Justice Department to pursue death penalty against Buffalo supermarket shooter Payton Gendron

The Justice Department said Friday in a court filing it will seek the death penalty for Payton Gendron, the then-19-year-old who killed 10 people in a racially motivated shooting at a Tops Supermarket in Buffalo, New York, in May 2022.

"United States believes the circumstances in Counts 11-20 of the Indictment are such that, in the event of a conviction, a sentence of death is justified," the filing said.

Lawyers for Gendron previously said he would consider pleading guilty to the federal charges if the death penalty was taken off the table.

Gendron was not in court on Friday when prosecutor Joe Tripi formally notified the judge of the government's intent to seek the death penalty.

The defense waived Gendron's appearance, but Judge Lawrence Vilardo said he would have to show up in court soon.

"There's going to come a point in the relatively near future when he's going to need to be here," Vilardo said.

Assistant federal defender Sonya Zoghlin responded, "I'm sure the court is completely confident we are communicating with him appropriately."

The next court date is Feb. 2.

Federal prosecutors outlined the reasons why they believe a death sentence is warranted in their filing, saying, "Gendron intentionally killed Roberta Drury, Pearl Young, Hayward Patterson, Ruth Whitfield, Celestine Chaney, Aaron W Salter Jr., Andre Mackniel, Marcus Morrison, Katherine Massey and Geraldine Talley."

The Justice Department also cited Gendron's intentional infliction of bodily injury, intentional participation in an act resulting in death and the blatant racism associated with the shooting.

"Payton Gendron expressed bias, hatred, and contempt toward Black persons and his animus toward Black persons played a role," the filing said.

The defense said they were "deeply disappointed" in the DOJ's decision to pursue the death penalty.

"Rather than a prolonged and traumatic capital prosecution, the efforts of the federal government would be better spent on combatting the forces that facilitated this terrible crime, including easy access to deadly weapons and the failure of social media companies to moderate the hateful rhetoric and images that circulate online," Zoghlin said in a statement.

A federal grand jury returned a 27-count indictment against Gendron in July 2022 charging him with 14 violations of the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act: "10 counts of hate crimes resulting in death, three counts of hate crimes involving an attempt to kill three injured individuals, and one hate crimes count alleging that Gendron attempted to kill additional Black people in and around the Tops grocery store," according to a statement from the Department of Justice. He was also charged with 13 firearms offenses.

Gendron was motivated by a racist, far-right conspiracy known as replacement theory and he wanted to "inspire others to commit similar attacks," according to a criminal complaint. Markings on the rifle used in the shooting included the phrases "here's your reparations" and "the great replacement," the complaint said.

Garland has pursued two death penalty cases under his tenure -- one against Sayfullo Saipov, who killed eight people with a truck on a Manhattan bike path in October 2017, and the second against Robert Bowers, who killed 11 people in a shooting at Pittsburgh's Tree of Life synagogue in October 2018. A jury decided not to sentence Saipov to death, while Bowers was given the death penalty.

Both of those cases were carried over from the previous administration, however, and Garland instituted a moratorium on the death penalty in July 2021. The moratorium remains in place.

The decision to seek the death penalty follows more than a year of deliberations inside the Justice Department. Garland has been open in previous public appearances about his concerns regarding the death penalty, and President Joe Biden campaigned on formally abolishing it at the federal level. But in the absence of a formal policy instituted by the Biden administration, DOJ officials have debated over a so-called "worst-of-the-worst" threshold for when recommending a death sentence is appropriate in some of the most egregious cases of hate-fueled mass acts of terror.

The family members of victims said they met with prosecutors earlier Friday, where they learned the DOJ was seeking the death penalty.

Mark Talley, the son of shooting victim Geraldine Talley, told reporters the decision made some happy, though he felt Gendron is "getting off the hook" if sentenced to death.

"For me, I want something worse than that," Mark Talley said outside the federal courthouse in Buffalo. "I want him to torture, I want him to suffer, I want everything he ever loved to suffer. I want friends and family that he loved to suffer. I want possibly the worst thing that I can ever imagine to possibly happen to him."

"As far as I'm concerned, I think he's getting off the hook getting the death penalty because he won't get that suffering that I want," he continued. "As long as I'm alive, whether God gives me 20, 30 or 60 years, I wanna be able to see him to suffer."

Wayne Jones, whose mother, Celestine Chaney, was killed in the attack, also said he was not in favor of seeking the death penalty.

"I just wanted him to suffer as much as we've had to suffer," Jones told ABC News. "But I know in our group, there were people who didn't want anything else but death."

Buffalo Mayor Byron Brown said he supported the DOJ's decision to pursue the death penalty, saying it should act as a "deterrent for this type of terrible crime."

"I think it is the right decision," Brown said during a press briefing Friday. "Ten innocent lives in this community were taken, three other members of the community were injured and the shooter traveled more than three hours away from Buffalo to commit this heinous crime."

New York Gov. Kathy Hochul also said she supported the DOJ's decision.

"This complies with the DOJ requirements for what constitutes a death penalty offense," she said during an unrelated press briefing on Friday. "This community is still reeling from the atrocity of 10 innocent people on May 14 in 2022, simply going about shopping and were targeted -- targeted because of the color of their skin by a white supremacist who was radicalized online."

Gendron was sentenced to life in prison without parole on state charges in February 2023 after pleading guilty to 15 charges, including domestic terrorism motivated by hate, murder and attempted murder.

Erie County Court Judge Susan Eagan imposed a sentence of life in prison without parole for each of the 10 victims he killed on May 14, 2022, at the Tops market and 25 years for each of the three victims he shot and wounded.

During the sentencing hearing, Gendron offered a brief apology, saying he was "very sorry for all the pain" he caused "for stealing the lives of your loved ones."

"I did a terrible thing that day. I shot people because they were Black," Gendron said.

ABC News' Bill Hutchinson contributed to this report.