By: Cristian Lopez
On October 1, 2017, roosted on the 32nd floor of the Mandalay Bay Resort, 64-year-old Stephen Paddock opened fire into a crowd at a country music festival—a tragedy known to many as the deadliest mass shooting in modern American history.[1] The MGM owned building provided Paddock with an elevated vantage point facing the open-air venue. [2] As one survivor put it, there [was] no place to hide. It [was] just an open field.”[3]
Mass shootings are a modern phenomenon that has only gotten progressively worse. It entails a criminal, but also a potential civil suit that rests primarily within the bounds of tort law. As our country still mourns and reflects over a growing trend of larger scale lone acts of gun violence, one company surfaced to preemptively absolve itself of liability.
Recently, MGM has decided to file suit seeking a declaratory judgment stating that suits against it should be dismissed because they fall within the protection of the 2002 Support Anti-Terrorism by Fostering Effective Technologies Act or SAFETY.[4] The act limits a company’s liability in cases regarding terrorism when and if the company used security technology services certified by Homeland Security.[5] The act was supposed to serve as a hiring tactic—incentivizing the private sector who otherwise would be held responsible for a security company’s action.[6] In this case, MGM hired Contemporary Services Corporation (CSC) for venue security, a service listed within the SAFETY Act.[7] They claim that the more than 1,000 defendants in the suit, who have either filed suit or threatened to file suit against MGM, have gone after the wrong party.[8] They are pleading that the court holds CSC liable because they were procured to provide a service enumerated by the act. However, there is a determinative factor that has yet to be established and it is one that the court will struggle to decide. To add more fuel to the fire, seeing as this is the first time a company is looking to invoke this law, there isn’t much precedent or direction for courts to fall back on.[9]
The likely determinative question is whether the shooting was an act of terrorism and in what seems to be an act of desperation, CSC has requested a public statement from Homeland Security naming the shooting an act of terrorism.[10] If it can obtain a public statement, MGM will have evidence to support being shielded from liability. Understandably, even officers of Clark County who have grappled emotionally with the event have taken the position of calling the act a terrorist attack.[11] If dispositive, this interpretation could set a new precedent as unforeseen as this act’s use and could potentially have dire consequence for the named victims who have taken to social media to express their disgust and vexation for being forced to relive the tragic day through this litigation.[12] Fortunately, It has also been suggested that the law could be grounded in the FBI’s standard of terrorism, which the heinous act simply will not meet.[13] And, even if it were deemed a terrorist attack, it has been suggested that MGM could still be liable for any actions independent of what CSC had done. It is unclear what that would mean for MGM, but what is clear is that MGM’s Public Relations nightmare has only just begun.[14]
[1] Lynh Bui, Matt Zapotosky, Devlin Barrett and Mark Berman, At least 59 killed in Las Vegas shooting rampage, more than 500 others injured, The Washington Post (Oct. 2, 2017, 3:50 PM), https://www.washingtonpost.com/news/morning-mix/wp/2017/10/02/police-shut-down-part-of-las-vegas-strip-due-to-shooting/?noredirect=on.
[2] Id.
[3] Id.
[4] Joshua Barajas, MGM’s lawsuit against Las Vegas shooting victims, explained, PBS (Jul. 18, 2018 9:20 PM), https://www.pbs.org/newshour/nation/mgms-lawsuit-against-las-vegas-shooting-victims-explained.
[5] Id.
[6] Id.
[7] Id.
[8] Amir Vera, Families of Las Vegas shooting victims ‘disgusted,’ ‘insulted’ at MGM’s lawsuit, CNN (Jul. 24, 2018, 12:59 AM) https://www.cnn.com/2018/07/23/us/mgm-law-suit-las-vegas-victims-speak-out/index.html
[9] Richard A. Oppel Jr., MGM Resorts Sues 1,000 Victims of Las Vegas Shooting, Seeking to Avoid Liability, (July 17, 2018)https://www.nytimes.com/2018/07/17/us/mgm-resorts-sues-victims.html.
[10] Id.
[11] Vanessa Romo, Las Vegas Shooting Investigation Closed. No Motive Found, NPR (August 3, 2018, 7:51 PM) https://www.npr.org/2018/08/03/635507299/las-vegas-shooting-investigation-closed-no-motive-found
[12] Supra note 8.
[13] Ibid.
[14] Supra note 4.
