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SALT LAKE CITY — Should police officers have to prove to a court that they are, in fact, acting as police officers every time they brandish their guns while performing their duties?
Paul Cassell, a University of Utah law professor and former federal judge, believes that's the broader issue the justices of the Utah Supreme Court are currently deciding. And that decision could affect Utah law enforcers statewide, even those in uniform and on duty, he contends.
On Friday, attorneys arguing the case of former Unified police officer Lance Bess went before the state's highest court to make their arguments.
On Sept. 3, 2015, Bess, 36, of West Jordan, was duck hunting while off duty with a group of people at the Bear River Bird Refuge. Another group of hunters was nearby. But one of the hunters in the other group was inexperienced, according to court documents.
At one point, that inexperienced hunter fired several shots at a duck without regard to his backstop. Those shots came close to Bess' group.
Unsure what was happening and why his group was being shot at, Bess unholstered his police service weapon and held it by his knee. He also had his hunting shotgun over his arm as he approached the other group that had fired toward them.
Bess angrily yelled at the hunters, using expletives, as he came upon them.
According to a Box Elder County Sheriff's Office report, members of that group said they asked Bess multiple times to put his gun away as they tried to explain that the shots were a mistake and that they felt threatened by him.
When a deputy responded to the scene, he told Bess he shouldn't have unholstered his gun.
"I explained that I understood things where he works are a bit more crazy, in our area we deal with these things differently," the deputy wrote in the report.
The deputy noted that because five to 10 minutes had passed from the time Bess' group was shot at until Bess confronted them, the imminent danger had passed and Bess did not need to draw his gun.
Because of that, Bess was charged and in May 2017, the officer was convicted in 1st District Court of threatening to use a dangerous weapon during a fight, a class A misdemeanor. Judge Brandon Maynard ordered Bess to serve two days in jail, in addition to probation. Bess has since served his jail time.
Because of the conviction, Bess resigned from his certified law enforcement position at the Unified Police Department, but he was later hired back as a civilian employee. He then appealed his conviction, asking it be thrown out and he be given a new trial.
The Utah Court of Appeals agreed the case should be sent to the Utah Supreme Court for consideration.
A key issue the Supreme Court must decide is whether the jury in Bess' original trial was given proper instructions in a timely manner. Cassell said it was important for the jury to know that a police officer is expected, and authorized, to perform police officer duties even when not officially on duty.
When jurors were given preliminary instructions at the start of the trial in this case, that part was left out, Cassell said. It wasn't until final jury instructions were given — after witnesses had been called to the stand — that jurors were told to consider the expectations of an off-duty officer.
"The problem was that they weren't told during the three-day trial to be listening for the defenses as they were being presented," Cassell said. "They didn't know up front that a police officer performing his duties is entitled to brandish a firearm. They weren't told that at the beginning, so as a result the trial was fundamentally unfair.
"This was not some slam-dunk case (for the state). This was a case decided by the narrowest of margins. And if they had been told for three days, 'Hey, be listening to what the defense is trying to present here,' we think they would have come out another way," he said.
Cassell argued that the state knew that the issue of a law enforcer performing his or her duties, and acting in self-defense would be crucial to the case, and there was no reason to wait until the last minute to include those points in the jury instructions.
"This is not some technical issue. These were the two critical issues in the case," he argued in court.
After Bess was convicted on a unanimous jury decision, one female juror signed a statement saying she was pressured into giving a guilty verdict, and stated, "I did not feel the instructions I received afforded me the option to disagree," according to court documents.
The state, however, disputed there were any errors in delivering jury instructions and self-defense didn't apply in this case.
While the state has argued that the issue at hand is a narrow technical one, Cassell believes the outcome of the case could have a greater impact on all law enforcers. He said a police officer, whether on or off duty, should not be burdened in every case with having to prove he or she is an actual police officer and used a gun in performing their duties. The burden should be on the state to prove a police officer was not acting in accordance with that officer's duties, he said.
The case prompted several law enforcement groups to file a joint amicus motion with the Utah Court of Appeals, including the Salt Lake Valley Law Enforcement Association, Law Enforcement Legal Defense Fund, International Union of Police Association AFL-CIO, Utah Fraternal Order of Police and the Utah Peace Officers Association. The law enforcement groups argued that police officers are always "on duty," and that Bess should receive a new trial.
Both those groups and Cassell point to the Trolley Square shooting spree in 2007 in which five people were killed and four others wounded as a gunman went through the mall and parking lot randomly shooting people. The death toll would have been much higher if an off-duty Ogden police officer who was having dinner with his wife had not jumped into action using the service weapon he was carrying.
The Supreme Court justices took the arguments under advisement and will issue a decision at a later time.
After the hearing, Bess gave a statement through his attorneys.
"I've served as a law enforcement officer for nearly 14 years and I can't believe that I am now being asked to prove my innocence. We don't want it to happen to any other law enforcement officers in the future."
Utah Peace Officer Standards and Training has agreed to delay a hearing regarding Bess' police officer certification until after his state case is completely resolved.