Briggs v. Mississippi, 02-60737 Summary Calendar.

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: Garwood
• Citation: 331 F.3d 499
• Parties: John Ellis BRIGGS, Plaintiff-Appellant, v. State of MISSISSIPPI, Defendant-Appellee.
• Docket Number: No. 02-60737 Summary Calendar.,02-60737 Summary Calendar.
• Decision Date: 03 June 2003

331 F.3d 499 John Ellis BRIGGS, Plaintiff-Appellant,
v.
State of MISSISSIPPI, Defendant-Appellee. No. 02-60737 Summary Calendar. United States Court of Appeals, Fifth Circuit. June 3, 2003.

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La Quetta Maria Golden, Law Offices of La Quetta M. Golden, Gulfport, MS, for Plaintiff-Appellant.

Peter Watkins Cleveland, Jackson, MS, for Defendant-Appellee.

Appeal from the United States District Court for the Southern District of Mississippi.

Before GARWOOD, JOLLY and SMITH, Circuit Judges.

GARWOOD, Circuit Judge:

Appellant Briggs's pro se complaint, filed June 29, 2001, alleged that Mississippi violated the Establishment Clause of the First Amendment by using public property and funds to fly the state flag in that the flag's union or canton square is the Confederate battle flag which displays "the St. Andrew's Cross (or Southern Cross), long regarded by many to reflect a particular religious heritage," and this was offensive to Briggs as he was "a Miracle Muslim." The only defendant mentioned in the complaint is the State of Mississippi. The relief requested was that "a just inquiry be made to determine whether a religious symbol, namely the St. Andrew's Cross, should be removed from display on public property" and that "the State of Mississippi... be made to compensate me by paying punitive damages not to exceed $77.77 million (US)."

The State moved to dismiss on the basis of the Eleventh Amendment and because the complaint did not state a constitutional violation.

On November 14, 2001, Briggs, through counsel, filed a response to the motion to dismiss.

On December 19, 2001, Briggs, through counsel, filed a motion for leave to amend the complaint. The tendered amended complaint names as defendants only the State of Mississippi and "Ronnie Musgrove." The only allegation concerning Musgrove is that he "is the governor for the State of Mississippi." All other allegations are as to the state defendant, e.g., "Defendant, State of Mississippi, has willfully and maliciously used public property and public funds to display a religious symbol, namely, the St. Andrew's (or Southern Cross), long regarded by many to reflect a particular religious heritage." The amended complaint alleges that "the display of the St. Andrew's Cross in the canton of the Mississippi State flag is a violation of his [plaintiffs] Constitutional rights." The relief sought is "a declaratory judgment mandating that the religious symbol, namely the St. Andrew's Cross, be removed from display in public places," "a declaratory judgment mandating that the Defendant, State of Mississippi, found to be in violation of the First Amendment," "compensatory damages in the amount not to exceed 77.77 Million Dollars," and reasonable attorney fees and costs.

On August 12, 2002, the district court entered its memorandum opinion and final judgment, granting the State's motion to dismiss, denying Briggs's motion for leave to amend, and dismissing the case.

Discussion

Briggs appeals, raising three issues Eleventh Amendment

Briggs first argues that the district court erred in determining that the

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Eleventh Amendment barred him from seeking damages and equitable relief against Mississippi. We reject that contention. Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 908-09, 79 L.Ed.2d 67 (1984). As we said in Voisin's Oyster House, Inc. v. Guidry, 799 F.2d 183 (5th Cir.1986), the Eleventh Amendment bars suit against a state or "state entity, as opposed to a state official, regardless of whether money damages or injunctive relief is sought" and section 1983 does not override the Eleventh Amendment.

Establishment Clause

Second, Briggs argues that the district court erred in holding that Mississippi's use of the St. Andrew's Cross on the state flag does not constitute a violation of the Establishment Clause.

