On July 16, 2018; MGM Resorts International, owner of the Mandalay Bay Casino & Hotel, filed federal lawsuits against more than 1,000 Las Vegas mass shooting victims in an effort to avoid liability in legal actions related to the gunman who opened fire on an outdoor concert from his Mandalay Bay suite on Oct. 1, 2017, killing 58 concertgoers and injuring hundreds of others. The company, which owns Mandalay Bay and the Route 91 Harvest festival venue, argues that it cannot be held liable for the shooting’s deaths, injuries or other damages, adding that any claims against MGM parties “must be dismissed,” according to complaints filed last week Friday in Nevada and California.

“Plaintiffs have no liability of any kind to defendants,” the complaints argue.

In their suit, MGM Resorts cited a 2002 Federal act that extends liability protection to any company that uses “anti-terrorism” technology or services that can “help prevent and respond to mass violence.” In this case, the company argues, the security vendor MGM hired for Route 91, Contemporary Services Corp., was protected from liability because its services had been certified by the Department of Homeland Security for “protecting against and responding to acts of mass injury and destruction.”

The lawsuits argue that this protection also extends to MGM, since MGM hired the security company. While these suits do not seek money from victims, they are asking the court to rule on whether the 2002 act is applicable, and if so, determine that future civil lawsuits against the company are not viable.

From the perspective of both an expert witness and subject matter expert in security and the standard of care, this raises an interesting question that may impact case law regarding the application of the 2002 law.

First, while MGM Resorts owned both the hotel and venue, the two may need to be separated in regards to liability pursuant to this incident. Had the shooter attempted a dynamic attack in where he entered the venue from the ground level, regardless of weapon, this claim would likely have merit as the venue had hired approved security at the event. However, the attack had occurred from an elevated position, within the Mandalay Bay Hotel where it is now known that the shooter had spent days bringing large caches of weapons, using service elevators and making unauthorized alterations to the room (constructing his sniper perch). Even in a casino resort, known for an extremely high amount of video surveillance and security guards, the shooter’s pre-event behaviors went unquestioned and unreported to law enforcement.

Therefore, it is arguable within the framework of this complaint that one can ask if the security coverage at Route 91 can offset the liability for the perceived security failures within the Mandalay Bay Hotel.

Second, the application of this law calls into question the nature of the attack. While active shooter incidents are without question, terrifying, did this attack fall into the federal definition of terrorism?  The U.S. Code of Federal Regulations (28CFR§0.85) defines terrorism as "the unlawful use of force and violence against persons or property to intimidate or coerce a government, the civilian population, or any segment thereof, in furtherance of political or social objectives". In the Mandalay Bay shooting, the objectives and/or classification of the shooting remains publicly unknown.  

While the FBI was called in to assist and is investigating the case, they have not called the Las Vegas mass shooting an act of terrorism because the gunman had no clear motive, and the FBI defines terrorism as an act of terror associated with extremist ideologies of a political, religious, social, racial or environmental nature. If the conclusion of this case results in no official label of terrorism, then it will remain a case closed by the Clark County Sheriff/Las Vegas Metropolitan Police, and the application of the federal act in question; passed a little over than a year after the September 11, 2001 attacks may not be suitable to protect MGM Resorts from litigation.

What is clear, from the perspective of those in the security community, is that practitioners in the age of the active shooter have little room for mistake when suspicious behaviors go unnoticed. Regardless of whether you’re protecting a quiet location or a Las Vegas Hotel & Casino, it’s better to be safe than sorry. Having effective escalation pathways, investigative response plans, and suspicious behavior training specific to your location are necessary tools in the prevention of mass casualty incidents.