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. 

[Willy]

Nobody I know is defending Ross but just making sure that what took place was done within the law because if not then we have another continuation of out of control law enforcement. It's better to make sure that what is done by the police, no matter who it involves, is done according to the law. Question everything because there have been plenty of incidences, in Ludington alone, where police have abused their authority. 

[XLFD]

Willy's right, nobody here has been defending Ross or his actions, but there has been a couple on here defending his Constitutional rights.  My opinion of what happened to him is not otherwise tainted by his past criminal history or his probably-deserved bad reputation.  What matters to me is it happened to a fellow citizen otherwise pursuing happiness and not impinging on anybody else's rights; what matters to me is that it could easily happen to you or I, even if we were more civil to the 'peace' officers involved than Ross was.

Aquaman, statistics would have me believe that you have been stopped, boarded and searched by the USCG on numerous occasion through your lifetime when you take your boat out.  You and other seasoned seamen (*snicker*) are used to having your Fourth Amendment rights trampled on when they do their 'safety checks'.  Due to US maritime law, your rights against search and seizure are minimal, but here we have a few extra things in play.

Publiski was a MI DNR CO attempting to initially enforce what happened to be a MI DNR rule, no PFD on Ross' kayak.  He wanted to use his authority to detain the kayak and determine via a search of the kayak whether there was a violation.  Publiski was told (as noted by shinblind) and noted himself that Ross wasn't wearing a PFD, but it should be noted that Ross was not mandated to wear a life jacket-- he could have even been compliant if he had a 'throw ring' of proper buoyancy (or a stowed life jacket) and approved by the USCG in the fore or aft of his kayak, or even in the compartment they often have behind the kayaker.

Now, I recently found Michigan law, recently passed, which defends a vessel from being regularly stopped by 'peace officers' for no other reason than their PFD is not visibly displayed.  A prominent proponent in 2012 stated:  “Because of the multi-jurisdictions involved on many of Michigan’s waterways including Lake St. Clair, Lake Erie, the Detroit River and St. Clair River, it was not uncommon for the same boat to be stopped several times in one day.  This is not an efficient use of time and energy and is a huge inconvenience to boaters.”

The new law brings the procedures for stopping boats in-line with the reasonable cause procedures by which an automobile may be stopped.  Under the new law, a peace officer may only stop and inspect a vessel which bears a “Safety Decal” upon a reasonable suspicion that the vessel or its operator is in violation of a marine law or is otherwise engaged in criminal activity."

That law is MCL 324.80166(2).  Granted, the redacted fisherman witness didn't see a life jacket when Ross was going out, but that isn't any more reasonable suspicion to stop than Publiski not seeing a life jacket later from what may have been a better perspective.  Notably absent from the report is any mention of whether the kayak had a safety decal or not, which also may have not been visible to the officer.  If Publiski did not see a decal, he should have minimally asked whether the kayaker had one before ordering him to stop without his reasonable suspicion being voiced.

[Richard]

I dont see where Publiski had the opportunity to ask him to see the decal. The first thing ROSS was supposed to do was STOP.

(1) Upon the direction of a peace officer acting in the lawful performance of his or her duty, the operator of a vessel moving on the waters of this state shall immediately bring the vessel to a stop or maneuver it in a manner that permits the peace officer to come beside the vessel.

This would have given the PUB the opportunity to ask and then:

The operator of the vessel shall do the following upon the request of the peace officer:

(a) Provide his or her correct name and address.

(b) Exhibit the certificate of number awarded for the vessel.

If anywhere someone says someone comitted a crime and then points to the person and says "theyre right there" the cop has a reasonable cause to, at the very least, ask them about it. ROSS didnt comply with the very first part, which lead to the rest happening.

[XLFD]

Richard, thanks for helping to prove the point that CO Publiski acted inappropriately.

Here is how Publiski's statements and questions progressed and responses:

1)  "I'm DNR Conservation Officer Kyle Publiski, how are you doing?" (no answer)

2)  "I'm a conservation officer, can you hold up a life jacket, I can't see one in your kayak?  (Ross:  "I don't need a life jacket.")

3)  "Conservation Officer, yes sir you need a life jacket.  Paddle over here so I can see your life jacket."  ("I'm not paddling over there for you to arrest me.")

4)  "I not going to arrest you.  I just want to check your lifejacket to make sure you have one and are safe?"  (Ross paddles away, no response)

5)  "You are not free to go, paddle back over here!"  ("I'm not going to show you a life jacket, a$$hole.")

6)  "Get back here!"  (Ross goes away with various epithets)

You say the first thing that Ross was to do was to STOP, because of the directives of the peace officer, and few reasonable people would disagree with you because of Publiski's comments in 5 and 6 telling him he was not free to go, and to get back here asserted with the authority of his office.  But if this is what the reasonable person would think, then what Publiski had done is called in legal terms a "seizing".

"[A] seizure occurs if 'in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." This definition is a long standing one from US v. Mendenhall (1980).  You, I and most of our readers would agree that Ross should have complied with the authority of the officer.  But he didn't, even though the officer effectively engaged in a seizure by his words and actions.

