The Kyles, the Kayos, the Chaos, and the Kayak Guy

[XLFD]

The long awaited response from the Mason County Sheriff's Office (MCSO) on the arrest of Alan Ross has finally materialized nearly four weeks after its request.  It's unknown why it took so long for the five page incident report and in-car videos to be released but they are, and they continue on the same pattern I have noticed before, when there was no official records released (as seen in this article Why Ludington's Kayak Guy's Arrest Affects You) and afterwards when the DNR officer's report was released (as we reviewed in The Passion of the Kayak Guy). 

From the original press release and the DNR Report, it seemed unclear as to why kayaker Alan Ross was harassed and pursued by the enforcement officials.  Conservation Officer Kyle Publiski suspected Ross had no personal flotation device (PFD) on his kayak, Ross may have made this suspicion more reasonable when he said he didn't need any, and failed to present one when the officer pressed him, and effectively paddled away from what Ross must have felt was an aggressive and obnoxious officer who hadn't the power to stop and search his kayak.

Legal Dictionaries cite:  "Police officers need no justification to stop someone on a public street and ask questions, and individuals are completely entitled to refuse to answer any such questions and go about their business... To possess either probable cause or reasonable suspicion, an officer must be able to cite specific articulable facts to warrant the intrusion."

As noted in the record by Publiski, Ross was told he was not going to be arrested, but then told Ross he was not free to go, which indicates detainment, a seizure, a prelude to arrest.  All over an unverified hunch that a DNR rule about PFDs was not being followed, and totally unverifiable without cooperation from Ross which he wasn't mandated to give without Publiski giving him specific articulable facts to warrant the intrusion. 

At this point, it could be an arguable point that Publiski had enough reasonable suspicion to check Ross' kayak for a PFD, and that his request to search the kayak was a lawful request, but in State v. McKeown, a very similar case, the Supreme Court (albeit of New Hampshire) found that the threshold of articulable suspicion for a kayak stop was not met when a state patrol boat asked a kayaker if he had PFD on board on a 'random' stop.

But let's look at the records of what happened as per the MCSO's involvement.  The responding MCSO Deputy Kyle Boyd prefaced his report with a brief narrative.

It shall be noted once again, that Publiski's 'investigation yielded zero probable cause to arrest Ross for Disorderly Conduct  (MCL 750.167 ).  While it could be argued Ross was intoxicated (his blood alcohol content (BAC) was never checked however), he was not "either endangering directly the safety of another person or of property or is acting in a manner that causes a public disturbance."  The creation of this misdemeanor by Pubiski to justify Ross' arrest is a crime in itself, committed by Publiski.  Boyd's report continues:

Boyd makes it clear in his report that he was going out to Crosswinds to effectuate an arrest based on what CO Publiski told him was disorderly conduct.  It is not clear why Boyd thought the narrative up to that point indicated disorderly conduct, but he does note it twice in this section.  Unfortunately, it is never noticed to Alan Ross, just that he was under arrest three times for an unspecified crime.  Ross demands to know why he is being arrested:

According to his own report, Boyd never tells what he is arresting Ross for even when Ross demands to know why.  Boyd's failure to articulate any reason for the arrest is a violation of Ross' Fourth Amendment rights.  Boyd set the table for a federal lawsuit by not telling Ross why he was arresting him, while subsequently aggressively attacking Ross.  If you do not know what a 'straight arm bar takedown is, here is a video explaining the mechanics of it. 

An altercation ensues after Boyd fails to grip Ross' wrist sufficiently.  Ross is standing in his beached kayak at the time according to the report, and delivers a 'left cross' to Boyd.  For those unfamiliar with boxing a 'cross' is a power punch, one that requires two foot shifts to effectuate and originates from shoulder level.  If one is drunk and standing in a kayak, an effective cross is very hard, nigh impossible, to do.  Yet Ross is said to have done a left cross that connected and then throws 'another right cross' that didn't.  Neither of the two crosses were noted specifically by Publiski watching the action with his binoculars, nor was any punch damage evident on Deputy Boyd after he went back to the MCSO.

Boyd evens the score with his own right hook, which then stuns Ross long enough for Boyd to utilize his taser, and shortly thereafter immobilize and handcuff a resistant Ross.   The rest of the written report is here:  MCSO Kayak Guy.pdf

As for the in-car recordings, there is little of importance in them.  The twenty minutes of recordings show Boyd taking off from the waterfront in Ludington going in full code around the PM Lake to Crosswinds and parking near their tennis courts before video cuts out.  The action took place a good walk away from where the car was parked.

Video then resumes a bit later, after dark, with Ross in the backseat of the deputy's car traveling back to the Mason County Jail.  There is never any audio, so even though you can occasionally see Ross moving his lips at the far extent of the camera (you can only see a small portion of Ross throughout the trip), you don't hear what anybody says. 

