For most of American legal history, an officer could shoot a fleeing felon. That was the common-law rule, and nineteen states had written some version of it into their codes as recently as the 1980s. Tennessee v. Garner, 471 U.S. 1 (1985), ended it as a constitutional matter.
Minnesota now goes further than Garner requires. Minn. Stat. § 609.066, subd. 2(a)(2), permits deadly force to stop an escape only when the officer has grounds to believe the person committed a felony and reasonably believes the person will cause death or great bodily harm unless immediately apprehended — with that belief measured against a three-part threat test, all under an overarching requirement that the force be necessary. The felony is half the test. Reading it as the whole test inverts the statute.
This article covers what Garner holds, what it does not, and how the Minnesota statute both codifies and narrows it. The statute as a whole is treated in our article on Minn. Stat. § 609.066, and the general Fourth Amendment framework in our article on Graham v. Connor.
What happened in Garner
At about 10:45 p.m. on October 3, 1974, two Memphis officers answered a “prowler inside call.” One of them, Elton Hymon, went behind the house, heard a door slam, and saw someone run across the backyard. Edward Garner stopped at a six-foot chain link fence. With a flashlight, Hymon could see Garner’s face and hands; he “saw no sign of a weapon, and, though not certain, was ‘reasonably sure’ and ‘figured’ that Garner was unarmed.” He thought Garner was seventeen or eighteen. When Garner began to climb the fence, Hymon — convinced Garner would otherwise escape — shot him in the back of the head. Ten dollars and a purse taken from the house were found on his body.
Hymon was acting under a Tennessee statute providing that “[i]f, after notice of the intention to arrest the defendant, he either flee or forcibly resist, the officer may use all the necessary means to effect the arrest,” and under a department policy that “was slightly more restrictive than the statute, but still allowed the use of deadly force in cases of burglary.” The Memphis Police Firearm’s Review Board and a grand jury both reviewed the shooting; neither took any action. Garner’s father sued under 42 U.S.C. § 1983, and the district court entered judgment for the defendants.
The Supreme Court reversed as to the constitutionality of the statute.
The holding
The Court stated its conclusion in the first paragraph of the opinion:
This case requires us to determine the constitutionality of the use of deadly force to prevent the escape of an apparently unarmed suspected felon. We conclude that such force may not be used unless it is necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.
471 U.S. at 3. The operative passages come at pages 11 and 12:
The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable. It is not better that all felony suspects die than that they escape. Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so. … A police officer may not seize an unarmed, nondangerous suspect by shooting him dead.
and, on the other side:
Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force. Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.
Id. at 11–12. Apprehension by deadly force is itself a seizure: “there can be no question that apprehension by the use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment.” Id. at 7.
The Court’s reasons for abandoning the common-law rule are worth knowing, because they explain why “felony” carries so little weight in the modern analysis. The rule “arose at a time when virtually all felonies were punishable by death,” id. at 13. The felony/misdemeanor line that was once, in the Court’s borrowed phrase, “broad and deep” has changed: “today the distinction is minor and often arbitrary,” and “[m]any crimes classified as misdemeanors, or nonexistent, at common law are now felonies,” id. at 14. And the rule developed when “weapons were rudimentary” and deadly force “could be inflicted almost solely in a hand-to-hand struggle,” before handguns made killing at a distance a practical means of apprehension. Id. at 14. The Court’s summary: “though the common-law pedigree of Tennessee’s rule is pure on its face, changes in the legal and technological context mean the rule is distorted almost beyond recognition when literally applied.” Id. at 15.
There is a Minnesota footprint in the opinion. The Court cited the Minnesota Supreme Court’s decision in Schumann v. McGinn, 307 Minn. 446, 240 N.W.2d 525 (1976), twice — once at page 14 as an example of courts justifying the common-law rule by “emphasizing the relative dangerousness of felons,” and once at page 11, citing Justice Rogosheske’s partial dissent in support of the proposition that there is “substantial basis for doubting that the use of such force is an essential attribute of the arrest power in all felony cases.”
What Garner is not
Plaintiffs’ lawyers sometimes treat the Garner language as a set of elements that switch on whenever deadly force is used. The Supreme Court has said otherwise. In Scott v. Harris, 550 U.S. 372 (2007), a case about a police car ramming a fleeing vehicle, the Court wrote that “Garner did not establish a magical on/off switch that triggers rigid preconditions whenever an officer’s actions constitute ‘deadly force.’” Id. at 382. Garner, the Court explained, “was simply an application of the Fourth Amendment’s ‘reasonableness’ test … to the use of a particular type of force in a particular situation,” and whatever Garner said about the factors that might have justified the shooting there, such preconditions “have scant applicability to this case, which has vastly different facts.” Id. at 382–83. The Court’s summary of the federal inquiry was deliberately unglamorous: “in the end we must still slosh our way through the factbound morass of ‘reasonableness.’” Id. at 383.
That is the constitutional floor: a fact-bound reasonableness inquiry, with Garner’s threat requirement as its most important application in flight cases.
How Minnesota narrowed it
Minnesota’s statute is not a restatement of Garner. It is tighter, in four identifiable ways.
First, necessity is required across the board. Subdivision 2(a) permits deadly force “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.” Graham’s reasonableness range does not include a general necessity requirement; the statute imposes one on every use of deadly force, not only escapes.
