SALT LAKE CITY — A case that began three years ago as a misdemeanor dispute between an off-duty police officer and a group of duck hunters is now headed to the Utah Supreme Court.
And the case could have huge implications for all police officers statewide, according to former Unified police officer Lance Bess' attorneys.
“This is an extremely important case that presents serious issues about how off-duty law enforcement officers can respond when they believe a crime is being committed," said Paul Cassell, a University of Utah law professor and former federal judge.
"This is an issue that will affect law enforcement over the entire state of Utah," concurred Lindsay Jarvis, Bess' co-counsel.
The drawn-out case began Sept. 3, 2015. Bess, 36, of West Jordan, was off-duty duck hunting with a group of people at the Bear River Bird Refuge when three shotgun blasts were fired in the group's direction. No one was injured.
Another group of duck hunters nearby were shooting at ducks, according to court documents. But one member of the group, who was an inexperienced hunter, fired two more times after missing his duck as it took off again, without regard to his backstop.
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.
Bess' handgun was in a "defensive position," Jarvis said, meaning it was held down near his knee and behind his leg, and was not pointed at anyone. She believes, however, that Bess' tone and his swearing eventually led to him being charged with a crime.
The group originally said a 12-year-old boy had fired the misguided shots at Bess' group, according to a Box Elder County sheriff's report. But it was later revealed in court that a 24-year-old man had actually pulled the trigger.
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, according to the report. The man who fired the errant shots has "severe anxiety" and was on the ground crying as another man asked Bess to put his gun away, court documents say.
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.
Bess was eventually charged, and in May of 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.
After serving his jail time, Bess filed a motion seeking to have his conviction thrown out and a new trial granted.
This week, the Utah Court of Appeals agreed that Bess' appeal "presents an important question of law which has not been, but should be, settled by the Supreme Court."
That question is whether an off-duty officer is exempt from a statute that makes it illegal for a person to use, or threaten to use, a weapon in a fight or quarrel. The statute has an exemption for police officers who display a weapon "in performance of the person's duties."
In other words, can an off-duty police officer use his or her service weapon when faced with a fight or quarrel, using the argument that it's in accordance with their duties as a certified law enforcer?
"We expect all police officers to run toward danger, and unless corrected on appeal, this conviction could have a clear chilling effect on how officers respond," Cassell said.
Prosecutors, however, believe in court documents that the Utah Supreme Court is being asked to decide a much more narrow, technical issue of whether the jury was given proper instructions by the judge, and when those instructions should be given.
But local police officers believe there are bigger implications.
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.
"To fully and effectively discharge their responsibilities even when off-duty, it is not unexpected that Utah law enforcement officers, such as Lance Bess, will frequently carry and may be called upon to display a firearm in volatile, argumentative, situations," the group wrote in their amicus brief. "The court should grant Mr. Bess a new trial during which the jury is properly instructed, from the outset, that the burden is on the prosecution to show that Mr. Bess was not acting as a police officer when confronting armed individuals."
The brief continues by stating officers are taught "that they may be required to act as police officers (and indeed are expected to act when confronted with a criminal act) even when off-duty and outside of their jurisdiction. … As a result, most officers carry a firearm even when not on duty. … Moreover, of critical importance in this matter, UPD (and other agencies and POST) train officers that when confronted with a person who is armed, or believed to be armed, the officer must immediately draw and display their weapon."
The group points 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 with him.
"This court should reverse the decision of the district court and remand with directions that officer Bess be granted a new trial. Whether the state can then carry its burden of proof, throughout the entire trial, of showing that he was not acting in the performance of his duties can then be properly determined," the brief states.
The group believes Bess deserves a new trial not only for himself, but "so that law enforcement officers in this state can rest assured that they will not be unfairly targeted for criminal prosecution."
“We are pleased that the Court of Appeals has recognized the great importance of this issue and has taken the unusual step of sending the case straight to the Supreme Court for its decision," Cassell said.