On May 14, our country was faced with another brutal mass shooting. Police say 18-year-old Payton Gendron arrived at Tops Friendly Markets in Buffalo, N.Y., at approximately 2:30 p.m., armed and wearing military gear. He then allegedly started firing, ultimately shooting 13 people and killing 10.
Witnesses say Gendron yelled racial slurs during the attack, suggesting the attack was a racially motivated hate crime, according to news accounts citing law enforcement sources. US Attorney General Merrick Garland and the FBI said the attack is being investigated as a hate crime and racially motivated violent extremism.
We’ve since learned that Gendron was from Broome County, N.Y., more than 200 miles away from Buffalo. Gendron’s classmates noted that he had exhibited strange and erratic behavior in the past, and had previously been investigated for making disturbing comments referencing murder and suicide during a class.
Internet accounts that allegedly belonged to Gendron further bolster the belief that this attack was racially motivated. It has been reported that he apparently authored a 180-page statement that contained further racial slurs and obscenities. The statement and other online documents showed support for other White supremacist mass shooters, and discussed the planning of the attack in detail.
The amount of information out there points to the fact that someone knew this was being planned.
Similarities, Differences with Michigan Mass Shooting
In November, I wrote about the parents of Ethan Crumbley, the then-15-year-old Michigan high school shooter who is criminally charged with killing four Oxford High School classmates and severely injuring seven more. His trial is tentatively set for September.
It was like so many other school shootings over the past few years, with one big exception—prosecutors in Michigan charged Crumbley’s parents, James and Jennifer Crumbley, with involuntary manslaughter.
Although rare, the case involving the Crumbleys was possibly a watershed moment, one in which parents of minors committing atrocious acts would be held to account. As I discussed, that case was—and is—a rarity.
Crumbley’s parents have been charged because they allegedly ignored, and arguably encouraged, conduct that may have led to the violent attack. The tentative trial date for the parents is Oct. 24.
Investigating Parents of the Accused
On May 15, it was revealed that the FBI was interviewing the Gendron’s parents, Paul and Pamela Gendron. It is believed that the couple is cooperating with investigators. Certainly, parallels to the Crumbleys will be drawn, but should they be?
Under US state and federal law, generally speaking, the actions of a passive wrongdoer will not be criminally charged unless some conspiracy is alleged, or prosecutors can make out a case based on solicitation or aiding and abetting. The logic is that if an actor did not actively participate in the carrying out of a crime, then that actor should not be held criminally liable unless some very strong connection can be drawn between that actor and the commission of that crime. Prosecutors believe that is what happened in Oxford.
In that case, the Crumbleys allegedly bought their son the weapon used in the commission of the crime and disregarded warnings from school officials that their son was thinking of carrying out a school shooting. In subsequent text messages between the Crumbleys and their son, the Crumbleys seem to laugh off their son’s erratic behavior.
The case of the Gendrons is a bit different.
Although it is true that their son lived with them, the allegations connecting the Gendrons to the offense seem lacking. At this juncture, authorities are likely doing their best to figure out the extent to which their son’s behavior should have been known to the Gendrons.
Payton Gendron allegedly had conducted extensive research prior to carrying out his attack. He also did not hide his affection for White supremacist ideology. Authorities are in the process of authenticating the contents of his online posts, and are searching through the Gendron’s home to see if any further evidence of this attack could be found.
At this juncture, it does not seem that authorities have enough to criminally charge the Gendrons.
As with the Crumbleys, civil liability is also a potential issue for the Gendrons. If evidence is found showing the Gendrons could have acted to prevent this attack, and that this attack was foreseeable, then they may be sued by the victims of the attack and their families.
Civil negligence requires a standard far less severe than any criminal liability, mandating a plaintiff to demonstrate that a defendant simply breached a duty of care to others. That may be far more manageable.
However, civil cases carry their own set of problems, including the ability to recover damages if and when a judgment is obtained against a party.
The biggest difference between the cases, however, is the prosecutor. In Michigan, we see someone determined to shake up our passive responses to this endless string of shootings.
It remains to be seen how the New York prosecutor will act and what evidence the police investigation can produce as they dive deeper into what happened here. We will all be waiting.
This article does not necessarily reflect the opinion of The Bureau of National Affairs, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.
Dmitriy Shakhnevich is an adjunct assistant professor of constitutional law at John Jay College of Criminal Justice of The City University of New York. He is the founder of the Law Firm of Dmitriy Shakhnevich, based in Manhattan where he represents clients in criminal cases and various matters in civil litigation.