Pubdate: Sat, 12 Jul 2008
Source: Sun Herald (MS)
Copyright: 2008, The Sun Herald
Contact:  http://www.sunherald.com
Details: http://www.mapinc.org/media/432
Author: Robin Fitzgerald

RULING UPHELD IN CASE OF POT-LIKE PLANT

GULFPORT --The seizure of 500 plants that looked like marijuana in 
Harrison County in 2003 did not violate the land-user's civil rights, 
the 5th Court of Appeals has ruled.

The decision upholds a federal judge's dismissal of Marion "Bucky" 
Waltman's civil lawsuit against former Sheriff George H. Payne Jr. 
The ruling was filed Thursday.

The crop was kenaf planted as deer food on land leased by the Boarhog 
Hunting Club. Waltman planted the crop based on research at 
Mississippi State University. The research concluded that kenaf, used 
to make paper, could also attract deer and provide larger hunting trophies.

Waltman sued for $225,000. He accused the sheriff and his agents of 
negligence, trespassing, invasion of privacy and defamation.

"We have believed that the District Court's decision was correct as a 
matter of law," said Cy Faneca, the attorney who represented Payne 
and now represents Sheriff Melvin Brisolara.

Waltman, 57, of Pass Christian, told the Sun Herald he is upset by the ruling.

"Who wouldn't be? I didn't do anything wrong," Waltman said.

Waltman was watching a TV news show Sept. 8, 2003, when he saw an 
inmate work crew chopping down plants as high as 15 feet. He heard 
Payne say they were suspected of being marijuana. Area narcotics 
officials later said it was the first time they had heard of kenaf.

Waltman paid $2,000 for a ton of seeds and planted two types of kenaf 
- - Everglade 41 and T-2. The T-2 variety more closely resembles marijuana.

The raid came after a narcotics agent received a tip that marijuana 
was growing off Herman Ladner Road in an open field between power lines.

Sheriff's officials circled the area by helicopter and a sample from 
one plant was tested. It tested negative for THC, the illegal 
compound in marijuana. Agents said a sample from a fresh-cut plant 
could show a false result, so Payne decided to seize the plants and 
allow samples to dry for more reliable tests.

Payne later said he had received reports children had been going into 
the field to pick the plants. Payne said he was concerned the 
helicopter's presence and media coverage could encourage them to 
return and help themselves.

Payne could not be reached for comment Friday.

U.S. District Judge Louis Guirola Jr. dismissed the lawsuit in 2005. 
His decision also squelched Waltman's request to seek compensation in 
state court, noting the proper procedures were not followed.

The 5th Circuit ruling agreed Payne had qualified immunity for a 
legal search in an open field and found he did not act with 
deliberate indifference. The ruling stated Waltman has the right to 
sue in state court.

Waltman's attorney, Chet Nicholson, said he will review the ruling 
and consider whether he will pursue a lawsuit at the state level.
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MAP posted-by: Keith Brilhart