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.

[Richard]

I would imagine its done this way so every time something minor is changed, there's no need for an ACT of congress to change it. One year you can bait deer and the next you cant, but then a year later you may be able to again. One year you can hunt or fish certain areas and the next it may change, all the DNR has to do is change it in the handbook and then enforce it.

[Richard]

I would suppose its the DEPARTMENTS(DNR) handbook on boaters safety - https://www.boat-ed.com/michigan/handbook/page/28/Chapter-5-Require...

    I also searched "splake" in the MCL search deal and came up with one thing on sizes. - http://www.legislature.mi.gov/%28S%28pgvkxzeml043bo0d4ck5iauo%29%29...        but when you go to the DNR's fishing handbook, there's a whole lot more in-depth rules and regulations than the MCL has. -  http://www.michigan.gov/dnr/0,4570,7-153-10364_63235-381191--,00.html

    Any hunter or fisherman knows not to violate these rules or regulations in these handbooks, so I would venture to say the DNR is the DEPARTMENT they speak of.

[XLFD]

Richard,

The DNR website states:  "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."  But the U.S. Guard, i.e. Coast Guard, has no such law.  It also misstates what other directives from the 'U.S. Guard' says.  Even though it's a government website it is thus unreliable.

MI DNR Officer Publiski is similarly a poor reservoir of legal knowledge because he has not made any case as to why Ross was being a disorderly person.  Calling a DNR Officer an a-hole for actually being an a-hole isn't advisable, but it isn't disorderly conduct and Publiski labelling it as such makes the state liable for a First Amendment violation in Federal Courts.   

But you bring up a good point.  If the MI DNR has made some special executive rule by their governing body that would cover Alan Ross' situation (not having a PFD while operating a one person kayak), then you're right in saying that there would be no federal or state law needed to enforce that rule. 

But doggone it, I looked up and down the codified rules of the MI DNR and the USCG and found nothing of the sort.  You think in a republic like ours that this would be in some sort of rulebook, but it isn't-- at least nowhere I can find it.  If there is no law you're breaking, then there is no law broken. 

[Richard]

Well, I kind of agree with you, while theyre not listed in the MCL's they ARE listed here - https://www.boat-ed.com/michigan/handbook/page/1/Introduction/ and I literally cant afford to test it.The Handbook of Michigan Boating Laws and Responsibilities

[RK Hubbard]

"As required by the Department" is the legal basis for enforcement. Ross is guilty of not carrying a PFD "as required by the Department." Regulations can have the force of law, and need not be included as part of the statute. The statute is clear, and the regulation is clear. 

[Richard]

I would agree with you, especially when I hunt or fish, I go through the regulations in the handbooks. I have yet had a DNR officer question me on something that wasn't in the handbooks. Which I always carry so I can check if I'm ever interfered with. They probably make BLANKET laws that cover rules and regulations that can change. IE: size, weights, they could change the personal flotation device requirements without having to change Michigan law. Thats why you need to keep up on the rules and regulations YEARLY.

[John Doe Jr]

So, when this Michigan water trail comes to town I bet LE will be in the bushes waiting....

[RK Hubbard]

I'll never understand why people who would not dare take off in an airplane without learning how to safely fly will take off in a boat without learning how to safely run a boat, especially when flight lessons cost thousands of dollars, while boating education is free. The lessons can be learned the easy way or the hard way. Ross chose the hard way. He would have learned the easy way in his first boating lesson.

[XLFD]

I will endeavor to ask the MI DNR for any rule governing the mandatory wearing of PFDs in canoes and kayaks in a FOIA request.  If they give me nothing more than what I have been given here by our well-informed and well-intentioned contributors, I will have to declare that such a rule is an urban myth.

Until that comes back, I encourage more research and discussion, since I am thinking that some of you, even without any legal authority saying so, will continue to believe that someone poling an inner tube down the Sable River needs a life jacket somewhere on them because of your interpretation of USCG rules. 

[RK Hubbard]

An inner tube is not a vessel and any such devices are specifically excluded from PFD regulations. We have already cited the relevant laws and regulations, so go ahead and test your interpretation. I'll loan you my kayak, so you can paddle up to the Coast Guard station and ask them. Let's see where this goes. 

[XLFD]

“Vessel” means every description of watercraft used or capable of being used as a means of transportation on water.  Same definition here.  Use a pole to propel it, your inner tube becomes in the same class as an oared vessel according to USCG regs.  This absurd result comes about when you try to make a one man kayak into a recreational vessel, which their law says it isn't.

Man, if I was a conservation officer I could wait for the hottest summer day and go down to the Ludington State Park and do up hundreds of citations, for the law that wasn't there.

Drop the kayak off at my address in a couple of months when the air and water is warmer, and I'll just do that.  Drop off a mostly drained vodka bottle too, so I can have the full Ross experience.  Better yet, drain it, so that I can wave the empty bottle at them when they ask to see a personal flotation device.  Empty bottles float, you know.

[Richard]

XLFD, I would wait until after you get your FOIA back, maybe they can unravel this. Also, if you tip over and the kayak floats away, if you still have the oar and are holding onto the empty floating bottle, Will they consider the bottle a vessel and ticket you?