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In the wake of a mass shooting, many family members and survivors choose to pursue legal action. In becoming plaintiffs, most of these people aren't interested in securing a huge amount of compensation, even though, as a precondition of filing suit, they will have to demonstrate a financial loss of some sort. Far more important than money in these cases is the search for accountability.
Filing A Civil Lawsuit In The Wake Of Tragedy
No tragedy is more horrific than a mass shooting. But to learn that someone should have done more to prevent the massacre, but failed to do so? That's reprehensible, an insult to human dignity everywhere.
Negligence: The Basis Of A Mass Shooting Lawsuit
It's no wonder that the vast majority of mass shooting lawsuits are founded in the legal concept of negligence. The principle of negligence is based in duty. The American civil legal system acknowledges that some people and some businesses owe other people a duty of care, an obligation to protect them from harm.
Take doctors as a simple neutral example. Medical professionals owe their patients a duty to provide adequate medical care. If you have a doctor, your physician has an obligation to treat you in accordance with the accepted standards of their profession. And if you get hurt because the doctor violated one of those standards, you have a medical malpractice lawsuit on your hands.
That's the basic concept behind negligence; it's a failure to act with sufficient care in upholding an obligation. Every mass shooting lawsuit is modeled on the same structure, arguing that the defendant had an obligation to do something, but failed to do it, leading to irreparable harm. We're not usually filing suit against doctors, though. Instead, mass shooting claims are usually a little more creative.
Negligent Security: Taking On Property Owners
Many of these cases fall under the negligent security category, as in the recent lawsuits filed against the Las Vegas casino and hotel company Mandalay Bay, which is a subsidiary of MGM Resorts International.
In their federal complaint, a number of families who lost loved ones when 64-year-old Stephen Paddock opened fire on the Route 91 Harvest festival argue that Mandalay Bay failed to provide sufficient security for the event.
The plaintiffs claim that Mandalay Bay had control over two locations that were crucial to the massacre's commission: the hotel where Paddock was staying and from which he fired over 1,100 rounds and the concert venue on which he fired. As a result, the plaintiffs continue, Mandalay Bay had an obligation to provide the festival audience with adequate security from crime.
Are Mass Shootings "Foreseeable"?
This is were things get tricky. In the past, events like mass shootings were considered outside the realm of what a property owner could reasonably expect to happen. Mass shootings, after all, are still rare.
Generally, under premises liability law of this sort, property owners can only be held accountable for "foreseeable" criminal activity, crimes they should have seen coming. And most property owners argue that, because their area had no prior history of mass-casualty violence, they can't be held liable for failing to prevent something they could not have foreseen.
Notoriety Of Mass Shootings Drives New Legal Argument
A different perspective is growing, however. As the Mandalay Bay plaintiffs have argued, mass shootings have never been more at the forefront of our national consciousness than now. And, as common sense would dictate, large public gatherings, along with schools, appear to have an immense draw for individuals who hope to carry out a massacre.
Thus, the families say, Mandalay Bay should have planned and implemented a strategy to prevent a mass shooting, no matter how unlikely, because the consequences of such a shooting would be catastrophic. But the hotel company failed to do so, the plaintiffs claim.
Did Mandalay Bay Fail To Prevent Massacre?
In their lawsuit, the families point to numerous moments when Mandalay Bay staff and management could have done more to stop Paddock from carrying out his horrific crimes.
Paddock amassed an array of weapons and ammunition in his hotel room for 3 days prior to the attack; hotel staff never checked the room because Paddock had left a "Do Not Disturb" sign up. The parents and loved ones claim in their lawsuit that any reasonable hotel should have found it exceedingly suspicious for a guest to remain inside their room for 3 straight days.
The concert venue, the lawsuits continue, had poorly-marked exits and no announced emergency plans to assist the audience members in their escape. Similar allegations have been leveled against Pulse, the night club where Omar Mateen murdered 50 people in 2016.
