Why Ludington's Kayak Guy's Arrest Affects You

[XLFD]

You may have caught the news of an arrest of a kayaker over the last weekend in one of the local media outlets, such as the MCP, and found it amusing before scrolling down to other things.  Or you could have been like me, and wanted to know more and wondered why the kayaker was pursued in the first place. 

Fortunately, our local media, who typically get the weekend press releases from the Mason County Sheriff's Office (MCSO) and run with it almost verbatim, were not the only ones that took an interest in the story.  Lynne Moore of Mlive delved a little deeper into the subject, perhaps lured by the fact that the MCSO report had two other instances of assaultive behavior on MCSO deputies over this last weekend.  Her report follows with the two other incidents edited out for focus and brevity:

LUDINGTON, MI – A sucker punch to a deputy's face allegedly by a drunken kayaker was among three assaultive incidents against Mason County Sheriff's deputies over the weekend, the others taking place at a hospital and a library of all places.

Alan Glenn Ross, 56, of Ludington was arraigned Monday for felonious assault on a sheriff's deputy, who ended up tasing the kayaker on Ludington's Crosswinds Beach. The deputy, who was called after the kayaker allegedly harrassed local fishermen, suffered cuts to his mouth, said Mason County Sheriff Kim C. Cole...

Ross allegedly had been harassing fishermen lined on the Ludington channel's north break wall, Cole said. The fishermen complained to Michigan Department of Natural Resources conservation officers who were checking for fishing licenses, Cole said.

"(Ross) paddled close and gave the DNR officers the finger and started yelling obscenities," Cole said.

He then paddled to the south side of the channel, so the conservation officers called for assistance apprehending him, and one of Cole's deputies responded, the sheriff said.

"When the deputy approached him, he started verbally battering the deputy, swearing at the deputy, refusing the deputy's commands," Cole said. "And when the deputy approached him, he punched him once."

The deputy suffered a split lip and cut on the inside of his mouth. He grabbed his taser and fired, but the cartridge misfired, Cole said.

"After the taser failed, the guy started closing in on the deputy," Cole said. "The deputy took some evasive steps and was ... effective with the second taser."

Ross was arraigned Monday for aggravated felonious assault on a police officer - strong arm and disorderly conduct, according to the sheriff's office. Bail was set at 10 percent of $7,500, and he remained lodged in the Mason County Jail Monday afternoon.

The account of this incident should make you uneasy, for even if you believe Ross was acting improperly, the facts presented indicate both the conservation officers and deputy also acted inappropriately.  Here's why.

The fisherman claim that Ross was harassing them, presumably verbally, since no encroachment or physical harassing behavior is inferred.  The DNR officers were there checking licenses and got upset themselves when Ross, still in his kayak, swore at them and gave them the 'finger'.  Ross' behavior is definitely antisocial and against normal public decorum, but he's well within his First Amendment rights to swear at a DNR officer and offer them up the finger.  Courts in Michigan and elsewhere recognize such speech as protected. 

The 'Disorderly Conduct' charge at this point is thus unfounded, as a look at that statute (MCL 750.167 ) has only one section that comes close to application, namely DC occurs when:  

"(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."   Here are what constitutes a legal description of public disturbances.

If the eventually arresting officers could maintain that Ross was intoxicated (not just ornery) and that he created a public disturbance (which was not the case with the data given), they had no reason to harass Ross any further after his breach of social etiquette.  Presuming they made their intent to detain Ross known to him, Ross did the sensible thing by retreating across the channel to de-escalate the situation.  But the call to the MCSO was made, along with what we have to assume is the DNR officers intention to arrest the man-- for engaging in legally protected free speech.

Once Ross gets to the other side and before any punches are thrown, there is a lot of gaps in what happened.  Sheriff Cole insists that Ross was verbally battering the deputy, which one must presume is what he was doing to the DNR officers.  Battery, in legal terms, cannot be done verbally.  Cole then claims he was not listening to the deputy's commands, but perhaps Ross knew that the deputies orders were not being done in accordance with the law and of the deputy's duty to uphold all laws.

Sheriff Cole then claims the deputy approached the kayaker, still without any given reason to do so other than to unnecessarily escalate the situation or to effectuate an unwarranted arrest.  Ross did not approach the officer, the alleged 'punch' could easily have been a defensive reflex against an unlawfully acting person threatening him and rushing him with a variety of weapons at their disposal. 

Ross was then targeted with a taser which misfired, and then Ross reportedly 'closed in' on the deputy, who then fired a second taser successfully. 

Ross does not look very drunk in his mugshot, he is old enough to understand that chasing a cop who has a gun at their disposal and who is not otherwise following lawful protocol is not a smart move.  So this vaguely described altercation seems to be a stretch of what actually happened.

So the reader of this piece should be troubled that even the 'official' version of events indicate that Ross did nothing legally wrong up until his space was encroached upon by the deputy, threatening Ross with arrest with unlawful and misguided authority.  It is a recurring theme with this sheriff's office:  see also Joseph McAdam, and Kimberly Septrion to name a couple.

[XLFD]

shinblind and rk,

Don't confuse the specific class of watercraft known as 'recreational vessel' with the broader term of 'vessel'.  When a subpart says 'recreational vessels' need a pfd for everyone aboard, it means everyone including those six or more passengers aboard need pdf's. 

