     Case: 18-11160      Document: 00515090068         Page: 1    Date Filed: 08/23/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT   United States Court of Appeals
                                                     Fifth Circuit

                                                                               FILED
                                                                           August 23, 2019
                                      No. 18-11160
                                                                            Lyle W. Cayce
                                                                                 Clerk
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 18-11160     Document: 00515090068       Page: 2   Date Filed: 08/23/2019



                                   No. 18-11160
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
                                         2
    Case: 18-11160     Document: 00515090068    Page: 3   Date Filed: 08/23/2019



                                 No. 18-11160
. . . 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.
                                       3
