Pubdate: Wed, 10 Aug 2005
Source: Sun Herald (MS)
Copyright: 2005, The Sun Herald
Contact:  http://www.sunherald.com
Details: http://www.mapinc.org/media/432
Author: Robin Fitzgerald
Bookmark: http://www.mapinc.org/raids.htm (Drug Raids)
Bookmark: http://www.mapinc.org/corrupt.htm (Corruption - United States)

JUDGE RULES: NO CASE

Deer Food Plant Fooled Sheriff Payne, Others, But Court Finds No
Liability For What It Considers A Reasonable, Prudent Decision

GULFPORT - Marion Waltman's 2003 kenaf crop flourished until it was
mistaken for marijuana.

But it was an honest mistake, according to a federal judge who
dismissed a civil lawsuit Waltman filed against Sheriff George H. Payne Jr.

U.S. District Judge Louis Guirola Jr. granted Payne immunity and
dismissed claims that the sheriff violated Waltman's rights by
destroying more than 500 kenaf plants grown as deer food.

Waltman sought a $255,000 settlement from the Sept. 8, 2003, raid on
land leased for the Boarhog Hunting Club. Waltman, who had planted the
kenaf off Herman Ladner Road, was watching a television news report
when he saw inmate workers chopping down plants and heard the sheriff
say the plants appeared to be marijuana.

Chet Nicholson, Waltman's attorney, this week said he has filed a
motion to appeal the May 26 ruling.

Waltman, 55, of Pass Christian, declined to comment Tuesday. So did
Payne.

The case raised questions about liability and whether the decision
would taint public perception of the sheriff's credibility.

Guirola, citing a variety of case law, determined that Payne was
acting within his official capacity and within the scope of
discretionary authority. Qualified immunity shields Payne from
liability because his conduct was "objectively reasonable."

"The sheriff was faced with facts and circumstances which would lead a
reasonable and prudent officer to conclude that the growing crop
probably was marijuana," wrote Guirola.

"Virtually all of the law enforcement officers at the scene...
mistakenly identified the kenaf crop as marijuana. Thus, it was not
objectively unreasonable for Sheriff Payne to reach the same
conclusions... "

Maintaining the public's trust should not be an issue, according to
Payne's attorney, Cy Faneca.

"Law enforcement that consistently acts in good faith for the benefit
of the public's safety and enforces the law with honesty, fairness and
integrity is going to have the respect of the public," said Faneca.

Court records show an informant reported the crop as marijuana to
state narcotics agents and DEA officers assigned to the High Intensity
Drug Trafficking Area. The plants were scattered among other plants, a
technique common among marijuana growers.

A field test on a sample plant did not identify it as marijuana. Payne
ordered the plants seized and sent samples to the state Crime Lab.
Nicholson said the Crime Lab's tests were inconclusive. A Mississippi
State University test that Nicholson commissioned showed the plant was
kenaf.

Guirola ruled that "an unconfirmed field test" does not indicate Payne
acted unreasonably.

A deposition from Steve Campbell, a member of the sheriff's
Professional Standards Unit, was introduced as evidence in court. The
deposition advises kenaf growers to inform their local law enforcement
agency of what they're growing because the plant's leaves resemble
those of marijuana.

The warning comes from the MSU Web site. The university has a federal
grant to study kenaf.
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MAP posted-by: Larry Seguin