifth and eighth amendments,” both of which focus on governmental powers when it comes to criminal procedures and punishments.

The federal trial is set for September 2025.

Holly Kirkpatrick is a journalist whose work includes investigations, data journalism, and feature stories that hold those in power accountable. She joined WBFO in December 2022.