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.

[Willy]

The definitions are what define a code. If Ross's kayak does not require a PFD by definition then the CO had no cause to stop him. Let's say Ross is a photographer and he was kayaking around the breakwater taking photos for his business, then, according to the definition it no longer is a recreational vessel. It's necessary for this argument to determine if Ross was legally detained.

[shinblind]

The confusion seems to lie with the word passenger.

passenger

n. a rider on a train, bus, airline, taxi, ship, ferry, automobile, or other carrier in the business of transporting people for a fee(a common carrier)

in terms of the merchant shipping legislation, any person carried on a ship except:

1. (1) persons employed on the ship;
2. (2) persons on board in pursuance of the obligation laid upon the master to carry shipwrecked, distressed or otherpersons; and
3. (3) children under the age of one year.

Since A G Ross was the only occupant of the kayak, it fails the passenger requirement.

[Willy]

Good point shinblind but I don't think that that definition applies since it deals with commercial transportation, however the definitions under sec. 175.3 may be applicable

Passenger means every person carried on board a vessel other than:
        (1) The owner or his representative;

        (2) The operator;

        (3) Bona fide members of the crew engaged in the business of the vessel who have
              contributed no consideation for their carriage and who are paid for their
              services; or

         (4) Any guest on board a vessel which is being used exclusively for pleasure
               purposes who has not contributed any consideration, directly or indirectly
               for his carriage.

I've got to do some reading on this.

[RK Hubbard]

A kayak is a vessel by definition. ALL vessels, recreational or commercial, when underweigh must have on board a PFD for each person. Period. There is no nuance in either the federal or state law on this point. And if you interpret the law as excluding Mr. Ross on the interpretation of some technical point of law, the government will argue that the clear intent of the Michigan state legislation was to prevent or punish the action that Mr. Ross took, that is, being in a boat underweigh without an approved life jacket. Federal law is unambiguous. If Mr Ross have been stopped while underweigh by either the sheriff, a Conservation Officer, or the Coast Guard he would have been given and ticket and we would not be having this ridiculous conversation. 

[XLFD]

If the law is clear, then provide a clear exhibit of the law that applies to making one person in a one man kayak forced to wear a life jacket or carry some other PFD in an inland lake area or harbor.  That's all I ask.  Failing that, federal law unambiguously says that "recreational vessels" have this restriction, this precludes any sort of pretense as referring to all vessels, just recreational vessels.  With all due respect to you, shinblind, and anyone else who wishes to have life jackets on blood vessels as well:  "READ THE LAW"

If Alan Ross had a longer kayak and six other people on board, I totally agree he would need PFD according to the federal rules.  He didn't, there are no state laws specifically saying he must wear one for his particular watercraft, and so he does not have to show one to a conservation officer intent on enforcing a law that doesn't exist.

[shinblind]

The law doesn't say he has to wear one, it say he has to have one onboard. It also has to be readily available.

If he won't produce evidence he has one he will be ticketed.

The law states specifically for recreational vessels as to distinguish them from commercial vessels which have their own set of rules. That's why the carferry has to carry lifeboats etc. 

The means of propulsion in this law it to distinguish them from river tubers and surfers. If Ross was drifting or hand paddled about he would have a cause for dismissal but when his oar contacted the water and he didn't have a PDF onboard he was guilty.

[Richard]

This help?
324.80143a Carrying, storing, maintaining, and using marine safety equipment onboard vessel; violation as civil infraction; fine.

Sec. 80143a.

A person who operates a vessel, or the owner of a vessel who operates or causes or permits the vessel to be operated, on the waters of this state shall carry, store, maintain, and use marine safety equipment onboard the vessel as required by the department. A person who violates this section is responsible for a state civil infraction and may be ordered to pay a civil fine of not more than $100.00.

https://www.michigan.gov/dnr/0,1607,7-153-10365_10884-37313--,00.html      

Life Jacket Rules

Life Jackets Float. You Don't! Wear It!

Boating accident statistics compiled by the U.S. Coast Guard indicate that 90 percent of the people who drown in a boating or water accident would be alive today if they had been wearing a life jacket at the time of the accident.

Who must wear a PFD (life jacket)?

• Children less than 6 years of age must wear a Type I or Type II PFD when riding in the open deck area of a boat.
• Each person operating, riding on or being towed behind a personal watercraft (jet ski) must wear a Type I, Type II or Type III PFD (that is not an inflatable device).
• Each person less than 12 years of age riding or being towed, behind a personal watercraft (jet ski) must wear a Type I or Type II PFD.

What type of PFD do I need to carry on my boat in Michigan?

• Vessels less than 16 feet (including canoes and kayaks) must be equipped with one Type I, II, III or IV PFD for each person on board.
• The U.S. Guard requires all vessels less than 16 feet, used on the Great Lakes or connecting waterways, to carry one approved Type I, II, or III device for each person on board.
• Vessels 16 feet and longer, in addition to the Type I, II, or III for each person on board must carry one type IV. (Canoes and kayaks over 16 feet are exempt from the Type IV requirement.)

[XLFD]

Richard, thanks for joining and offering your input.  I disagree.

The first part is Michigan law, that is irrefutable.

The second part of which you supply a link to is from the Michigan DNR website.  It is not law, it has no law in its reference.  If you can find the Michigan law or Federal law that backs what's on the website, you win the prize.  If you can't, the second part of your presentation is a flawed MI DNR interpretation of the law.  We all make mistakes at times, even the DNR.

[Richard]

Just seeing if it helped, I see in the LAW it says - as required by the department. - and figured the department was the Department of Natural Resources. not sure, its pretty confusing. Its listed under

NATURAL RESOURCES AND ENVIRONMENTAL PROTECTION ACT (EXCERPT)
Act 451 of 1994

324.80143a Carrying, storing, maintaining, and using marine safety equipment onboard vessel; violation as civil infraction; fine

[Willy]

Richard, could you provide a link to the code section 324.80143a. Trying to find a specific code section on the DNR site is like wandering thru a maze.

[Richard]

Willy, sorry,my mistake that's not from the DNR its part of Michigan compiled laws.

http://www.legislature.mi.gov/%28S%28f5dppg0x2fnvbhwe4x52ehcu%29%29...

DNR does more like handbooks, just like with hunting/fishing. Their handbooks say rules and regulations which to me seems to be THEIR laws and they're all enforceable. Like fish lengths, weights and stuff, couldn't find things like that in the Michigan compiled laws either. I think the DEPARTMENT they speak of is the DEPARTMENT of Natural Resources.

[Willy]

Thanks for posting that link Richard. My next question is, where does it explain what safety equipment that section of the code addresses?