Lawsuit Against Saudi Arabia Over Al-Shamrani Mass Shooting at Pensacola Naval Air Station Can Go Forward, in Part

From yesterday's Eleventh Circuit decision by Judge Stanley Marcus, joined by Judges Jill Pryor and Britt Grant, in Watson v. Kingdom of Saudi Arabia:

This violent and tragic case arose out of a shooting rampage involving Royal Saudi Air Force ("RSAF") Second Lieutenant Mohammed Saeed Al-Shamrani … at Pensacola Naval Air Station … on December 6, 2019. The shooting resulted in [three deaths and serious injuries to many others] ….

[W]e agree that most of the Plaintiffs' [survivors' and victims' families'] claims were properly dismissed for lack of subject matter jurisdiction pursuant to the Foreign Sovereign Immunities Act, and the Justice Against Sponsors of Terrorism Act …. {These claims fail either because they fall within discretionary functions that are immune from suit; they are based on acts of omission; they are based on tortious acts committed by Al-Shamrani that did not fall within the scope of his employment; they did not proximately cause the Plaintiffs' injuries; or, finally, they do not establish a prima facie breach of contract claim.} …

However, one group or bundle of the Plaintiffs' claims-those based on the theory that the Kingdom had been grossly negligent in vetting, hiring, and sending Airman Al-Shamrani to the United States—is facially sufficient to survive the jurisdictional attack … because they are based on a series of acts of commission (rather than acts of omission) taken by the Kingdom … that rose to the level of gross negligence under Florida law….

The Amended Complaint tells us that the shooter, Mohammed Saeed Al-Shamrani, was a Second Lieutenant in the RSAF and a member of al Qaeda in the Arabian Peninsula ("AQAP"). He was also a citizen, resident, employee, and agent of the Kingdom of Saudi Arabia. In 2012, Al-Shamrani became active on Twitter, using an account that bore his first and last name and that was easily traceable to him. By 2015, Al-Shamrani allegedly was following religious extremist and hardline clerics on Twitter, and his Twitter account showed evidence of radicalization and the expression of violent anti-American sentiments. Al-Shamrani also allegedly contacted operatives from AQAP by this time.

In 2015, Al-Shamrani joined the Royal Saudi Air Force. Despite his radicalization and the expression of many anti-American views, he was allowed to enroll in the RSAF Academy. The Amended Complaint further alleges that while he was employed by the RSAF, Al-Shamrani regularly posted radical fundamentalist ideology, as well as anti-American and anti-Jewish ideology, on his social media accounts. He commented on and encouraged others to post radical Islamic sentiments on social media, and allegedly he was followed on social media by other Saudi Arabian citizens in the government and in the RSAF, who read and commented on Al-Shamrani's radical posts. Among the ideas he was alleged to have expressed or read, the Amended Complaint includes the following:

The killing of Shia Muslims, non-Muslims and people who do not pray;

The unfounded conspiracy that the Shia sect of Islam was founded by Jews to divide Muslims;

That Christians and Jews are the enemy of Islam, particularly to the Sunnis; and

That Islam is under attack and threatened by Christians, Jews and Western culture.

Al-Shamrani also echoed the radical and violent teachings of Anwar al-Awlaki, a Yemeni-American cleric and member of AQAP who was described as "perhaps the most prolific jihadist ideologue of all time." Despite the repeated public expression of extremist and violent views, Al-Shamrani was one of two students in his RSAF class of hundreds awarded a scholarship to enter a joint military program in the United States.

The Amended Complaint further asserts that military personnel coming to the United States for education or training at any armed forces training facility, like Al-Shamrani, are classified as foreign government officials and require an A-2 visa, for which applicants must undergo screening and complete a Form DS-160 Online Nonimmigrant Visa Application. As for the screening, Saudi security forces were required to thoroughly probe Al-Shamrani's background, before and after his name was sent to Saudi Arabia's Defense Ministry, because he was a prospective trainee in an American flight program. In May 2017, Saudi Arabia allegedly represented to the United States that Al-Shamrani had cleared the requisite security, medical, and internal character vetting….

On September 11, 2019, eighteen years after the attacks on the World Trade Center and the Pentagon, according to the Amended Complaint, Al-Shamrani posted an ominous message on Twitter, proclaiming "the countdown has begun." Later that month, Al-Shamrani wrote out a will on his phone, which purported to explain his forthcoming attack; allegedly he sent a copy of his will to al-Qaeda in the Arabian Peninsula….