The Mississippi state flag indisputably has the Confederate battle flag as its union or canton corner or square. See, e.g., Mississippi Division of United Sons v. MS. NAACP, 774 So.2d 388, 390 (Miss.2000) ("While the State Flag is not simply a Confederate Battle Flag, the part of the State Flag found objectionable by the NAACP and others is the depiction of such Confederate flag in the State Flag's canton corner"). The flag was adopted in 1894, when the Mississippi legislature approved the committee report which

"... recommend for the flag one with width two-thirds of its length; with the union square, in width two-thirds of the width of the flag; the ground of the union to be red and broad blue saltier¹ thereon, bordered with white and emblazoned with thirteen (13) [mullets]² or five-pointed stars, corresponding with the number of the original States of the Union, the field to be divided into three bars of equal width, the upper one blue, the center one white and the lower one, extending the whole length of the flag, red — the national colors; the staff surmounted with a spear head and a battle-axes below; the flag to be fringed with gold and the staff gilded with gold." Id. at 391 (emphasis added).

However, in 1906 that 1894 legislation adopting the flag was (apparently inadvertently) repealed by the general repeal of all laws not included in the then enacted codification. Id. Nevertheless the 1894 flag continued to be flown as the state flag of Mississippi "by custom and usage." Id. at 391-92.

As reflected by, inter alia, the decisions in Mississippi Div. of United Sons and Daniels v. Harrison County Bd. of Supervisors, 722 So.2d 136 (Miss.1998), the flying of the Confederate Battle Flag (alone or as incorporated in the canton square of what was assumed to be the official state flag) aroused heated controversy between those for whom it "commemorate[d] the sacrifice made in support of the cause of the Confederacy" and those for whom it was an offensive "symbol of white supremacy" or oppression. Daniels at 139 (Banks, J., concurring); see also id. at 141. Following the decision in Mississippi Div. of United Sons that there was no official state flag, the controversy became more active and public. In January 2001 the

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Mississippi Legislature enacted legislation providing that the state flag would be determined by an election to be held April 17, 2001, at which the voters would choose between two described flags, one being the identical 1894 flag and the other being a flag similar in all respects to that of 1894 except for its canton corner which would consist entirely of a blue ground (white bordered on its bottom and fly sides) with a circle of thirteen stars containing an inner circle of six stars with one large star in its middle.³ The voters chose the 1894 flag.⁴

While nothing in the 1894 legislation or the 2001 legislation, and nothing in their legislative histories of which we are aware, nor anything in any of the cited decisions of the Mississippi courts, refers to the St. Andrew's Cross, we recognize that the Confederate Battle Flag has frequently been described as containing a St. Andrew's Cross. See, e.g., Coleman v. Miller, 885 F.Supp. 1561, 1564 (N.D.Ga.1995) ("During the Civil War, the Confederacy adopted a square battle flag depicting a blue St. Andrew's Cross on a red field;" with picture of flag). We also recognize that St. Andrew is a religious figure, he, along with his brother Peter, being one of the twelve apostles of Christ and whose Christian ministry is recounted in the New Testament. The connection between the emblem on the Confederate Battle flag and St. Andrew is, however, another matter. Material attached to Briggs's complaint states the following (none of which we dispute):

"The letter `X' when positioned on its side is commonly known as the Cross of St. Andrew and dates back to early Christian history.

As recorded in the Holy Scriptures, Andrew was born in the city of Bethsaida on the north shore of Galilee (John 1:44), but lived in nearby Capernaum (Mark 1:21, 29). He worked with his brother Simon Peter as a fisherman.... Later on, Jesus called both Andrew and his brother Simon Peter to leave their fishing business and become His disciples (Mark 1:16-18). Andrew became one of the twelve apostles of our Lord and was active in the establishment of the early Christian Church in Palestine (Acts 1:13).

Tradition says that Andrew was responsible for spreading the Christian Faith throughout Asia Minor and Greece. For his fervent preaching and testimony of Jesus Christ, he was put to death by the Romans when he was around 85 years old in AD 69 in the city of Patras, Greece by being pinned to a cross. At his own request, the cross was turned on its side because he felt he was not worthy to be crucified like his Lord.... Legend says that either a Greek monk or...