WEST PALM BEACH, Fla. (CN) - Victims of a terrorist attack that killed 49 people at Orlando's Pulse nightclub have taken to a Florida appeals court to revive their claims that the perpetrator used nearly a decade of firearms training as a security guard to maximize the death toll.
More than 30 appellants, including four estates of those fatally wounded in the attack, say G4S Secure Solutions neglected to halt security guard Omar Mateen's annual firearms training and have his security license revoked in light of his disturbing behavior in the years leading up to the 2016 Pulse attack.
Forty-nine victims perished and more than 50 were wounded in Mateen's assault on Pulse, a popular destination for gay clubgoers in Orlando. It was the deadliest terrorist attack on U.S. soil since Sept. 11, 2001, and the worst mass shooting in modern U.S. history until the 2017 Las Vegas massacre.
In an interview Tuesday, the attorney for the victims and their families, Andrew Harris, told Courthouse News he hopes Florida’s Fourth District Court of Appeal will see that G4S's lack of response to Mateen's openly extremist comments and violent threats created a broad and concrete danger to the general public.
Since Mateen was off-duty and far away from his G4S workplace at the time of the June 2016 mass shooting, that's a key legal issue at play, Harris said – whether the company had a legal duty not only to those whom it brought into contact with Mateen, but to the public at large.
The victims’ appellate brief filed Friday states, "This is not a negligent hiring or negligent retention case, but a general negligence case. Defendant’s conduct foreseeably created a broader zone of risk that posed a general threat of harm to others."
Mateen had driven roughly two hours from his home in South Florida to Orlando to perpetrate the Pulse shooting. Before being killed in a police standoff, he declared allegiance to the Islamic State terrorist group and demanded an end to U.S. military activity in the Middle East.
The U.S.-born Afghan-American was interviewed by the FBI in 2013 about statements he made while toiling for G4S as a courthouse security guard in St. Lucie. Among those statements, he allegedly claimed ties to terrorist groups, threatened to have a deputy killed, praised an Islamic terrorist and said he hoped to die as a martyr.
The red flags were not enough to prompt the security company to fire Mateen or stop his annual firearms training, the victims’ lawsuit alleged. He was transferred to a community security detail, where his disturbing conduct continued, with bigoted tirades around a co-worker, the appellants say.
The appellants, a portion of the original plaintiffs, withdrew from the trial court litigation against G4S in August 2018, as part of a gambit to get appellate review after a judge found that G4S was too far removed from the shooting to be held liable.
The lower court had found that there are no allegations that G4S “had any direction or control over Mateen at the time of this tragic event." The court added that Mateen's Class G security license had "no bearing on [his] legal ability to purchase a firearm."
Harris said Tuesday that the St. Lucie gun shop that sold Mateen the guns he used in the attack cited his security license as one reason why he was readily able to buy the weapons. Though it may not have been a legal necessity for the purchase, the attorney said, it was a factor in Mateen's ability to close the sale especially given that he'd been turned away at another shop, Lotus Gunworks, where his behavior was so suspicious that staff reported him to federal authorities.
"Mateen obtained the weapons using the legitimacy of the license," Harris maintained.
Harris also noted that Mateen's years-old, pre-employment psychological evaluation was among those that had been rubber-stamped with the name of a psychologist who didn't actually review the files and didn't even work for G4S at the time. Once the alleged document fraud surfaced in the aftermath of the Orlando shooting, the company called it a clerical error.
The attorney said G4S should have known there was a "deranged person . . . within their employment" and halted his annual firearm training, a requirement for him to keep the Class G license.
"Sadly there's been a lot of mass shootings, we all know here in Florida," Harris said. "We just tune them out after a while."
But for the victims, "the grieving process has no expiration date," he said.
As previously reported by Courthouse News, the appellants' withdrawal from the trial court case signaled a split in legal strategy among the plaintiffs. While the appellants -- including the estates of Stanley Almodovar, Tevin Crosby, Jean Carlo Mendez Perez, and Eric Ivan Ortiz-Rivera -- agreed to have their claims dismissed in the trial court and took their argument to the Fourth District, others opted to stay in the trial court.
G4S's appellate counsel has not yet filed its brief in the appellate court. The company's trial attorney Richard Hutchison at Holland & Knight maintains that "there is no connection whatsoever between Mateen's employment with G4S and his barbaric attack on the Pulse nightclub."
The company has indicated that the claimants' argument regarding the Class G license confuses causality with duty of care.
Because the license had no impact on Mateen's ability to legally purchase the weapons, G4S could not have foreseen that the license would create an increased risk to the public, the company's trial counsel says.
The company previously characterized the shooting as an "independent criminal act" unrelated to Mateen's employment.
The success of the victims' claims could hinge on judicial interpretation of whether the Florida Supreme Court's reasoning in U.S. v. Maureen Stevens applies.
In Stevens, the family of a victim who died in the 2001 anthrax letters killings sued the U.S. government for allegedly failing to secure the anthrax specimens used in the killings. The Florida Supreme Court, answering a certified question from the 11th Circuit, found that under state law, an entity that handles ultrahazardous materials owes a duty of care to the general public to safeguard those materials.
The claimants in the G4S case have tried to equate anthrax to the firearms training provided to Mateen, in that both can be considered ultrahazardous to the public.
The lower court rejected the analogy.
"Unlike anthrax, which can be created and destroyed in a laboratory, firearms training is an intangible property that cannot be isolated. Plaintiffs’ position, which the court respectfully rejects, would require defendant to protect the general public from Mateen in perpetuity without any spatial or temporal limits,” Palm Beach County Circuit Judge Donald Hafele wrote in January 2018.
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