Under Florida law, for jurisdictional purposes, the Plaintiffs have sufficiently stated a claim for gross negligence in connection with Saudi Arabia's failure to properly vet Al-Shamrani…. Under Florida common law, Saudi Arabia had a duty to investigate Al-Shamrani for security purposes and, if it learned that Al-Shamrani posed some imminent danger or security risk, to take action to bar him from entering flight training in the United States….

The source of Saudi Arabia's obligation is rooted in "the type of work to be done by" Al-Shamrani. Specifically, Al-Shamrani was sent by the Saudis to the United States to learn how to fly American warplanes that had been purchased by the Kingdom. Only because it was integral to receiving flight training was Al-Shamrani authorized to enter a secure American military installation. Since Al-Shamrani was a member of another nation's military and had been sent to the United States to receive training at a secure American military facility, the Kingdom had "the responsibility of first making some inquiry with respect to whether it [was] safe to do so." Put differently, as alleged in the Amended Complaint, "Saudi Arabia had a duty of reasonable care in ensuring its training candidates were properly screened for security threats, properly trained to recognize and report security threats," and "routinely monitored."

The Amended Complaint further asserts that Saudi Arabia's duties stemmed from "the protocols, rules, regulations, codes of conduct and standards of the U.S. Department of State, U.S. Department of Defense, the RSAF, and the command-specific programs in which they participated, including the SCETP, FMS [Foreign Military Sales], and IMET [International Military Education and Training]." Finally, the Amended Complaint says that the Foreign Military Student "Letters of Offer and Acceptance," which are "government-to-government agreement[s]," "require the foreign state to follow strict policies and procedures designed to ensure the safety of the United States and its citizens." It was reasonably foreseeable that danger might arise from inadequately screening a flight candidate and then affording him access to a secure American military installation….

The Amended Complaint [also] asserts that the Kingdom had previously investigated Al-Shamrani's background "extensive[ly]" when he joined the RSAF, and also subjected him to extensive vetting "before and after his name was put forward to the Kingdom's Defense Ministry" "[a]s a prospective trainee in an American flight program."

Moreover, the Amended Complaint contains detailed allegations regarding Al-Shamrani's long history of publicly expressing extremist and violent views, even including the period of time before he joined the RSAF, when Al-Shamrani adhered to radical Islamic ideology that promoted extremist views, violent jihad, and a belief that nonbelievers, especially Americans, deserve to die. It also specifically alleges that "Al-Shamrani was a follower of alQaeda and AQAP clerics and other extremist ideologues."

The Amended Complaint recounts that Al-Shamrani's social media accounts were available publicly and that by 2015, his Twitter account showed evidence of radicalization and the expression of anti-American sentiments. It also alleges that prior to being sent to the United States, Al-Shamrani's Twitter account followed religious extremist and hardline clerics. We are also told he used "his public social media pages to post and share extremist content, prior to the attacks" at NAS Pensacola. Al-Shamrani "adopted … and expressly repeated" the following ideas: "[t]he killing of Shia Muslims, nonMuslims and people who do not pray"; "[t]he unfounded conspiracy that the Shia sect of Islam was founded by Jews to divide Muslims"; "[t]hat Christians and Jews are the enemy of Islam, particularly to the Sunnis"; and "[t]hat Islam is under attack and threatened by Christians, Jews and Western culture." …

The Amended Complaint further claims that even minimal investigation, let alone an "appropriate investigation," would have readily "revealed the unsuitability" of selecting Al-Shamrani "for the particular duty to be performed"—coming to the United States for flight training at the Pensacola Naval Air Station. The Amended Complaint affords the reasonable inference that the Kingdom knew or should have known that Al-Shamrani was a "ticking time bomb" in light of the many violent and radical comments he made. Thus, the Amended Complaint sufficiently alleges for jurisdictional purposes that the Kingdom unreasonably vetted him, hired him, and sent him to the United States….

The court goes on to conclude that this wasn't just ordinary negligence, but, as required by [Justice Against Sponsors of Terrorism Act], gross negligence; a brief excerpt:

The profound nature of the risk of sending Al-Shamrani for flight training in America amounted to far "more than normal or usual peril." A Saudi Arabian military officer, who repeatedly urged death to America and to its military apparatus, posed a clear and immediate danger if assigned to a U.S. military base for extensive flight training.

The Amended Complaint further sufficiently alleges "knowledge or awareness of the imminent danger on the part of" Saudi Arabia. Finally, the Amended Complaint asserts that Saudi Arabia undertook multiple acts "that evince[d] a conscious disregard of the consequences." …