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SALT LAKE CITY — Utah's highest court has upheld an off-duty officer's conviction for brandishing his service gun after a hunter fired shots near his group, a decision his attorney says could affect police across Utah even while they're on the clock.
The Utah Supreme Court in a Tuesday written opinion declined to order a new trial for Lance Bess, a onetime Unified police officer. The court rejected several arguments from Bess, including that jurors received improper instructions in the case.
"This decision, I think, is going to make officers a bit more cautious about responding to dangerous situations," said Paul Cassell, an attorney for Bess. "And that's the last thing we need in our society where we rely on police both on duty and off duty to respond to threats that are out there."
On Sept. 3, 2015, Bess, 38, was duck hunting with others at the Bear River Bird Refuge when an inexperienced hunter in a group nearby fired several times at a duck without regard to his backstop. The shots came close to Bess' group, court documents state.
Bess, unsure why his group was being shot at, unholstered his police service weapon and held it by his knee, and had his hunting shotgun over his arm when he approached the group, screaming and using expletives.
The hunters repeatedly asked him to put away his gun, saying that it was a mistake and they felt threatened, a police report states. A deputy arrived and determined that five to 10 minutes had passed between the shots and the confrontation, so the imminent danger had passed and Bess did not need to draw the gun.
A jury in Brigham City found his Bess guilty of using a dangerous weapon during a fight, a class A misdemeanor, roughly two years ago. He was sentenced to two days in jail and probation.
Bess' attorneys have argued it was important for the jury to know that a police officer is expected to perform police officer duties even when not on duty. They said prosecutors knew the issue of a law enforcer's duties and whether his client acted in self-defense would be crucial, and there was no reason to wait until after witnesses had testified for that issue to be added in jury instructions.
The Utah Supreme Court found a lower court did not make a mistake when it waited to include those points in jury instructions until Bess' defense attorneys had brought enough evidence to support them. Four justices concurred with the opinion authored by Justice Paige Petersen.
After Bess was convicted in a unanimous decision, a juror signed a statement saying she was pressured into giving a guilty verdict, reporting "I did not feel the instructions I received afforded me the option to disagree," court documents show. But the declaration is not admissible based on evidence rules that generally bar statements pertaining to what jurors did or said while deliberating.
Several police groups filed a joint amicus motion with the Utah Court of Appeals, arguing an officer is always "on duty," and Bess should get a new trial.
Cassell contends officers, whether on or off duty, should not have to prove in every case that they are an actual police officer and are using the gun in the course of their duties and the burden should be on the state to prove otherwise
He and the police groups referenced the 2007 Trolley Square shooting, in which five people were killed and four others wounded as a gunman shot at random in the the mall and parking lot. They argued the death toll would have been much higher if an off-duty Ogden police officer who was eating dinner with his wife had not rushed to help with his service weapon.
Bess resigned from his certified law enforcement position at the Unified Police Department but was later hired back as a civilian employee.
Utah's police standards board has awaited the Tuesday decision before deciding whether to suspend Bess' certification. Bess could request a hearing to make his case before the next meeting of the Peace Officer Standards and Training panel in September, said Sgt. Nick Street with the Utah Department of Public Safety.
The group's guidelines recommend a suspension of at least a year and a half for class A misdemeanors, and a possible revocation if the behavior is violent, but the panel could break from the guidelines if it sees fit, Street said.
Cassell filed a motion late Tuesday asking the court to reconsider its decision based on what he argues are violations of his client's rights guaranteed by Utah's constitution.
