USA v. Gendron

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA
v.
PAYTON GENDRON,
Defendant.
22-CR-109-LJV
DECISION & ORDER
A federal indictment charged Payton Gendron with hate crimes under the
Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act of 2009, 18 U.S.C.
§ 249 (“Hate Crimes Act”), as well as firearm offenses for which the hate crimes are
predicate offenses, 18 U.S.C. § 924(c), (j). Docket Item 6. On June 10, 2024, Gendron
moved to dismiss the indictment on the basis that the Hate Crimes Act is
unconstitutional. See Docket Item 179. More specifically, he argued that the law
exceeds Congress’s authority to legislate under the Thirteenth Amendment and violates
the Tenth Amendment. Id. at 7-20.1 He argued in the alternative that the government
did not satisfy procedural requirements of the Hate Crimes Act. Id. at 20-25. The
government responded to Gendron’s motion, Docket Item 193, Gendron replied, Docket
Item 203, and this Court heard oral argument, Docket Item 230.
Following a well-trodden path and led by Supreme Court precedent, this Court
denies Gendron’s motion.
1 Page numbers in docket citations refer to ECF pagination.
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BACKGROUND
Both local and federal prosecutors have pursued criminal charges against
Gendron in connection with a shooting that killed ten people and injured three at a Tops
grocery store in Buffalo, New York, on May 14, 2022. See Docket Items 6 and 179-1.
On June 1, 2022, Gendron was indicted in Erie County Court for New York State hate
crimes and other crimes. Docket Item 179-1 at 2-11. A little more than a week later,
Kristen M. Clarke, Assistant United States Attorney General in the Civil Rights Division,
certified that “in [her] judgment, prosecution by the United States of [Gendron], for
violations of [the Hate Crimes Act] on May 14, 2022, is in the public interest and is
necessary to secure substantial justice.” Id. at 72. About a month after that, a federal
grand jury indicted Gendron on 27 counts: 14 for alleged hate crimes, 18 U.S.C. §
249(a)(1), and 13 for alleged use and discharge of a firearm in relation to the hate
crimes, 18 U.S.C. § 924(c), (j). Docket Item 6.
Gendron later pleaded guilty in Erie County Court, and on February 15, 2023, he
was sentenced to eleven concurrent life sentences plus consecutive sentences totaling
another 90 years in prison. See Docket Item 179-1 at 65-69. On January 12, 2024,
federal prosecutors gave notice that they intended to seek the death penalty against
Gendron. Docket Item 125.
DISCUSSION
In 2009, Congress passed the Hate Crimes Act, which criminalizes “willfully
caus[ing] bodily injury to any person . . . because of the actual or perceived race, color,
religion, or national origin of any person.” 18 U.S.C. § 249(a)(1).
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I. 	FACIAL CHALLENGE
Statutes are presumptively constitutional, see United States v. Morrison, 529
U.S. 598, 607 (2000), and a facial challenge requires establishing that there is “no set of
circumstances . . . under which the [statute] would be valid,” United States v. Salerno,
481 U.S. 739, 745 (1987).
A. 	Thirteenth Amendment
Congress passed the relevant provision of the Hate Crimes Act using its authority
under the Thirteenth Amendment.2 See 34 U.S.C. § 30501(7); Cannon, 750 F.3d at
498 (“[Section] 249(a)(1) rests solely on Congress’s authority under [section] 2 of the
Thirteenth Amendment.”). As to the reason behind the statute, Congress found that
Slavery and involuntary servitude were enforced, both prior to and after the
adoption of the 13th amendment to the Constitution of the United States,
through 	widespread 	public 	and 	private 	violence 	directed 	at 	persons
because of their race. . . . Accordingly, eliminating racially motivated
violence is an important means of eliminating, to the extent possible, the
badges, incidents, and relics of slavery and involuntary servitude.
34 U.S.C. § 30501(7).
The Thirteenth Amendment was adopted in 1865 and has two sections. Section
one abolishes slavery and involuntary servitude. U.S. Const. Amend. XIII § 1. Section
two, the enforcement clause, grants “Congress [the] power to enforce this article by
appropriate legislation.” Id. § 2.
