Case: 13-30639        Document: 00512815979          Page: 1     Date Filed: 10/27/2014




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

                                                                                  FILED
                                                                              October 27, 2014
                                        No. 13-30639
                                                                               Lyle W. Cayce
                                                                                    Clerk
NATHAN RICE; BRANDON RICE; JONATHON RICE; JESSICA RICE;
BRENDA RICE, on behalf of her Minor Daughter, M.R., Individually and on
behalf of their deceased father Gerald Rice,

                                                    Plaintiffs–Appellants
v.

RELIASTAR LIFE INSURANCE COMPANY; JOEL ARNOLD, Individually
and in his Official Capacity as a Livingston Parish Sheriff's Deputy; WILLIE
GRAVES, Individually and in his Official Capacity as Livingston Parish
Sheriff,

                                                    Defendants–Appellees




                     Appeal from the United States District Court
                         for the Middle District of Louisiana


Before DENNIS and PRADO, Circuit Judges, and BROWN,* District Judge.
EDWARD C. PRADO, Circuit Judge:
      Plaintiffs–Appellees Nathan Rice, Brandon Rice, Jonathan Rice, Jessica
Rice, and Brenda Rice 1 (collectively the “Rice Plaintiffs”) brought suit against
Deputy Joel Arnold (“Arnold”) and Sheriff Willie Graves (“Graves”) alleging
various violations of federal and state law after Arnold fatally shot their father,


      *   District Judge for the Eastern District of Louisiana, sitting by designation.

      1 Brenda Rice brought suit on behalf of her minor daughter, M.R., individually, and
on behalf of the Rice Plaintiffs’ father, Gerald Rice.
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                                 No. 13-30639
Gerald Rice (“Rice”), while responding to a 911 call. The Rice Plaintiffs also
filed suit against ReliaStar Life Insurance Company (“ReliaStar”) to recover
$179,000 they allege ReliaStar owes them under Rice’s accidental death policy.
Arnold and Graves filed motions for summary judgment, which the district
court granted, dismissing all of the claims against them. The Rice Plaintiffs
and ReliaStar filed cross-motions for summary judgment as to the death
benefits issue, and the district court granted ReliaStar’s motion and denied the
Rice Plaintiffs’ motion. On appeal, the Rice Plaintiffs challenge the district
court’s grant of summary judgment to Arnold, Graves, and ReliaStar. We
affirm.
           I. FACTUAL AND PROCEDURAL BACKGROUND
A. Factual Background
      1. Rice’s Death
      On January 27, 2010, Ryan Craig (“Craig”), Rice’s nephew, placed a 911
call stating that Rice was sitting in Rice’s truck with a loaded gun to his head
and threatening to commit suicide. Arnold and Deputy Johnson (“Johnson”)
went to Rice’s house in response to the 911 call. Craig told Arnold and Johnson
that Rice was armed, had been drinking, had taken a lot of medication, and
that Rice had a problem with law enforcement.
      Arnold and Johnson entered Rice’s home without a warrant, and Arnold
saw Rice sitting in his truck in his garage with a gun to his head. Arnold and
Johnson retreated to the kitchen for cover (a small hallway connected the
kitchen to the garage). While Arnold and Johnson remained in the kitchen,
Arnold repeatedly asked Rice to put his gun down. Rice refused, saying he
wanted to come into the kitchen to get a beer. While Arnold and Johnson were
in Rice’s kitchen, they heard a single gunshot. Arnold and Johnson went to
the garage and determined that Rice had not injured himself; it was later
discovered that Rice had shot a single bullet into the wall in the garage. The
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                                         No. 13-30639
deputies again asked Rice to relinquish his gun as they retreated to the
kitchen, but Rice refused.
       Rice exited his truck and began walking toward the kitchen. 2 Arnold
repeatedly told Rice to put the gun down. While continuing to walk toward the
kitchen, Rice stated, “I want to commit suicide.” Arnold then fired four shots
at Rice, hitting Rice in the chest three times. Johnson, who was also present
in the kitchen at the time, did not fire at Rice. Rice later died from the gunshot
wounds.
       2. Rice’s Accidental Death Benefits
       Rice was insured through a group life insurance policy issued by
ReliaStar through his employer.                   The policy provided for basic and
supplemental life insurance, and the Rice Plaintiffs, Rice’s beneficiaries under
the policy, were entitled to receive accidental life benefits if Rice died as the
result of a covered accident. Rice’s policy defined accident as “an unexpected,
external, violent and sudden event.” After Rice’s death, the Rice Plaintiffs filed
a claim for the $179,000 accidental death benefit.
       ReliaStar denied the claim, explaining that Rice’s death did not qualify
as an accidental death; he put himself in a position in which he should have
known that serious injury or death could occur as a result of his actions. The
Rice Plaintiffs appealed the denial, and ReliaStar forwarded the appeal to its
ERISA Appeals Committee, composed of three people who were not part of the
original benefit determination. The ERISA Appeals Committee affirmed the


