A Minnesota police encounter that goes badly can be judged under two rules at once, and the rules do not ask the same question.
The federal rule comes from Graham v. Connor, 490 U.S. 386 (1989), and asks whether the force used was objectively reasonable. The Minnesota rule, in Minn. Stat. § 609.066, subd. 2, asks whether deadly force was necessary and attaches a three-part test to the threat that supposedly required it. Force can satisfy one and fail the other. This article is about the federal standard as it is actually applied to Minnesota cases — which means as the Eighth Circuit applies it, since 28 U.S.C. § 41 places Minnesota in the Eighth Circuit along with Arkansas, Iowa, Missouri, Nebraska, North Dakota, and South Dakota. The Minnesota statute is taken up in our article on Minn. Stat. § 609.066.
What Graham decided
Before 1989, federal courts analyzed police force claims under 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 rejected that framework 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 single move did two things at once. It gave plaintiffs a standard that does not require proving an officer’s bad motive. And it gave officers a standard that cannot be defeated by proving bad motive either.
The three factors, and what they are not
The Court did not supply a formula. Quoting Bell v. Wolfish, 441 U.S. 520, 559 (1979), it observed that “[t]he test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application,” and continued that “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. Three things about them are routinely misunderstood.
They are not elements. The word in the opinion is “including” — the list is illustrative, and the ultimate inquiry is the totality of the circumstances. A plaintiff does not win by checking all three boxes, and a defendant does not win by contesting one.
They are 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 would be reasonable to stop a violent assault is not reasonable to end a passive refusal.
They are not a necessity test. Nothing in Graham requires that the force chosen be the least intrusive available. That is the single largest gap between the federal standard and Minnesota’s statute.
The perspective rule and the hindsight bar
The two sentences of Graham most often quoted 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. Both are usually deployed by defendants, and both are usually deployed too broadly. The split-second sentence is a description of certain encounters, not a rule that applies to all of them. Where the record shows the officers had time to plan, the sentence does no work — a point the Eighth Circuit made recently in a Minnesota case discussed below.
Finally, 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 that an officer is a bad person has built the wrong case.
How the Eighth Circuit applies it
The abstraction becomes concrete in the circuit’s own decisions, several of which 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 states 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 shot posed the kind of threat the Constitution requires. The court also addressed the warning question, noting that “Garner requires the officer to give a warning ‘where feasible,’” id. at 474 — a point developed in our article on Tennessee v. Garner.
A recent Minnesota case shows the Graham factors doing plaintiff-side work. In Locke v. County of Hubbard, No. 24-1285 (8th Cir. Sept. 17, 2025), a pipeline protester alleged that a sheriff and chief deputy applied a series of pain-compliance techniques — 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, applying the Graham factors directly: trespass and obstruction are not severe crimes; nothing pleaded suggested the plaintiff “pose[d] an immediate threat” to anyone’s safety; and his failure to release himself was not active resistance, the court noting 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 was blunt: 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, and would have resolved the case on the clearly-established prong of qualified immunity.
The same standard cuts the other way in 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, restating 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 does not automatically make deadly force unreasonable, distinguishing Ludwig on its facts.
Read together, those cases show what the Eighth Circuit is really doing: assembling the specific facts known to the specific officer at the specific moment, and asking 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 is where Minnesota practice diverges 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 further 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.
A use of force can therefore 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 was not necessary, but it may well have been reasonable.
And a use of force can violate the Fourth Amendment without any statutory violation at all — the statute’s deadly-force provisions do not 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 addressed the relationship directly, and the answer is not the intuitive one. In Virginia v. Moore, 553 U.S. 164 (2008), an arrest supported by probable cause but forbidden by state law was held not to violate the Fourth Amendment. The Court 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.
The practical translation for a Minnesota case: proving that an officer violated § 609.066 does not prove a federal constitutional claim. It may matter a great deal elsewhere — 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 contours are not settled by the statute’s text. But the federal claim rises or falls on the Fourth Amendment.
The defense that decides most of these cases
Even a plaintiff who establishes a Fourth Amendment violation faces qualified immunity, which asks a second and much harder question: whether the right was 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 is treated separately in our article on qualified immunity and the “clearly established” requirement, and it belongs in the broader pattern described in The Courthouse Door Is Narrowing.
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. Whether a use of force is measured against the Fourth Amendment, against Minn. Stat. § 609.066, or against both is the kind of question that shapes a case from the first filing. 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.