Attorney General Ellison further clarifies law on use of force in schools

In supplemented opinion to MDE Commissioner, AG Ellison clarifies that new amendments do not affect definition of ‘reasonable force’ that may be used when carrying out arrests and other lawful duties

When threat of bodily harm is not present, professionals continue to have many tools at their disposal to ensure safety, including physical contact

September 20, 2023 (SAINT PAUL) — Minnesota Attorney General Keith Ellison today issued a supplemented legal opinion regarding recent amendments to Minnesota’s school discipline laws. 

The opinion Attorney General Ellison released on August 22, 2023, which Minnesota Department of Education Commissioner Willie Jett requested under Minnesota Statutes section 8.07, clarified that the amendments do not limit the types of force that may be used by school employees and agents to prevent bodily harm or death, but retain the instruction that force must be “reasonable” in those situations. 

The supplemented opinion released today further clarifies that the amendments also do not limit the types of reasonable force that may be used by public officers to carry out their lawful duties as described in Minnesota Statutes section 609.06, subdivision 1(1). “Reasonable force” is a legal standard that demands that a response be proportional to the threat, based on the totality of the circumstances. The 2023 amendments specifically reference Minnesota Statutes section 609.06, subdivision 1, which authorizes reasonable force by public officers in effecting arrest, executing process, enforcing court orders, or executing other duties. As the original and supplemented opinion both say, “The standard for reasonable force has not changed, and is highly fact-specific.” As the original and supplemented opinions also say, “… the level of threat posed by a particular student or situation can change rapidly, and any assessment of what use of force was reasonable must take that into account.” 

There have been significant misunderstandings about the impact of the new amendments.  For example, some have interpreted the amendments as restricting SROs and school professionals from engaging in any physical contact to address non-violent behavior. That is not the case:  professionals simply must avoid the restraints identified in Section 121A.58, namely that unless a student poses an imminent threat of bodily harm to self or others, professionals “shall not use prone restraint” and “shall not inflict any form of physical holding that restricts or impairs a pupil's ability to breathe; restricts or impairs a pupil's ability to communicate distress; places pressure or weight on a pupil's head, throat, neck, chest, lungs, sternum, diaphragm, back, or abdomen; or results in straddling a pupil's torso.” If a student is misbehaving in a way that does not and will not harm that student or anyone else, professionals in schools still have many tools at their disposal, including other kinds of physical contact. 

Others have asserted that the statutes require school professionals to wait until someone is already injured before intervening with reasonable force. That is also not the case: the law says school employees and agents “may use reasonable force when it is necessary under the circumstances to restrain a student to prevent bodily harm or death to the student or to another…” The Legislature’s use of the word “prevent” means that when a professional determines a student is about to harm themselves or another, the professional may intervene.   

“My top concern continues to be that students and school staff be safe in schools and that law-enforcement officers can effectively play their part in keeping them safe,” Attorney General Ellison said. “My original legal opinion last month addressed only the question of whether the recent amendments to school-discipline laws allow the use of prone restraints and other techniques in cases of imminent physical harm to self or others. Since then, I have been in conversation with a variety of stakeholders, including law enforcement, who have raised more questions in good faith. I have also seen misunderstandings of the original opinion and the law. I am issuing this supplemental legal opinion, which is consistent with the conclusions of the original opinion, in an effort to address those good-faith concerns and clarify those misunderstandings.”