A Harrison County property owner has appealed a ruling that Sheriff George H. Payne Jr. made an honest mistake when the sheriff destroyed what he and other law officers thought were marijuana plants, and the plants turned out to be deer food.

U.S. District Judge Louis Guirola Jr. in May 2005 dismissed Marion Waltman’s civil lawsuit against Payne. Waltman had claimed the sheriff violated his rights by destroying more than 500 kenaf plants grown as deer food.

Waltman sought $225,000 in damages from the Sept. 8, 2003, raid on land leased for the Boarhog Hunting Club. Waltman, who had planted the kenaf, claimed he 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.

Guirola 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 judge said.

The U.S. 5th Circuit Court of Appeals has granted a request for oral arguments, set for the week of Nov. 6 in New Orleans.

Court records show an informant reported the crop as marijuana to state narcotics agents and U.S. Drug Enforcement Administration officers. The plants were scattered among other plants, a technique common among marijuana growers, authorities said.

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.