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United States v. Gendron, 2d Cir., No. 25-2570, 7.27.26
In 2022, Payton Gendron gunned down four people in a supermarket parking lot in Buffalo. He then shot people in the market while filming the event on a GoPro camera. 10 died and 3 were wounded — all were black. Gendron planned his assault for months, with the stated goal of “killing as many blacks as possible” and inspiring others to commit similar crimes. One of the government’s non-statutory aggravating factors in seeking the death penalty was his expressed bias, hatred, and contempt toward black people. The district court struck this factor, concluding the government could not punish Gendron for his protected speech.
The Second Circuit held that Gendron’s motive for committing the crime was relevant in determining his level of culpability. Here he intended to incite violence by others motivated by his racial animus. “…the fact that the government plans to rely on Gendron’s constitutionally protected manifesto and journal to prove that motive makes no difference, because “it is beyond cavil that ‘[t]he First Amendment . . . does not prohibit the evidentiary use of speech to . . . prove motive or intent.’” United States v. Salameh, 152 F.3d 88, 112 (2d Cir. 1998) (quoting Mitchell, 508 U.S. at 489).”
Gendron is not being punished for expressing his views but because of his motivation to incite others to commit violent crimes. The content of his speech is evidence of his motivation.
NOTE: The fact that police may rarely arrest someone for the content of their speech does not mean they should not detail speech which may be used by prosecutors. In other words, police should not be reluctant to report a suspect/arrestee’s speech. On the contrary, report the speech and leave the use of the speech to the prosector. At the same time, focus on the non-speech facts supporting the arrest.
Written by Elliot B. Spector, Esquire
Spector Criminal Justice Training Network, Inc.
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