The Kyles, the Kayos, the Chaos, and the Kayak Guy

[XLFD]

The long awaited response from the Mason County Sheriff's Office (MCSO) on the arrest of Alan Ross has finally materialized nearly four weeks after its request.  It's unknown why it took so long for the five page incident report and in-car videos to be released but they are, and they continue on the same pattern I have noticed before, when there was no official records released (as seen in this article Why Ludington's Kayak Guy's Arrest Affects You) and afterwards when the DNR officer's report was released (as we reviewed in The Passion of the Kayak Guy). 

From the original press release and the DNR Report, it seemed unclear as to why kayaker Alan Ross was harassed and pursued by the enforcement officials.  Conservation Officer Kyle Publiski suspected Ross had no personal flotation device (PFD) on his kayak, Ross may have made this suspicion more reasonable when he said he didn't need any, and failed to present one when the officer pressed him, and effectively paddled away from what Ross must have felt was an aggressive and obnoxious officer who hadn't the power to stop and search his kayak.

Legal Dictionaries cite:  "Police officers need no justification to stop someone on a public street and ask questions, and individuals are completely entitled to refuse to answer any such questions and go about their business... To possess either probable cause or reasonable suspicion, an officer must be able to cite specific articulable facts to warrant the intrusion."

As noted in the record by Publiski, Ross was told he was not going to be arrested, but then told Ross he was not free to go, which indicates detainment, a seizure, a prelude to arrest.  All over an unverified hunch that a DNR rule about PFDs was not being followed, and totally unverifiable without cooperation from Ross which he wasn't mandated to give without Publiski giving him specific articulable facts to warrant the intrusion. 

At this point, it could be an arguable point that Publiski had enough reasonable suspicion to check Ross' kayak for a PFD, and that his request to search the kayak was a lawful request, but in State v. McKeown, a very similar case, the Supreme Court (albeit of New Hampshire) found that the threshold of articulable suspicion for a kayak stop was not met when a state patrol boat asked a kayaker if he had PFD on board on a 'random' stop.

But let's look at the records of what happened as per the MCSO's involvement.  The responding MCSO Deputy Kyle Boyd prefaced his report with a brief narrative.

It shall be noted once again, that Publiski's 'investigation yielded zero probable cause to arrest Ross for Disorderly Conduct  (MCL 750.167 ).  While it could be argued Ross was intoxicated (his blood alcohol content (BAC) was never checked however), he was not "either endangering directly the safety of another person or of property or is acting in a manner that causes a public disturbance."  The creation of this misdemeanor by Pubiski to justify Ross' arrest is a crime in itself, committed by Publiski.  Boyd's report continues:

Boyd makes it clear in his report that he was going out to Crosswinds to effectuate an arrest based on what CO Publiski told him was disorderly conduct.  It is not clear why Boyd thought the narrative up to that point indicated disorderly conduct, but he does note it twice in this section.  Unfortunately, it is never noticed to Alan Ross, just that he was under arrest three times for an unspecified crime.  Ross demands to know why he is being arrested:

According to his own report, Boyd never tells what he is arresting Ross for even when Ross demands to know why.  Boyd's failure to articulate any reason for the arrest is a violation of Ross' Fourth Amendment rights.  Boyd set the table for a federal lawsuit by not telling Ross why he was arresting him, while subsequently aggressively attacking Ross.  If you do not know what a 'straight arm bar takedown is, here is a video explaining the mechanics of it. 

An altercation ensues after Boyd fails to grip Ross' wrist sufficiently.  Ross is standing in his beached kayak at the time according to the report, and delivers a 'left cross' to Boyd.  For those unfamiliar with boxing a 'cross' is a power punch, one that requires two foot shifts to effectuate and originates from shoulder level.  If one is drunk and standing in a kayak, an effective cross is very hard, nigh impossible, to do.  Yet Ross is said to have done a left cross that connected and then throws 'another right cross' that didn't.  Neither of the two crosses were noted specifically by Publiski watching the action with his binoculars, nor was any punch damage evident on Deputy Boyd after he went back to the MCSO.

Boyd evens the score with his own right hook, which then stuns Ross long enough for Boyd to utilize his taser, and shortly thereafter immobilize and handcuff a resistant Ross.   The rest of the written report is here:  MCSO Kayak Guy.pdf

As for the in-car recordings, there is little of importance in them.  The twenty minutes of recordings show Boyd taking off from the waterfront in Ludington going in full code around the PM Lake to Crosswinds and parking near their tennis courts before video cuts out.  The action took place a good walk away from where the car was parked.

