Kendall Coffey on The Lars Larson Show – March 9th, 2017

Posted on Mar 21, 2017 in Media Appearance: Elections and Courts with Kendall Coffey

Kendall Coffey is a founding Partner at Coffey Burlington, PL, former U.S. Attorney, and frequent guest legal analyst on international television networks. He is also an adjunct professor at University of Miami School of Law. Kendall Coffey joined the Lars Larson Show on March 9th, 2017 to discuss the recent lawsuits against President Trump’s Executive Order restricting travel from six Muslim-majority countries. Lars Larson: Mr. Coffey, thanks a lot for joining us again. Tell me what you think of these lawsuits and if they will find any traction in the federal courts. Kendall Coffey: Well, I think it’s going to be so much tougher this time. The basic theme of the lawsuit seems to be, “Well, this is just another version of the original executive order that was found invalid.” If it looks like a duck, walk likes a duck, quacks like a duck, it’s, after all, a duck. As people read this, they’ll see that in legal terms, at least, it’s a bird of a different feather. It’s more thoughtfully drafted. It clearly avoids the major legal pitfalls of the original executive order, which was, you will recall, a statement prohibiting green card holders from the 7 countries. This problem was something that I think most analysts thought would be very difficult to overcome in the original order. This order is not only thoughtful in the way it’s drafted, but it explains some of the concerns of each of the 6 remaining countries that are subject to this. Just to put in context, what the executive order focuses on, it states that there is a need to deal with countries where we don’t trust their informational processes to tell us who is coming to this country from their countries. It’s very specific about that. It says that it requires a process by the major agencies, such as the Department of Homeland Security, to see if these countries can correct their current informational concerns, and at the same time, it calls upon Homeland Security and other agencies to examine the information we’re receiving from all the other countries to make sure that we go through a delivered process and see if there are other countries as well as the 6 that are not giving us reliable information about their citizens when their citizens try to come to this country. I don’t think that, fairly read, this document is subjected to a strong legal challenge, but the challenges continue, and I certainly won’t predict what may happen. Could there be a federal district court that rules for the challengers? Maybe. But I think if this gets to an appeals court, they’re going to have to look at this document and apply the many decisions of the Supreme Court, which says, basically, that the president has the right to do this order in the name of national security. Lars Larson: Shouldn’t...

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The Foreign Sovereign Immunities Act

Posted on Nov 22, 2016 in Blog Entry: Elections and Courts

The Foreign Sovereign Immunities Act (“FSIA”) renders foreign states (as well as the political subdivisions, agencies, and instrumentalities thereof) immune from suit in U.S. federal and state courts in most circumstances. The FSIA embraces the restrictive theory of sovereign immunity, which confines immunity to a foreign country’s public acts and excludes from immunity the private/commercial acts. Congress enacted FSIA to address a “modern world where foreign state enterprises are every day participants in commercial activities.” Samantar v. Yousuf, 560 U.S. 305, 323 (2010).  Section 1605 creates exceptions to immunity in limited circumstances set forth in 28 U.S.C. Section 1605. Some of the more frequently litigated exceptions include when the foreign state has explicitly or implicitly waived immunity, and when the subject of the lawsuit is the foreign state’s commercial activity involving the U.S. In a recent court decision addressing the commercial activity exception, one federal appeals court allowed a U.S. citizen to sue the railway service owned by the Republic of Austria for an accident that occurred in Austria. The court found that because the Austrian railway sold tickets in the U.S., this constituted commercial activity with the U.S. Sachs v. Republic of Austria, 737 F.3d 584 (9th Cir. 2013) (en banc). This decision, which is binding in certain western states such as California, appears to expand the commercial activity exception and thereby reduce the immunity of foreign governments in some situations. Significantly, foreign sovereign immunity does not protect a foreign official sued for acts performed in an official capacity because the definition of “foreign state” does not include a “foreign official.” See Samantar v. Yousuf, 560 U.S. 305 (2010). In that case, the Supreme Court held that “an individual foreign official sued for conduct undertaken in his official capacity is not a ‘foreign state’ entitled to immunity from suit within the meaning of [FSIA].” Id. The Court emphasized that its holding was narrow and that the official may still invoke foreign sovereign immunity under the common law, including the immunity that applies to a foreign head of state. Id. at 325-26. Also important is the fact that to be sued in this country, the foreign official must have connections with the U.S. sufficient to constitute “minimum contacts”. Along with other exceptions, foreign sovereign immunity does not prevent U.S. courts from having jurisdiction over foreign governments for personal injury or death resulting from acts of...

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When Sports and the Law Collide

