BUFFALO, N.Y. (WIVB) — Racist online screeds believed written by the 18-year-old suspect in May’s mass shooting at a Tops grocery store in Buffalo paint a disturbing picture of an individual. But did the 18-year-old act alone? Was he egged on? Could others face charges?
Ten Black people were killed and three more injured. Federal law enforcement agencies are searching for additional suspects, including investigating one former federal agent who may have had advance notice. A former prosecutor and FBI agent, as well as legal analysts, spoke with NEWS10’s sister station in Buffalo about what’s on the table if the suspect received aid in the attack. What communications could constitute a crime?
“Given the outrage over the shooting itself and what happened, I think prosecutors are going to be looking at every type of conspiracy statute they can find to try to cast a wide net here,” said Anthony Rupp, a defense attorney.
On Wednesday, the U.S. Attorney’s Office for the Western District of New York announced 26 new federal charges against the suspect, including 10 counts of committing a hate crime that resulted in death and 10 counts of using a firearm to commit murder. An affidavit for the complaint claimed that the defendant picked the 14208 zip code because of its large concentration of African Americans.
The suspect had already been indicted locally on 25 counts, including committing a domestic act of terrorism motivated by hate in the first degree, and 10 counts of first- and second-degree murder as a hate crime. On the same day, Attorney General Merrick Garland met with family members of the shooting in Buffalo.
“We will use every legal tool at our disposal to investigate and combat these kinds of hate crimes and the collateral impact that they have on the communities that they hurt,” Garland said. He said that the affidavit quotes the suspect’s writing that outlines months spent preparing for the attack, and that his goal was “to kill as many Blacks as possible.”
The federal complaint states that at about 2:30 p.m. on May 14, the suspect—who lived with his parents 2 ½ hours away in Conklin, New York—arrived at the grocery in a blue Ford Taurus. He was armed with a military-style semi-automatic rifle and multiple loaded magazines. Authorities believe he fired at least 60 shots during the attack before he surrendered.
Buffalo police officers arrested the suspect without incident outside of the store. He was wearing armor, camouflage, and a military helmet with a GoPro camera attached. The federal complaint states that police recovered from the suspect’s vehicle a 12-gauge shotgun, a bolt-action rifle, and three rifle magazines, all loaded.
Authorities soon learned of over 700 pages of the suspect’s writing, some published online about 30 minutes before the attack. Here, authorities believe the defendant reveals his motive: preventing Black people from replacing and eliminating white people, a conspiracy known as Great Replacement Theory. The writer also idolizes mass killers.
Some of the social media sites used by the suspect are “like the wild west of hate and extremism speech,” said former FBI agent Jonathan Lacey. A spokesperson for Discord, an online messaging tool, confirmed that a small group of people had access to the writings about a half-hour before the rampage, but it is unclear if anyone reported anything to law enforcement. The suspect also live-streamed the attack on Twitch, which said it removed the video within a few minutes.
“The FBI will be interested in who viewed this content and who the subject was communicating with, and those people could be witnesses and they could be potential subjects of an investigation,” Lacey said. “Certainly, the investigation will let us know if somebody did report this. Equally important is whether somebody close to this killer was aware that they were spiraling down a pathway toward violence over a many-month-long period.”
“No matter how abhorrent the speech may be,” no statute can conflict with a person’s right to free speech, said retired federal prosecutor Anthony Bruce. “You need some sort of affirmative activity on the part of others.”’
“Did they help him in any way? Did they purchase a gun? Make a straw purchase of a gun? Did they make a straw purchase of ammunition? Did they help him plan his route?” Bruce asked. “There has to be some activity on the part of the others. Just sitting and listening and soaking it in is not a crime.”
Chris Pannozzo, an attorney, said assistance to the shooter could have come in many forms that would provoke a law enforcement, including providing surveillance for the attack, supplying weaponry, or helping plan it. He said law enforcement will likely try to talk to everyone entering that Discord chatroom and Twitch stream.
But Pannazzo said that it’s not a crime to have had prior access to the suspect’s screeds without contacting law enforcement. “It’s a terrible moral wrong,” he said. “The question is whether or not it’s a legal wrong or a criminal wrong, and that’s the difficult part of prosecutions in situations like this.”
Bruce identified a rarely prosecuted federal statute requiring proof that someone else knew that a felony had been committed and failed to report it. “It doesn’t kick in, unfortunately, until the felony is actually committed,” he said. “If I know someone is going to rob a bank, I have no obligation to report that. If I know they robbed a bank seconds after they start that robbery, that obligation kicks in, and under federal law a person can be prosecuted for that.”
Beyond the free speech issue, Rupp said other constitutional issues are at play in this case. Were any incriminating conversations held in private, encrypted chat rooms? “Are they entitled to Fourth Amendment protections such that, without a warrant and probable cause that they’ve committed a crime—can you even go and read their private communications?” he asked. “If an email is like a modern-day equivalent of a letter, it would be like the police intercepting your letters and reading them before you did.”
Paul Abbate, FBI deputy director, said the investigation is still very active while they continue to look for any additional potential suspects. “We’re leaving no stone unturned,” he said. “That’s something we continue to look at anyone who is connected with, associated with, in communication with this individual. We’re continuing to pursue that, and we’ll see where it leads. If it leads us to a place where justice is warranted, we’ll go there.”