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.

URL: http://www.mapinc.org/drugnews/v08/n670/a06.html
Newshawk: Herb
Votes: 0
Pubdate: Sat, 12 Jul 2008
Source: Sun Herald (MS)
Copyright: 2008, The Sun Herald
Contact: letters@sunherald.com
Website: http://www.sunherald.com
Details: http://www.mapinc.org/media/432
Author: Robin Fitzgerald