Biden’s Justice Department pushes for tough response to Buffalo massacre

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The day after a gunman killed 10 black people at a Buffalo grocery store, Damon Hewitt’s phone rang. On the phone was Attorney General Merrick Garland.

Garland was contacting civil rights leaders to reinforce his promise that the Justice Department would continue to investigate hate crimes. Hewitt, the chairman of the Lawyers Committee for Civil Rights Under Law, didn’t mince words: what is needed to combat domestic extremism and racist violence, he told Garland , is a Marshall Plan-style approach to galvanizing federal attention and resources.

“How capable and interested is the federal apparatus in protecting black people?” Hewitt said in an interview, recounting his conversation on Sunday. “This is, again, a test.”

Investigators from the FBI, Bureau of Alcohol, Tobacco, Firearms and Explosives, and the Justice Department’s Civil Rights Division are reviewing evidence in Buffalo and online to piece together the extent of the shooting mass and its motivation. Payton Gendron, an 18-year-old white man, pleaded not guilty to first-degree murder charges. He is due in court Thursday morning.

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While justice officials are working with and assisting local authorities, federal prosecutors are also conducting a parallel investigation to determine whether to charge Gendron with a hate crime, a prospect that could add significant punishment, including including the death penalty, legal experts said.

The federal investigation is expected to take weeks and could move at a more deliberate pace than the local investigation, according to former Justice Department officials. Prosecutors must prove not only that Gendron carried out the shooting, but that he was motivated by racist hatred of black people – an effort that will be based on hundreds of pages of racist and white supremacist musings he allegedly wrote and published on Internet .

Still, the Biden administration faces demands for a swift and forceful response at a time when US intelligence officials have cited domestic extremism and white nationalism as threats to national security. Speaking at the annual meeting of the American Law Institute on Tuesday in Washington, Garland seemed recognize the urgencyemphasizing that his department “will tirelessly investigate – and will tirelessly investigate this hate crime and racially motivated violent extremism.”

As he often does, Garland reminded his audience that the Department of Justice was founded in 1870, during Reconstruction, with the primary mission of protecting black Americans from the Ku Klux Klan and other white supremacist groups. “Preventing hate crimes is a moral obligation of every American if we hope to continue living in a democracy,” he said. “And that’s what we intend to do.”

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Garland announced the federal investigation within hours of Saturday’s attack at a Tops Friendly Markets store in a predominantly black neighborhood of Buffalo. In a statement, he called it a “senseless and horrific shooting.”

Former justice officials said the department has traditionally let local officials take the lead in investigating and ultimately prosecuting such cases, serving as a backstop to bring federal charges if local prosecutors fail. not get a conviction.

But experts said pressure has grown in recent years — especially since the mass protests for social justice in 2020 — for the federal government to play a leading role that will send a message of deterrence and signal to the country that extremism and racial hatred should not be tolerated. .

In February, the Justice Department won a hate crimes conviction against three white men who had previously been sentenced to life in prison for killing Ahmaud Arbery, a black man, in Georgia in 2020. And federal prosecutors have also Successfully tried three former Minneapolis officers on charges of violating the rights of George Floyd, a black man who died in police custody in 2020.

“The Department of Justice is moving much more aggressively on these cases,” said former justice official Jonathan Smith, now executive director of the Washington Lawyers Committee for Civil Rights and Urban Affairs. “It’s a different time, and they’re responding to the real demands of the communities and the urgency of these hate-motivated incidents. It’s not out of step with the entire administration’s position that the Domestic terrorism is one of the greatest threats to public safety.

In New York, Governor Kathy Hochul (D) said Wednesday that ‘domestic terrorism is the most significant threat we face as a state’ and signed an executive order creating new domestic counterterrorism units for the division State Counterterrorism and State Police. She also called on lawmakers to pass legislation removing loopholes in gun laws.

Garland, likewise, created a new Justice Department unit this year that focuses solely on domestic terrorism, a recognition that the issue is taking on greater urgency.