2 Congress used its authority under the Commerce Clause to pass other parts of
the Hate Crimes Act that cover crimes involving religion, national origin, gender, sexual
orientation, gender identity, and disability. See 18 U.S.C. § 249(a)(2); United States v.
Cannon, 750 F.3d 492, 498 (5th Cir. 2014). Unlike hate crimes involving race, one
element of those offenses is a connection to interstate commerce. See 18 U.S.C.
§ 249(a)(2).
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The Supreme Court has embraced an expansive view of the rights that the
Thirteenth Amendment protects. In 1911, the Supreme Court explained that while
Congress’s “immediate concern was with African slavery, the [Thirteenth] Amendment
was not limited to that. It was a charter of universal civil freedom for all persons, of
whatever race, color, or estate, under the flag.” Bailey v. Alabama, 219 U.S. 219, 240-
41 (1911); see also Jones v. Alfred H. Mayer Co., 392 U.S. 409, 439 (1968) (repeating
that the Thirteenth Amendment “established universal freedom” (quoting Civil Rights
Cases, 109 U.S. 3, 20 (1883))).
As for enforcement, in Jones, the Supreme Court made clear that the
amendment “clothed ‘Congress with power to pass all laws necessary and proper for
abolishing all badges and incidents of slavery in the United States.’” Id. (quoting Civil
Rights Cases, 109 U.S. at 20); see also id. at 442-43, 441 n.78; (referring to the
“relic[s]” and “vestiges” of slavery). And, according to the Supreme Court, Congress
plays a leading role in deciding how to accomplish that end: “Surely Congress has the
power under the Thirteenth Amendment rationally to determine what are the badges
and the incidents of slavery, and the authority to translate that determination into
effective legislation.” Id. at 440.
Jones applied these principles and upheld a law prohibiting “all racial
discrimination, private and public, in the sale and rental of property.” Id. at 437-45. “At
the very least,” the Court said, the Thirteenth Amendment protects “the freedom to buy
whatever a white man can buy [and] the right to live wherever a white man can live.” Id.
at 443.
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The Supreme Court has applied Jones in more recent cases, including Griffin v.
Breckenridge, 403 U.S. 88 (1971). In Griffin, the Court explained that “the varieties of
private conduct that [Congress] may make criminally punishable or civilly remediable
[under section two of the Thirteenth Amendment] extend far beyond the actual
imposition of slavery or involuntary servitude.” Id. at 105; see also Runyon v. McCrary,
427 U.S. 160, 169-71 (1976). The Court concluded that Congress had the authority
under the Thirteenth Amendment to pass a statute providing a civil cause of action for
conspiracies to deprive “any person or class of persons of the equal protection of the
laws[] or of equal privileges and immunities under the laws.” Griffin, 403 U.S. at 96,
104-05 (quoting 42 U.S.C. § 1985(3)).
Those principles apply equally to the Hate Crimes Act. Although the Second
Circuit has not considered whether the Thirteenth Amendment authorizes that law, all
six circuit courts to address the question have found that it does. See United States v.
Hougen, 76 F.4th 805, 814-16 (9th Cir. 2023); United States v. Diggins, 36 F.4th 302,
310-11 (1st Cir. 2022); United States v. Roof, 10 F.4th 314, 391-92 (4th Cir. 2021);
United States v. Metcalf, 881 F.3d 641, 645 (8th Cir. 2018); Cannon, 750 F.3d at 505;
United States v. Hatch, 722 F.3d 1193, 1205-06 (10th Cir. 2013). Several district courts
have done the same. See United States v. Earnest, 536 F. Supp. 3d 688, 715-17 (S.D.
Cal. 2021); United States v. Bowers, 495 F. Supp. 3d 362, 365-68 (W.D. Pa. 2020);
United States v. Henery, 60 F. Supp.3d 1126, 1129-30 (D. Idaho 2014); United States v.
Beebe, 807 F. Supp. 2d 1045, 1048-53 (D.N.M. 2011).