Video then resumes a bit later, after dark, with Ross in the backseat of the deputy's car traveling back to the Mason County Jail.  There is never any audio, so even though you can occasionally see Ross moving his lips at the far extent of the camera (you can only see a small portion of Ross throughout the trip), you don't hear what anybody says. 

Boyd never activated his personal microphone, if he had one.  It would seem that would be the smart thing to do when you would be traveling so far from where you park the car, and later bringing in a suspect that may have further incriminated himself-- if indeed he had done anything criminal prior to an attempt to be unlawfully imprisoned and being physically assaulted by a less than articulate Deputy Boyd.  

[shinblind]

Regarding the PDF

When asked if he had a life jacket Ross replied,"I don't need a life jacket." you can bet that lead the CO to suspect that  Ross did not have a PFD  on board and that Ross was ignorant about the regulation on meeting that safety requirements. When the CO stated that, "yes sir you do need a life jacket, paddle over here and show me a life jacket." and Ross refused that cast further doubt that Ross knew that the regulation or had a PFD on board.

Regarding maneuvering close to the wall as a safety hazard.

Funny how Ross could get within a couple of feet of the pier to try and bum a smoke but it's a safety issue when asked by the CO to paddle close to the wall.

Regarding Intoxication  

The threshold for intoxication for disorderly conduct is very low. The law reads " A person who is intoxicated in a public place...or is acting in a manner that causes a public disturbance."

Regarding creating a public disturbance

Randomly shouting at people walking on the pier for a smoke does give rise to creating a public disturbance. If Ross saw someone smoking and asked for smoke or he knew someone and asked them even if he shouted, that is one thing. Shouting at everyone on the pier for a smoke is another thing, Public disturbance? neither you nor I was there to ascertain if it roses to that level.  But you cannot so readily dismiss the CO who was there and belived it rose to the level of public disturbance.

His own worst enemy.

if Ross would have heeded the words of the CO and maneuvered over especially after being told that he wasn't under arrest he might have been let off with a warning, or a citation for no PFD at worst.  Ross was given a chance to defuse the situation, things escalated when Ross paddled away.

[XLFD]

Good reply, Willy, I couldn't have put it better myself.  Shinblind, I like your chutzpah and appreciate your finding of the DNR rule that mandates PFDs on kayaks, but even that law shows that CO Publiski was wrong and that Ross was right. 

Publiski said Ross needed a life jacket, Ross said he doesn't.  A look at what the DNR rule requires a type I-IV PFD, a type IV device is, from that same rulebook:  "an approved device designed to be thrown to a person in the water and not worn. It is designed to have at least 16.5 pounds of buoyancy."  Repeat:  CO Publiski was wrong and Ross was right.  A life jacket, worn or not, is not required on a kayak, a stowed life ring will suffice.

In semi-rough seas, as what was alleged that day, it would have been a safety concern for Ross to get closer to the rocks and/or dock there (in his quest for cigarettes, I'm sure he would have had one thrown out to him).  It would have been a safety concern for Ross to reach behind himself and present a stowed life ring or jacket (had he been in possession of one.  Publiski writes in his reports he was concerned for Ross' safety, but his orders absent any witnessed violations of law says otherwise; what Publiski wanted was the opportunity to write a ticket.  His subsequent piling on with the disorderly conduct charge where no disorderly conduct happened illustrates that belief.

What you suggest was a lawful order made by Publiski, for Ross to come over and be checked for his equipment, I contend wasn't a lawful order because not only hadn't reasonable suspicion grounds been met, but that it endangered the safety of Ross.

Lastly, Ross did not escalate the situation by paddling off, Publiski did by creating the false charge to cover up his own failure to get a PDF violation ticket.  Boyd compounded the situation by not telling Ross what he was being arrested for, before attacking him unprovoked.  And unwarrantedly.  

[shinblind]

" A life jacket, worn or not, is not required on a kayak, a stowed life ring will suffice."

Ross was required to show a PDF to the officer. 

"I'm not paddling  over there so you can arrest me."  Ross's response when the CO asked him to paddle over there.  Important for 3 reasons; 

Ross made no mention that he had the required PFD on board.

Ross made no mention of unsafe conditions being a reason not to paddle over.

