Crime and Risk Cover-Ups

In order to successfully prosecute your premises security case and secure adequate compensation and justice for your injured client, you must show the actual foreseeability of risk facing your plaintiff to determine the reasonableness of security provided by your defendants. That includes co-defendants such as MGM and Live Nation who had a legal and moral duty to protect their lawful business customers and guests from harm at the time and place of our country’s worst mass murder.

Unfortunately, getting to the truth of foreseeable risk is not as easy as it first may seem. Almost every actor and party related to the civil matter before you have a vested interest in minimizing the actual risk involved in your plaintiff’s incident. What results from this practice can best be described as a classic “cover-up.” It usually involves willful ignorance on the part of defendants and frequently spoliation of evidence as well.

Since governmental records are potential sources of data on crime and risk, please consider the reality that all levels of government and political entities want to “look good”. When it comes to crime, mayors, politicians and police chiefs like to display lower crime counts as their personal accomplishments. Thus, police department personnel are under pressure to downplay crime. Minimizing and under-reporting crime is commonplace. On the other hand, experience has shown that upgrading and elevating crime reporting is almost unheard of.

The most accurately reported crime of all is a homicide because there is a body to contend with and explain. Even some of these most serious and fatal crimes slip by as missing persons, drug overdoses (sometimes with some help), suicides, unsuspicious sudden deaths, or accidental deaths. There is no doubt that 58 innocent victims were murdered on October 1, 2017, in Las Vegas, but the truth of foreseeable risk is often hard to find even with traditional “official” data sources all due to a strong proclivity to under-report.

As examples, if you look into New York city’s official UCR homicide stats for 2001, you will find nary a blip accounting for the thousands murdered there on 9/11. Likewise, if you review the homicide numbers for Shanksville, PA, and Arlington, VA, you will not find any accounts of the hundreds murdered in those venues on that same dreadful day. Lest you think 9/11 is a one-off situation, please note that the same lack of accurate crime reporting on this most serious of all crimes can be found for the dozens of murders in Fort Hood Texas (2009) massacre and Newtown, CT school shootings in (2012)*. It would be more truthful to report the actual murder numbers, perhaps with an asterisk to account for anomalies. (*The Newton homicides did actually show up on the CT state UCR stats, but you have to know where to look for them.) It remains to be seen if the victims of the Mandalay Bay massacre show up on the FBI statistics next year, but time will tell.

One thing is for certain. What happened to those victims was, in fact, pure unadulterated murder and these obvious homicide events should be recorded as such. This expert has developed a graph showing how homicides in Las Vegas increased 108% in the five years leading up to the Mandalay Bay massacre. When you couple that with a CrimeCast rating of 327 for homicide at the specific address on the Las Vegas Strip, it is clear that the foreseeable risk data available to the Defendants was obviously ignored in a dreadful act of willful ignorance- all resulting in grossly inadequate security protection for the lawful business guests of the defendants Live Nation and MGM on that infamous night. Please note that the accurate crime and risk data from the above two sources are objective.

A more subjective and general illustration of the risk that faced concertgoers on October 1, 2017, was the spate of terrorist attacks on entertainment venues around the world. Furthermore, Las Vegas was “scoped out” by Mohamad Atta and fellow terrorists just before 9/11. Obviously, someone in Las Vegas’ government took notice of the recent vehicular terrorist attacks and had bollards installed along the Las Vegas Strip observed by us during out site inspection in December 2017. Defendants MGM and Live Nation should have taken proper notice of the prevalent risk of such events and provided more reasonable security for their most vulnerable concert site.

The downplaying of risk is even more pervasive in the private sector. Obviously, the defendants want to minimize risk because the true data would increase their liability and be bad for business. If the public knew the actual level of risk, they might not patronize the facility at all. Furthermore, providing reasonable and professional security is expensive, and oftentimes security is looked upon as an expense to be cut, cut, and cut again. Some defendants who once had reasonable security cut corners so much that it raises the novel charge of “abatement of security.” I have seen this charge utilized successfully in several of my cases I have opined on against major corporations in the hospitality industry.

Premises security litigators must contend and confront other serious obstacles in their quest for justice for clients. When you include the intentional and despicable practice of “spoliation of evidence” with the above “willful ignorance,” you can come away with a sense of the immensity of the task before you to ensure that the truth of the matter is revealed and that justice for your client prevails.

Spoliation of evidence relevant to litigation takes many forms including, but not limited to, discarding evidence that would be prejudicial, “missing” or “lost” reports, deleting e-mails, crashing computer hard drives, misclassifying and downgrading the seriousness of incidents on internal reports, destroying of security camera video clips, making fact witnesses unavailable to opposing counsel, utilizing “know nothing” DCRs, and failing to obtain third-party witnesses to the incident. In the Mandalay Bay mass murder case, “spoliation” rules. The crime scene site was quickly changed. A security expert colleague, who is also on the case, obtained satellite photos of alterations to the exterior crime scene just days after the horrendous attack. There are reports that the Mandalay Bay hotel floor of the shooter (32nd) and those above and below the killer’s perch have been renumbered. (Other mass murder sites around the country have been changed into memorials, but not Mandalay Bay’s) Thus, the spoliator’s deliberate attempt to deceive, conceal the truth and hide incriminating information and evidence is being perpetrated by some parties to this litigation. Their concealment, obfuscation, and minimization contribute to what the general public has come to know as the classic “Cover Up.”

Litigating negligent security cases is not an easy task, especially in a major tort case against a pair of multi-billion dollar defendants such as MGM and Live Nation. Unfortunately, plaintiff’s counsel faces many obstacles along the tricky march to justice for their injured clients. Not the least of the serious challenges counsel must contend with are the all too common defense ploys of defenders and enablers engaging in the three D’s: deny, delay, and deceive.

That is precisely and exactly what is happening with the Mandalay Bay mass murder case.

Andrew P. Sutor is Principal at Sutor & Associates, LLC, which provides professional security consultation and expert witness services for attorneys pursuing premises liability and negligent security cases. Reach Andrew at [email protected] or at 609.822.2626