marijuana leaf

The case of R.M.B, the Bedford County sixth-grader who was suspended from school for a year after an administrator caught him with a leaf that was not pot, appears one step closer to a trial in U.S. District Court.

On Tuesday, a federal judge in Lynchburg rejected attempts by two Bedford County school administrators and a Bedford County sheriff’s deputy to dismiss a lawsuit filed by the boy and his schoolteacher parents.

The suit alleges the boy’s constitutional rights to due process were violated when he was suspended from school, and that R.M.B was maliciously prosecuted for marijuana possession despite three negative field tests on the leaf seized from his knapsack.

The suspension and subsequent criminal case, which Bedford County prosecutors later dropped for lack of evidence, wreaked havoc on the formerly happy-go-lucky boy’s psyche, according to his parents, Bruce and Linda Bays. He withdrew socially and sought treatment from a pediatric psychiatrist for panic attacks and depression.

The judge also ruled that compensation claims by the Bays – for money they’ve paid out in legal and medical fees and home-schooling expenses – can move forward.

The ruling from U.S. District Judge Norman K. Moon means that discovery and likely depositions will proceed in the case, said Roanoke attorney Melvin Williams, who’s representing R.M.B and his parents.

Bruce Bays called the judge’s ruling a “victory for truth and justice and plain old common sense.” Salem attorney Jim Guynn, who’s representing the school system and the sheriff’s office, did not return a phone call for comment.

The case dates to Sept. 22 when, according to the lawsuit, Bedford Middle School Assistant Principal Brian Wilson hauled the gifted-and-talented student out of gym class. That happened after rumors circulated in the school that the boy had bragged about possessing marijuana.

In his office, Wilson asked the boy if he had anything he wasn’t supposed to. When the boy replied “no,” Wilson ordered him to empty his knapsack, which had been in an unsecured gym locker.

Wilson personally unzipped an outside pouch on the pack, where he found a dried leaf and a lighter, the lawsuit claims. At that point Wilson called the boy’s parents and summoned a school resource officer, Bedford County Sheriff’s Deputy M.M. Calohan.

Twice, Calohan field tested the leaf and the results were negative for marijuana. A third test later gave the same result.

R.M.B. was suspended for possession of marijuana and Wilson recommended he be expelled. At a Sept. 29 suspension hearing, Bruce Bays repeatedly asked about the results of the tests, but Wilson hemmed and hawed and avoided those questions, the Bays said. School operations chief Frederick “Mac” Duis ultimately suspended the boy for 364 days rather than expelling him. The Bays ended up homeschooling R.M.B through this past March, when Bedford County Schools readmitted him to a different middle school on a provisional basis.

When the criminal case went to Bedford County Juvenile and Domestic Relations court in November, the commonwealth’s attorney dropped the charges because of the negative field tests. That’s the first time the Bays learned the results had been negative.

When the Bays sought to appeal the suspension, school officials told them it was too late, and Duis informed Linda Bays that “the court system and the school system were two different entities.”

In moving to dismiss the case, the defendants argued that the fact R.M.B was afforded the Sept. 29 hearing rebutted his contention that his due-process rights had been violated.

But quoting from two previous U.S. Supreme Court cases, Moon’s decision mocked that reasoning, as the judge did orally during an April 21 motions hearing in U.S. District Court in Lynchburg.

The judge’s written opinion noted: “The formality of providing a hearing, in and of itself, does not satisfy the requirements of due process. The hearing . . . must be a real one, not a sham or a pretense. . . . Indeed, due process is a requirement that cannot be deemed to be satisfied by mere notice and a hearing if a state has contrived a conviction through the pretense of a trial which in truth is but used as a means of depriving a defendant of liberty through a deliberate deception of court.”

The original lawsuit also listed the Bedford County School Board and Bedford County Public Schools as defendants. But they’ve been dropped since R.M.B was readmitted to school.

Earlier in court, Deputy Calohan successfully argued that previous rulings barred R.M.B from suing for malicious prosecution in federal court. However, Judge Moon has agreed to hear those arguments about malice as state-court claims as part of the lawsuit.

“At the time Calohan petitioned for criminal charges,” Moon wrote, “she had tested the substance found in R.M.B.’s possession three times and knew that it tested negatively for marijuana.

“Because she administered these tests, a finder of fact could infer that Calohan did not reasonably believe R.M.B. was guilty of marijuana possession. Accordingly, because malice may be inferred from a lack of probable cause, Plaintiff’s complaint is sufficient to allege malice.”

Still unclear is the role, if any, Bedford County Public Schools’ zero-tolerance policy on drugs may play in subsequent proceedings. It treats “lookalike” and “imitation” drugs the same as the real thing.

Here’s what that policy says: “The unlawful manufacture, distribution, dispensation, possession, use or being under the influence of alcohol, anabolic steroids, or any narcotic drug, hallucinogenic drug, amphetamine, barbiturate, marijuana or other controlled substance … [or] imitation controlled substances or drug paraphernalia while on school property, while going to and from school, or while engaged in or attending any school-sponsored or school approved activity or event, is prohibited, and will result in an automatic recommendation of expulsion.”

Williams told me Wednesday that he expected the discovery process in the case to take four to six months.

“The important part,” he said, “is that the judge has affirmed that all of the things we’ve alleged get to go forward at this point.”

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Dan Casey knows a little bit about a lot of things but not a heck of a lot about most things. That doesn't keep him from writing about them, however. So keep him honest!

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