The Justice Department is set to pursue the death penalty against Buffalo supermarket shooter Peyton Gendron

Peyton Gendron, then 19, who killed 10 people in a racially motivated shooting at a Topps supermarket in Buffalo, New York in May 2022, will be sentenced to death, the Justice Department said in a court filing Friday.

“The United States believes that the circumstances in counts 11-20 of the indictment, if convicted, would justify the death penalty,” the filing said.

Gendron's attorneys have previously said they would consider pleading guilty to the federal charges if the death penalty is taken off the table.

Grendron was not in court Friday when attorney Joe Trippi formally notified the judge of the government's intent to seek the death penalty.

The defense waived Gendron's appearance, but Judge Lawrence Vilardo said he should appear in court soon.

“There's going to be a point in the relatively near future where he's going to have to be here,” Vilardo said.

Assistant federal defender Sonia Soglin responded, “I'm sure the court is fully convinced that we're dealing with him appropriately.”

The next court date is February 2.

Federal prosecutors in their filing outlined their reasons for believing the death penalty should be imposed, saying, “Gendron intentionally killed Roberta Drury, Pearl Young, Hayward Patterson, Ruth Whitfield, Celestine Chaney, Aaron W. Salter Jr., Andre Magniel, Marcus Morrison. Catherine Massey and Geraldine Daly.”

The Justice Department cited Gendron's intentional bodily injury, intentional participation in an act resulting in death and blatant racism in connection with the shooting.

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“Payton Gendron's bias, hatred and contempt for black people and his hostility toward black people played a role,” the filing said.

A federal grand jury handed up a 27-count indictment against Gendron in July 2022, accusing Matthew Shepard and James Byrd Jr. of 14 violations of the Hate Crimes Prevention Act: “10 hate crimes involving death, three hate crimes involving the attempted murder of three individuals, and A hate crime alleges that Gendron attempted to kill additional black people in and around the Dobbs grocery store,” according to a statement from the Justice Department. Also, 13 firing cases have been registered against him.

Gendron was motivated by a racist, far-right conspiracy known as Alternative Theory, and he wanted to “encourage others to commit similar attacks,” according to a criminal complaint. Markings on the gun used in the shooting included the phrases “here are your compensations” and “big change”.

Garland prosecuted two death penalty cases during his tenure — one against Syfullo Saipov, who killed eight people with a truck on a Manhattan bike path in October 2017, and the second against Robert Bowers, who killed 11 in a Pittsburgh tree shooting at Life Synagogue in October 2018. A jury decided not to sentence Saibo to death, and Bowers was given the death penalty.

However, both of those cases were carried over from the previous administration, and Garland imposed a moratorium on the death penalty in July 2021. The ban remains the same.

The decision to seek the death penalty followed more than a year of deliberations within the judiciary. Garland has been outspoken in previous public appearances about his concerns about the death penalty, and President Joe Biden has campaigned for its formal abolition at the federal level. But in the absence of a formal policy established by the Biden administration, DOJ officials have debated the “worst-worst” threshold because hatred is appropriate in the most egregious cases when recommending the death penalty. – Incited mass acts of terrorism.

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Family members of the victims said they met with prosecutors earlier Friday, where they learned the DOJ had sought the death penalty.

Mark Daly, the son of shooting victim Geraldine Daly, told reporters that while he felt Gendron would be “off the hook” if sentenced to death, the decision pleased few.

“For me, I'd like something worse than that,” Mark Daly said outside federal court in Buffalo. “I want him to be tortured, I want him to suffer, I want him to experience everything he's ever loved. I want the friends and family he wanted to suffer. I want the worst thing I can imagine to happen to him.”

“As far as I'm concerned, I think he's getting off death row because he doesn't get the kind of suffering I want,” he continued. “As long as I live, whether God gives me 20, 30 or 60 years, I want to see him suffer.”

Wayne Jones said his mother, Celestine Chaney, who was killed in the attack, is not in favor of seeking the death penalty.

“I wanted him to suffer as much as we were suffering,” Jones told ABC News. “But I know there are people in our group who want nothing more than death.”

Buffalo Mayor Byron Brown said he supported the DOJ's decision to pursue the death penalty, saying it should act as a “deterrent to these types of heinous crimes.”

“I think it's the right decision,” Brown said during a press conference Friday. “Ten innocent lives were taken in this community, three community members were injured and the shooter traveled over three hours from Buffalo to commit this heinous crime.”

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New York Governor Kathy Hochul also said she supports the DOJ's decision.

“It complies with the DOJ requirements for a capital offense,” he said during an unrelated press conference Friday. “This community has still not recovered from the atrocity of 10 innocent people on May 14, 2022, who were targeted simply because of the color of their skin by a white supremacist radicalized online.”

Gendron was sentenced in February 2023 to life in prison without parole on state charges after pleading guilty to 15 charges, including domestic terrorism motivated by hatred, murder and attempted murder.

Erie County Court Judge Susan Eagan on May 14, 2022 sentenced each of the 10 victims he killed at Topps Market to life without parole and 25 years to each of the three he shot and wounded.

During the sentencing hearing, Gendron offered a brief apology, saying he was “deeply sorry for all the pain” he had caused “for stealing the lives of your loved ones.”

“I did a terrible thing that day. I shot people because they were black,” Gendron said.

ABC News' Bill Hutchinson contributed to this report.

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