It then turns to the point:  was it a lawful seizure?  The Fourth Amendment protects everyone from unlawful searches and seizures.  Admittedly in his reports, the only thing Publiski had suspected was that Ross had no life jacket, which isn't a crime, it's a violation of a MI DNR administrative rule.  Ross was under no compulsion to show the CO a life jacket in that situation or even to converse with the CO regarding that topic, as per the previous boating lawsuit I linked to, and numerous other cases involving cars. 

There was no legal authority to stop Ross' kayak.  Publiski believing that Ross may not have a life jacket, was not a reasonable suspicion that a crime had been committed.  This is a standard often used and often disputed because it is not always clear a 'seizure' has occurred.

[Willy]

That's a good point X. Just because no PFD was in site, the officer in my opinion, had no right to detain Ross. We get dangerously close to a police state when a citizen can be ordered around by the police when no evidence of a crime exists. The DNR officer should have called it a day when Ross left instead he continued in his pursuit of a an unseen and unverifiable violation. 

[shinblind]

Sec. 80166. 

(1) Upon the direction of a peace officer acting in the lawful performance of his or her duty, the operator of a vessel moving on the waters of this state shall immediately bring the vessel to a stop or maneuver it in a manner that permits the peace officer to come beside the vessel. The operator of the vessel shall do the following upon the request of the peace officer:

This gives the CO the authority 

The rest 

a) Provide his or her correct name and address.

(b) Exhibit the certificate of number awarded for the vessel.

(c) If the vessel does not bear a decal described in section 80166a or an equivalent decal issued by or on behalf of another state, submit to a reasonable inspection of the vessel and to a reasonable inspection and test of the equipment of the vessel.

(2) A peace officer shall not stop and inspect a vessel bearing the decal described in section 80166a or an equivalent decal issued by or on behalf of another state during the period the decal remains in effect 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.

(3) A person who is detained for a violation of this part or of a local ordinance substantially corresponding to a provision of this part and who furnishes a peace officer false, forged, fictitious, or misleading verbal or written information identifying the person as another person is guilty of a misdemeanor.

(4) A peace officer who observes a marine law violation or the commission of a crime may immediately arrest the person without a warrant or issue to the person a written or verbal warning.

 

[Richard]

NOWHERE does it state what the order of things is AFTER one DOESN'T comply with the first order. The "REST" didn't matter after he "paddled away", hes lucky he didn't get ticketed for fleeing and eluding or some other disobey-ance law. As far as, multiple places for a PFD to be placed, that's hogwash on a kayak, just about anywhere not visible makes it unavailable and not readily accessible. With no visible decal and no visible PFD he should have STOPPED or maneuvered it in a manner that permits the peace officer to come beside the vessel. It all changed when he FLED.

[Jasper]

More and moe laws these days. So many laws it becomes difficult for all citizens' of the USA to keep akeen with.

[Willy]

I understand they have been given the unconstitutional authority to deny boaters rights. Maybe in Russia this would be acceptable but not here. There are many boats that are considered temporary and even permanent homes. If a boat has a bathroom, kitchen and sleeping facilities many if not all lending institutions grant loans on these vessel similar to loans granted on cottages. You can post all the rules and laws you desire even tho those laws permit the States policing authority to deny our civil liberties.  As X stated the Constitution protects citizens  from  improper search and seizures and requires a search warrant if the police want to snoop around. This would not be permitted on land even in a motor vehicle or motor home so why should it be permitted in a canoe, kayak, motorized vessel or a boat used as a cabin. I'm surprised that this has not been challenged in court.

[shinblind]

What difference if a cop stops you for not wearing your seatbelt  as opposed to a CO stopping you for not showing a PDF?

[Willy]

As far as the seat belt is concerned the only time an officer can pull you over for that is if he sees that you are not wearing it. In the case of the PDF an officer must pull you over and physically check to see if you have one. When the officer  pulls over a large boat they can enter it without a warrant and search it. I see something very wrong with that.

[shinblind]

If you are wearing a PDF they don't pull you over. 

If you hold one up that is readily available they won't pull you over.

There isn't no "must pull you over". Discretionary.

Now if a CO has reason to suspect you are violating fish or game laws..."the officer has the power to search, without warrant, any boat, conveyance, vehicle, automobile, fish box, fish basket, game bag, game coat, or any other receptacle or place, except dwellings or dwelling houses, or within the curtilage of any dwelling house, in which nets, hunting or fishing apparatuses or appliances, wild birds, wild animals, or fish may be possessed, kept, or carried by the person, and an officer appointed by the department may enter into or upon any private or public property for that purpose or for the purpose of patrolling, investigating, or examining when he or she has probable cause for believing that any of the statutes or laws described in section 1601 have been or are being violated on that property."

Don't exercise your privilege to hunt or fish if you cannot abide by these rules because of Fourth Amendment rights. Or else get the law changed. Good luck with that.

Now regarding the Coast Guard there power extends beyond the Fourth Amendment;

Title 14 section 89 of the United States Code authorizes the U.S. Coast Guard to board vessels subject to the jurisdiction of the United States, anytime, any place upon the high seas and upon any waterway over which the United States has jurisdiction, to make inquires, examinations, inspections, searches, seizures, and arrests. The U.S. Coast Guard does not require a warrant to conduct search, seizures, arrests over any United States Waterway or high seas. The U.S. Coast Guard also have full legal law enforcement power on any land under the control of the United States, as needed to complete any mission."

If this bothers you best to keep your boat ashore. Or get a travel trailer.