This Court is persuaded by the heavy weight of that authority. Perhaps moved
by the lynchings and other horrific violence that replaced slavery beginning in the 19th
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Century, see United States v. Nelson, 277 F.3d 164, 190 (2d Cir. 2002), Congress
rationally determined that racially motivated violence still is a badge or incident of
slavery. See Jones, 392 U.S. at 440, 444; Hatch, 722 F.3d at 1206 (“Congress could
rationally conclude that physically attacking a person of a particular race because of
animus toward or a desire to assert superiority over that race is a badge or incident of
slavery.”); see also H.R. Rep. No. 111-86, pt. 1, at 5 (2009) (“Since 1991, the FBI has
identified over 118,000 reported violent hate crimes,” and in 2007, the FBI had
documented 7,624 hate crimes, 64% of which were motivated by race or national
origin.). “[T]here is widespread agreement among scholars of slavery that slavery in
general (across cultural and historical periods) centrally involves the master’s constant
power to use private violence against the slave.” Nelson, 277 F.3d at 189. “American
slavery unquestionably did not depart from this general rule,” and “race-based private
violence both continued beyond the demise of the institution of chattel slavery and was
closely connected to the prevention of former slaves’ exercise of their newly obtained
civil and other rights.” Id. at 189-90; see also Cannon, 750 F.3d at 502 (“[R]acially
motivated violence was essential” to slavery in the United States.). “In light of these
facts,” this Court certainly “cannot say that Congress was irrational in determining that
racially motivated violence is a badge or incident of slavery.” Cannon, 750 F.3d at 502;
see also Hatch, 722 F.3d at 1206.
Indeed, the relationship between slavery and racial violence is “not merely
rational, but inescapable.” Roof, 10 F.4th at 392 (quoting Beebe, 807 F. Supp. 2d at
1052). And violence against Black people that is “born of white-supremacist ideology,”
such as the type of violence alleged in this case, “constitutes the paradigmatic ‘badge
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and incident’ or ‘relic of slavery’ that the Thirteenth Amendment exists to eliminate.”
See Diggins, 36 F.4th at 310 (quoting Jones, 392 U.S. at 441, 443).
Gendron disagrees but concedes that his position represents the “minority view.”
See Docket Item 179 at 19. His argument has two main parts: (1) the Thirteenth
Amendment’s enforcement clause allows Congress to protect against a narrow set of
harms that does not include racially motivated violence, and (2) Jones must be cabined
by more recent Fourteenth and Fifteenth Amendment caselaw. See Docket Item 179 at
7-19; Docket Item 203 at 1-5.
On the first point, Gendron argues that “the Thirteenth Amendment’s
enforcement clause extends, at most, only to racially[ ]motivated harms that were
inseparable legal incidents of slavery, such as, for example, deprivations of the rights to
freely travel, own property, and enter contracts.” Docket Item 179 at 7 (bolding
omitted). And he concludes that racially motivated violence is not one of those
inseparable legal incidents of slavery. See id. at 14-19; Docket Item 203 at 1-5, 4 n.3;
Docket Item 231 at 32. But for the reasons explained above, this Court disagrees.
Gendron also maintains that the conduct that the statute criminalizes need not be
a badge or incident of slavery because the statute can apply to racially motivated crimes
with white victims. See Docket Item 179 at 16 n.14. But courts have upheld under the
Thirteenth Amendment other statutes that lacked limiting language about the race of the
protected group. Indeed, Jones itself was about a statute guaranteeing “[a]ll citizens”
the property rights “enjoyed by white citizens.” See 392 U.S. at 412 (quoting 42 U.S.C.
§ 1982); see also Griffin, 403 U.S. at 96 (finding that Thirteenth Amendment authorized
statute involving conspiracies to deprive “any person or class of persons” of equal
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protection (quoting 42 U.S.C. § 1985(3))). And the Second Circuit has explained that
“the Thirteenth Amendment ‘protect[s] from discrimination identifiable classes of
persons who are subjected to intentional discrimination solely because of their ancestry
or ethnic characteristics.’” Nelson, 277 F.3d at 180 (quoting St. Francis Coll. v. Al-
Khazraji, 481 U.S. 604, 613 (1987)); see id. at 168-69, 191 n.27, 213 (holding, in case
involving Black defendants, that 18 U.S.C. § 245, which criminalizes injuring “any
person because of his race” and because the person used a public facility, was
constitutional as applied to Jewish victims).