       2  The parties dispute whether Rice still had his gun at the time he exited the vehicle.
The deputies claim that Rice still had the gun in his hand while walking toward the kitchen,
while the Rice Plaintiffs claim there is a genuine dispute regarding whether Rice still had
the gun in his hand while walking toward the kitchen. As we discuss in greater detail below,
see infra Part IV(A)(1)(ii), the record demonstrates that any dispute about this fact is not
genuine. See Anderson v. Liberty Lobby, Inc., 

, 248 (1986) (“[S]ummary judgment
will not lie if the dispute about a material fact is ‘genuine,’ that is, if the evidence is such that
a reasonable jury could return a verdict for the nonmoving party.”).
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denial of the claims. After the Rice Plaintiffs complained about the ERISA
appeals process, ReliaStar agreed to provide a second appeal. As part of this
second appeal, the committee interviewed Brandon Rice (“Brandon”), Rice’s
son who was outside the home on the day of his father’s death. Brandon stated
he heard his father ask the deputies to leave. But he also acknowledged that
he was not in the house, did not know what happened, and had not spoken to
his father before or during the incident.
B. Procedural Background
       1. The Rice Plaintiffs’ Claims Against Arnold and Graves
       The Rice Plaintiffs sued Arnold in federal court, asserting claims under
42 U.S.C. § 1983. Specifically, the Rice Plaintiffs alleged
       excessive and unreasonable use of deadly force, battery, assault,
       false imprisonment, intentional infliction of emotional distress,
       fright, and outrage, cruel treatment, failing to provide adequate or
       timely medical attention, violations of the Constitution and other
       laws of the United States and of the State of Louisiana, deliberate
       indifference to rights, safety, and dignity of Gerald Rice, [and]
       warrantless entry into the home of Gerald Rice. 3
They also asserted claims against Arnold’s supervisor, Graves, under the
doctrine of respondeat superior, arguing that he was vicariously responsible
for Arnold’s actions.
       Arnold and Graves immediately moved to strike paragraphs 27–29 of the
Rice Plaintiffs’ complaint. In paragraph 27, the Rice Plaintiffs alleged that



