By Filings on
Society & Culture
Masterpiece Cakeshop v. Colorado
Religious Liberty

“Christian cake artist Jack Phillips can proceed with his latest lawsuit alleging Colorado harassed him based on his religious beliefs, but he may no longer seek damages from nine of the 10 defendants targeted.” - BPNews

Discussion

Wed, 01/09/19

The court may be right on the law, but something rankles when government can persecute a guy and pretty much drive him out of business and not pay a financial or other penalty. I can see some degree of sovereign immunity regarding the police (not as much as we have), but this? Seriously?

Aspiring to be a stick in the mud.

Thu, 01/10/19

There should be an open door to obtain damages if you take a local government’s actions all the way to SCOTUS and the local govt. is found to have acted inappropriately.

Views expressed are always my own and not my employer's, my church's, my family's, my neighbors', or my pets'. The house plants have authorized me to speak for them, however, and they always agree with me.

Thu, 01/10/19

….I’d argue that it shouldn’t need to go to SCOTUS, as that more or less says that only those with deep pockets to begin with get justice. In his book on the 14th Amendment, Yale law professor Akhil Reed Amar points out that in the founding era and for decades afterwards, citizens could indeed initiate civil action against governmental officials who had overstepped their bounds, specifically regarding the limits of the 4th Amendment and searches. There was a somewhat broader scope of search—it had merely to be “reasonable” and did not necessarily require a warrant—but if the search was found to be unreasonable, compensation could be had.

Aspiring to be a stick in the mud.

Thu, 01/10/19

What has happened over time is that search and seizure law has undergone quite a bit of complex nuancing, due mostly to appealed criminal cases. What happens over and over is that persons convicted of crimes appeal with a motion to suppress on the grounds that some evidence in their trial was obtained illegally. Then the court has to decide if the search was or wasn’t a violation of the 4th Amendment. Often, some of the evidence is judged to be admissible, and some isn’t.

There’s no going back. It was inevitable that over time, the Constitutional prohibition of unreasonable search & seizure would be used by defense attorneys to try to protect clients. Most of the legal experts view Terry v. Ohio as a major turning point.

As it now stands, the probable cause standard usually applies, but in some cases, some searching can be done on the grounds of reasonable suspicion… or for purposes of inventory when impounding a vehicle, etc.

It’s a very different area of law from what Masterpiece is going through. I don’t understand why he isn’t able to recover costs in his situation… other than from the state AG. Maybe it’s just a technicality.

I should point out though, that even when a defendant loses a criminal case, they can often seek damages in a civil case against the local government/state government. It happens all the time in police use of force cases and arrest (which also falls under search/seizure) cases.

Views expressed are always my own and not my employer's, my church's, my family's, my neighbors', or my pets'. The house plants have authorized me to speak for them, however, and they always agree with me.