As for his second point, Gendron argues that this Court should “harmonize[]” City
of Boerne v. Flores, 521 U.S. 507 (1997) and Shelby County v. Holder, 570 U.S. 529
(2013), with Jones. Docket Item 179 at 14. Gendron contends that these cases “make
clear that Congressional enforcement of the Reconstruction Amendments must be
proportional and congruent to deterring or remedying actual constitutional violations and
must be justified by current conditions.” Id. at 12 (bolding omitted); see City of Boerne,
521 U.S. at 518-20; Shelby County, 570 U.S. at 550, 553. That is not a novel argument.
In fact, courts have considered and rejected it time and time again. See, e.g., Cannon,
750 F.3d at 505 (“Even if the legal landscape regarding the Reconstruction
Amendments has changed in light of Shelby County and Flores, absent a clear directive
from the Supreme Court, we are bound by prior precedents.”); Hatch, 722 F.3d at 1204
(“[E]ven if we assume [] authorities [including Flores] impliedly undermine Jones’s
approach to the Thirteenth Amendment, we may not blaze a new constitutional trail
simply on that basis.”). This Court agrees with and follows those precedents.
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City of Boerne and Shelby County involved, respectively, the Fourteenth and
Fifteenth Amendments, and neither opinion mentioned the Thirteenth Amendment or
Jones. See generally, City of Boerne, 521 U.S. 507; Shelby County, 570 U.S. 529. In
effect, Gendron’s request would have this Court apply a more stringent standard than
the one Jones articulates, but this Court must “follow the case [that] directly controls
[and] leave[] to [the Supreme Court] the prerogative of overruling its own decisions.”
See Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989);
Shalala v. Ill. Council on Long Term Care, Inc., 529 U.S. 1, 18 (2000) (“[The Supreme]
Court does not normally overturn, or so dramatically limit, earlier authority sub silentio.”).
The Second Circuit applied similar reasoning when considering the
constitutionality of a different hate crimes law in Nelson. The court noted that
Fourteenth Amendment cases, including City of Boerne, “do not refer to the Thirteenth
Amendment context and hence cannot be read by us as applying to that context or as
undermining the foundational principle that Congress’s enforcement power” under the
second section of the Thirteenth Amendment “extends well beyond the scope of the
direct prohibitions” of the first section. Nelson, 277 F.3d at 185 n.20.
What is more, there are good reasons to think that, given the unique scope and
ratification history of the three amendments, Congress’s enforcement power under them
should be different. See Diggins, 36 F.4th at 317. For example, the Thirteenth
Amendment reaches private action, but the Fourteenth and Fifteenth Amendments do
not. Compare Griffin, 403 U.S. at 105 (“[S]urely there has never been any doubt of the
power of Congress to impose liability on private persons” under the Thirteenth
Amendment.), with U.S. Const. amend. XIV, § 1 (prohibiting action by the “State”), and
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U.S. Const. amend XV, § 1 (same). And the Second Circuit has contrasted the “long,
well-established, doctrinally rich, and highly sophisticated tradition of judicial
interpretation of the substantive protections established by [s]ection [o]ne of the
Fourteenth Amendment,” with the “inherently legislative” “task of defining ‘badges and
incidents’ of servitude.” Nelson, 277 F.3d at 185 n.20. So even if this Court were
inclined and able to rewrite Jones, which it is not, it “cannot simply graft doctrines
articulated and crafted for entirely separate constitutional provisions onto the Thirteenth
Amendment context.” See Diggins, 36 F.4th at 317; see also id. at 311-17.
Gendron’s real complaint seems to be with current and historical Thirteenth
Amendment jurisprudence. In fact, his position is better characterized not as a “minority
view,” see Docket Item 179 at 19, but as simply not comporting with precedent. For
example, he says that under Jones, courts do not defer to Congress’s “choice of
whether . . . [a particular] end is itself ‘legitimate’ and ‘within the scope of the
constitution.’”3 Docket Item 203 at 4 n.3 (quoting Jones, 392 U.S. at 443). But Jones
explicitly said that “Congress has the power . . . rationally to determine what are the
badges and the incidents of slavery” and that those badges and incidents are the “ends”
3 In support of this argument, Gendron says that Cannon “clarified” that courts
defer to “the means that Congress uses to achieve a particular end, but not to
Congress’s determination that the end itself is legitimate.” See Docket Item 179 at 15
n.13 (citing Cannon, 750 F.3d at 504). But as the beginning of the sentence that
Gendron quotes makes clear, the Fifth Circuit was merely articulating “[a]mici[’s] . . .
argu[ment].” Cannon, 750 F.3d at 504. The court held that this argument “[wa]s
foreclosed” and “continue[d] to follow the Supreme Court’s binding precedent in Jones.”