This is the first time that an arrest was mentioned. A very telling statement on the KG state of mind.

"In semi rough seas" ??? the wind was SSE that day 11mph and laying down. Hardly qualifies as semi rough in the harbor. The previous day the wind was ESE around 10. This might have caused mild rebound waves( can not  recall the technical term)  coming across the lake usually resulting in a 1-2 surf inshore. It is always a little bumpy clearing the pier heads. That is where the worst conditions would have been found.

https://www.wunderground.com/personal-weather-station/dashboard?ID=...

A CO has extended powers because of the nature of their job. A CO doesn't need reasonable grounds, a request to do a  safety check on the required equipment will suffice. 

Ross did indeed escalate the situation. When the CO said," You are not free to go paddle over here."  And Ross instead paddled away and  said,"I am not going to show you a life jacket asshole."

There was no false charge. There was no cover up. Leaving was a big mistake for Ross.

[XLFD]

I will dip into the state bar of Ohio (not New Hampshire) for information regarding 'stop's made by police officers, OSB Pamphlet.  It has a lot of information on stuff that we can concur with, but it also confirms: 

1. An officer who wants to ask you questions other than your name and address must advise you that you have a right not to answer the questions. 
2. You have the right to be told why you are being arrested and the nature of the charges against you (the crime for which you are being arrested).

3) You CANNOT be penalized for refusing to answer an officer’s questions.

 If you are not under arrest or if police do not have a search warrant (a court order allowing them to search), the police may ask you to let them search your car, your home and/or other possessions. You can refuse to consent to these searches. 
You have a right to be free from unreasonable searches and seizures. Most of the searches for which an officer might ask your consent would require the officer to first get a warrant from a judge, unless you consent and give up this right.

[shinblind]

Is that the best you got? Ohio???? LOL

[shinblind]

We discussed this before but lets go over this one more time shall we.

Michigan's Regulation

324.80166 Peace officers; stopping of vessels; duty of operator; reasonable suspicion; furnishing false information as misdemeanor; arrest without warrant.

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:

(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.

Ball is in your court X.

I apologise for anyone I offended with my comments.

If you were privy to what falls to the floor in my cutting room you would understand. 

  

[stump]

And all this left cross , right hook the old one two was made by a drunk guy standing in a kayak with the police officer holding the drunks hand so he wouldn't fall down . LOL

[XLFD]

There is the martial art of karate, but now we have Ross creating a new style of fighting while standing in a beached kayak, throwing power punches and dodging takedown attempts in kayake.  It took the second try of a taser to finally bring him down from his position.

[AQUAMAN]

I didn't see anything in that video that would lead me to believe that Ross was a casual guy out for a nice day of exercise, and minding his own business. Even after the arrest per the video, Ross is being rude, talking like a drunken kid, swearing, carrying on with a small-man type attitude. This all comes after his arrest and being subdued in handcuffs. He's not a 25 year old youngster now, wasn't he about 47 years old? He's obviously not good at being a polite and courteous gentleman, which he should have learned well before now. Disorderly person conduct is surely not arguable, even with this short after-the-fact video. Officer Boyd sounded polite and courteous during the video, even after he got punched in the mouth by this guy. I give him credit for that after what he endured from Ross, quite mature and professional from all I gather. Even called back to others for Ross to retrieve his wallet and phone, he didn't have to do that either, and did it promptly again.

[Jasper]

Alrighty Aquaman. It appears you are following your personal emotions instead of focusing on the laws.

[XLFD]

Interesting, when I loaded the videos onto Facebook, the audio was unlocked.  I couldn't get that from the original video.  I am uploading the rest of the videos with Ross in the backseat to the Ludi Leaks site. 

Ross up to this point has just been brutalized and arrested for a false charge.  I fault him not for being disgusted and rude.  There is no reason to charge him with disorderly person here or prior.  Now that I've heard the audio for all videos, I think better of Ross and his chance of counterattack against the uncalled for harassment he suffered that day. 

Another wrinkle opened up.  Why wasn't I given the photos from the MCSO file that Deputy Boyd said would be made to document both of their injuries?  They would be responsive to my request.  Some sheriff's departments can enforce the law, but not follow the law themselves.

[Jasper]

Not surprising the photo's were omitted from your FOIA request. Like I stated in one of my posts how do you know there was no body cam on Boyd? Sheriff Cole can send whatever the hell he wants or rather whatever the hell he does not want in a FOIA request.