Utah Supreme Court Hears Case Regarding Police Officers And Their Guns
BY Herschel Smith
6 years, 2 months ago
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.
Good Lord.
So let’s cover some facts. He wasn’t performing any duties as a LEO. He was pissed off, and so he unholstered his weapon. Second, he had no right to go up to anyone brandishing a weapon. He could have been shot, and he should have been shot. This pissed off hot head actually came upon some folks who were acting fairly reasonably and stated, as they should have, that they “felt threatened.”
Third, they had no way of knowing that this person was a LEO. I can claim that too, and it would be a lie. Many people lie, and some people dress like LEOs as they invade homes. No one has to believe the assertion that the person in front of them is a LEO. Fourth, he chose to use expletives, he didn’t have to do that. That was voluntary, no necessary or an essential part of the event that day.
Finally, should police officers have to prove to a court that they are “performing their duties?” Yes, among other things. They should have to prove they are LEOs, that they have enough sense to have a weapon, that they aren’t a danger to those around them, that they acted constitutionally, that they didn’t violate any laws, that they applied the law without prejudice or bias, and a whole host of other things, and I’d prefer to see them prove these things every second of every day.
On October 14, 2018 at 10:06 pm, Dan said:
The heart of the issue here is the concept of “special privileges for special people”. An idea TOTALLY at odds with EVERYTHING the framers of the Constitution and founders of America believed in. The idea that LEO can do something that a normal American CANNOT do is one of the fundamental problems in America. Once you embrace the idea that certain groups can do things others may not you have opened the gate to
Orwell’s farm and allowed the pigs who are better than us out.
On October 15, 2018 at 4:56 am, MN Steel said:
This was no Dick Cheney-type event, if it took several minutes to reach the other group, even mucking through swampy goo.
But I guess some are better wallowing in mud.
#notallbluelives
On October 15, 2018 at 7:46 am, Longbow said:
Yeah, but it was a cop what dunnit, so it was the right thing to do because it was a cop what dunnit!
Why didn’t they just submit and comply?
In the words of that paragon of Law Imposement, Sheriff Teasle, “People go fuckin’ around with the Law and all HELL breaks loose!”
On October 15, 2018 at 8:21 am, Michael said:
Hershel,
I’ve mentioned before that I live in Utah and recall hearing about this case. The cop was clearly in the wrong. He was confrontational, rude, abrupt, and disrespectful. And, no, there was no reason to unholster his weapon. The other people involved were not a threat.
The other thing I wanted to mention was Paul Cassell. He’s been running interference for police for years and is one of those guys who, like a broken clock, is occasionally right about something, but is, too often, on the wrong side of nearly every other argument he gets himself involved with. I’ve become very tired of hearing his name mentioned because I can almost always guarantee it’ll be yet another case of the “Professor” coming to the defense of yet another cop.
On October 15, 2018 at 8:53 am, Fred said:
“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?”
So in other words, no, he should have to prove, 24/7, that he is acting as a citizen, just like me and you.
On October 15, 2018 at 10:03 am, Equilibrist said:
Fred has the right of it.
The simple phrase, “acting as police officers” is, in itself, a statement of “special privileges for special people” — as Dan, above, puts it.
It carries with it the clear implication that a police officer may act in ways that other citizens may not; that they have rights that you and I do not, and to which our “rights” (read “granted privileges”) are subordinate.
On October 15, 2018 at 10:22 am, BRVTVS said:
And, on a related note: https://fox43.com/2016/12/28/federal-court-rules-police-can-shoot-a-dog-if-it-moves-or-barks-when-officers-enter-a-home/
On October 15, 2018 at 12:20 pm, MadMagyar said:
Utah. Cop. ’nuff said.
On October 16, 2018 at 4:00 pm, Donk said:
@BRVTVS I have a friend at my church, nah, let’s call him a brother in Christ I am working on to become my friend, who has several LEOs in his family. He takes considerable umbrage to my distaste for the LEO profession. I tried to appeal to his love of defenseless animals (he has a dog) and he said that LEOs were justified in any case to shoot a dog if they were in fear for their safety – even if it is waggin’ its tail as that could mean any number of things, including aggression based on “his work with dogs.” I have had and trained many dogs, I even trained a highly skittish and, after we brought her home learned quite dangerous white German Shepherd, to obey voice and hand signals as far as she could see or hear me – complete control over the dog. I will have to admit my training could have been construed as cruel by some (mostly choke collar work) but I either had to break her or put her down. I brought the dog into my family’s life so felt it was my obligation to train her. My toddlers crawled all over her and she was their second mama.
Point being, I know dogs and one with a wagging tail is not a threat unless YOU do something stupid. You still need to know how to approach them on their terms but dogs are social as well as protective animals – be nice, be calm and dont f**k with their pack and mostly you are fine. A LEO crashing into a dwelling or bashing into a backyard or just being disrespectful to a dog’s master (they quickly attune to non-verbal mojo) is gonna make a dog freak. Second point, I weep at the slavish nature of some Christians to statism – do they not know who Jesus was and whom on earth He railed against?
The recent story I think in GA where the LEO shot the dude’s dog and then made him behead him – enraged falls far short of my reaction.
Herschel has said this before and I agree – dogs are family – not pets (that is a goldfish). Even though I bought my present dog from a top breeder, I do not “own” him any more than I own my son. As the leader of the home and his benefactor, I demand his obedience but he is family and will be given all the rights and privileges of family that can be rationally extended to a dog.
I know the .gov types read blogs like this and I have occasionally used my real name on others. You have no cause to smash down my door, threaten my family (including my dog(s)) and you will be met with like force as I am able to project. I keep tools of the trade close at hand – always. I have also said, these thugs will continue to conduct themselves in a tyrannical manner (one definition would be laws not equally applicable to all regardless of costume or office) until they are held accountable – in whatever fashion presents itself.
On October 19, 2018 at 5:12 pm, Badger said:
Forget threatening to use a weapon in a fight. What he did is, in most jurisdictions, aggravated assault. Assault by the threat and/or threatening manner, aggravated when he put the visible gun into play, whether the trigger gets pulled or not.
So if he’s always “on-duty”… wonder how he handles goin’ out to have a beer? He (and the scheisters who serve him in this case) are glaring examples of the double-standard that the courts need some testosterone injections to fix.
The person acting as a hunter (who happens to have a day job as a cop) could’ve handled that so differently, which speaks volumes as to what his go-to default solution for conflict resolution is. He should be culled from the profession, period.