Id. at 505; see also id. at 501 (“[W]e must respect Congress’s determination unless it
lacks a rational basis.”).
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to which courts owe deference.4 See 392 U.S. at 440. Again, this Court must and will
follow the controlling caselaw.5 See Rodriguez de Quijas, 490 U.S. at 484.
B. 	Tenth Amendment
Gendron also argues that the Hate Crimes Act violates the Tenth Amendment as
well as principles of federalism and separation of powers. Docket Item 179 at 14-20.
But like his Thirteenth Amendment arguments, this argument has been considered and
consistently rejected by the courts. See Diggins, 36 F.4th at 311-17; Hatch, 722 F.3d at
1201-05; Bowers, 495 F. Supp. 3d at 364-65; Henery, 60 F. Supp. 3d at 1131-32;
Beebe, 807 F. Supp. 2d at 1057-58.
Citing a concurring opinion in a Fifth Circuit case, Gendron suggests that
Congress should be cautious when expanding federal law into areas historically
reserved for the states. See Docket Item 179 at 16 (citing Cannon, 750 F.3d at 512).
But that argument fails because, as the First Circuit has explained, “[section] 249(a)(1)
is a cornerstone of a scheme of cooperative federalism, representing an ordinary
example of one of many parallel state and federal penal laws.” Diggins, 36 F.4th at 316;
4 As another example, Gendron cites a scholar who critiqued Congress for
enacting the Hate Crimes Act without making a specific finding “linking racial hate
crimes to a threatened reemergence of slavery or involuntary servitude.” See Docket
Item 179 at 18-19 (quoting Jennifer Mason McAward, Defining the Badges and
Incidents of Slavery, 14 U. Pa. J. Const. L. 561, 626-27 (2012)). But the scholar herself
acknowledged that “[t]o be fair, Congress had no reason to make a record on this point.
Its basic findings of fact would certainly satisfy the [Supreme] Court under the
deferential standard set out in Jones.” McAward, supra, at 626 n.338 (italics added);
see also id. at 630 (“Indeed, [Jones] empowered Congress to define the concept [of
badges and incidents] itself, subject to only the most minimal rational basis review.”).
5 Gendron certainly has “preserve[d] . . . the argument that the Supreme Court
should overrule [Jones]” in order to, in his characterization, “restore Thirteenth
Amendment jurisprudence to its proper moorings.” Docket Item 179 at 19 n.17.
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see also id. at 317 (“[Section 249(a)(1)] supports rather than offends principles of
federalism.”). And the Hate Crimes Act “does not allow the federal government to veto
state laws or restructure state governance . . . [n]or does [it] discriminate between
states.” Id. at 316.
Moreover, as the government correctly notes, Docket Item 193 at 4-5, when the
Constitution “delegate[s a power] to Congress . . . , the Tenth Amendment expressly
disclaims any reservation of that power to the [s]tates,” New York v. United States, 505
U.S. 144, 156 (1992); see also Hatch, 722 F.3d at 1202 (“[W]hen the Constitution
explicitly grants Congress authority to act, the Tenth Amendment gives way . . . .”). Put
differently, because the Constitution explicitly gives Congress the power to enforce the
Thirteenth Amendment, Hatch, 722 F.3d at 1202, when Congress acts within that
power, it cannot—by definition—offend the Tenth Amendment. See Beebe, 807 F.
Supp. 2d at 1057. So because Congress was acting within its authority under the
Thirteenth Amendment when it passed the Hate Crimes Act, that statute does not
violate the Tenth Amendment or principles of federalism.6
6 Gendron also refers to “separation[]of[] powers.” See Docket Item 179 at 3, 14;
Docket Item 203 at 1. But his reference is unavailing because he does not make any
argument about it. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (Selya,
J.) (“It is not enough merely to mention a possible argument in the most skeletal way,
leaving the court to do counsel’s work, create the ossature for the argument, and put
flesh on its bones.”).
