IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-11160

REGINA GOLDSTON, Individually and as the Administrator of the Estate of 

Kelvin Goldston, 

 Plaintiff - Appellant

v.

BRUCE J. ANDERSON, Officer, 

 Defendant - Appellee

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:17-CV-105

Before JOLLY, HO, and ENGELHARDT, Circuit Judges.

PER CURIAM:*

Regina Goldston brought a § 1983 suit against Officer Bruce Anderson 

on behalf of her deceased son, Kelvin Goldston. Anderson moved for summary 

judgment based on qualified immunity. The district court granted Anderson’s 

motion, finding that Goldston did not show that Anderson violated a clearly 

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

August 23, 2019

Lyle W. Cayce

Clerk

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No. 18-11160

2

established constitutional right and acted objectively unreasonably under the 

circumstances. Goldston appealed. We affirm.

When a defendant claims qualified immunity as a defense, the burden 

shifts to the plaintiff, who must rebut the defense. McClendon v. City of 

Columbia, 305 F.3d 314, 323 (5th Cir. 2002). All inferences from the 

admissible evidence are drawn in the plaintiff’s favor, but the plaintiff must 

still show that (1) the officer violated a constitutional right and (2) the officer’s 

conduct was objectively unreasonable in light of clearly established law at the 

time of the violation. Terry v. Hubert, 609 F.3d 757, 761 (5th Cir. 2010). 

Counsel claims that Anderson violated Goldston’s Fourth Amendment 

rights by his use of excessive force. Officer Sara Straten had Goldston under 

surveillance in his girlfriends’ home in order to fulfill several outstanding 

arrest warrants on him. One of the warrants alleged that Goldston used his 

pickup truck to attempt to run over and then drag a police officer from 

Benbrook, Texas, while attempting to flee. When Goldston arrived at the 

house, Straten notified Officer Anderson, who was waiting nearby to help if 

necessary. When Goldston began to back out of the driveway in his pickup 

truck, Anderson blocked the vehicle with his patrol car. Goldston got out of his 

truck and Anderson ordered him to show his hands and get on the ground. 

Instead, Goldston got back into the truck and locked the doors. Straten 

positioned her unmarked minivan behind him at an angle, boxing him in. 

Apparently trying to escape, Goldston began to back up quickly toward Straten 

and Anderson fired into the cab, striking Goldston multiple times. 

In order to prevail on an excessive-force claim, Goldston must show 

“(1) [an] injury, (2) which resulted directly and only from a use of force that 

was clearly excessive, and (3) the excessiveness of which was clearly 

unreasonable.” Tarver v. City of Edna, 410 F.3d 745, 751 (5th Cir. 2005). But

this court has cautioned that “[a]n officer’s use of deadly force is not excessive 

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. . . when the officer reasonably believes that the suspect poses a threat of 

serious harm to the officer or others.” Manis v. Lawson, 585 F.3d 839, 843 (5th 

Cir. 2009). 

As the district court correctly observed, a vehicle can be a deadly weapon. 

If an officer believes he or others around him are in danger from the vehicle, it 

can be reasonable to use deadly force. See Fraire v. City of Arlington, 957 F.2d 

1268, 1277 (5th Cir. 1992). Anderson knew that Straten was behind Goldston’s 

pickup truck, either inside or outside the vehicle. He knew that Goldston had 

disobeyed multiple commands and had locked himself inside the truck. 

Additionally, Anderson knew that Goldston was wanted on multiple warrants, 

including one for allegedly dragging a police officer with his truck. When 

Goldston began to back up suddenly, it was reasonable for Anderson to believe 

that Officer Straten was in danger.

Counsel relies on Tennessee v. Garner, 471 U.S. 1 (1985), to argue that 

Goldston did not pose a threat to the officers and therefore deadly force was 

unjustified. Garner’s framework forbids deadly force unless the officer had 

probable cause to believe suspect poses “a threat of serious physical harm” to 

the officer or others. Garner, 471 U.S. at 3. But the Supreme Court has 

repeatedly reminded us “‘not to define clearly established law at a high level 

of generality,’” such as by invoking Garner’s general standard. Mullenix v. 

Luna, 136 S. Ct. 305, 308 (2015) (quoting Ashcroft v. Al-Kidd, 563 U.S. 731, 

742 (2011)). Instead, the inquiry must center on whether it was clearly 

unreasonable under the Fourth Amendment in the specific situation the officer 

confronted. Mullenix, 136 S. Ct. at 309. Existing precedent must place the 

conclusion that Anderson “acted unreasonably in these circumstances ‘beyond 

debate.’” Id. (quoting al-Kidd, 563 U.S. at 741). Goldston did not meet this 

high bar here.

We affirm.

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