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. 

[Jasper]

Right on clad. The incompetent DNR officer expected mr Ross to pull his kayak in extreme weather conditions toward the break wall. How dangerous is that?? Further, and I am laughing at the use of the DNR Officer's binocular's witnessing the scene from such a long distance. This DNR dude can describe " in detail the happenings across the channel with the use of some binoculars?" Okay yeah!! What type of binocular's does the DNR use?? This DNR officer spent how much time observing via binocular's the subject after calling for back-up from the MCSO?

[Willy]

Shinblind. According to your post an  officer can pull you over anytime they feel like it. How do I show a PDF if I'm speeding along. How does the officer check to see if the PFD is an approved device, certainly not at 30 mph. Whenever I have been checked out, the officer has pulled me over then ordered proof of all the requirements of the Anti Constitutional laws governing boats. I don't want to relinquish my Constitutional rights just because I happen to be floating on water. If your boat was sitting in your backyard do the police have a right to board it and search it without a warrant. Something is not right in America when a policing agency is allowed to trample on the rights of the citizens. You should be upset as I am that police agencies have this power over us.

Which is applied first  sect. 801661 [1] or sec. 801661 [2] in other words does [2] supersede [1] 

[shinblind]

Well it is like this Willy, about  the same time your Bill of Rights was activated what evolved into the Coast Guard was allowed to suspend your  Fourth Amendment Rights.

The best thing I can tell you is if you want to protect your Constitutional Rights do not go on the water. Do not exercise your privilege to to hunt or fish nor buy a license to do so.

In answer to your other question it looks like sect. 801661(1) has preference over (2).

[AQUAMAN]

Someone earlier on page one stated that the CO was interfering with Ross when he was "in the pursuit of happiness and not bothering anyone". That is a false statement, verified by the fishermen on the pierhead, the CO, and the MCSO. Ross started the entire matter with his swearing and bothering the fishermen. None of this afterward would have probably happened if he was minding his own business. As for boat-boarding laws, the USCG has many rights that we all might disagree with, but it's the law, so either don't boat, or obey the law. The USCG has been pulling people over in the channel and in PM Lk. for years indiscriminately to do safety checks. If your boat has all the required safety equipment on the checklist of about 40 items, you're good to go. You'd be surprised how many boaters are deficient and get warnings or tickets. Most get warnings to go back to shore and buy the required equipment, that's it. You make a big fuss, get argumentative, are drunk, got illegal drugs aboard they find, yup, then you are in trouble. The USCG Auxiliary also provides "free inspections for safety" by appointment. Call them for assistance and inspections. Once you pass at shore/dockside with the officer, he gives you a sticker to apply to the window of the boat. When the USCG sees your inspection sticker on any given occasion, they usually won't stop you, unless they see something wrong with your navigation, lights burned out, or too many aboard as examples. PFD's are a required necessity, same as seat belts on land. That item may be all that is between you and death in an accident or capsizing. Why be intentionally unsafe and an ahole? Boating is fun, and everyone just needs to follow the rules, or follow in the steps of guys like Ross, and then get the consequences as a result.

[XLFD]

In Publiski's report, there was nothing mentioned about Ross bothering the fishermen, the closest being Ross asking those walking to/from the lighthouse for a smoke, and not otherwise harassing anybody.  Ross didn't bother Publiski after asking for a smoke and getting Publiski's official banter in return. 

The USCG has boarding powers, other agencies like the MI DNR do not.  Ross may have understood that CO Publiski had no lawful recourse to conduct an impromptu equipment inspection; Publiski should not have treated Ross' refusal to show a life jacket as an admission of guilt.  The report says conditions were rough, and Ross' may have been concerned for his safety to get out a life jacket from behind him, for no other reason than to appease an illegitimate equipment inspection from a DNR officer who completely went overboard when his authority was ignored.

But what you, shinblind and others are overlooking in your analysis, is that Publiski radioed over to the MCSO that he was "going to arrest Ross for disorderly (conduct)"  MCL 750.167.  Nothing in the report points to disorderly conduct, as defined by Michigan law.  If you chided a law officer for being ignorant of the laws he was supposed to follow would you feel they were justified to place a misdemeanor on your head for doing so? 

[shinblind]

Maybe part (e) although a competent attorney could have probably beaten the charge.

(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.

