The Passion of the Kayak Guy

[XLFD]

Most  people resist unnecessary government interference with their lives.  In Ludington, dozens of otherwise mild-mannered landlords and tenants spoke out against a rental inspection ordinance that would exact a tax and subject people's residences to searches by government agents.  Few appreciate having their vehicle stopped by police at random checkpoints when there is no probable cause to do so. 

If you're out having fun or even running a business and not harming or interfering with others, and not breaking any other of the myriad laws modern-day society has saddled us with, you have an expectation not to be harassed by agents of the state.  Such agents may view their actions as being meant for your safety or security, but all too often, it leads to the taking of your liberty and/or your property. 

Such was what I presumed was the case with the kayak guy, Alan Ross.  The original story had Ross harassing fishermen along the pier, who complained to MI DNR Conservation Officers.  "(Ross) paddled close and gave the DNR officers the finger and started yelling obscenities," Cole said."  Ross' behavior was so egregious, that the officers called for help from the sheriff's office to apprehend him on the other side of the channel.  

The Mason County Sheriff's Office has been a bit tardy as per usual with their FOIA response about the incident, but the MI DNR did supply me with their officer's account of the day's event.  It varies quite a bit from Sheriff Cole's version and illustrates why I believe that Mr. Ross was a victim of overzealous officials looking for problems when none existed.  The narrative by DNR CO Kyle Publiski (pictured above) begins:

Let's discuss the first half of the narration before we get to the finale.  The sheriff's media release had at least two DNR COs being involved, but there was only one involved that day.   The first paragraph shows that Ross had been minding his own business.  The fisherman had noticed him and his kayak at the Loomis Street Boat Launch, when he was loading his boat.  Ross did not harass anybody at that point, the fisherman had a real concern for his safety, but did not try to prevent him going out to enjoy his ride. 

His concern for Ross' safety was related to CO Publiski, where the officer keyed on to the point that he didn't have a life jacket, and that the surf wasn't the safest.  In approaching Ross, the CO noted he had asked people walking on the breakwall (not fishing) for a cigarette, even the officer.  When the officer asked whether he had a life jacket, Ross told the officer:  "I don't need a life jacket."  To which Publiski stated that he did indeed. 

Now Ross was obviously an older adult paddling a kayak in the bounds of an inland lake, the Pere Marquette Lake, during this time.  While it may be good common sense to wear a life jacket, there is no Michigan law or even US Coast Guard rule that would force him to wear a life jacket in these circumstances.  Publiski should have advised him of what was prudent and left, however, he decided that Ross was guilty of an equipment violation that did not exist and pressed it.  Officer Publiski believes this rule exists, he has publicly stated the same.

If you watch the video in this "Ask the DNR" program on Marquette public television:  http://wnmuvideo.nmu.edu/video/2365258285/  you will notice that nobody other than DNR Officer Kyle Publiski is asked in 2014 whether those who use a canoe or kayak need to wear a life jacket, to which he replies (21:00 into the video)

  "Yup, you need to have a life jacket on.  If you're on the Great Lakes, you have to have a wearable, if you're in an inland lake you need to at least have a throwable, 1,2, 3, or 4, but you have to have a life jacket, one way or another."

He then elaborates that a stand-up paddleboard would require one just like a boat if used on the Great Lakes, but would otherwise be considered a 'recreational toy' in an inland lake.  Contrary to CO Publiski's notion, nowhere in the state laws does the law state this, the closest being MCL 324.80205 which refers to personal watercraft, of which kayaks are not. 

To me, this is a known fact, I have rented canoes/kayaks from Scottville and Ludington as an adult at different times and am always given the option to bring a PFD along, which I do because I'm not a great swimmer.  Ross was not violating any law, Publiski had no reason to detain him, because he never stated any lawful reason to do so.  Ross had good reason to tell the officer to effectively "Mind his own business.". 

But then the escalation occurred because Officer Kyle Publiski's feelings were hurt by the disrespect Ross shown him after telling him what the law actually is.  Without any concerns for Ross' safety he asked dispatch to put the Coast Guard in the water to further harass the kayaker who had done nobody else (other than Publiski's fragile ego) any harm.  The narrative continues:  

 

Most notable here is that Publiski was asking that the responding sheriff deputies arrest Publiski for disorderly conduct (being a disorderly person MCL 750.167) even though there is nothing in that statute that applied to Alan Ross' conduct up to that point, not even close.  Swearing at a dopy conservation officer because they don't know the rules is not against the law.  It's not advisable, because if they don't know some aspects of the law, they probably don't know the aspects which lead up to false arrests like this turned out to be. 

