Last October, 58 concertgoers were killed and 851 were injured after Stephen Paddock opened fire on a crowd trying to enjoy Jason Aldean. While hotel security was busy pointing high-def cameras on potential card-counters, Paddock managed to carry (often with the aid of hotel bellhops) fourteen AR-15 rifles (twelve with bump stocks and 100 round magazines), eight AR-10 rifles, a bolt action rifle and a revolver into his comped suite at the Mandalay Bay. No problem though, as an MGM Resorts spokesperson stated that all of their interactions with Paddock were “normal in nature”.
The Las Vegas Police Department recently released its final report on the massacre. The report contains a lot of words and numbers but doesn’t offer a strong opinion on why Paddock did it, if that even matters now. What is more important is how it could have happened in a hotel supposedly using Star Wars level security systems.
More than 2500 people have sued or threatened to sue over the shootings. The suits generally claim that multiple defendants are responsible for the attack, including the Estate of Mr. Paddock, MGM Resorts and Mandalay Corp., concert organizer Live Nation Entertainment and bump stock manufacturer Slide Fire Solutions, LP.
While the lawsuits were working their way through the court system, the MGM and Mandalay Bay filed one of the most criticized, but also one of the most misunderstood lawsuits in recent memory. In a Complaint filed in Nevada federal court, three law firms, on behalf of MGM and Mandalay Bay, sued hundreds of victims who have either sued or have threatened to sue for their injuries.
It was a train wreck of a PR move, and the media and social media platforms torched the hotels for it. But as usual, the truth is a little more complicated. The hotels are not suing the victims for money. Instead, they are asking the court to declare that they are not liable for and have no responsibility for the massacre. Here is the MGM and Mandalay Bay’s argument in a nutshell:
• The hotels argue that the massacre met the legal definition of a “Terrorist Act” under a United States statute called the 2002 Support Anti-Terrorism by Fostering Effective Technologies Act. (the “Safety Act”).
• The hotel provided security services for the music festival where Aldean was playing.
• The security services were provided by a company that had been approved and certified by the Department of Homeland Security for “protecting against and responding to acts of mass injury and destruction”.
• Under the Safety Act, companies that use such “approved” services are granted protection from lawsuits and liability.
In other words, MGM and Mandalay Bay are asking the Court to find that they are not liable for the attack because they “protected” the festival with security services certified by the DHS under the Safety Act. Setting aside the fact that the DHS certified services failed miserably, it sounds like a pretty good argument.
There is indeed a law call the Safety Act. But for it to apply (and for the MGM to be able to effectively use it) the United States Director of the Department of Homeland Security would have to make an official declaration that the Vegas massacre was a “terrorist act”. What are the chances that this Administration, or any other administration for that matter, is going to officially declare that a “terrorist attack” has occurred on its watch? If the Trump administration did so, it would be an admission that the worst (by victim count) terrorist act since September 11th occurred on its watch, in the biggest tourist mecca in the country, about one mile from one of the largest Trump properties. And if this counts as a “terrorist attack”, how many others do? Santa Fe? Parkland?
So it’s almost a slam dunk that the Vegas massacre is not going to be declared a terrorist attack by the DHS. The Nevada court will not rule that the MGM has no liability and the victims’ cases will proceed to trial.