The disorderly charge could be offered as a macguffin  to be dismissed as part of a plea bargain. And an attorney could have beaten the PDF charge if one was filed.  But by his actions Ross is guilty of Failure to Immediately stop for a Peace Officer. 324.80166(1)

The big mistake Ross made was busting the lip of the Deputy. Definitely a no-no. Ross was lucky in one respect, that the Coast Guard didn't respond. If he struck an Coastie he would be up on Federal Charges. I don't believe a Federal Judge would find him amusing. 

Am waiting to see Sheriff Kim Coles Deputy's report on this event. I have the feeling that the Sheriff will again play the fool and claim an ongoing investigation. He will look even more foolish seeing as how the CO filed his report and in light of the extension the Sheriff requested. Cole lacks Professionalism. Swell guy but an incompetent administrator. 

[AQUAMAN]

A good friend of mine, and co-worker offered up information as to Ross's conduct on the date in question. None of the pier fishermen thought Ross acted in anything but a disorderly and rude conduct towards them. None thought he was innocent of acting improperly toward the CO. None thought he was an able swimmer and in any condition to swim if he capsized. None thought he was out there for the exercise nor of being with nature, to the contrary, he was offensive. Most observers said Ross was three sheets to the wind drunk, and disorderly. With all these witnesses seeing and hearing all this, isn't that enough to warrant that Ross be talked to? If he had no pfd, he would simply be asked to go buy one, then return to the water. However, if he is flipping people off, shouting obscenities, and being disorderly, his rights are going to be severely ignored. He LOST his rights to his own fault. I hope some members here don't ever go out on the water and act like Ross did. If any of you do, expect the consequences of your foul behavior to catch up with you, and don't expect me to feel sorry for you.

[Willy]

Aquaman, I am surprised that you don't find the indiscriminate stopping and searching of vessels as a huge infringement on our Constitutional rights. I had no idea the Constitution's protections stopped at the waters edge. 

Shinblind, according to you If people don't like the fact that the Constitution will be shredded while using their boat and if they don't like how the marine laws are applied then should stay ashore.  Doesn't it seem odd that in order to go boating we must give up our rights. As I said you can be pulled over and searched without probable cause anytime your boating and I find that to be a danger to the Constitution. This really has nothing to do with  boating but has everything to do with taking our rights away. 

[AQUAMAN]

Willy, it's all supposed to be in the name of safety when you get stopped indiscriminately, that's the ONLY reason. I didn't say I totally agree with it, but that's just the way of it, take it up with the USCG, not other boaters. When you are an avid boater/captain, you know and abide by all the rules. Then you see some of the jackasses out there that don't know or care about safety, so you appreciate the effort much more. People run out of gas, get too drunk, have badly maintained vessels, speed in no wake zones, put 20 people on a small skiff, do all kinds of crazy things, and the USCG are about the only ones to enforce safety, besides maybe the MCSO Marine Patrol. You can't get in your car, refuse to put the seat belt on, run red lights, go down Lud. Ave. at 100mph, run over pedestrians and leave the scene either. Those that do will also face consequences, that's the way of it, plain and simple.

[RK Hubbard]

As has been said, Ross is lucky the Coast Guard decided to let the CO and sheriff handle this case. Please refer to http://www.uscg.mil/d1/prevention/navinfo/navinfo/documents/enforce.... 

[XLFD]

Lest you forget, RK, US laws permit one person kayaks to navigate without PFDs inside a harbor, so what law would they be enforcing were they to board the one man kayak under rough sea conditions and look around?  As noted in your link, to pick him up on OWI they would need the 'reasonable suspicion' standard to do so.  

With some people, and Alan Ross may fit this example, they do and say stupid and rude things even when they're sober.  They are called stupid and rude people.  Stupidity and rudeness on their face, are not law violations.

[shinblind]

Michigan Rule which has the same effect as law and has been listed on here often says it is mandatory to have a readily available  PDF onboard.

It also states that a CO can stop you and it is again mandatory to pull over.

Ross violated both of these. He isn't allowed " to navigate without PFDs inside a harbor" unless he is hand paddling his vessel or drifting which he clearly wasn't.

Also the USCG can stop or board any vessel at any time in US waters or the high seas. They have extraordinary power that far exceeds that of any other policing agency.

As a related issue what powers are conferred to a  Marine Patrol from the Sheriff's Department? What rights do you have if they stop you? What rule of law gives them authority?