Lawyers for Tops shooter suing Erie County DA's Office for 'withholding' prosecution records

BUFFALO, N.Y. (WIVB) — Lawyers representing the shooter in the racist mass shooting at the Tops on Jefferson Avenue in 2022 are suing the Erie County District Attorney's Office, alleging that the office withheld records pertaining to the shooter's state prosecution.

The suit, filed in Erie County State Supreme Court earlier this week, claims that the DA's Office illegally denied a public records request for documents from the state's prosecution of Payton Gendron, who killed 10 people in a racially-motivated shooting at the grocery store on May 14, 2022. First Deputy District Attorney Gary Hackbush is named in the petition.

The suit claims that public defenders representing Gendron in his ongoing federal case filed a Freedom of Information Law request in February for documents pertaining to the state's prosecution of Gendron. The request was denied in its entirety in May, and then again in June after the public defender's office appealed the decision. The DA's Office said that turning over the documents could interfere with the ongoing federal case, in which Gendron could receive the death penalty.

The public defenders claim that since the state case has been closed for over two years there is no legal reason that the Freedom of Information Law request should have been denied. They are asking a judge to order the DA's Office to turn over the records.

Gendron, 22, pleaded guilty in November 2022 to a terrorism charge, 10 counts of first-degree murder, three counts of attempted murder as a hate crime and a weapons charge after he drove three hours to Buffalo from his home near Binghamton and killed 10 Black people at the store. He was sentenced to life in prison without the possibility of parole in February 2023.

The DA's Office said it cannot comment on pending litigation.