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.

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If the PFD is a requirement of the Coast Guard and not the State, is the DNR allowed to enforce Federal law? If not then this is another case of a law enforcement officer over stepping their authority. If it's a Coast Guard regulation then they should have been involved and not the DNR officer.

This may have been why Publiski initially called for the Coast Guard to intercept the kayak, but I cannot find any legal authority that says within an inland lake or a harbor (which is defined as "a portion of a lake or other body of water either naturally or artificially protected in order to be a place of safety for watercraft.") that being over 50 years old in a kayak without a life jacket is a crime.  Or where trying to bum cigarettes is disorderly conduct. 

In fact, when reviewing Publiski's 'priors', I came across the following enforcement action: 

-- While on patrol in Mason County, CO Kyle Publiski had a four wheel ORV operator pull out in front of him onto the roadway. The operator was not wearing a helmet. CO Publiski followed the driver back to a residence, and while there, a second person pulled in the driveway on an ORV who also was not wearing a helmet. CO Publiski spoke to the two operators about the violations, but also noticed a dead American robin lying in the driveway. The CO discovered that he was at the scene of a large "bachelor party" where there was an apparent lack of good judgment. A third person confessed to shooting the bird the day prior. Enforcement action was taken.

http://www.mlive.com/news/grand-rapids/index.ssf/2015/05/dnr_report...

As reported, and with the presumption that the ORV operators were adults on private property driving with the consent of the property owner, the drivers should have not been given helmet violations.  MCR 324.81133(2)(a) allows adults to ride their ORV on private property without a crash helmet under most conditions.  The adult operator could also have crossed the street without being afoul of the law, if they had the permission of the private property owner across the street (see section 16) and otherwise crossed safely.  The record shows Officer Publiski does like writing tickets, whether they are warranted or not.

It is an offense under both federal and state law to be in a boat on the water without an approved life preserver. Period. It is also an offense to refuse the direct order of a public safety officer enforcing the law. Publinski asked Ross to show him a life preserver. Ross refused and left the scene. What if Publinski had NOT apprehended Ross and Ross had then capsized and drowned in the 40 degree water? You guys would be shocked, SHOCKED! that Publinski had NOT enforced the law. Ross is lucky he's in jail and not dead, thanks to Officer Publinski, whom you will find guilty no matter what he did. 

Is it too difficult for you to understand, Mr. Hubbard, that to be found in violation of a law, there has to be a law on the books in the first place for you to violate?  You offer blanket statements without declaring any legal basis behind them, just like Publiski did.  Offer a link or at least a law (state and/or federal) which says what you claim. 

You will notice in the other article that even though the life jacket offense was what compelled Publiski to seek totally unrelated and inappropriate actions and charges against Ross, that this offense and the statute/law corresponding to it is left off.  There is good reason for it, because there is no such law that applied in this case-- at least none that you or any other person wishes to share with the rest of the public.

If a police officer pulls up to me while I'm on a bicycle and tells me I'm in violation because I am not wearing a seat belt, and I tell him, with my vast knowledge of bicycle law, that none is required for riding a bicycle and he tries to press the issue and demands for me to stop, I might just ignore him as the crackpot he is, or I may stop out of the very real fear that he would cause harm to me for his perception of bicycle seat belt laws.  In the end, he would have no legal authority to make me stop by articulating such a pretense, even though he may have believed he did.

One of the reasons we get situations like what happened with Ross is that too many laws exist, some contradictory to others so that some law enforcers create their own laws and their own interpretations of laws.  Publiski did that with the life jacket laws and the 'disturbing the peace' law; it is not healthy for a republic to have our law enforcement doing this.

Here; Federal Law, Subpart B

https://www.gpo.gov/fdsys/pkg/CFR-2001-title33-vol2/xml/CFR-2001-ti...

Federal Law that covers navigable waters, which in this case would be the headwaters of the Pere Marquette River.

When you are canoeing down the river XLFD without a Personal Flotation Device onboard you are violating the law.

Which is why I believe CO Publiski initially  called Ross over to see if he had an approved device onboard.

