A Minnesota police encounter that goes badly can be judged under two rules at once, and they don’t ask the same question.
The federal rule comes from Graham v. Connor, 490 U.S. 386 (1989). It asks whether the force was objectively reasonable. The Minnesota rule, in Minn. Stat. § 609.066, subd. 2, asks whether deadly force was necessary, and it puts a three-part test on the threat that supposedly required it. Force can pass one and fail the other. When I look at one of these cases, I start with the federal standard the way it’s actually applied to Minnesota facts. That means the way the Eighth Circuit applies it, since 28 U.S.C. § 41 puts Minnesota in the Eighth Circuit along with Arkansas, Iowa, Missouri, Nebraska, North Dakota, and South Dakota. The Minnesota statute gets its own treatment in our article on Minn. Stat. § 609.066.
What Graham decided
Before 1989, federal courts ran police force claims through a “substantive due process” test borrowed from Johnson v. Glick, which asked, among other things, whether the officer had acted “maliciously and sadistically for the very purpose of causing harm.” Graham threw that out for arrest and stop cases. The Court held that “all claims that law enforcement officers have used excessive force — deadly or not — in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness’ standard, rather than under a ‘substantive due process’ approach.” 490 U.S. at 395.
That one move cut both ways. Plaintiffs got a standard that doesn’t require proving the officer’s bad motive. Officers got a standard you can’t beat by proving bad motive either.
The three factors, and what they aren’t
The Court didn’t hand out a formula. Quoting Bell v. Wolfish, 441 U.S. 520, 559 (1979), it said that “[t]he test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application,” and went on: “its proper application requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Id. at 396.
Those are the Graham factors. People routinely get three things wrong about them, and I end up briefing all three in nearly every one of these cases.
They aren’t elements. The word in the opinion is “including”, so the list is illustrative, and the real question is the totality of the circumstances. A plaintiff doesn’t win by checking all three boxes, and a defendant doesn’t win by knocking out one.
They’re weighed against the intrusion. Graham frames the analysis as “a careful balancing of ‘the nature and quality of the intrusion on the individual’s Fourth Amendment interests’ against the countervailing governmental interests at stake.” Id. Force that’s reasonable to stop a violent assault isn’t reasonable to end a passive refusal.
They aren’t a necessity test. Nothing in Graham requires the officer to pick the least intrusive force available. That’s the single biggest gap between the federal standard and Minnesota’s statute.
Where the officer was standing, and no hindsight
The two Graham sentences that show up most in briefs are about vantage point:
The “reasonableness” of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.
and
The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation.
Id. at 396–97. I see defendants use both, and usually stretch them too far. The split-second sentence describes certain encounters. It isn’t a rule for all of them. Where the record shows the officers had time to plan, the sentence does nothing, and the Eighth Circuit said as much recently in a Minnesota case I get to below.
And the inquiry is objective in both directions. “[T]he question is whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” Id. at 397. And: “An officer’s evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force; nor will an officer’s good intentions make an objectively unreasonable use of force constitutional.” Id. A plaintiff who builds a case around proving the officer is a bad person has built the wrong case.
How the Eighth Circuit applies it
The standard gets concrete in the circuit’s own decisions, and several of them come out of Minnesota.
In Ludwig v. Anderson, 54 F.3d 465 (8th Cir. 1995), two St. Paul officers were sued after a fatal shooting. The district court in Minnesota had granted them qualified immunity on summary judgment. The Eighth Circuit reversed. The opinion says flatly that “[a]pprehension by deadly force is a seizure subject to the Fourth Amendment,” id. at 470, then holds that material fact questions remained about whether the man they shot posed the kind of threat the Constitution requires. The court also took up the warning question, noting that “Garner requires the officer to give a warning ‘where feasible,’” id. at 474. That point gets fuller treatment in our article on Tennessee v. Garner.
A recent Minnesota case shows the Graham factors working for a plaintiff. In Locke v. County of Hubbard, No. 24-1285 (8th Cir. Sept. 17, 2025), a pipeline protester alleged that a sheriff and chief deputy used a series of pain-compliance techniques on him (pressure behind each ear, pressure at the infraorbital nerve, pressure to the hypoglossal nerve) while he was locked into a device attached to an excavator. The district court dismissed on qualified and official immunity. The Eighth Circuit reversed and applied the Graham factors head-on. Trespass and obstruction aren’t severe crimes. Nothing pleaded suggested the plaintiff “pose[d] an immediate threat” to anyone’s safety. And his failure to release himself wasn’t active resistance; the court pointed to the circuit’s rule that “[n]oncompliance and arguing do not amount to active resistance,” quoting Tatum v. Robinson, 858 F.3d 544, 549 (8th Cir. 2017). On the split-second point the court didn’t mince words: as pleaded, “the situation cannot be described as ‘tense, uncertain, and rapidly evolving’; nor were officers ‘forced to make split-second judgments’ about the force necessary to arrest the protestors.” Judge Gruender dissented. He would have decided the case on the clearly-established prong of qualified immunity.