One may claim that Ross should have stopped at the command of the DNR officer, but there are a couple things at play here.  It would have been dangerous to pull alongside the breakwall in the conditions noted that day by the officer, and there would have been nothing gained by Ross' admitting he had no PFD in the kayak, other than to further instigate the officer's lust for issuing a ticket for a non-offense.  Secondly, there was no probable cause voiced by Publiski to make a demand not to paddle away a lawful command.  The law stated, MCL 324.80166, says clearly that:  "A peace officer shall not stop and inspect a vessel... unless that peace officer has a reasonable suspicion that the vessel or the vessel's operator is in violation of a marine law or is otherwise engaged in criminal activity." 

While Publiski's ignorance of the law may have made him believe he was acting in accordance with his duties, he was not.  He was starting a sequence of events that led to violence and the false imprisonment under bogus charges of a man who was minding his own business, and may yet lead to a redress of that man's civil rights if he takes a mind to do so in the future. 

We can argue whether Ross deserved his rough treatment by his reactions to the brusque 'peace' officers, but it should be indisputable that the Sheriff's version of events spread to the media was much different than the facts included in this officer's narrative, and the reputation of Alan Ross has suffered greatly because of it. 

[AQUAMAN]

Some of you guys are still missing the points of safety. Besides PFD's, (lifejackets), there is a whole list of other things you must have as a boater, not kayak necessarily. How about a floating throw item, like a life ring? If someone falls over, or if you see someone floating in distress. Also flares that aren't expired, which will work to signal your possible distress situation. What if they are expired and don't work? Then you become a casualty most of the time. A hand held whistle, horn, or other signalling device. If your battery dies and your boat horn doesn't work, then what? Same with a marine radio, have a spare hand held device for backup. Charters now require all PFD's with a blinking light on them too, so if not seen readily in seas or darkness, you are much easier to locate floating in the lake. Another is an anchor with 100'-200' of rope attached, so you don't wash up on the beach, but can weather out storms in deeper waters where a rescue boat can get to you. A first-aid kit is also another plus and requirement, tweezers and turnaquettes are also favored. Someone gets hurt aboard, you can do something about the injury before professional help is available. I know some are concerned about our rights, but I hope this info. helps show the possibilities of unanticipated issues for boaters. If not for so many careless and unthinking people over the decades, all this may have never come about to begin with. When you experience boating over a long period of years, you will finally come to the same conclusions about safety.

[Willy]

Aquaman I'm not missing your points. I understand your concerns. You"re for safety no matter what rights a boater must relinquish to be safe. While I'm for defending the 4th Amendment. If this were truly a safety concern then how about the millions of homeowners who have safety violations in there homes that do not meet code standards. Shall we let the USCG or any police agency enter those homes at a whim because they want to check to see if the occupants are safe? I bet an inspector could walk into your house right now and find any number of code violations. This boarding of vessels is an old tradition practiced during a time when sails dominated the seas and smugglers and criminals roamed the waters. Of course the newly created United States needed to control the criminal activity so the Tariff Cutters were created. Believe it or not one of the reasons the CG continually stops and boards vessals  on the Great Lakes, in these modern times, is to practice the boat search training they acquired.

[AQUAMAN]

Willy, boating on a lake or river is not the same as homeowner rights, it's a whole new ballgame. Boaters, by law, are strictly responsible to one another in terms of rescue, disaster, storms, sinking, overboard passengers, and the like if called upon, and even if you just witness the event. The USCG does NOT come out anymore unless it's a matter of life and death aboard the boat in distress. Even if they do, the closest boat to any in distress, by law, has to stop what they are doing and offer assistance. That could ruin your entire day for other plans of fun. Stopping and checking vessels in the harbor help prevent many lost lives, lost time, and jackasses from continuing in ignorance. I personally think it's a good idea, and even better if you get a safety sticker in advance, then you'll go a long way in their eyes. You should listen to the marine channel in the summer months to get an idea of what the CG has to deal with. I also believe they are honing their trained skills, and yes, at times, probably bored in our little harbor for action, lol. P.S. those marine channels are 16 and 22 mostly, and sometimes 9 in case you enjoy radio.

[John Doe Jr]

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