Boyd never activated his personal microphone, if he had one.  It would seem that would be the smart thing to do when you would be traveling so far from where you park the car, and later bringing in a suspect that may have further incriminated himself-- if indeed he had done anything criminal prior to an attempt to be unlawfully imprisoned and being physically assaulted by a less than articulate Deputy Boyd.  

[AQUAMAN]

Could you please post the video of this incident, even if there is no audio? Thanks.

[XLFD]

See if you can download what I have on Ludi Leaks:  https://www.facebook.com/groups/583404515006385/

There isn't a lot in the videos that were received. 

[Jasper]

WTH??? Where is the video of importance?? Nice view of a ride via the countryside. Was this a purposeful lack of providing the entirety of what actually occurred by the MCSO??

[XLFD]

The action took place well away from where an in-car camera would catch it, but the even better question is why didn't Deputy Boyd turn on his microphone so that he could at least catch the audio?  He knew he was about to effectuate an arrest by himself, the recording would be the ultimate defense to any charge made by Ross of being wrongfully arrested or suffering from police brutality. 

Sheriff protocols should have at least audio recordings taking place in such situations; their lack shows that Boyd's professionalism is even further in question beyond his inability to articulate the reason for the arrest in this case.

[Jasper]

Perhaps there is body cam footage, but it was not given to you in your FOIA request. And to appear you Cole released the dash cam video of the beautiful ride via the countryside. Correct me if I am wrong, but didn't the LDN or MCP report Deputy Lamb was involved in this?

[XLFD]

In CO Publiski's report, Lamb and Publiski retrieved the kayak after the others left; like Publiski he was a late arrival.  I would really like to see the MCSO protocols for using their recording equipment, but I can bet they won't let me see that by citing some FOIA exemption they believe applies. 

Apparently, there is no problem for the sheriff when deputies fail to use the in car camera audio feature when doing arrests.  No record means the jury/judge has to take the officer's word for it-- or believe a criminal over them-- which just doesn't happen without the unbiased eye and ear of a video. 

[shinblind]

I would luv to see a photo of kayak to know exactly what we are discussing and how the craft was configured.

"As noted in the record by Publiski, Ross was told he was not going to be arrested, but then  told Ross he was not free to go". No, not a seizure, nor a prelude to arrest. A CO has this authority.

You aren't arrested  for not having a PDF. Either they give you a warning and tell you to head in, or write  a citation for a violation. Much like being stopped for a seat belt violation, you can not claim there is no justification for being detained and drive away without consequences. 

MCL 750.167

"(e) A person who is intoxicated in a public place and who is either endangering directly the safety of another person or of property or is acting in a manner that causes a public disturbance."  Perhaps?  A catch-all phrase but should be adequate for probable cause for being disorderly. Screaming profanities in the harbor doesn't aid Ross's case. 

There is also a definition of disorderly conduct on the city books and their might be one for the County but I am uncertain if the CO has the authority to enforce these regulations so I won't go there.

New Hampshire State Law? Come on X everyone knows what happens in New Hampshire stays in New Hampshire.

So we arrive at the meat of the issue. Did Deputy Boyd ever teil Ross why he was under arrest?

"I was going to arrest for disorderly..." from CO Publiski transcript.

"Officer Publisk advised the individual had failed to comply with multiple commands and was under arrest for Disorderly Conduct."   And

"It should be noted that Officer Publisk advised the individual was under arrest for Disorderly Conduct."  from Deputy Boyd transcript.

I am really troubled of that last statement by Deputy Boyd. "It should be noted that Officer Publisk advised the individual was under arrest for Disorderly Conduct." This is a self serving statement. The CO never claimed he said that in his transcript. This looks and even sounds like it was added after the fact, like it was typed in later and that it seems it is nothing more than a bad attempt at ass covering by the MCSO.

So did Deputy Boyd ever inform Ross why he was under arrest?  No.

"I was going to arrest for disorderly and advised him the kayaker was being extremely disorderly." Sound like the CO wanted credit for the collar, nothing more.

Other minor points;

The CO never asked to search the kayak.

The Deputy's report is vague as to where Ross was actually standing when he tried to subdue him.  The CO never mentions Ross being in or around the kayak.

And you can throw a good right cross by pivoting on your feet, not taking 2 steps.

 

And one more the Deputy claims that Ross hit him with a left cross but it seems it would be more of a left hook at that range.  And the the Deputy states that Ross hit him with a left cross and then threw another right cross.  Either Ross threw the old one/two, left and right, or Ross' first punch was also a right which would than be difficult to strike the Deputy  on the right side of his face. 

But all in all good work X.  Would there be a transcript available of the conversation between the CO and the Deputy?

[Willy]

This goes beyond the kayak and the PFD requirment. This situation focuses a bright light on police procedure. The DNR officer should have left it alone once Ross had left and the deputy should have verified if there truly was a violation instead of jumping on Ross before he knew the extent of what had taken place. The two agencies did not communicate intelligently. Maybe these two officers should run for CIty Council. Their handling of this would be considered par for the course by Council standards.

