Establishing Harm in a Case is Not Always Easy

In the case of Carlos E. Moore vs. Governor Dewey Phillip Bryant, Moore, an African-American lawyer in the state of Mississippi, sued the governor of Mississippi, claiming the Mississippi flag (which depicts the Confederate battle flag in the upper left-hand corner) violated his rights. This 2017 case went before the District Court who held a hearing on the Governor’s motion to dismiss. During that hearing, Moore testified on his alleged injuries, however the court dismissed for lack of standing, also denying the motion to amend.

Mississippi State Flagimage credit

Article III of the Constitution confines federal courts to “adjudicating actual cases and controversies,” and the 2002 case of Henderson v. Stalder asserts that the constitutional minimum of “standing” contains three elements. The first of these is that the plaintiff must have suffered an injury, second that there must be a causal connection between the injury and the conduct complained of, and third, it must be likely (as opposed to speculative) that the injury will be redressed by a favorable decision. Even though Moore claimed the Mississippi flag incited racial violence, the district court felt he failed to adequately show real injury.

Stigmatic Injury Does Not Equal Harm or Injury

Moore appealed the District Court decision, stating he is unavoidably exposed to the state flag, and that the flag’s “message” makes him feel like a “second-class citizen,” and causes him physical and emotional injury due to its “painful, threatening and offensive” nature. Moore’s theory of injury is that that the state flag of the state of Mississippi “stigmatizes” him. In the 1984 case of Allen v. Wright, stigmatic injury only affords a basis for standing for those who are denied equal treatment by the challenged conduct. In other words, to have legal standing in this issue, Moore must be able to show he was personally subjected to discriminatory treatment.

Moore rebutted that argument by claiming he was subjected to unavoidable “deleterious” Government speech under the Establishment Clause. Once again, the court disagreed, stating an Establishment Clause case establishes standing only when a person is directly exposed to a religious display and that the Protection Clause does not provide Moore with standing as exposure to a discriminatory message without denial of equal treatment is insufficient to show injury. Despite the fact that Moore claims to deeply feel the impact of the Mississippi state flag, these claims are irrelevant to his claim of standing and injury. Moore also claimed physical injury as a result of his exposure to the Mississippi state flag, however under Allen, stigma alone is simply insufficient to satisfy the requirement of injury-in-fact. 

No Injury Shown for Plaintiff

Finally, Moore also claimed harm to his daughter due to her exposure to the Mississippi state flag at her school, saying she will “be forced to learn, adopt, utter or communicate speech which she finds objectionable”—a violation of her First Amendment rights. The district court rejected this argument saying that while children in Mississippi schools are required to learn about the history of the flag, they are not required to recite the Mississippi pledge while at school. The appeals court upheld the District Court’s findings, concluding the Plaintiff had shown no injury.

Proving Injury or Harm in a Mississippi Civil Case

Anyone who files a civil case in the state of Mississippi must show the following elements:


  • The defendant owed a duty to the plaintiff;
  • The defendant breached that duty;
  • The breach of duty caused the plaintiff’s injury;
  • There was proximate cause, meaning the defendant is only responsible for the harm he or she could have foreseen as a result of his or her actions.
  • There was harm, usually in the form of physical or mental injury, as a result of the defendant’s actions.

In other words, it is not enough that a person causes harm to another—the plaintiff in the case must show that harm was foreseeable by the defendant who had a duty to the plaintiff, and clearly breached that duty. In the above case, it could not be shown that there was actual harm or injury to plaintiff Moore, or, that by allowing the Mississippi flag to reside in the workplace, the governor could have reasonably foreseen any such harm or injury.

Contact Our Jackson Criminal Defense Lawyers

If you are arrested and charged with a crime in Jackson, Hattiesburg, Meridian, or anywhere in the State of Mississippi, you need to fight for your rights and protect your freedom. The best way to do this is to hire an experienced Jackson criminal defense attorney immediately.

At Coxwell & Associates, PLLC, our attorneys believe in fighting aggressively for our clients and we can build a defense that is designed to expose the holes in the prosecution’s case against you. Contact Coxwell & Associates today at 1-601-948-1600 or 1-877-231-1600. 

Disclaimer: This blog is intended as general information purposes only, and is not a substitute for legal advice. Anyone with a legal problem should consult a lawyer immediately.

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