       3 First, the Rice Plaintiffs do not press, and therefore abandon, their claim for failure
to provide adequate or timely medical attention on appeal.
        Next, the district court construed the Rice Plaintiffs’ claims for “cruel treatment,”
“violation of the Constitution and other laws of the United States,” and deliberate
indifference to the rights, safety, and dignity of Gerald Rice” as derivative of their claim for
the use of excessive force. The Rice Plaintiffs do not challenge this on appeal. In fact, on
appeal, they characterize their claims as ones for 1) warrantless entry, 2) excessive force, 3)
assault and battery, 4) false imprisonment, and 5) intentional infliction of emotional distress,
further suggesting that the district court correctly construed their claims.
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Arnold had a MySpace page featuring a picture of a movie character played by
Clint Eastwood with the caption “How I feel most of the time.” In paragraph
28, the Rice Plaintiffs alleged that Arnold had battered, brutalized, falsely
arrested, and maliciously prosecuted a seventy-year-old man.            Finally in
paragraph 29, the Rice Plaintiffs alleged that Rice was “shot and killed . . . by
the deputy with a documented history of unprovoked violence and with the
emotional state - ‘most of the time!!!!’ - of a trigger-happy anti-hero of the 1960s
cinema.”
      Adopting the magistrate judge’s recommendation, the district court
struck paragraphs 27 and 29, but denied the motion as to paragraph 28. The
court found that paragraph 28 “could certainly be relevant to [the Rice
Plaintiffs’] contentions that Sheriff Graves was negligent in hiring, retaining,
training, and/or supervising Deputy Arnold.”         The court, however, struck
paragraphs 27 and 29 “because they are merely argumentative and prejudicial
. . . and do not add to the substantive allegations of the complaint.” There was
no evidence linking the printed picture from MySpace to Arnold; Arnold’s name
did not appear anywhere on the printout, nor was there any indication that the
image was tied to a MySpace account belonging to Arnold.                The court
characterized paragraph 29 as “essentially the equivalent of ‘name-calling.’”
      Arnold and Graves then argued that they were entitled to qualified
immunity, and each filed a motion for summary judgment on the federal and
state law claims. The district court found that they were protected by qualified
immunity and granted both motions for summary judgment.
      2. The Rice Plaintiffs’ Claims Against ReliaStar
      The Rice Plaintiffs sued ReliaStar in Louisiana state court before
ReliaStar completed its second ERISA appeal. After removing the case to
federal court, ReliaStar completed its second ERISA appeal and again denied
the Rice Plaintiffs’ claim for Rice’s accidental death benefits.
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                                  No. 13-30639
      ReliaStar and the Rice Plaintiffs then filed cross-motions for summary
judgment, and the district court granted ReliaStar’s motion. The district court
found ReliaStar’s denial of the accidental death benefits was not arbitrary and
capricious (and therefore not an abuse of discretion) because: (1) the decision
was supported by substantial evidence; (2) there was a rational connection
between the known facts and ReliaStar’s decision; and (3) applying the facts to
the Fifth Circuit’s accidental death test supported granting ReliaStar’s motion.
      The Rice Plaintiffs timely appealed the district court’s grant of summary
judgment for Arnold, Graves, and Reliastar.
                             II. JURISDICTION
      The district court had jurisdiction under 28 U.S.C. § 1331 for the alleged
constitutional violations and the ERISA claim, and supplemental jurisdiction
under 28 U.S.C. § 1367 for the state law claims. This Court has jurisdiction
pursuant to 28 U.S.C. § 1291.
                       III. STANDARD OF REVIEW
      Summary judgment is appropriate where “the movant shows that there
is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). This Court views all facts
in the light most favorable to the nonmovant and draws all reasonable
inferences in the nonmovant’s favor. Coleman v. Hous. Indep. Sch. Dist., 

, 533 (5th Cir. 1997). If the movant shows the absence of any material
fact, the nonmovant “must . . . designate specific facts showing that there is a
genuine issue for trial.” Little v. Liquid Air Corp., 

, 1075 (5th Cir.
1994) (en banc) (per curiam). The nonmovant “may not rest upon the mere
allegations or denials of his pleading, but . . . must set forth specific facts
showing that there is a genuine issue for trial.” 

(citation and internal quotation marks omitted). The nonmovant cannot create
a genuine issue of material fact with “some metaphysical doubt as to the
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                                 No. 13-30639
material facts,” “conclusory allegations,” or “by only a scintilla of evidence.”

(citations and internal quotation marks omitted). But,
“[c]redibility determinations, the weighing of the evidence, and the drawing of
legitimate inferences from the facts are jury functions, not those of a judge.”

.
      ERISA preempts all state law claims that relate to an employee benefit
plan, so it governs the Rice Plaintiffs’ claim for accidental death benefits. See
29 U.S.C. § 1444(a). Whether a death is accidental is a question of fact. Todd
v. AIF Life Ins., 

, 1456 (5th Cir. 1995). We review the factual
determination that a worker’s death was not accidental for abuse of discretion.
Pierre v. Ct. Gen. Life Ins. Co., 

, 1562 (5th Cir. 1991).
                              IV. DISCUSSION
      The Rice Plaintiffs argue that the district court erred in several ways.
First, they claim that the district court erred when it found that Arnold was
entitled to qualified immunity for the federal claims and granted summary
judgment for Arnold on the state law claims. Next, the Rice Plaintiffs argue
that the district court erred in finding Graves was not liable under federal or
state law. Finally, the Rice Plaintiffs argue that ReliaStar improperly denied
their claim. We address each issue in turn.
A. The Rice Plaintiffs’ Claims Against Arnold
      1. Federal Claims Against Arnold
      The Rice Plaintiffs claim that Arnold violated Rice’s constitutional rights
when he entered Rice’s home without a warrant and used excessive force
against Rice. In response, Arnold asserted that he was entitled to qualified
immunity. When a defendant invokes qualified immunity, the plaintiff then
“bears the burden of negating the defense and cannot rest on conclusory
allegations and assertions, but must demonstrate genuine issues of material


