Firearms case could affect off-duty Utah officers

A court will face the question of whether an off-duty officer can use, or threaten to use, his or her service weapon in a fight or quarrel

By PoliceOne Staff

SALT LAKE CITY — A firearms-related case could have large implications on how LEOs in Utah respond to incidents while off-duty.

The Utah Supreme Court court will determine whether an off-duty officer can use, or threaten to use, his or her service weapon in a fight or quarrel, The Deseret News reports. The case relates to an incident between an off-duty officer and a group of duck hunters.

“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," Paul Cassell, a University of Utah law professor and former federal judge, said.

On Sept. 3, 2015, off-duty Officer Lance Bess, 36, was duck hunting with a group of people when shots were fired in their direction. Another group of duck hunters had an inexperienced member in their group, who fired two more times after missing a duck without regard to his backstop, according to court documents.

Bess, who was unsure why they were being fired at, holstered his service weapon and approached the group. Bess reportedly yelled at the hunters, using expletives when he approached them.

Members of the group said they felt threatened and asked Bess to put away his gun multiple times as they tried to explain the shooting was a mistake. Lindsay Jarvis, Bess' co-counsel, said Bess’ gun was held down near his knee and behind his leg, and was not pointed at anyone.

Bess was later convicted of threatening to use a dangerous weapon during a fight and served two days in jail in addition to probation. Bess resigned from his position at the Unified PD, but he was later hired back as a civilian employee.

After serving his jail time, Bess filed a motion to have his conviction thrown out and be granted a new trial. The Utah Court of Appeals agreed that Bess’ case should be settled by the state Supreme Court.

A state statute says it’s illegal for a person to use, or threaten to use, a weapon during a fight or quarrel. The statute has an exemption for officers who display a weapon "in performance of the person's duties."

The court will determine whether an off-duty officer can display their weapon during a fight, using the argument that it’s in accordance with their duties.

The case prompted several law enforcement groups to file a joint amicus motion with the Utah Court of Appeals. The groups believe the case will have large implications on all LEOs in the state. 

"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 group also said they believe Bess should be granted 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."

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