Imagine you – a cop – are hunting with your family on public hunting grounds when another hunter shoots in your direction. Despite your attempt to alert the shooter to your presence, two more rounds are fired. In addition to your shotgun, you also have your service weapon.
What do you do?
This is a real case. Officer Lance Bess ended up convicted of a misdemeanor crime of “threatening with or using a dangerous weapon in a fight or quarrel,” after he confronted the hunting group from which the shots were fired with his service weapon drawn and held at his side.
I first read about the case on Police1, where Paul Cassell, a University of Utah law professor and former federal judge, was quoted,
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.”
It was a brief article with few facts surrounding the actual incident.
The Utah Supreme Court had accepted the case on appeal. I flagged it to review when the decision came down to see if it ended up having serious implications for armed off duty officers.
NOTE – The initial P1 article didn’t report that Casell was representing the officer. If I’d known that, I might’ve considered his statement as possibly lawyer hyperbole. But the case had prompted several law enforcement groups to file joint amicus motions. The groups said they believed 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.” I decided it was worth watching out for the opinion.
My initial sympathies were with the officer
As a duck hunter, I know what I’d do. I’d yell to alert the other hunters to my presence. After the second two shots, I’d assume they didn’t hear me or didn’t care – and I’d be out of there.
But I’m not a cop. It’s a cliché, but “some of my best friends are cops.” They wouldn’t retreat from this situation before ensuring that another family wouldn’t be exposed to the same risk they were. My cop friends would direct their family to safety and then go address the danger. I’m a strong supporter of those who willingly place themselves in harm’s way to protect.
As I waited for the Utah supreme court decision to provide the facts that emerged at trial, my sympathy was with the officer.
The facts
The Court’s opinion (available in full below) details the events:
“After the shooting stopped, Bess – still holding his shotgun – drew his service weapon and approached the hunting party. He shouted profanities at the group and demanded to know who had shot at his family. Admitting fault, an adult man in the hunting party acknowledged that a young, inexperienced hunter in their group had accidentally fired shots in the family’s direction.”
“And the young hunter was in tears, upset at his mistake. The man requested that Bess put his service weapon away. When Bess refused, the man suggested that they call the police. In response, Bess said, “[G]o right ahead, I am a fucking cop.” The man then asked to see Bess’s badge, but Bess denied having it with him. After the man expressed doubts as to Bess’s credentials, Bess quickly flashed his badge at them. Bothered by the encounter, the man from the hunting party notified the police.”
There was an exemption from the crime Bess was convicted of for “persons acting in self-defense and peace officers in performance of their duties.” The trial jury was instructed it “could not convict Bess unless it found beyond a reasonable doubt that he ‘did not draw or exhibit the weapon in self-defense’ and that he ‘was not a peace officer … acting in the performance of his duties.’”
After six hours of deliberation, the jury unanimously convicted Bess.
The supreme court decision
Bess didn’t argue on appeal that the jury got it wrong or that there was insufficient evidence to support a conviction. His claims were all procedural:
- That the trial judge should have instructed the jury on his affirmative defenses of “self-defense” and “a peace officer acting in the performance of his duties,” even before he’d introduced any evidence of them.
- That the lower court erred in not considering a juror declaration that extraneous information was brought to the jury’s attention.
- That the trial court’s “deadlock” instruction to the jury halfway through their deliberations was unconstitutionally coercive.
The supreme court ruled that:
- Affirmative defenses must first be raised by the defense with the introduction of some evidence. To hold otherwise would require the prosecution to disprove every exception, whether relevant in a case or not. The final instructions to the jury correctly stated the prosecution’s burden of proof regarding Bess’ defenses.
- The juror’s declaration didn’t substantiate extraneous information but only two jurors’ opinions, which are protected by the rule prohibiting inquiries into the jury deliberative process.
- The deadlock instruction was the standard acceptable one and Bess had failed to show it was coercive in his case.
The lesson
The procedural issues the Utah supreme court decided do not have wide-ranging, chilling effects on Utah cops or other police.
The lesson here is, if you use your weapon off duty and want your actions to be exempted from criminal prosecution as “self-defense” or a “peace officer in performance of their duties,” you better act consistently with those. Here a jury decided the prosecution proved beyond a reasonable doubt Bess wasn’t acting within the legal parameters of self-defense or an office performing his duties.
I asked a retired cop friend to review the facts. She pointed out that holding the shotgun with one hand and the service weapon with the other wasn’t sound tactics. If Bess was unsure why they were shooting at them, the reasonable cop would approach tactically, using cover and concealment. If he knew they were stupid and careless, shouting would be warranted, but then why the drawn weapon? Time had passed and with it the imminent danger warranting self-defense. When Bess engaged the group, they were non-threatening.
The most telling fact for me was the other hunting group wanted to call a peace officer. That’s because Bess wasn’t conducting himself like one. The jury agreed.
Yes, officers are human. But when they act human, i.e., like a pissed-off civilian, they shouldn’t expect the protections we provide peace officers who intentionally go in harm’s way to protect us.
State v Bess by Ed Praetorian on Scribd
