CA10: Where one in car flashed gun in a bar, it was reasonable to order occupants to ground when stopped

Defendant was seen flashing a gun in a bar in Colorado, and police got a specific description including hair braids and dress from the wait staff. When the car was seen, officers ordered the occupants out and to the ground with their legs crossed. Under the facts known to the officers, this use of force was objectively reasonable. United States v. Windom, 2017 U.S. App. LEXIS 13313 (10th Cir. July 24, 2017):

Indeed, when an officer has a reasonable belief that a suspect he is investigating at close range is armed, “it would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm.” Long, 463 U.S. at 1047 (emphasis added) (quoting Terry, 392 U.S. at 24); see also Perdue, 8 F.3d at 1463 (“The Fourth Amendment does not require that officers unnecessarily risk their lives when encountering a suspect whom they reasonably believe to be armed and dangerous.”). Notably, we have held that “the governmental interest in the safety of police officers outweighs the individual’s Fourth Amendment interest when an officer has an objective basis to believe that the person being lawfully detained is armed and dangerous.” United States v. King, 990 F.2d 1552, 1561 (10th Cir. 1993) (emphasis added); see also United States v. Holt, 264 F.3d 1215, 1222 (10th Cir. 2001) (en banc) (Ebel, J., for the court) (“The Supreme Court has found it ‘too plain for argument’ that the government’s interest in officer safety is ‘both legitimate and weighty,’ given the ‘inordinate risks confronting an officer as he approaches a person seated in an automobile.’” (quoting Mimms, 434 U.S. at 110)), overturned on other grounds by Muehler v. Mena, 544 U.S. 93 (2005) (holding that the content of police questions in the course of a legitimate stop raise no Fourth Amendment issues if the questions do not unreasonably prolong the detention).

Thus, in light of the foregoing principles, we must determine whether the totality of the circumstances known to the officers justified the nature of the particular seizure at issue here. See Mosley, 743 F.3d at 1328-29 (“In evaluating whether the precautionary steps taken by an officer [during a stop] were reasonable, the standard is objective—would the facts available to the officer at the moment of the seizure warrant a man of reasonable caution in the belief that the action taken was appropriate.” (quoting Novitsky, 491 F.3d 1244)). We conclude that, under these circumstances, the degree of force used by the officers was reasonable and justified.

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