On February 18, 2022, the Tenth Circuit Court of Appeals decided the United States v. Bosman[i], which serves as an excellent review of the law related to an officer’s use of force, or threat of force, during a Terry stop.  The relevant facts of Bosman are as follows:

At around 9:00 a.m. on March 7, 2019, Colorado Springs Officers Gilman, Hallas, and Sandoval responded to a tip that Mr. Stuart was asleep in a Chevrolet Impala in the parking lot of a motel in a high-crime area. Mr. Stuart had an outstanding felony arrest warrant for multiple counts of identity theft and property offenses.

Upon arrival, the officers activated their body cameras and approached the car. ROA, Vol. IV Attachments A-C. There were bystanders in the vicinity of the parking lot. ROA, Vol. III at 206. Mr. Stuart was asleep in the front passenger seat. Another man—later identified as Mr. Bosman—was asleep in the back seat, which was cluttered. Id. at 208.

Officer Hallas knocked on the passenger window, awakening Mr. Stuart. ROA, Vol. IV Attachment A at 00:37-47. Officer Hallas ordered him out of the car. Id. Officer Gilman was standing slightly behind Officer Hallas and took his firearm out but pointed it downwards (in the “low ready” position). ROA, Vol. III at 74. The officers told the two men to put their hands up, and both men complied. ROA, Vol. IV Attachment A at 00:45; ROA, Vol. III at 202-03.

Officer Hallas opened the passenger door, which triggered the car alarm. ROA, Vol. IV Attachment A at 00:55-1:05. He asked Mr. Stuart if there were any weapons in the car. Id. Mr. Stuart quickly looked back toward Mr. Bosman but did not give a clear answer. Id.; see also ROA, Vol. III at 203. Officer Hallas again asked if there were weapons in the car, and Mr. Stuart said no. ROA, Vol. IV at 00:55-1:05; ROA, Vol. III at 203. Mr. Stuart exited the car, and Officer Hallas handcuffed him. ROA, Vol. IV Attachment A at 01:03-20. He then led Mr. Stuart toward the patrol vehicle. Id.

Officer Gilman moved to the open front passenger seat door and began speaking with Mr. Bosman, who remained in the back seat on the driver’s side. Id. at 01:37-50. By this point, Officer Sandoval had moved to the rear driver-side door. Id. In a conversational tone, Officer Gilman explained they were trying to identify him and instructed him to exit the car with his hands on his head. Id. Officer Gilman warned him against reaching toward his waist. Id. at 1:45-46.

While he was being arrested, Mr. Stuart alerted Officer Hallas that he had a gun, so Officer Gilman moved to the patrol car to help Officer Hallas. ROA, Vol. IV Attachment B at 00:08-58. After finishing the arrest, Officer Gilman returned to the open passenger door and instructed Mr. Bosman to open the door. ROA, Vol. IV Attachment A at 02:35-03:09. His tone remained conversational, and his gun remained in the low ready position. Id.; ROA, Vol. III at 204.

At that moment, Mr. Stuart told Officer Hallas that Mr. Bosman also had a gun. ROA, Vol. IV Attachment B at 01:54-56. Officer Hallas shouted to the other officers, “he’s got a gun too, supposedly.” ROA, Vol. IV Attachment B at 01:56-58. Officer Gilman pointed his gun at Mr. Bosman and said, “We have information that you might be armed.” ROA, Vol. IV Attachment A at 03:37-40. Officer Gilman also warned Mr. Bosman that if his arm moved in a frightening way, he would probably get shot. Id. at 03:40-46. Mr. Bosman then opened the door, which triggered the car alarm again. Id. at 03:48-56. Officer Gilman told Mr. Bosman to follow Officer Sandoval’s commands, relocated to the driver’s side of the car, and pointed his gun at Mr. Bosman. Id. at 03:57-04:06. Officer Sandoval also took out his gun and pointed it at Mr. Bosman. Id.

Officer Sandoval told Mr. Bosman that if his hands shifted beneath his shoulders, he would shoot him. Id. at 04:00-15. Officer Sandoval holstered his weapon, grabbed one of Mr. Bosman’s wrists, and instructed him to leave the car while keeping his hands up. Id. at 04:15-06:05. As Officer Sandoval guided Mr. Bosman out of the car, Mr. Bosman fell out onto the ground. Id. at 04:15-25. A gun fell behind him on the ground. Id. at 04:15-30. After securing Mr. Bosman, the officers retrieved the gun. Id. at 04:30-06:05.[ii]

Bosman was subsequently charged with possession of a firearm by a convicted felon under federal law.  He filed a motion to suppress and argued that the officers acted unreasonably under the Fourth Amendment by pointing their guns at him and threatening to shoot him.  The district court denied the motion.  Bosman entered a guilty plea with the right to appeal the denial of his motion to suppress.  He then filed a timely appeal to the Tenth Circuit Court of Appeals.