School Shooting Lawsuits
The same logic by which the Las Vegas families and survivors are seeking to hold Mandalay Bay accountable can be used to implicate schools in mass shootings.
Several survivors of the school shooting in the February 14, 2018 Parkland, Florida shooting have announced their intention to file suit against the Broward County Public School District, in part for failing to act on anonymous tips sent to the FBI about the shooter, 19-year-old Nikolas Cruz.
At least one victim, through an attorney, says that he's preparing to sue the FBI, who has already admitted to several failures in managing Cruz's case.
A School's Duty To Protect
Needless to say, educational institutions of all types and sizes have a basic duty to protect their students. That includes hiring school resource officers where needed, implementing clear and comprehensive escape plans and following up on the warning signs of violent behavior in students and recent graduates.
Lawsuits Against Police Departments
Several survivors and families have also chosen to pursue the Broward County Sheriff's Office and one of its officers, Scot Peterson, who worked as a campus resource officer at Marjory Stoneman Douglas High School.
Peterson has become an infamous figure in the investigation into the massacre. The officer, who is an employee of the Broward County Sheriff's Office, waited outside the school, rather than entering it, while the shooting proceeded.
Under a legal theory known as respondeat superior, it's often possible to hold an employer at least partially responsible for the negligent actions (or, in this case, inactions) of their employees. Both Scot Peterson and the Broward County Sheriff's Office could be held liable, if the theory of respondeat superior is upheld in court.
Gun Manufacturers & Suppliers
Legal challenges have become ever more creative as mass shootings gain in notoriety and national attention.
The Mandalay Bay plaintiffs have filed suit against Slide Fire Solutions, a leading manufacturer of bump stocks, a device that shooter Stephen Paddock used to turn his assault-style rifles into rapid fire weapons.
Families from Newtown, Connecticut took a similar approach after the Sandy Hook massacre, in which 20 first graders and six adult staff members were murdered, in 2012. Two years after the shooting, a number of victims' families filed suit against the gun manufacturer Remington. 20-year-old Adam Lanza had used a Bushmaster, an assault-style rifle made by Remington, to carry out his attack.
The families accuse Remington of marketing the weapon to unstable young men with violent tendencies, using highly-militaristic language that promised consumers the ability to get even with their "foes." They also say the AR-15-style rifle is "too dangerous" for civilian use, US News and World Report writes, and should never have been sold to Lanza's mother.
None of these arguments have fared particularly well in court. Gun manufacturers were granted broad immunity from liability lawsuits in 2005, when President George W. Bush signed the Protection of Lawful Commerce in Arms Act. The law protects gun companies from lawsuits that involve the wrongful actions of their customers.
The Role Of Assault-Style Rifles In Mass Shootings
Also a problem? There's no evidence that violence-prone people are more likely to purchase an assault-style weapon. In fact, assault-style rifles aren't the common choice for mass shooters - handguns are. In a 2018 statistical review from the left-leaning Mother Jones, around 50% of the mass shootings committed between 1982 and 2012 were semi-automatic handguns. Only 20% were rifles.
In general, violent crimes are far more likely to be committed with handguns than any other weapon. In 2016, according to the Federal Bureau of Investigation, homicides committed via a handgun were about 19-times more common than those committed using a rifle. Assault-style rifles, including those modeled after the AR-15, are used in about 3% of firearm homicides every year.
Social Media Companies Under Fire In Terrorism Cases
Another novel legal approach has emerged in cases linked to terrorist organizations.
On June 12, 2016, 29-year-old Omar Mateen opened fire inside, a nightclub in Orlando, Florida. Mateen killed 49 people and wounded 53 more before being shot to death by police officers. During the shooting, Mateen made a 911 call, pledging his allegiance to the Islamic State and its leader, Abu Bakr al-Baghdadi. In the call, Mateen pointed to the death of Abu Wahib, an IS leader who had been killed in a US-led airstrike the month before, as the "trigger" for his massacre.