Second, the escape clause is conjunctive. Subdivision 2(a)(2) authorizes deadly force
to effect the arrest or capture, or prevent the escape, of a person whom the peace officer knows or has reasonable grounds to believe has committed or attempted to commit a felony and the officer reasonably believes that the person will cause death or great bodily harm to another person under the threat criteria in clause (1), items (i) to (iii), unless immediately apprehended.
Both halves are required. A felony — even a violent one — does not by itself authorize deadly force under this clause. The officer must also reasonably believe the person will cause death or great bodily harm unless immediately apprehended.
Third, the belief must satisfy the three threat criteria. Clause (2) incorporates “the threat criteria in clause (1), items (i) to (iii)” — the threat must “be articulated with specificity,” must 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.” Those three are cumulative, and they have no counterpart in Garner or Graham.
Fourth, the 2020 amendment removed a standalone route that used to exist. The pre-2020 version of subdivision 2 permitted deadly force, without any separate finding of future dangerousness, “to effect the arrest or capture, or prevent the escape, of a person whom the peace officer knows or has reasonable grounds to believe has committed or attempted to commit a felony involving the use or threatened use of deadly force.” That standalone clause is gone. Under the current text, the felony-plus-future-harm showing is the only escape justification, and it is subject to the three threat criteria and the overarching necessity requirement.
The Minnesota threshold is also stated in different words than the federal one. Garner speaks of “a significant threat of death or serious physical injury” and “serious physical harm.” The Minnesota statute speaks of “death or great bodily harm,” and “great bodily harm” is a defined term: Minn. Stat. § 609.02, subd. 8, defines it as “bodily injury which creates a high probability of death, or which causes serious permanent disfigurement, or which causes a permanent or protracted loss or impairment of the function of any bodily member or organ or other serious bodily harm.”
The Eighth Circuit on flight and warnings
Minnesota federal cases are decided by the Eighth Circuit, and it has applied Garner to Minnesota facts.
In Ludwig v. Anderson, 54 F.3d 465 (8th Cir. 1995), St. Paul officers shot a man who was running away with a knife. The district court in Minnesota granted the officers qualified immunity; the Eighth Circuit reversed, holding that material fact questions remained about whether the man posed the threat Garner requires. The opinion also states that “Garner requires the officer to give a warning ‘where feasible,’” id. at 474 — quoting the last clause of the Garner passage set out above.
That warning requirement is real but qualified. In Klum v. City of Davenport, No. 24-2165 (8th Cir. July 31, 2025), the court acknowledged the Ludwig rule and then held that “a failure to warn does not automatically render the use of deadly force unreasonable,” affirming judgment for an officer who shot a man who was fleeing while holding a gun to his own head and walking toward bystanders. The court distinguished Ludwig on its facts, noting that the man in Ludwig was “running away from all bystanders.”
The practical point
A Minnesota flight case can produce two different answers. Under the Fourth Amendment, the question is whether shooting was objectively reasonable under all the circumstances, with Garner’s threat requirement doing the heavy lifting and Scott warning against rigid preconditions. Under Minn. Stat. § 609.066, the question is whether deadly force was necessary, whether the person was reasonably believed to have committed a felony, whether the officer reasonably believed the person would cause death or great bodily harm unless immediately apprehended, and whether that threat was specific, likely absent action, and not deferrable.
The statute is written in the criminal code, and its text does not create a civil cause of action or state that a violation establishes civil liability; that question is unresolved by the text, and we did not locate controlling Minnesota appellate authority answering it while researching this article. What is clear is that a federal claim is governed by the Fourth Amendment rather than by the statute, and that even a strong Fourth Amendment showing must get past qualified immunity — the subject of our article on the “clearly established” requirement. The restraint limits in Minn. Stat. § 609.06, subd. 3, are keyed to the same deadly-force test; see our article on choke holds and prone restraint.
About this firm
Madgett Law, LLC litigates civil rights and police misconduct claims in Minnesota state and federal court, alongside its personal injury and general litigation practice. Cases involving force against a fleeing person turn on details that are easy to lose early, which is a reason to ask sooner rather than later. Send us a message or call 612-470-6529.
Sources: Tennessee v. Garner, 471 U.S. 1, 3 (statement of holding), 3–5 (facts; Tenn. Code Ann. § 40-7-108; department policy; grand jury and review board), 7 (deadly force as a seizure), 11–12 (the operative rule and the “where feasible” warning), 11 (citing Schumann v. McGinn, 307 Minn. 446, 240 N.W.2d 525 (1976) (Rogosheske, J., dissenting in part)), 13–15 (common-law rule and why it no longer translates), 14 (citing Schumann for the “relative dangerousness of felons” rationale), 16 (19 States had codified the common-law rule) (1985); Scott v. Harris, 550 U.S. 372, 382, 382–83, 383 (2007); Graham v. Connor, 490 U.S. 386, 396 (1989); Ludwig v. Anderson, 54 F.3d 465, 474 (8th Cir. 1995); Klum v. City of Davenport, No. 24-2165 (8th Cir. July 31, 2025); Minn. Stat. § 609.066, subd. 2(a), 2(a)(1)(i)–(iii), and 2(a)(2) (current text) and subd. 2 (2019 text, historical version); Minn. Stat. § 609.02, subd. 8 (definition of great bodily harm); 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.