Fifth Circuit: Police Not Liable for Plants Destroyed in Drug Raid

Saturday, July 12th, 2008

The Fifth Circuit Court of Appeals has upheld a federal judge’s dismissal of a lawsuit against a sheriff in Harrison County, Mississippi who destroyed $225,000 worth of kenaf plants during a drug raid.  The sheriff and his deputies mistook the plants for marijuana.  They seized the plants even after a sample tested negative for THC.

Marion Waltman, the owner of the plants, was asking to be compensated for the destruction of his property.  The appeals court upheld the circuit court judge’s ruling that the qualified immunity enjoyed by government employees requires Waltman to show "deliberate indifference" on the part of the sheriff, and that Waltman failed to meet that standard.

Waltman might still be able to sue in state court.  But for now, he’ll have to foot the bill for the sheriff’s $225,000 mistake.

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22 Responses to “Fifth Circuit: Police Not Liable for Plants Destroyed in Drug Raid”

  1. #1 |  Mikestermike | 

    WTF is “deliberate indifference”?

    These drugwar happy local authorities need to be run out of town on a rail. I wonder what color their sky is..?

  2. #2 |  Chris | 

    Disgraceful.

  3. #3 |  JeffT | 

    God almighty. What is gonna make this stuff just STOP?

  4. #4 |  Observant Bystander | 

    According to the court’s opinion, there was a sign on the gate to the property saying it was controlled by something called the Boar Hog Hunting Club.

    Not that I know anything about law enforcement (though I don’t get the impression that expertise is a requirement for being part of the justice system in Mississippi), but here’s a suggestion:

    Maybe before tearing up a piece of property, law enforcement could check with the owner or owners of the property and ask if they know anything about the plants in question, especially when there is some reason to doubt what they are. I would think the police would want to do this anyway. It could be a chance to arrest more people. (If the police consider an armed raid at 6:00 a.m. to be “checking” with the owners, however, then I withdraw my suggestion.)

    Also, did anyone check with Dr. Hayne to identify the plants?

  5. #5 |  Mike Gogulski | 

    Ah, the old clown suit defense truly is ingenious…

    http://www.nostate.com/37/the-clown-suit-defense-and-the-excuses-of-symbols/

  6. #6 |  Marty | 

    I like the link, Mike!

  7. #7 |  Aaron | 

    How is this compatible with the takings clause?

  8. #8 |  Mike Gogulski | 

    Marty: Thanks!
    Aaron: Intercourse the takings clause! No matter how many wizened judges pronounce this legal, it will still be wrong

  9. #9 |  Observant Bystander | 

    “How is this compatible with the takings clause?”

    It may not be, but the Fifth Circuit didn’t say one way or the other. It instead held Waltman’s claim wasn’t ripe because he had not yet gone through the established state process for seeking compensation.

  10. #10 |  supercat | 

    Aaron: Intercourse the takings clause! No matter how many wizened judges pronounce this legal, it will still be wrong

    The Constitution is the Supreme Law of the Land. No matter how many judges declare something to be legal, if the Constitution says otherwise, it isn’t.

  11. #11 |  supercat | 

    //WTF is “deliberate indifference”?//

    The level of lack-of-care usually associated with the term “reckless”.

    If the agents had seized a dozen plants after one test came back negative, such action might not be considered to be reckless indifference, but to seize the whole lot–just as though the test had come back positive–can hardly be anything but.

  12. #12 |  Matt Moore | 

    Isn’t “deliberate indifference” an oxymoron? Can one be both purposeful and uncaring at the same time?

  13. #13 |  The Brown Acid | 

    These idiots couldn’t tell the difference between hibiscus and mary jane without a lab test????

    Crack squad of fucking Barney Feifs we got here.

    I’m not so sure these folks have any business telling me that marijuana is a dangerous drug when they don’t even know what it looks like.

  14. #14 |  The Johnny Appleseed Of Crack | 

    “Qualified Immunity” and “Sovereign Immunity” seems to be at the root of the problem with police abuse of power. If law enforcement were held accountable for their actions, like everyone else is, then they would be a lot more careful about causing harm to other people or their property.

    Then we would have “SWAT Team Chasers” in the same way that there are currently “Ambulance Chasers”. For the most part, that would be a good thing.

