Oral arg. – Miss.S.Ct. – April 16, 2015

THe Court will hear Scott Herman Bates v. State at 10:30, Thursday, April 16, 2015.

COA opinion – Bates was convicted of simple assault on a law enforcement officer and sentenced to 5 years. The victim here, Sheriff’s Deputy James Cox, was working as a security officer at a Jackson restaurant (Reed Pierce’s) with the approval of his boss and in uniform. On the night of the altercation, last call had been announced and the wait staff was waiting around to divide up their tips. Bates was hanging around and the manager asked Cox to ask Bates to leave. Bates took exception with the request to leave. When two more security guards stepped up, Bates left the restaurant and the deputies followed him. In the parking lot,Bates kept threatening to beat Cox up and ruin his career. He then got in his truck and drove toward the guards making a sharp turn so that his truck would broadside them. He also fired his gun. Cox jumped into his marked vehicle and radioed for backup. Bates was arrested at a nearby house. Recovered from his truck was a .38 revolver and a spent shell casing. Bates was charged with agg. assault on a police officer. The state requested a lesser included instruction on simple assault. The jury convicted him of simple assault. On appeal he argues sufficiency of the evidence claiming that there was insufficient evidence that Cox was acting within the course and scope of his employment when Bates assaulted him because he was being paid by the restaurant.

While no Mississippi case has dealt with this exact issue, other states have. And the consensus is that an officer’s private employment as a security guard does not limit his authority or responsibility to act within his official duties. See, e.g., S.D. v. State, 11 So. 3d 401, 402 (Fla. Dist. Ct. App. 2009) (“A police officer can be engaged in the lawful performance of his duties when working an off-duty job.”); State v. DeSanto, 410 A.2d 704,705 (N.J. Sup. Ct. App. Div. 1980) (“[T]he police uniform has the same significance to the public whether the wearer is technically on or off duty[, and] in such a situation[,] the municipality and its public expect and obtain real benefits from the police officer.”) . . . .

Bates also objects to the testimony of the jail nurse who was called in rebuttal after Bates testified that the gun had gone off accidentally causing his ears to ring and burning his skin. Bates objected to the nurse’s testimony because she did not actually examine him. The guards gave Bates a form and showed it to the nurse who testified that the form did not mention ringing ears or burned skin. Bates objected to her testimony because she did not have personal knowledge.The  COA  finds that the fact she did not examine Bates goes to weight and not admissibility.

On cert., Bates raises one issue:  Did the Mississippi Court of Appeals err in determining that there was sufficient evidence to support a finding that Deputy Cox, who was employed as a security guard for a local establishment at the time of the alleged assault, was acting within the scope of his duty, office or employment as a law enforcement officer? 

Bates’ cert. pet. 

State’s supp. brief on cert. 

Watch the argument here. 

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