Posted on Aug 22, 2016 in Blog Entry: Spinning the Law

When most of us catch the game on TV, we aren’t really thinking about all the legal issues surrounding sports. We’re just hoping to unwind with our favorite team. In reality, however, the law extends into athletics just as much as anywhere else. For sports-loving, would-be lawyers, that makes for a great opportunity. After all, someone has to represent those players, team owners, concession stand workers, administrators, and others when problems arise. In his description of life as a sports lawyer, professor, and director of the National Sports Law Institute, Matthew J. Mitten recounts a variety of cases he’s dealt with: representing a county during litigation surrounding an NFL club’s relocation; providing legal advice to a baseball player wanting to level a medical malpractice suit at his former team; and more than one situation sparked by intellectual property law. Mitten’s tasks run the gamut from registering trademarks to providing information about liability. He’s served sports physician organizations, coaches, referees, sports facility operators, sports broadcasters, and more. He’s had to delve into his knowledge in a variety of areas of law, including contract, labor, and intellectual property law. Sports law isn’t just for professional teams, either. Schools—both high schools and colleges—face legal issues as well. Here are just a few in recent times: College athletes wanting to unionize. The National Labor Relations Board was faced with a case involving Northwestern University scholarship football players wanting to unionize back in 2014. While initially finding in favor of the athletes, the Board stated the following year that they would not uphold their previous decision. An appeal to federal courts is still a possibility. Title IX and gender equity. Schools across the country struggle to keep up with complaints regarding Title IX issues, particular in terms of offering equal opportunities to both boys and girls when it comes to sports. Since the mid-90s, there have been about 125-150 complaints regarding Title IX infringement filed with the OCR, with half going to settlement and half ending up in federal courts.  Serving athletes with disabilities. Since the Disabilities Education Act, schools across the country have made an effort to make athletics available to students with disabilities, with varying results. In 2013, the United States Department of Education, under Arne Duncan, released a statement on schools’ legal responsibilities to provide for disabled students when it comes to athletics. Schools are required to either allow disabled students to participate with their peers or else provide participation opportunities through adapted programs. As sports law continues to develop, it provides an opportunity for those interested in a variety of both legal and athletics studies to find the places where these two areas intersect. There are plenty of situations requiring legal advice to keep the international delight with sports moving along in a fair and equitable way. Sports lawyers and others serving the athletics industry are key to making it...

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Could Pokemon Go Cause You to Break the Law?

Posted on Jul 26, 2016 in Blog Entry: Spinning the Law

Pokemon Go is one of the first augmented reality games to gain national notoriety and be played avidly by the general public. Pokemon Go lays down its own content over a Google Maps program. This allows the players to walk around through the Pokemon Go map on their phone while walking around in the real world. In the Pokemon world, Pokemon wander around, and players need to find and capture them. There are also hotspots where players can acquire items or where Pokemon are more likely to be found. There are also gyms where players can take their Pokemon to fight. All of these reflect locations in the physical world from bus stops to coffee shops to churches. While the game has gotten lots of players out of the house and walking around their neighborhoods, the popularity of an augmented reality game like Pokemon Go raises both safety and legal issues. Police officers across the country have been issuing statements reminding people to exercise their common sense while playing the game. Don’t run into people on the sidewalk. Remember that traffic exists in the real world. Do not operate any kind of vehicle or bicycle while using the app. It’s also important to note that the game does not discriminate between public and private property when it places Pokemon and other game objects. It is important that the users and parents of young users are aware that this boundary very much exists in the real and legal world. Pokemon have been placed in businesses, churches, and private residences. “Catching Pokemon” is not a reason to enter into private spaces without permission. It is especially important to make sure children understand this boundary. Police are concerned about potential conflict or injuries from being mistaken for an intruder, as well as the repeated trespassing reports. It is also important to note that the user “assumes liability related to any property damage, personal injury or death,” including violations of laws while playing the game. This is included in the agreement users sign to begin playing the game. Nintendo, etc. are not liable for actions users take during the game. Another important reason to be aware during the game is that users can add lures to the game. Users have been known to set a lure, attract other users, and then rob...

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Will Omar Mateen’s Wife Face Charges for Failing to Stop Her Husband’s Shooting Spree?

Posted on Jun 28, 2016 in Blog Entry: Criminal Cases

Will Omar Mateen’s Wife Face Charges for Failing to Stop Her Husband’s Shooting Spree?

Omar Mateen’s wife, Noor Salman, may face criminal charges due to her possible involvement with her husband’s assault on the Pulse nightclub in Orlando, FL. A federal grand jury is reviewing the incident and Salman’s suspected involvement in the attack. Mateen killed 49 people and took hostages during his attack on the gay nightclub. Kendall Coffey, former southern Florida U.S. Attorney, explained that the charges Salman might face would increase in their severity in relation to the grand jury’s decision about the level of her involvement in the crime. “If she drove him to get ammunition or to case the crime scene, I think that’s enough to warrant very serious charges if she had requisite knowledge of the crimes,” Coffey said. FBI officials have reported that Salman once drove her husband to the nightclub so that he could study its layout. She also joined her husband when he purchased a holster and ammunition for his shooting spree. The FBI investigation suggests that Salman is suspected to be her husband’s accomplice in what has been the worst mass shooting in U.S. history. Salman was born in San Pablo, in the San Francisco Bay Area of California, and graduated from high school in 2004. Her parents and her husband’s family, living in the Palestinian territories, arranged her first marriage. She met her second husband, Omar Mateen, online, and they married in 2011 and have a 3-year-old son. If Salman knew that a crime was going to be committed, she could be guilty of intentionally hiding the knowledge of a felony and aiding and abetting a crime. Further investigations by the FBI and grand jury could determine that Salman is guilty of conspiracy to commit and act of terrorism. It was reported on CNN that Mateen and his wife exchanged text messages during the assault. A law enforcement officer reported to CNN that the text occurred at about 4 a.m. when Mateen was hiding in the bathroom at the gay nightclub. Salman responded in a text that she loved him. Mateen’s first wife alleges that she was the victim of abuse during her marriage to the shooter. If Mateen threatened Salman in any way, she could argue that she was operating under duress and was too afraid to call the police. Her marriage alone won’t protect her from criminal charges. “If the authorities have evidence beyond reasonable doubt that she did everything knowing what he was going to do, then I think she will face very serious criminal charges,” Coffey...

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