  15. #15 |  primus | 

    Pre revolutionary war, the King’s men could pretty much take whatever they wanted from the citizenry, and the Crown made up arbitrary laws which were detrimental to the interests of the citizens in the colonies, such as taxing tea, but good for the King and England. This was intolerable to the people, thus the revolution. Would anyone care to explain how the present situation differs from that which existed prior to 1776?

  16. #16 |  the friendly grizzly | 

    I truly wonder when (not if) the day will arrive that this sort of thing will cause a posse to march into a police station to kick ass and take names.

  17. #17 |  TC | 

    “Would anyone care to explain how the present situation differs from that which existed prior to 1776?”

    We now have the “representation” we did not have back then?

    ***

    Just saw a program called Dallas SWAT, seems they have some cool toys they use all the time, APC’s. One tactic they also enjoy using is ripping your house apart to serve a warrant! Yep, and if you have the audacity to put up pars on your windows and doors, they just hook up and rip em off!

    They hooked two windows and the front door, ripped the entire front off the house! Head SWAT guy thinks they put up bars “ONLY” to keep them, “the cops” out!

  18. #18 |  Linda Morgan | 

    The Brown Acid: “These idiots couldn’t tell the difference between hibiscus and mary jane without a lab test????”

    That’s what I wanted to know.

    Here’s a picture of the most weed-like thing labeled “kenaf” I could find with a Google image search. If you click “Next image” under the photo you get a close-up of the leaf.

    Yeah, okay, the similarity there — well, minus the flowers — is pretty obvious. Of course, according to the article, Waltman’s offending kenaf variety was T-2, which, at least in this picture, has only 3 leaves.

    Whatever. It was plain preposterous to raze the whole field without being clear about what was being destroyed and it’s nuts to say they don’t owe the guy for his plants and all the trouble.

    And it’s too bad the taxpayers won’t get a refund for having foot the bill for all this nonsense.

  19. #19 |  The Brown Acid | 

    Sorry but, the margins and venation on the leaves just don’t look like pot. Someone who is supposed to be trained to identify the stuff ought to have a basic understanding of botanical anatomy.

    It looks *vaguely* like dope, at best.

    This little incident has me seriously reconsidering buying a japanese maple (Especially the new green variety!) since it has become apparent that there is no obligation for the pigs to even go through rudimentary identification procedures.

  20. #20 |  Zeb | 

    I would have to agree that “deliberate indifference” is an oxymoron and as such is something that cannot in any case be proven in court. That’s some kind of legal standard.

  21. #21 |  akromper | 

    Does anyone think we’ll eventually be quietly asked by a neighbor to join a local militia who’s only goal will be to protect the citizens from the police? (play vigilante reruns now) Better not display so much as a toothpick or you’ll be shot down (regardless) for posing a serious and imminent threat.
    I keep thinking about that “get up/sit down” bang bang instructions that killed that vet. Maybe those personality tests the FBI use aren’t such a bad thing if it kept the psycho trippers out of the “public protection” jobs.

  22. #22 |  supercat | 

    I would have to agree that “deliberate indifference” is an oxymoron and as such is something that cannot in any case be proven in court. That’s some kind of legal standard.

    While it’s generally impossible to prove that somebody does, in fact, act with deliberate indifference, it is often possible to prove that somebody acts with, at best, deliberate indifference. For example, suppose Joe and Bob heave a heavy sofa out the window of their upper-story apartment; it lands on someone and kills them.

    If Joe and Bob tried to hit the person below, their actions would clearly constitute murder. If they had made a clear effort to cordon off the drop zone, and had someone supervising it, but they failed to accurately judge how far the sofa would travel before hitting the ground, their actions would probably constitute negligent homicide. If it turned out that they just shoved the sofa out the window and hoped nobody would get hit, their actions would constitute reckless homicide, which is to say, death caused by actions which demonstrate deliberate indifference to others’ safety. While it would be hard to prove that Bob and Joe were in fact indifferent to the possibility of pedestrians below (i.e. that they weren’t trying to kill someone) it should be possible to convince a jury that they were at best deliberately indifferent to the possibility (the basic question for the jury would be whether the defendants could possibly have been ignorant of the danger a falling sofa might pose).

    Had the cop not had any of the plants tested, he could argue that he was just stupid–he hadn’t considered the possibility that some plants that look like pot, aren’t. Given that he did the test and it came back negative, that is no longer a plausible excuse. He must have been aware that there was at least a possibility the plants were something other than pot. At best, he just didn’t care.

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