The same standard cuts the other way on harder facts. In Klum v. City of Davenport, No. 24-2165 (8th Cir. July 31, 2025), the court affirmed judgment for an officer who shot a fleeing man holding a gun to his own head while walking toward bystanders. It restated the circuit rule that “[w]e have consistently held deadly force is not unreasonable where an officer has ‘probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or others.’” Klum also confirms that a failure to warn doesn’t automatically make deadly force unreasonable, and it distinguished Ludwig on its facts.
Put those cases together and you see what the Eighth Circuit is really doing, and what I build every one of these records around. It gathers the specific facts known to the specific officer at the specific moment and asks whether force at that level was within the range of reasonable responses. In Klum’s words, the circuit views the circumstances from the perspective of a reasonable officer on the scene “based on ‘those facts known to the officer at the precise moment [he] effectuate[d] the seizure.’”
The Minnesota overlay: two standards, one incident
Here’s where Minnesota practice breaks from the national script.
Minn. Stat. § 609.066, subd. 2(a), permits deadly force by a peace officer “only if an objectively reasonable officer would believe, based on the totality of the circumstances known to the officer at the time and without the benefit of hindsight, that such force is necessary.” Where the justification is protection from death or great bodily harm, the statute also requires that the threat “can be articulated with specificity,” be “reasonably likely to occur absent action by the law enforcement officer,” and “must be addressed through the use of deadly force without unreasonable delay.” Minnesota also restricts choke holds, hogtying, and face-down transport in Minn. Stat. § 609.06, subd. 3, unless § 609.066 would authorize deadly force. See our article on those restraint limits.
So a use of force can fail the statute and still survive the Fourth Amendment. Reasonableness is a range. Necessity is a threshold. Force that was one of several reasonable options wasn’t necessary, but it may well have been reasonable.
It runs the other way too. A use of force can violate the Fourth Amendment without breaking the statute at all. The statute’s deadly-force provisions don’t govern lesser force, while Graham reaches “all claims that law enforcement officers have used excessive force — deadly or not”. 490 U.S. at 395.
The Supreme Court has spoken to how the two fit together, and the answer isn’t the one most people expect. In Virginia v. Moore, 553 U.S. 164 (2008), the Court held that an arrest supported by probable cause but forbidden by state law didn’t violate the Fourth Amendment. It explained that States remain free “to impose higher standards on searches and seizures than required by the Federal Constitution,” id. at 171 (quoting Cooper v. California, 386 U.S. 58, 62 (1967)), but concluded that “while States are free to regulate such arrests however they desire, state restrictions do not alter the Fourth Amendment’s protections,” id. at 176, and that “it is not the province of the Fourth Amendment to enforce state law,” id. at 178.
What I tell clients is blunt. Proving an officer violated § 609.066 doesn’t prove a federal constitutional claim. It may matter a great deal somewhere else: in a criminal charging decision, in agency discipline, before the Board of Peace Officer Standards and Training, and potentially in a state-law theory whose civil reach the statute’s text doesn’t settle. But the federal claim rises or falls on the Fourth Amendment.
The defense that decides most of these cases
Even a plaintiff who proves a Fourth Amendment violation runs into qualified immunity, which asks a second, much harder question: was the right clearly established, in a sufficiently particularized way, at the time? That doctrine ends more excessive-force cases than the merits do, and both Locke and Klum turned substantially on it. It gets its own treatment in our article on qualified immunity and the “clearly established” requirement, and it’s part of the bigger pattern described in The Courthouse Door Is Narrowing.
Madgett Law, LLC
I litigate civil rights and police misconduct claims through Madgett Law, LLC in Minnesota state and federal court, alongside the firm’s personal injury and general litigation practice. Whether a use of force gets measured against the Fourth Amendment, against Minn. Stat. § 609.066, or against both is the question that shapes a case from the first filing, and it’s the first one I answer. Send us a message or call 612-470-6529.
Sources: Graham v. Connor, 490 U.S. 386, 395, 396, 396–97, 397 (1989) (holding; balancing; the severity/immediate-threat/active-resistance factors; reasonable-officer-on-the-scene and 20/20-hindsight sentence; split-second-judgments sentence; objective inquiry and the evil-intentions/good-intentions sentence); Virginia v. Moore, 553 U.S. 164, 171, 176, 178 (2008) (quoting Cooper v. California, 386 U.S. 58, 62 (1967)); Ludwig v. Anderson, 54 F.3d 465, 470, 474 (8th Cir. 1995); Locke v. County of Hubbard, No. 24-1285 (8th Cir. Sept. 17, 2025) (Kobes, J.; Gruender, J., dissenting), quoting Tatum v. Robinson, 858 F.3d 544, 549 (8th Cir. 2017); Klum v. City of Davenport, No. 24-2165 (8th Cir. July 31, 2025); 28 U.S.C. § 41 (composition of the Eighth Circuit); Minn. Stat. § 609.066, subd. 2(a) and 2(a)(1)(i)–(iii); Minn. Stat. § 609.06, subd. 3.
This article is general information about Minnesota and federal law. It is not legal advice, it does not create an attorney–client relationship, and it does not promise or imply any particular outcome. Case law and statutes change; verify current authority before relying on it.