 

Good find shinblind. I would also remind everyone that one of the precepts of being a Law Enforcement Officer, is to provide for the safety of the public. Whether it be the MCSO, USCG, or a CO, they all have that duty as one of their primary tasks. It is NOT considered safe to row around in a kayak in a water traffic channel without a PFD, when water temps. are near freezing, and being an ahole to others sharing that space fishing off the pier. Then go and battery an officer? How many times do we have to beat this tree of common sense to figure out what's truly wrong? It's not rocket science, nor a matter of American rights, nor of law anymore once all these variables are known and factored into the equation. Thanks to R.K.Hubbard for the insight. Lastly, the USCG doesn't even have a boat in the water this time of year, and the insults to them and their life saving responsibilities is unwarranted in this case.

@XFLD: If you need a citation for every single notation of law, I suggest you Google it. It isn't that hard. Some of us out here know the law pretty well already, and if you are on the water, just as on land, ignorance is no excuse. (I'm writing as a Coast Guard veteran with over 24 years in maritime affairs with the federal government.) Shinblind is correct. This case is entirely about Ross's being in a boat without an approved life preserver, and about his subsequent refusal to obey the lawful order of an officer of the law. Mr. Ross should wear that bright orange jump suit AND a life preserver next time he goes kayaking in 40 degree water. It will be easier to spot his body.  BTW, the Coast Guard is already doing boat patrols in this area, ensuring that boaters have required safety equipment and are obeying the law, just as Officer Publinski was. How about a little more respect for the guys who risk their lives for fools on the water? Yes, they will give you a citation for breaking the law. And they will also head out to save your butt when everyone else is heading in. 

Mr. Hubbard, I appreciate your experience, but such experience merits a close acquaintance with laws that you are supposed to enforce.  Granted, your forte may be more in line with dealing with bigger, recreational vessels and believe their law translates down to smaller vessels operating outside of the Great Lakes and nearby oceans. 

The size and utility of the watercraft is a big factor in determining whether certain laws apply to them.  I can yet find no place where this solid law you state for one kayak containing one adult needing one life jacket is codified.  Thanks in advance if you can find it.

Probable cause was not exercised by this CO. Just saying.

Shinblind,

Your link just goes to prove the point I was making with federal regulations, that there is no federal stipulation that a one-person kayak is not required to carry a pfd.  Look at the entirety of your link:  Sec. 175.15 Personal flotation devices required. "No person may use a recreational vessel unless at least one PFD of the following types is on board for each person", but a "recreational vessel" is defined as "any vessel being manufactured or operated primarily for pleasure... It does not include a vessel engaged in the carrying of six or fewer passengers."

Furthermore subsection 5:  "The States are exempted from preemption by Federal regulations when establishing, continuing in effect, or enforcing State laws and regulations on the wearing or the carriage of personal flotation devices directly related to the following subject areas within the jurisdictional boundaries of the State:...(b) Operating a canoe or kayak."

No state laws making that claim of necessity for one person kayaks has crossed my desk; Alan Ross was not in violation of any law when he was accosted, nor are all those people who float down the Sable River in the Ludington State Park to Lake Michigan violating any laws if they don't have a life jacket.  Look at all the fun-loving scofflaws:

You didn't try hard enough X, you gotta try harder.

https://www.gpo.gov/fdsys/pkg/CFR-2001-title33-vol2/xml/CFR-2001-ti...

Subpart B—Personal Flotation Devices§ 175.11

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

So yeah Ross was in violation.

According to Subpart B 175.11 floating down a river would be acceptable, so would paddling out on a surfboard. If you have an oar in the water you are guilty if not in compliance.

XFLD, A kayak is a "vessel" by definition. 

33CFR.175.15 contains the Federal statute. It is clear and unambiguous, and you can't re-define it to suit your version of events. 

Page 28, Handbook of Michigan Boating laws and Responsibilities: "The US Coast Guard requires that all vessels have at least one type I, II, or III personal flotation device for each person on board." If the vessel is less than 16 feet long, Michigan law permits use of a wearable or throwable (Type IV) for each person on board. 

Ross: Guilty on both Federal and state levels. 

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