For most of American legal history an officer could shoot a fleeing felon. That was the common-law rule, and as recently as the 1980s nineteen states had written some version of it into their codes. Tennessee v. Garner, 471 U.S. 1 (1985), ended it as a constitutional matter.
Minnesota goes further than Garner requires, and I want to be precise about how much further. 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 sitting under an overarching requirement that the force be necessary. The felony is half the test. Read it as the whole test and you have inverted the statute.
So: 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.
Garner, and what it actually held
At about 10:45 p.m. on October 3, 1974, two Memphis officers answered a “prowler inside call.” One of them, Elton Hymon, went around 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 took him for seventeen or eighteen. When Garner started up the fence, Hymon — sure the boy would otherwise get away — shot him in the back of the head. Ten dollars and a purse taken from the house were found on the 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 looked at the shooting. Neither did anything. 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, and it put the conclusion in the opinion’s first paragraph:
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 arrive 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 of the line:
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.
Why the Court abandoned the common-law rule explains why the word “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 moved: “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. The rule also grew up when “weapons were rudimentary” and deadly force “could be inflicted almost solely in a hand-to-hand struggle,” long before a handgun made killing at a distance a routine method of apprehension. Id. at 14. The Court’s own 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, which few people notice. The Court cited the Minnesota Supreme Court’s decision in Schumann v. McGinn, 307 Minn. 446, 240 N.W.2d 525 (1976), twice — at page 14 as an example of courts justifying the common-law rule by “emphasizing the relative dangerousness of felons,” and at page 11, citing Justice Rogosheske’s partial dissent for 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.”
Garner is not a checklist
Plaintiffs’ lawyers sometimes treat the Garner language as a set of elements that switches on the moment deadly force is used. The Supreme Court says otherwise, and the correction is worth quoting. In Scott v. Harris, 550 U.S. 372 (2007), a case about a squad 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 that shooting, such preconditions “have scant applicability to this case, which has vastly different facts.” Id. at 382–83. The Court described the federal inquiry without any glamour at all: “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 doing the heaviest work in flight cases.
Minnesota narrowed it in four ways
Minnesota’s statute is not a restatement of Garner. It is tighter, and it is tighter in four identifiable places. I will take them in turn.
First, necessity runs 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 carries no general necessity requirement. The statute imposes one on every use of deadly force, not merely on 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, every time. A felony — even a violent one — authorizes nothing by itself under this clause. The officer must also reasonably believe the person will cause death or great bodily harm unless immediately apprehended.
Third, the belief has to satisfy three threat criteria. Clause (2) pulls in “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 neither Garner nor Graham has anything like them.
Fourth, the 2020 amendment deleted a standalone route that used to exist. The pre-2020 version of subdivision 2 permitted deadly force, with no separate finding of future dangerousness at all, “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 clause is gone. Under the current text the felony-plus-future-harm showing is the only escape justification, and it answers to the three threat criteria and the necessity requirement besides.
Minnesota also states its threshold in different words than the federal one, and the difference is not decorative. 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 go to the Eighth Circuit, and it has run Garner at Minnesota facts.
In Ludwig v. Anderson, 54 F.3d 465 (8th Cir. 1995), St. Paul officers shot a man running away with a knife. The district court here granted the officers qualified immunity; the Eighth Circuit reversed, holding that material fact questions remained about whether the man posed the threat Garner demands. 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 above.
That warning requirement is real and it is 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 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.” Those two decisions mark the edges I work between: direction of flight, proximity of third parties, and what the officer had time to say.
Two bodies of law, two different answers
A Minnesota flight case can come out two ways at once, and anyone evaluating one needs both answers.
Under the Fourth Amendment, the question is whether the shooting was objectively reasonable under all the circumstances, with Garner’s threat requirement carrying the load and Scott warning against rigid preconditions. Under Minn. Stat. § 609.066, the questions multiply: was deadly force necessary, was the person reasonably believed to have committed a felony, did the officer reasonably believe the person would cause death or great bodily harm unless immediately apprehended, and was that threat specific, likely absent action, and not deferrable.
The statute sits in the criminal code. Its text neither creates a civil cause of action nor says that a violation establishes civil liability, and I did not locate controlling Minnesota appellate authority answering that question while researching this piece. What is settled is that a federal claim is governed by the Fourth Amendment rather than by the statute, and that even a strong Fourth Amendment showing still has to clear 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 this 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 squad video, radio traffic, and scene measurements — details that disappear early. 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.