Three years ago, Unified Police Department officer Lance Bess was duck hunting in Box Elder County when another hunter fired three shots in his direction.
With his police-issued pistol in one hand and his hunting shotgun in the other, Bess — depending on one’s point of view — either investigated the errant shotgun blasts or confronted the other hunters. A jury later convicted Bess of a misdemeanor count of threatening or using a weapon in a fight or quarrel.
The Utah Supreme Court heard arguments Friday over whether Bess received a fair trial, and, if he did, what the impact could be for police officers who respond to danger.
Paul Cassell, a former federal judge who is representing Bess in his appeal, argued that Bess had a legal presumption of innocence because he was a police officer responding to danger. Cassell said Bess’ conviction means police officers — even when on duty and in uniform — can be convicted of brandishing a firearm when they are performing their official duties.
“Every time a law enforcement officer shows up at a bank robbery with a gun drawn," Cassell said, “he’s committed a crime” under the prosecution’s theory.
Utah law allows police officers to present as a defense that they were performing their job or defending themselves. Another aspect of Bess’ appeal contends he wasn’t properly allowed to raise those defenses at trial.
In his instructions to the jury at the start of the trial, 1st District Judge Brandon Maynard did not describe Bess’ ability to make that affirmative defense. After receiving an objection from the prosecution, Maynard decided Bess’ lawyer needed to make that argument in open court first.
Before jurors deliberated, Maynard described to them the legal elements Bess needed to meet, but Utah Supreme Court Justice Deno Himonas wondered aloud Friday whether the jury was able to “contextualize” the trial evidence without similar preliminary instructions.
According to transcripts and records from 1st District Court in Brigham City, an inexperienced, 24-year-old hunter at the Salt Creek Waterfowl Management Area was firing at a duck and peppered Bess’ location. When Bess approached with firearms, according to courtroom testimony, he was using profanity as he asked who fired at him. The hunter who fired and his family tried to calm Bess.
There’s also a dispute as to whether a dangerous situation existed. Assistant Utah Solicitor General John J. Nielsen on Friday pointed out there was a five- to 10-minute delay between the shots and when Bess approached the family. No one was injured.
James Wolfe, whose nephew fired the shots in Bess' direction, was also duck hunting at the bird refuge that day in October 2015, and he attended Friday’s arguments. After the hearing, Wolfe said he’s generally a supporter of the police but added that Bess didn’t volunteer that he was a police officer until Wolfe threatened to call police. Bess then refused to show a badge, at first.
“All he could do was yell and swear at me," Wolfe said.
Bess pleaded not guilty, but a jury convicted him of Utah’s highest-level misdemeanor in May 2017.
Maynard sentenced Bess to two days in jail, 18 months of probation, 40 hours of community service and to pay $493 in fines — all of which he has served. Bess still has his police officer certification, but UPD moved Bess into a civilian job pending the resolution of his case. Bess now works for the new Herriman Police Department, again as a civilian.
Local police unions as well as the Utah chapter of the Fraternal Order of Police have filed amicus briefs supporting Bess.
Outside the Utah Supreme Court chambers, Cassell read aloud a statement on Bess’ behalf.
“I served as a law enforcement officer for nearly 14 years,” the statement said. “I can’t believe I’m now being forced to prove my innocence, and I hope it doesn’t happen to other law enforcement officers.”
Correction: Oct. 12, 11:45 a.m.: An earlier version of this article incorrectly stated a judge stayed the sentence pending appeal.
Correction: Oct. 16, 5:09 p.m.: An earlier version of this article misstated the location of the duck hunt. It was the Salt Creek Waterfowl Management Area; not Bear River Migratory Bird Refuge.