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. 

[XLFD]

shinblind, federal officials like the US Coast Guard do not routinely enforce local laws unless they have federal law counterparts.  When is the last time you heard the FBI pull someone over in their car to enforce a moving violation?  Operating a one-man kayak without a lifejacket visible in Ludington harbor has not yet been found to be a federal offense.

I do not know the answer to your related issue, it may not have a simple answer.  If you give a federal agency a way to go around your rights, the states and locals will want to do the same. 

[shinblind]

Again it is a Federal requirement. To break up the monotony  of answering this, this time I will provide a link from a kayak orginization.

https://sweetwaterkayaks.wordpress.com/coast-guard-requirements/

Also if he cleared the pier heads he would need a sound producing device. 

Plus check out the requirements for operating between sunset and sunrise.

It is  a Federal rule that the USCG would be enforcing not a local requirement.

If the CG was patrolling that day I would hope at the least, that they would have sent the kayak guy back to shore.  If events played out with the USCG like they with the CO  and the MCSO, Ross would be looking at up to 10 years with a $10,000 fine.

[Willy]

We have definitely stretched this topic out. Four pages worth to be exact. As far as I'm concerned this all boils down to how the Constitution is being violated. The more we relinquish our rights for security and safety the weaker we get as a nation. This chipping away of freedoms has been an ongoing task of the establishment. Boarding water vessels today without a warrant will soon turn into building searches without a warrant and that now has partially come to fruition in many cases because of the Patriot Act which was enacted for our security and safety. How long are we going to let this happen. If we meekly allow the Coast Guard to violate the Constitution and use the excuse that it makes us safer then that same argument can and will be applied to all aspects of our lives. 

[shinblind]

Except that this power was conferred in 1790. Not exactly recent history.

And was conferred by the same people who gave you your Bill of Rights. Go figure.

So I guess this has been happening to us for the previous 225 years. Not something I would worry too much about.

[Willy]

Shinblind, your right but when the Revenue Cutter Service, later renamed the Coast Guard in 1915, was created by the Tariff Act, it's purpose was to enforce Federal tariff and trade laws and to prevent smuggling on the open seas. It's use today has expanded and now includes what's called suspicionless searches which is an excuse to randomly board any vessel of their choosing.  USCG has had a long history of guarding and patrolling U.S. waters  but it needs to come into the 21 century application of the 4th amendment's protection for U.S. citizens. Even though they have the legal authority to conduct these suspicionless searches it doesn't mean it's the right thing to do. 

[shinblind]

Be Careful what you wish for.

You really want to give Law Enforcement the right to obtain warrants electronically?  Because that is what you are talking about.

As someone said earlier you give it to one Law Enforcement Agency  you give it to them all.

If you are at sea you cannot realistically tell suspect wait here I have probable cause and need to head back to port to swear an affidavit before a judge, get a warrant, motor back here and search your vessel.  You could do it electronically in real time. No reason you cannot. Do you want let Law Enforcement have the same leeway over your house and vehicle? What better protects your Fourth Amendment rights?

I rather take my chances with the status quo  than giving Big Brother the right to look into every aspect of my life.

[Willy]

What does electronic warrants have to do with this? Warrants have been issued electronically for some time now. I understand the need for strict enforcement on Coastal Waters for smuggling or any number of other crimes but how many times has the Coast Guard or any law enforcement needed a search warrant in Ludington Harbor? Boats are regularly stopped in local waters all during the boating seasons for no reason at all. I doubt there is very little drug running or smuggling going on at the harbor entrance.

[shinblind]

Vessels are usually stopped by the Coast Guard for a Marine Safety Check not exactly "no reason at all."

How long are you willing to sit waiting for the CG to obtain an electronic warrant while out on the water?  An hour?  Four hours if the magistrate is busy?  Eight hours on a busy weekend?

What should be protocol if the weather starts to turn?  Ride it out?

What if while waiting  for the warrant you drift into a different jurisdiction and the process has to start again from the beginning?  Are you that patient?

Are you willing to pay more in taxes so the Coast Guard can have a larger presence? They will need more boats in order to police effectively if a certain percentage are tied up waiting for a warrant.  How much are you be willing to contribute?

Is this the road you want to go down to exercise a right that you never held on the water for reasons being that it is impractical. 

The founders had one attribute that we seem to have lost as a Nation that being common sense.

[Willy]

Many of these unnecessary stops and boarding's are done mainly for practice in order to keep them sharp and on their toes and to get them out of the station. If they didn't have these boat checks and boarding's the only other training they would be doing is escorting the Badger while it enters and leaves the Harbor.

[stump]

You could compare the coast guard to the City of Ludington. Coast  Guard pulls up to your boat to inspect for safety, City of ludington makes the Landlords have their apartments checked for safety. Both are a violation of our rights. Same shit different day.

[shinblind]

Bad Comparison stump.

The apartment can't sail very well down to say Oceana County or over the horizon and be out of your jurisdiction.

Also unlike the RIO which specifically targets apartments and not all domiciles . The CG has the right to inspect all vessels. They have to right to stop a canoe or order the carferry to heave to if they have a mind to, or the Presidential yacht with Obama on board if there is such a vessel.

The USCG has broad policing powers but only at sea.

[XLFD]

I think stump's comparison is pretty good actually.  Both the Coast Guard and the City of Ludington have been given the power, by federal and local officials respectively, to suspend some people's Fourth Amendment rights against unreasonable search and seizure in the name of safety and security.  If you have a boat in the water the USCG can search and if needed seize it or its contents, if you rent properties the COL can search and if needed seize it or its contents.  If your boat is out of the water or your property isn't a rental the official bogeymen can't invade yourself, your effects, or your house. 

Likewise, due to the RIO the COL has broad policing powers over what is found in your rental units and the common grounds.  There is nothing restricting them from informing other law and code enforcing agencies of any possible deficiencies, and have the tenants and/or landlords pay the costs, either to their freedom or their pocketbooks.  The analogy between the two isn't perfect, but both do affect the Fourth Amendment rights of people negatively who would otherwise have no reasonable suspicion for disobeying the law working against them.