[shinblind]

CO Publiski did exactly the right thing Willy.  When the CO told Ross to paddle over here, you are not free to go, Ross should have paddled over. Instead Ross replied, "I'm not going to show you a life jacket asshole." and continued to paddle to the middle of the harbor.

What  Deputy Boyd was arresting Ross for, was, probable cause Disorderly Person. When Ross moved back to his kayak he appeared to the Deputy to be fleeing. Things escalated from there.

Myself, I believe that the two officers would be an improvement on the City Council.  Then again replacing the Council with random picks from the voters list would be an improvement. A big improvement.

[XLFD]

I like your counterpoints, shinblind, but I disagree on some of them.  Michigan has a primary seat belt law, which means law enforcement can stop and ticket motorists solely for not being buckled up (and its a fleeing and eluding charge if you do so), unless I'm mistaken, the DNR even with their administrative rules cannot stop a kayak solely to check for PFDs on a hunch.  If Ross had an open canoe, where Publiski could have made a visual scan of the boat's equipment, then Ross should have stopped and took the ticket.  This is the subtle part of this where we choose to disagree.

There was no public disturbance noted in the record.  The only person other than Publiski affected by Ross was the fisherman who thought Ross was engaged in unsafe boating.  The anxiety of a fisherman and the butthurt of a conservation officer does not rise even close to a public disturbance.  Even the City's definition has nothing close to cover Ross' behavior as a p.d.

A NH supreme court would be compelling for a MI decision on the matter, because the legal questions involved were mostly detached from legal interpretations of NH statutes.  If you can find a MI case based on similar data, I welcome you to present it and see what applies to this case.

Another minor point you list is important.  Publiski never asked to inspect the kayak, and never advised Ross that he was going to arrest him in his report.  In fact he stressed he wasn't going to arrest Ross while he was in earshot, and never told Ross why he was not free to go or that he was under arrest at that point, according to Publiski's own report.   The major point you concede is that Deputy Boyd failed to articulate why the arrest was being performed.  That becomes a violation of Ross' Fourth Amendment rights against unreasonable seizure.

[shinblind]

Michigan has a regulation that you must have, available, a proper PFD onboard your vessel for each occupant, if your craft's primary means of propulsion is mechanical.

A regulation also states that  a Conservation Officer has authority to either stop your vessel on the water or have you maneuver so the officer can get close.

Did Ross have the required PFD?     Nope.

Did Ross maneuver next to the CO as ordered?   Nope. 

There are 3 requirements for disorderly conduct,  public disturbance being one of them.

The 3 factors are; Intoxication,located in a Public Place,  creating a Public Disturbance.

Was Ross intoxicated?   Yup.

Was Ross in a public place?    Yup

Was Ross creating a public disturbance?  According to the CO's report he was yelling at people walking along the pier asking to bum a cigarette.  Does this constitute  public disturbance ?    As it is written, Probably.

New Hampshire again. Sigh. Look X, if you can find  a MI case that was thrown out because of a NH ruling post it here and I will entertain looking at it. Otherwise give New Hampshire a rest. It is not a germane issue.

When the CO didn't see a PFD on the kayak and Ross answered when questioned, "I don't need a lifejacket."  there is a real good assumption that Ross couldn't produce one. The CO can not board your vessel, he cannot search it.  Publiski did neither. But a CO  has the authority to request that you show a PFD asked. Ross didn't. As I previously stated many times Not having a PFD on board was Ross's first mistake.

And also as previously stated, when CO Publiski told Ross to paddle over that he was not free to go, and again, a CO also has that authority, paddling away was not an option.  Paddling away was Ross's second mistake.

I never conceded any point about Deputy Boyd because I refrained making any judgement until his report was released.

As it is written in Boyd's report  when Ross asked, "What for?" relating to his arrest Boyd never answered. Boyd only repeated his earlier command that Ross was under arrest and get to his knees.

Is this proper protocol? A violation of the Fourth Amendment?

So, show me what evidence to refute my claims of Kayak Guy's mistakes. But for God sakes please don't mention New Hampshire. 

[Willy]

"Did Ross have the required PFD?  Nope" - The only person who knew the answer to that question at the time was Ross, unless of course the officer had x-ray vision.

"Did Ross maneuver next to the CO as ordered?" Anyone who has ever been on those rocks knows how dangerous it is to traverse them. That order by the CO was not in the best interest of safety. Paddling and landing on the rocks is the last thing anyone in a kayak should attempt even in good weather with no swells.

"Was Ross intoxicated?" I don't believe a remote alcohol test has yet been invented. So the officer was using his "I guess" training.

"Was Ross creating a public disturbance?" If someone is trying to bum a cigarette while out on the water, my guess is that a person would need to raise their voice in order to be heard. Talking softly while out in the harbor isn't going to get much attention. Asking for a cigarette does not qualify as a public disturbance no matter how loudly the request is made.

Just pretend the officer had told Ross to beach his kayak go home and there would be no consequences. I think that's what Ross would have done if given the chance. Instead both officer used the full weight of their authority to bring this "dangerous, public disturbance" to a forceful halt.