After the shooting, the families of several victims filed a civil lawsuit against several unexpected defendants. Google (as the parent company of YouTube), Twitter and Facebook found themselves embroiled in the dispute, as parents and their attorneys argued that the social media giants had facilitated Mateen's radicalization.
Can Google, Twitter & Facebook Be Held Liable?
High-level sources, including the FBI, believe that Mateen was radicalized to commit his terrorist atrocities in large part on the internet. The families of victims say he accessed extremist propaganda through YouTube, Facebook and Twitter, the Orlando Sentinel reports.
But instead of hunting down and deleting the IS material, the families say, the internet giants chose to profit from it, running ads and drawing in revenue from radical Islamist recruiting materials.
The families' contention is that, as the primary conduits for information in the digital age, Google, Facebook and Twitter have a duty to remove any online materials that would seek to advocate for violence. In Omar Mateen's case, their lawsuits argue, the internet giants utterly failed to uphold that alleged obligation, leading to the tragic deaths of 50 innocent people.
Lawsuits Face Stiff Opposition
Several lawsuits along these lines have now been filed, but they're facing an up-hill road. The Communications Decency Act of 1996 prevents any provider of an "interactive computer service" from being held accountable for the information provided by its users.
Moreover, as a District Judge in Michigan ruled as he dismissed one of these cases, there's no evidence that Mateen took any explicit direction from the Islamic State. Even if Facebook, Google and Twitter had provided "material support" to the terrorist organization, that still wouldn't tie their conduct to the Pulse shooting.
Individual Lawsuits vs. Class Action
It's important to note that, while multiple families usually join forces to file suit after a massacre, they do so in spirit only. Mass shooting lawsuits are almost always filed as individual wrongful death or personal injury claims, rather than a class action. The class action system isn't appropriate for cases involving severe injuries, or something as devastating as a loved one's death.
How Common Are Mass Shootings?
From the standpoint of raw numbers, the United States is home to more mass shootings than any other country. More people die here in mass casualty events than anywhere else in the world.
But the US is also home to 328 million people, 6.2-times the population of England, 4.9-times the population of France and 63-times the population of Norway. It's a big country, with the most diverse population in the history of the world. Comparing the US to Norway on raw numbers alone isn't quite fair.
When we attempt to control for differences in population size, the US isn't the developed world's leader in mass shootings. Macedonia is, followed by Albania, Serbia and Switzerland. That's according to John Lott and William Landes, researchers at the Crime Prevention Research Center and the National Bureau of Economic Research.
Between January 2009 and December 2015, 0.471 mass shootings were committed in Macedonia for every 1 million members of the population. Albania had 0.36 mass shootings per 1 million people over the same time period. Serbia had 0.281. The United States ranks 12th, with 0.089 mass shootings per 1 million residents.
Are Mass Shootings More Common Today?
Mass shootings, Politico reports, are becoming more deadly, but not more common. While there's no consistent definition for a mass shooting, many researchers, including leading investigator Grant Duwe from the Minnesota Department of Corrections, take a narrow formulation that includes only incidents "in which four or more victims are killed with a firearm within a 24-hour period at a public location in the absence of other criminal activity."
Obviously, Duwe's definition filters out large-scale shootings carried out in conjunction with, or in order to further, robberies, drug trade or other forms of crime. Along these lines, at least 140 mass shootings have occurred on American soil since 1976 - around 3 every year.
And, while the number of mass shootings varies from year to year, we've seen little increase in the annual rate over the last four decades. What's changed is the deadliness of these horrific acts of violence. The average number of victims has grown from a low around 5 per mass shooting in 1980 to nearly 25 per incident in 2016.
And that's why mass shootings appear to be more common today, even though they aren't. The best predictor of whether a mass shooting is picked up by the media is the number of people killed or injured. In short, mass shootings aren't any more frequent than they were forty years ago, we're just talking about them more.