Attorneys for Tops shooter ask judge to let victims keep evidence for use in civil cases

BUFFALO, N.Y. (WIVB) – Victims of the Tops shooting and their families may soon get a boost as they investigate efforts to file lawsuits related to the attack.

Federal public defenders representing the man who admitted to killing 10 people and injuring three others in the shooting filed a motion Friday to let the victims’ attorneys retain certain evidence deemed “potentially critical to civil litigation they are contemplating.”

Specifically, the defense attorneys are asking United States Magistrate Judge H. Kenneth Schroeder Jr. to let victims’ attorneys use forensic images of Payton Gendron’s cell phone, laptop, and desktop computer. The motion also covers data related to his computer files, text messages, emails, and social media accounts.

In September, Schroeder signed a protective order governing discovery. It restricts the sharing of evidence. The order does allow the public defenders to review evidence with victims and their attorneys. But that must happen when a member of the defense team is present. The victims and their attorneys are only permitted to review, and not keep the evidence. They are not even allowed to take notes.

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When asked for a comment on the defense motion Friday afternoon, a spokesperson for the U.S. Attorney’s Office said they could not comment on a pending case.

As noted in the motion, attorneys for several victims have been investigating whether to bring civil cases related to gun and body armor manufacturers or the shooter’s use of social media.

In a report released this past October, The New York State Office of the Attorney General wrote that the shooter, who is already serving life in prison after pleading guilty to state charges of domestic terrorism motivated by hate and murder, was “indoctrinated and radicalized” through online platforms and “used these and other platforms to plan, implement, and promote these acts of terror.”

He is still facing 27 federal charges in a prosecution that is eligible to be a capital case. Defense attorneys say he is willing to plead guilty in the federal case if the death sentence is taken off the table.