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]

I'm changing sides on this issue. By the DNR officers own statement it appears that Ross did nothing illegal and the officer was over reacting. The fact that the Sheriff deputy grabbed Ross shows that Ross was in fact trying to avoid a confrontation. The only redeeming issue for the officers was that Ross appeared to be intoxicated and therefore was opening himself to police scrutiny. Unless there is something more substantial that points to the fact that Ross was disorderly I would think that this was an over reaction by the police. The problem, however, is his alleged assault on the deputy. The deputy was acting on information given to him by the DNR officer and he blindly assumed that what he was told was correct. The deputy should have took the time to determine if there truly was a problem. All of this could have been avoided with just some common sense PR and some investigating.  Were there any reports as to Ross's blood alcohol levels?

Where are those body cameras the police should be wearing. This issue could have been put to rest one way or another if both officers had been properly equipped with those cameras. Good job X.

[stump]

No matter what the facts are judge Waddel will send this guy to spend some more time in jail, alcohol abuse classes, ban him from drinking, or being around anyone that is. Ban him from bars etc. Hell maybe even being in a kayak. To bad XLFD isn't a lawyer , this case has so many holes it would sink a kayak.

[shinblind]

I believe the law states that you have to have a life jacket on board, not necessarily wearing one.

Not having one onboard was Ross's first mistake.

Paddling away when asked to pull over was his second mistake.

I believe that is also against the law.

I don't know how long this scenario played out in minutes, but when the CO requested Coast Guard they seemed a little slow to respond. Must have been too involved with the video games in the back room to be bothered.

Has the Sheriff Department actually released the report on this? Would be interested to hear their version of the event.

And like Willy says and I again ask why aren't all law officers equipped with body cams?

Wouldn't body cameras be as equally important to the County as booting the school doors?

[XLFD]

The US Coast Guard requires those in vessels propelled by paddles to wear life jackets when they are out in the Great Lakes or connecting waters.  If Ross was observed going out into Lake Michigan proper, the DNR guy could have stopped and ticketed him for not having a PFD citing coast guard rules, but not anything in state statute I can find. 

The sheriff report and other records is still pending, and I hope to get Alan Ross' version of events at some point.  All drunk kayakers should be required to wear body cams, maybe they wouldn't get in such jams if they did.  Or at least they would have less money for firewater.

From Publiski's report, and the amount of time it would take for a kayak to cross over and then the amount of time it would then take for Publiski to drive over to the Buttersville Peninsula after witnessing the altercation, you would think the CG would have had some response.  They may have been called off, even though it isn't noted in the report.

[stump]

Is the wording " Great lakes or connecting waters" the reason for the PFD request?/ requirement? I would think the channel would be a connecting water, but then how far does that connecting water go? does it cover all of PM lake? how about Pm river? it connects to all .

[AQUAMAN]

Methinks there is way too much speculation and muddying waters going on here now. This man Ross obviously has mental issues, that's plain and clear since dowland's post of recent. He doesn't think right in any case, and the alcohol abuse added to it, just compounds the entire episode, so let's let it go.

[Jasper]

Wow Aquaman. You based your comment on Mr. Ross solely based on someone else's opinion. So, in essence what you stated in your post Mr. Ross is already guilty. Whatever happened to innocent until proven guilty? Nothing has been noted about his BAC. I truly hope Mr. Ross seeks or has already sought legal counsel from outside Mason County to represent him. If a MI State trooper attornies could find a loop-hole in the law for Trooper Seymour, rest assured there are loop-holes for this very unusual case.

[shinblind]

If kayak guy was smart or at least a bit more sober, he should have paddled over and tied off to the Fourth Ward  Bridge.

Since this area doesn't exist in the COL's mind, no one would probably  risk pursuing him in these uncharted waters.

If need be he could have  seeked sanctuary even deeper into  PM Bayou. Although the risk to the health of both himself and his craft would be questionable.

[XLFD]

In regards to shinblinds revelation of the DNR Rules (Rule 22) made in 2010 that does say a PFD of either Type I-IV is required for kayak users, I still see a problem with the initial interchange between the CO and Ross in regards to Ross' Fourth Amendment rights.  I point to the case Delaware v. Prouse, which held that the random stop of an automobile by state police for a driver’s license and registration check was an unreasonable intrusion on the automobile traveler, and therefore violated the Fourth Amendment. Prouse established that police may only stop a motorist if they have “an articulable and reasonable suspicion” that the motorist is in violation of the law.

Officer Publiski saw that Ross wasn't wearing a life jacket, but couldn't corroborate that there wasn't one on board the kayak.  Kayaks have many places that may hide a PFD, and the DNR written law only requires that you have it readily  available, whatever that means.

Ross' ambiguous answers never confirmed Publiski's suspicions, but was it a 'reasonable suspicion' to stop Ross after this exchange?  Was it a reasonable suspicion to sic the MCSO and the Coast Guard on Ross for a false charge of being a disorderly person?  I say definitely not.

[XLFD]

In support of this I offer a case involving this very topic which happened in New Hampshire.  The parallels with this case are enough to call it into question.

A state marine patrol officer was going around inquiring whether boaters had their PFDs, one guy didn't, was ticketed and fought it up to the supreme court which found in his favor, the majority concluding that:  "Having found that the defendant was stopped, we must next determine whether the stop for a PFD check violated SOP 2010.  SOP 2010 requires that “[t]here must exist in the opinion of the Marine Patrol Officer, at a minimum, an articulable suspicion that the operator, or other occupant of the boat is in violation of some criminal or boating law, rule, or regulation; or that the boat lacks the required safety equipment."

Here, the State conceded that Officer Cook did not have articulable suspicion.   Accordingly, the stop violated SOP 2010, and we remand for further proceedings consistent with this opinion.

 See more at: http://caselaw.findlaw.com/nh-supreme-court/1472058.html#sthash.Loa...

To my knowledge, the MI DNR has not made a rule that suspends the Fourth Amendment protections of Alan Ross.

[shinblind]

I believe when CO Publiski talked to the fishermen at the Loomis Street Launch about kayaker Ross's intoxicated behavior and claim that they did not see Ross wearing a PDF gave the CO probable cause to investigate the matter. I do not see anything random about the CO's action.

Again the Kayak Guy's first mistake was not having the required PDF  on board.

His second mistake was paddling away.

That second mistake, paddling away while being questioned is what got the MCSO & USCG involved.

[AQUAMAN]

I think the parties here defending Ross at every corner so well should just go down to the jail and interview the guy. That way you can ascertain what type of individual you are so fond of. That way perhaps you can offer your money to bail him, or even defend him in a court of law. That way you can report back to the rest of us how nice of a guy he really is, and how you want to be friends with him into the future, and how he never intended to be a PIA or a roughneck when he punched the cop and cracked his lip open. Please feel free to do so guys, then let us know, okay?