On appeal, Bosman does not contest the officer’s authority to order him out of the car.  Rather, Bosman argued that the officers acted unreasonably under the Fourth Amendment when they pointed their guns at him and threatened to shoot him if he made any sudden movements.

The court of appeals first discussed the legal principles relevant to the issue.  The court stated

The Fourth Amendment protects individuals from “unreasonable searches and seizures.” U.S. Const. amend. IV. . .

A law enforcement officer, “for the purpose of investigation, may briefly detain a person on less than probable cause,” King, 990 F.2d at 1557; see United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 104 L. Ed. 2d 1 (1989), and may also “conduct a limited search for weapons for his or her own protection,” King, 990 F.2d at 1557; see Adams v. Williams, 407 U.S. 143, 145-46, 92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972). But the officer’s action must be “justified at its inception” and “reasonably related in scope to the circumstances which justified the interference in the first place.” Terry v. Ohio, 392 U.S. 1, 20, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). . .

Evaluating “the reasonableness of [a] seizure depends on a balance between the public interest and the individual’s right to personal security free from arbitrary interference [*8]  by law officers.” United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S. Ct. 2574, 45 L. Ed. 2d 607 (1975). . . But in assessing whether an officer’s action was reasonable, we “should not indulge in unrealistic second-guessing.” United States v. Montoya de Hernandez, 473 U.S. 531, 542, 105 S. Ct. 3304, 87 L. Ed. 2d 381 (1985) (quotations omitted). “The question is not simply whether some other alternative was available, but whether the police acted unreasonably in failing to recognize or to pursue it.” Sharpe, 470 U.S. at 687.[iii]

The court of appeals then applied the facts of Bosman’s case to the principles above.  The relevant facts were as follows:  (1) the officers were in the process of arresting Bosman’s companion for a felony; (2) the officers asked the companion if there were weapons in the car, and the companion originally told them no, but quickly told them that both he, and Bosman each had a gun; (3) officers did not know where Bosman’s gun was located, and the backseat of the car was cluttered, making it easy to conceal a weapon, and dangerous for the officers; and (4) there were bystanders in the area that would be in jeopardy.  It was only after the officers were told by Bosman’s companion that Bosman had a gun, did they point their guns at him and threaten to shoot him.  The court of appeals then stated

Under these circumstances, the officers did not act unreasonably by pointing their guns at Mr. Bosman and threatening to shoot for wayward movement.[iv]

Bosman raised two arguments on appeal.  First, he argued that the United States v. King[v], supports his position that the officer acted unreasonably.  In King, an officer directing traffic walked up to King, who was honking his horn repeatedly due to traffic.  The officer observed that King was carrying a gun on his person in his car.  The officer drew her firearm and pointed it at King.  The court held the officer’s actions were unreasonable because state law allowed people to carry guns in their cars and because the officer was merely directing traffic when she encountered King, rather than investigating a felony, as was the case in Bosman.  The court further distinguished King from Bosman in that, in King, the officer knew where the gun was located but in Bosman, they did not.  Thus, the court of appeals stated that King was not similar enough to provide guidance in Bosman.

Second, Bosman argued the officers should have simply ordered him to exit the vehicle, rather than also pointing their guns and threatening to shoot him for sudden move.  However, the court, rejecting this argument stated

But doing so may have put them at greater risk given the circumstances. And we cannot base our determination of reasonableness solely on “whether some other alternative was available.Sharpe, 470 U.S. at 687. We thus decline Mr. Bosman’s request that we engage in the “unrealistic second-guessing” that the Supreme Court has warned against. Montoya de Hernandez, 473 U.S. at 542 (quotations omitted).[vi]

Thus, the court held that the officer’s acted reasonably and affirmed the denial of the motion to suppress.



[i] No. 21-1076 (10th Cir. Decided February 18, 2022 Unpublished)

[ii] Id. at 2-5

[iii] Id. at 6-7 (emphasis added)

[iv] Id. at 9 (emphasis added)

[v] 990 F.2d 1552 (10th Cir. 1993)

[vi] Bosman at 10-11 (emphasis added)

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