This story comes from the circuitous route of Mississippi’s Sun Herald, to Agitator Balko, to TV Star Lammers, and finally reaches the bottom of the food chain.
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 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 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.
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.
Now here’s the rub (aside from the “inmate work crew,” who likely could have told them they had the wrong plant). Had it been marijuana, Payne would have been a hero and a genius, protecting all from demon reefer. Had Waltman been a “bad guy,” it would have been at the top of the story and sucked the wind out of the claim. But Waltman did nothing wrong. It wasn’t pot. And Waltman had no history worthy of overt smear. Waltman just got screwed.
This is all about tension. The tension between protecting law enforcement, when it does the job we ask of it, versus the right of innocent people to not suffer harm because the sheriff made a mistake. But this case is a good one to test the issue, since we have a nice, clear, bright line between the “good guy” plaintiff and the bone-head sheriff.
Why bonehead? Because the sheriff, having done the right thing at first by testing the plant before razing the entire crop, came up negative. This would lead a normal human being to question whether the knee-jerk assumption that the crop is marijuana.
The sheriff said that it could be a false negative. Yes it could. So what would a reasonably thoughtful person do? Test it again. Test it better. Test it. But not this sheriff. The test came back negative, and his solution was to destroy the entire crop. Logical disconnects are usually the sort of stuff that judges should be able to detect.
But the decision here was that the sheriff failed to show “deliberate indifference” when he decided the run down the bonehead path with his eyes wide shut. Boneheaded? Yup. Stupid. You betcha. But deliberate? Not according to the Circuit.
The sheriff did not cut it down callously, but with the best of intentions. He was just wrong. He just failed to employ any of a variety of intelligent options that would have avoided the damage and loss. He decided to take the route of “better safe than sorry,” and now the 5th Circuit says that he doesn’t have to be sorry.
When foolish damage befalls a person, the initial course of action for the police is to find whatever they can to smear the victim and thus deflect their stupidity and responsibility. And the courts, recognizing that we could face disaster should police be held accountable to harm to the public based upon stupidity, have enabled and encouraged police to do whatever they have to, with the Courts to do their part when needed.
Note that this is in federal court for violation of civil rights, rather than a state court action for damages to property. While some might find this an inconsequential distinction, it strikes me as making the rule particularly grievous. The big picture for society is not about one individuals loss of kenaf, but about law enforcement that is not accountable for its stupidity and the harm it does to the very people it exists to protect and serve.
Nothing will change until this idea is firmly planted in everybody’s head. The cops are not a separate species, unrelated to the rest of society. As tough a job as it is, it still requires some modest degree of thought.