Colorado Springs police acted reasonably in pointing their guns at a man and warning they would shoot him, the federal appeals court based in Denver has ruled, citing officer safety concerns.

Michael James Bosman claimed officers had used excessive force tantamount to an arrest when they ordered him out of a vehicle at gunpoint without having probable cause that Bosman had committed a crime. But a three-judge panel of the U.S. Court of Appeals for the 10th Circuit determined the officers had resorted to legitimate safety precautions.

“After carefully reviewing the record, including the officers’ body camera footage, we agree with the district court that their actions were reasonable,” wrote Judge Scott M. Matheson Jr. in the panel’s Feb. 18 order. “Mr. Bosman contends the officers should have simply commanded him to get out of the car. But doing so may have put them at greater risk given the circumstances.”

Bosman’s appeal centered on the final minute of a roughly three-and-a-half-minute encounter in the parking lot of a Travelodge hotel. Police had received a tip that Albert Stuart, who had an active felony warrant for identity theft and vehicle theft, was sleeping in a car outside the hotel. 

Around 9 a.m. on March 7, 2019, Corporal Randall Hallas and officers James Gilman and Mark Sandoval roused Stuart, who was in the front of the vehicle, as well as Bosman, who was in the back. Although the police heard that another person with an active warrant was also at the motel, Hallas realized that Bosman was not that person.

Hallas asked Stuart to exit the vehicle, and the car alarm sounded. Hallas asked if there were any weapons in the vehicle and neither Stuart nor Bosman answered that there were. Gilman stayed with Bosman and gave him commands to get out of the car, but Bosman had trouble unlocking the door.

While Hallas was with Stuart, he called out that he had found a gun. Within another minute or two, Hallas learned from Stuart that Bosman also had a gun. Once Hallas relayed that information to the two other officers, the encounter changed: Gilman raised his gun and warned Bosman that “if your hands go somewhere where I feel frightened, you’re probably going to get shot.”

As Bosman finally began to exit the vehicle, Sandoval pointed his gun at Bosman and said, “If your hands go anywhere below your shoulders, I’m going to shoot you.”

Bosman slid onto the ground and a gun fell onto the pavement behind him. The government later charged Bosman with being a felon in possession of a firearm, to which he pleaded guilty.

Bosman attempted to suppress the evidence of the firearm, arguing that the officers effectively arrested him, not knowing who he was, for having a firearm in the vehicle as Colorado law allows. U.S. District Court Judge Raymond P. Moore, in denying the motion to suppress, did not believe the officers placed Bosman under arrest when they ordered him out of the car at gunpoint.

“To me, it’s beyond dispute, at that point, that officer safety concern is absolutely valid, absolutely justified, and that the conduct, in response to that, while objectively harsh in terms of the language used, does not exceed constitutional bounds in any way, shape or form,” he said.

Bosman argued to the 10th Circuit panel that police had a right to order both men out of the car, but used unreasonable force in doing so.

“The officers could have kept their guns in the low-ready position because the fact that Mr. Bosman had a gun lawfully, as far as the officers knew, didn’t heighten the danger so much that a gunpoint seizure actually was required here,” Assistant Federal Public Defender Howard A. Pincus told the panel.

The 10th Circuit judges indicated they felt the officers had justification for being assertive once they heard about the gun in the car.

“Why wouldn’t that be a matter of real concern if all of sudden there’s a second gun and they didn’t know where it is?” Matheson asked.

“We know that the officers confronted a somewhat perilous circumstance in that there is a firearm and they don’t know where it is,” Judge Gregory A. Phillips echoed. “What is the most the officers could have done to get him out of the car and still acted reasonably? Just by saying, ‘Would you please get out of the car?'”

At the same time, the panel got the government to concede that the officers never asked Bosman directly about where the gun was, and there was no apparent criminal connection between Stuart and Bosman.

“Is there any reason the officers couldn’t have gotten him out of the car with his hands over his head without his being on the ground and without having actually pointed the barrel of the firearm at him?” Phillips asked.

Yes, Assistant U.S. Attorney Candyce Choi Cline responded, but the “incremental” increase in force was appropriate given the officers’ newfound safety concern.

The panel found that under the circumstances, in which police were executing a felony arrest with bystanders in the vicinity, “the officers did not act unreasonably by pointing their guns at Mr. Bosman and threatening to shoot for wayward movement,” Matheson concluded.

The case is United States v. Bosman.