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                                  No. 13-30639
fact regarding the reasonableness of the officer’s conduct.” Michalik v.
Hermann, 422 F3d 252, 262 (5th Cir. 2005).
      Qualified immunity is a two-prong analysis. First, the court determines
whether the plaintiff has alleged a violation of a constitutional right, and
second, the court asks “whether the right at issue was ‘clearly established’ at
the time of defendant’s alleged misconduct.” Pearson v. Callahan, 

, 232 (2009) (citation omitted). The court may determine which prong of
the analysis it will address first. 

The Supreme Court has explained
that the clearly established standard incorporates an objective reasonableness
inquiry:
      To be “clearly established” for purposes of qualified immunity,
      “[t]he contours of the right must be sufficiently clear that a
      reasonable official would understand that what he is doing violates
      that right.” Anderson v. Creighton, 

, 640 (1987).
      Thus, as this [C]ourt has recognized, in light of the Anderson
      definition of “clearly established,” the question “whether the . . .
      right was clearly established at the time the defendant acted . . .
      requires an assessment of whether the official’s conduct would
      have been objectively reasonable at the time of the incident.”
      Conroe Creosoting Co. v. Montgomery County, 

, 340
      (5th Cir. 2001).
Kinney v. Weaver, 

, 349–50 (5th Cir. 2004) (en banc) (second and
third alterations in original).     The Supreme Court has cautioned that
reasonableness is judged “from the perspective of a reasonable officer on the
scene, rather than with the 20/20 vision of hindsight.” Graham v. Connor, 

, 396 (1989). Courts must allow 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.” 

            a. Warrantless Entry



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      “[S]earches and seizures inside a home without a warrant are
presumptively unreasonable.”     Brigham City v. Stuart, 

, 403
(2006) (citation and internal quotation marks omitted). There are, however,
circumstances in which a warrantless entry into a home is not a constitutional
violation.   Under the exigent circumstances exception to the warrant
requirement, the Supreme Court has recognized that police officers are not
required to obtain a warrant where “the exigencies of the situation make the
needs of law enforcement so compelling that the warrantless search is
objectively reasonable under the Fourth Amendment.” 

v.
Arizona, 

, 393–94 (1978)) (internal quotation marks omitted).
“Accordingly, law enforcement officers may enter a home without a warrant to
render emergency assistance to an injured occupant or to protect an occupant
from imminent injury.” 

Plaintiffs argue that the exigent circumstances exception to the
warrant requirement does not apply in this case. They point out that Arnold
entered Rice’s home before Rice ever fired his gun, and so, at the time Arnold
entered, no exigencies excused his warrantless entry. The Rice Plaintiffs also
argue that Arnold violated departmental regulations in entering Rice’s home
and that Arnold and the other deputies should have established a perimeter
and waited for a special response team before engaging with Rice.
      This is not the first time we have encountered a tragic factual scenario
like the one present here: a police officer, in an attempt to aid a potentially
suicidal individual, entered without a warrant and killed the person the officer
was trying to help. See Rockwell v. Brown, 

(5th Cir. 2011); cf.
Velasquez v. Audirsch, No. 13-50029, 

(5th Cir. July 3, 2014)
(unpublished) (per curiam). In these cases, we have resolved the case on the
second prong of the qualified immunity analysis, holding that the officer was
entitled to qualified immunity because, at the time of the incident, the law was
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not clearly established that it was unreasonable for an officer to enter without
a warrant to address the threat an individual posed to himself. See Velazquez,

, at *6–7 (“[T]he law at the time of the Officers’ entry into the
Velasquezes’ home did not clearly establish that the officers were unreasonable
in believing the threat [Velasquez] posed to himself or others constituted
exigent circumstances.”); 

(“[A]t the time of the
incident in this case, it was not clearly established that it was unreasonable
for the officers to believe that the threat [Rockwell] posed to himself constituted
an exigent circumstance.”). Having only held that the law was not clearly
established, our Court has not yet resolved the constitutional question these
cases present: whether the exigent circumstances exception to the warrant
requirement may allow for a warrantless entry based on the threat an
individual poses to himself.
      Today we reach that issue and hold that the threat an individual poses
to himself may create an exigency that makes the needs of law enforcement so
compelling that a warrantless entry is objectively reasonable under the Fourth
Amendment. The Supreme Court’s discussion of the exigent circumstances
exception to the warrant requirement supports our holding. As the Court has
explained, “[o]ne exigency obviating the requirement of a warrant is the need
to assist persons who are seriously injured or threatened with such injury.
‘The need to protect or preserve life or avoid serious injury is justification for
what would be otherwise illegal absent an exigency or emergency.’” 