The Handbook of Michigan Boating laws and Responsibilities misquotes the US Coast Guard rules that shinblind links to.  The USCG rules clearly say only recreational vessels have those pdf mandates.  If you believe what a handbook says and how some DNR folks enforce a non-existent rule over believing the clearly worded meaning of the written law, then you're either not reading the law properly yourself or just not showing much respect for the rule of law.

Ross: Not guilty on either level for the pdf offense.

[Willy]

Dealing with laws and regulations can be a tricky thing. It requires referencing more than one section in order to understand what another sections means. I may be wrong, but according to what I read, sec.175.11 refers to recreational vessels while sec. 175.3[4] explains what a recreational vessel is, so to interpret the code it is necessary to read these 2 sections as 1.

§ 175.11
Applicability. This subpart applies to all recreational vessels that are propelled or controlled by machinery, sails, oars, paddles, poles, or another vessel."

So it's necessary to seek out the definitions as to what  recreational vessels are. According to Sec 175.3[4] it exempts vessels carrying 6 or less passengers as being a recreational vessel.

§ 175.3[4] Definitions.Recreational vessel means any vessel being manufactured or operated primarily for pleasure; or leased, rented, or chartered to another for the latter's pleasure. It does not include a vessel engaged in the carrying of six or fewer passengers.

Like I said, I could be all "wet" in my interpretation.

[Willy]

P.S. in going back and rereading the posts in this topic I found that X had already explained what I stated in my post above. So I'm agreeing with X's assessment regarding the legal side of this situation.

[XLFD]

I always know I'm on the right track when Willy comes to the same conclusion independently of me.  Laws deserve to be strictly interpreted as written.

[shinblind]

You and Willy are both wrong.

Unless you can prove that Burnett's vodka was a paying passenger your defense holds no water so to speak. And who the hell drinks vodka in celebration of  Saint Patrick's day anyway? Although it wasn't the official day so I will give Ross a pass on that point.

Nonetheless unless you can prove he lost his oar and was drifting or propelling himself by hand your defense is up shit creek, with a paddle I might add, in this case.

Claiming he didn't have both oars in the water doesn't count either.

[MED]

Shinblind - I couldn't help it!

[Willy]

That's funny MED.

[shinblind]

Thanks for posting that Med. Appreciate your sense of humor.

That would also work if they ever wish to rename Creamery Corners Drain.

Be a good name for the locals to use in reference to the  'yak park. SCYP

[XLFD]

shinblind, the point both Willy and I were making is that there were no passengers on the kayak, and ergo the kayak could not be classified as a 'recreational vessel'.  If there are zero to six passengers in your vessel, it is not a 'recreational vessel' the definition of 'recreational vessel' states this plainly in saying what one isn't.  Only 'recreational vessels' are constrained by the federal regulations.  It's there in black and white; they even have a definition of 'passenger' in that section of law, however, we have no dispute in that there was no passengers.  A one person kayak is not a recreational vessel.  Undisputed.

Anybody or any entity (*cough* City of Ludington *cough*)  that celebrates St. Patrick's Day on any other day than March 17 deserves bad karma, and we're in total agreement that Ross should have had a mostly downed bottle of some brand of Irish whiskey, rather than vodka.  Label him as gauche or a social misfit, but do not label him a scofflaw for neglecting to have an optional safety device on his palindromic vessel. 

[shinblind]

How many passengers can a one man kayak carry?

Since boats are rated by how much weight they can carry a one man kayak has no provisions to carry anyone other than the owner or his representative. One person.

As far as I understand it, it is based on the displacement of the craft. Exceed the displacement enough and you no longer float. Therefore there can be no 0 rating for capacity or if you like, passengers.

Your position doesn't hold any water.

[Willy]

As X said the arguments all stem on the definition of what constitutes a "recreational vessel". Shinblind has a point about what a "passenger" means under the definition. I'm assuming he thinks since Ross was not a passenger then the kayak should be defined as a "recreational vessel". So if Ross is not a passenger then what is he. Unfortunately there is no definition that describes Ross. The code references many labels of persons who may be on a vessel but does not define them. One could say that by common sense Ross was an "operator". So what is an "operator"? It's not defined therefore the code is left open to interpretation and until the code is changed to define what an "operator" is then Ross remains a non entity when paddling around in his kayak which is defined only as a vessel and not a recreational vessel. If one wants to say that Ross was using the Kayak for business and not pleasure his kayak would also then be exempt from the "recreational vessel" definition. I think these codes need to be refined in order to make their intentions clear.

[shinblind]

"It depends on what the meaning of the word is is."

You and X  are sounding so Clintonesque in your defense with passenger or vessel.

Next you will be claiming I am a sex pervert ala Ken Starr.

Don't make it obtuse. 

Ross is the owner of the kayak.  

If the claim is he is using it for business, what business? Carrying passengers with no space or accommodations? Ferrying around empty vodka bottles?

I am certain there are all sorts of marine requirements that this kayak wouldn't meet in terms of equipment, insurance and the certification of the skipper in order for it to be considered for business use.

It is a recreational craft.

As soon as his kayak paddle touched the water Ross was...sunk.