Gendron’s contention may be about “safeguard[ing] the Supreme Court’s role as
the final arbiter of the meaning of Section 1 of the Thirteenth Amendment.” See
McAward, supra, at 624; Docket Item 179 at 12 (explaining that in City of Boerne, 521
U.S. at 518-19, the Supreme Court said that Congress lacks the power to determine
what constitutes a constitutional violation). But if that is Gendron’s point, it is foreclosed
by Jones, which while preserving judicial review, makes that review deferential to
Congress’s rational determinations. 392 U.S. at 440; see also Hatch, 722 F.3d at 1204-
05 (noting that giving “Congress the power to define the meaning of the Constitution” is
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Finally, this Court agrees with the government that under the dual-sovereignty
doctrine, federal laws may target the same harms as state law. See Docket Item 193 at
5 (citing Gamble v. United States, 587 U.S. 678, 681 (2019)). Both federal and state
governments are empowered to “determine what shall be an offense against [their]
authority and to punish such offenses.” United States v. Davis, 906 F.2d 829, 832 (2d
Cir. 1990). And “[w]hen a single act violates the laws of two sovereigns, the wrongdoer
has committed two distinct offenses.” Id. Moreover, while Department of Justice policy
generally disfavors dual state and federal prosecutions, such policy “is not a limitation
on the government’s sovereign right to vindicate its interests and values, and nothing
prevents a federal prosecution whenever the state proceeding has not adequately
protected the federal interest.” See id.
For all those reasons, Gendron’s reliance on the Tenth Amendment and
principles of federalism is misplaced.
II. 	AS-APPLIED CHALLENGE
Gendron says that the Hate Crimes Act is unconstitutional as applied to him
because he already was prosecuted under a state hate crime provision. Docket Item
179 at 19-20. He makes this argument in a single paragraph and does not elaborate
upon why the state prosecution makes the federal prosecution unconstitutional. See id.
“a rare power indeed” but concluding that Jones controls). Furthermore, Congress
enacted the Hate Crimes Act “within the scheme announced by the Supreme Court, and
did not purport to pronounce the scheme the Supreme Court ought to apply.” Diggins,
36 F.4th at 314; cf. City of Boerne, 521 U.S. at 512-16, 536 (explaining that the statute
at issue “was designed to control cases and controversies” and was in direct opposition
to an earlier Supreme Court decision).
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At oral argument, defense counsel said that because there was a “full-throated
state prosecution” and Gendron pleaded guilty to the indictment in state court, “that
makes this prosecution unconstitutional.” Docket Item 231 at 27. But that is little more
than a conclusion. And to the extent that this argument relates to Gendron’s federalism
argument, for the reasons explained above this Court agrees with the government that
under the dual-sovereignty doctrine, a state and the federal government may prosecute
a defendant for the same conduct. See Docket Item 193 at 20 (citing Gamble, 587 U.S.
at 681).
III. 	CERTIFICATION
Gendron argues that even if the Hate Crimes Act is constitutional, the
government improperly certified the case for prosecution under that statute. See
Docket Item 179 at 20-25. To bring a prosecution under the Hate Crimes Act, the
Attorney General or a designee must certify in writing that one of four requirements is
met. 18 U.S.C. § 249(b)(1). The statute says that
No 	prosecution of any 	offense 	described in 	this 	subsection may be
undertaken by the United States, except under the certification in writing of
the Attorney General, or a designee, that—
(A) the State does not have jurisdiction;
(B) the State has requested that the Federal Government assume
jurisdiction;
(C) the verdict or sentence obtained pursuant to State charges left
demonstratively unvindicated the Federal interest in eradicating bias-
motivated violence; or
(D) a prosecution by the United States is in the public interest and
necessary to secure substantial justice.
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Id. In June 2022, the Attorney General’s designee certified this case under subdivision
(D), stating that “in [her] judgment” federal prosecution under the Hate Crimes Act “is in
the public interest and is necessary to secure substantial justice.” Docket Item 179-1 at
72.
Gendron asks this Court to “reject” that certification “or, at a minimum, order the
government to provide an explanation of how it believes that proceeding this way is in
the public interest and necessary to achieve substantial justice.” Docket Item 179 at 25.