In their phone conversation over the weekend, Hewitt said, Garland promised a whole-of-government response and pointed to the White House’s release last summer of a national strategy to combat domestic terrorism. President Biden traveled to Buffalo on Tuesday, meeting with families of victims and calling white supremacy a “poison.”

“Their response has been significant,” said Maya Wiley, president of the Leadership Conference on Civil and Human Rights, who has spoken to several senior justice officials since the shooting. “They are making it clear that they understand how important, outrageous and devastating this crime is. I believe this is a hate crime, and it is not their job to lay charges before a investigation is complete. But they are treating this for what it represents and the fear and trauma it induces across the country, not just in the Buffalo community.

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Legal experts said federal prosecutors are more likely to pursue charges under Section 249 of Title 18, the U.S. criminal code, which allows federal prosecution of crimes motivated by race, religion, ethnicity nationality, gender, sexual orientation or disability. The maximum penalty in such cases is life imprisonment.

Benjamin Wagner, who served as a U.S. attorney for the Eastern District of California from 2009 to 2016, said justice could also consider a case under Section 245, which offers broad civil rights protections in activities protected by the federal government — including interstate commerce, which prosecutors could define as shopping at a grocery store stocked with goods from outside New York. A conviction under this article would allow prosecutors to seek the death penalty.

Such a scenario could present Garland with a complicated decision. Last year, under pressure from civil rights groups, he announced a moratorium on federal executions as the department begins a review of death penalty policy changes made by the Trump administration. This review is ongoing. The memo, however, did not say whether the department would seek new death sentences during this time.

The Justice Department has defended existing federal death sentences when challenged in court, including for a gunman who killed nine black parishioners at a church in Charleston, South Carolina, in 2015 and the suicide bomber Boston Marathon survivor. In both cases, death sentences were continued under the Obama administration.

“If I had to guess, I think they’d go for the death penalty,” Wagner said, citing federal authorities’ desire to be consistent with past cases.

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The document that authorities say was compiled by Gendron mentions several other convicted or accused mass killers, including Dylann Roof, the avowed white supremacist who said he carried out the Charleston attack in hopes of inciting a race war.

“It would be difficult for the department to explain why it would want death charges against Dylann Roof and the Tree of Life synagogue shooter and did not bring him in this case,” said Paul Butler, a law professor at Georgetown University, former federal prosecutor. He was referring to the 2018 shooting of 11 people at a Pittsburgh synagogue.

“If the evidence is what has been suggested in the media, we will most likely see the department looking for death in this case,” Butler said. “It’s almost more of a problem for Garland if he’s not looking for it.”

Still, Wiley of the Leadership Conference said the 230 organizations that make up his coalition remain strongly opposed to death penalty cases due to concerns that racial minorities are disproportionately targeted.

Ed Chung, a former prosecutor in the Justice Civil Rights Division, said Section 245 has not been used frequently since the 2009 passage of the Shepard-Byrd Hate Crimes Prevention Act. Pursuing charges under this provision could be difficult, he said.

“I don’t think the Justice Department would add this charge just to have a death penalty-eligible count in the indictment,” said Chung, vice president of Vera, who argues for the end of mass incarceration.

In Buffalo, some community members have called Gendron’s alleged actions tantamount to a lynching of black victims, suggesting that federal prosecutors may seek to try him under a federal anti-lynching law approved by Congress in March. But legal experts said the law would only apply if Gendron had conspired with at least one other person to commit the crimes. So far, no evidence has publicly surfaced to suggest this.

For Hewitt of the Lawyers’ Committee for Civil Rights Under Law, the most important goal of the federal role in the Buffalo case would be to achieve “moral clarity” in the face of a renewed attack on black people.

Time and time again, he said, such attacks have “forced America to look in the mirror. We are at that time again.

Mark Berman, Jacob Bogage and Joanna Slater contributed to this report.

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