He argues that New York State “[n]ot only . . . established that [it] is willing and able to
prosecute [him] to the fullest, to condemn acts of racial violence in the strongest
possible terms[,] and to ensure that justice is served[—but] it has done so.” Id.
The government responds that the certification is not subject to “substantive”
judicial review and that even if it were, the government has satisfied the statute. Docket
Item 193 at 20-27. On the first point, the government argues that courts may only
ensure that the certification “complies with the language of the statute.” Id. at 22. In
other words, the government’s position is that the certification is proper so long as it
cites one of the four statutory grounds. On the second point, the government says that
this certification in particular was indeed in the public interest and necessary to secure
substantial justice: It notes that Gendron “massacred Black people at a grocery store,
people who were simply trying to buy food for themselves and their families, to spread
his racist ideology and inspire others to commit similar violence.” Id. at 26. And the
government says that “[t]he impact of this massacre was felt nationwide, and nationwide
deterrence is vital.” Id. at 27.
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Both sides agree that the Second Circuit has not addressed whether
certifications are subject to judicial review. See Docket Item 179 at 22; Docket Item 193
at 23. Therefore, this Court will “assume[] justiciability,” just as the Fourth Circuit did in
Roof, 10 F.4th at 396-97. As for the standard of review, Gendron concedes that the
standard is “more deferen[tial] . . . than de novo” review. Docket Item 231 at 15. But he
also contends that this Court must ask whether the government’s justification “is . . . in
the public interest[] and [necessary to secure] substantial justice,” id., which sounds
much like de novo review. As in Roof, this Court finds that, to the extent that
certification is substantively reviewable, the decision “must be afforded substantial
deference.” See 10 F.4th at 396-97. Under this deferential standard, the government’s
reasoning about the severity of the alleged offenses and the need for national
deterrence is enough to support the certification decision for several reasons.
First, this Court agrees with the government that by including subdivision (D),
Congress “explicitly envision[ed] circumstances other than where a state cannot
[prosecute], does not want to [prosecute], or unsuccessfully prosecutes a defendant.”
See Docket Item 193 at 26. Therefore, the fact that New York State has successfully
prosecuted Gendron for hate crimes is not dispositive.
Second, the heinous and racist nature of the crimes alleged, and their alleged
broadcast by the defendant to attract likeminded individuals and encourage similar
behavior, is as reprehensible a crime as one can imagine. In other words, if—as
Gendron suggests—certification was unwarranted given the allegations here, it is
difficult to imagine a case in which it would be warranted.
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Gendron may be correct that Roof is inapposite because of differences in state
law. See Docket Item 179 at 24. “Because South Carolina does not have a hate-
crimes statute, it was unable to charge Roof for a crime that consider[ed] his alleged
discriminatory intent as an element of the offense.” Roof, 10 F.4th at 397. In contrast,
Gendron was charged with, convicted of, and sentenced to life without the possibility of
parole for violating New York State law, including state hate crimes. See Docket Item
179 at 23-24; Docket Item 179-1 at 2, 65. But that difference does not make the
certification of Gendron’s case improper. For one, the Fourth Circuit specifically noted
that the Roof case did not “raise close questions.” 10 F.4th at 397. And the Fourth
Circuit’s reasoning relied both on the “statutory difference” and “the highly aggravated
nature of Roof’s crimes,” which “clearly implicated a substantial federal interest in
eradicating the badges and incidents of slavery.” Id. The alleged conduct in Gendron’s
case likewise is aggravated and implicates the same federal interest. See, e.g., Docket
Item 125 at 4 (alleging that killings were racially motivated and that Gendron attempted
to incite violence).
In sum, applying deferential substantive review, this Court finds that the
government’s certification was proper.
CONCLUSION
For the reasons stated above, Gendron’s motion to dismiss the indictment based
on the unconstitutionality of the Federal Hate Crimes Act, 18 U.S.C. § 249(a)(1), Docket
Item 179, is DENIED.
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SO ORDERED.
Dated: 	March 12, 2025
Buffalo, New York
/s/ Lawrence J. Vilardo
LAWRENCE J. VILARDO
UNITED STATES DISTRICT JUDGE
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