(quoting 

). This need to protect or
preserve life is not limited to instances where violence is directed to another
person; the need to protect and preserve life can be just as strong when the
violence is directed as one’s self. See Fitzgerald v. Santoro, 

, 731
(7th Cir. 2013).


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                                 No. 13-30639
      Our decision is consistent with the decisions of our sister circuits. See
e.g., 

(holding that the police officers’ warrantless
entry was constitutional because they had “an objectively reasonable belief
that they needed to enter without a warrant in order to prevent serious injury”
where they had “been told that the woman inside [the home] had called a police
station, that she sounded intoxicated, and that she had threatened suicide”);
Roberts v. Spielman, 

, 906 (11th Cir. 2011) (per curiam) (holding
that the police officer’s warrantless entry did not violate the Fourth
Amendment and that he was entitled to qualified immunity where the officer
responded to a reliable report that Roberts was suicidal, opened the doorway
and stood in the entryway of Roberts’s home, stayed long enough to assess the
potential harm, and left the property after determining that the threat had
passed); Ziegler v. Aukerman, 

, 786 (6th Cir. 2008) (concluding
that exigent circumstances justified a warrantless entry where a police officer
was acting to help a suicidal woman because “[t]o require that an officer who
has received information from a credible source, or sources, that an individual
is a suicidal risk, wait to obtain a warrant before saving that victim, would
likely result in countless preventable deaths”).
      Of course, it bears repeating that courts must still determine whether
the actions of the law enforcement officer who entered without a warrant were
objectively reasonable. See Michigan v. Fisher, 

, 47 (2009) (“The
ultimate touchstone of the Fourth Amendment . . . is reasonableness.” (citation
and internal quotation marks omitted)); 

–05 (explaining
that a warrantless entry based on exigent circumstances must be objectively
reasonable). While avoiding the risk of second-guessing officers’ actions based
on 20/20 hindsight, we must still ensure that, at the time the officer acted,
there was reliable information of an “urgent, ongoing emergency.” See United
States v. Timmann, 

, 1180–81 (11th Cir. 2013) (holding that
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                                  No. 13-30639
officers’ warrantless entry was not justified when the case had no “indicia of
an urgent, ongoing emergency” and the officer did not “have any information
that would lead them to suspect that Timmann might be suicidal”).
      Turning to the facts of this case, we hold that Arnold did not violate
Rice’s Fourth Amendment rights when he entered Rice’s home without a
warrant because he had an objectively reasonable belief that Rice would
imminently seriously injure himself. After Craig’s 911 call, Arnold knew the
following: Rice was suicidal; Rice had a gun; and Rice had been drinking and
was sitting in his truck holding a gun to his head. Based on these facts, it was
objectively reasonable for Arnold to believe he needed to protect Rice from
imminent injury.
      We disagree with the Rice Plaintiffs’ argument that even if exigent
circumstances existed to justify Arnold’s entry, he should have left after Rice
asked him to leave. First, the cases they cite for that proposition do not support
it. See Flippo v. West Virginia, 

, 14 (1999) (concluding that police
officers can enter without a warrant if they “reasonably believe a person is in
need of immediate aid” but that that exception does not justify a general right
to a warrantless search of a crime scene where there is no immediate danger);

–93 (explaining that it is not enough that a murder
occurred to invoke an exception to the Fourth Amendment and that police
officers need “an emergency threatening life or limb” to actually search the
scene). Further, the exigent circumstances that justified Arnold’s entry—
Rice’s suicidal behavior—had not disappeared just because Rice asked them to
leave; he was still intoxicated and pointing a gun to his head. We decline to
second guess Arnold’s decision to remain in Rice’s home with the threat of
suicide still present. See Sutterfield v. City of Milwaukee, 

, 562
(7th Cir. 2014) (“To say, as Sutterfield does, that given the passage of time and
her own assurances to the officers that she was fine, that there was no longer
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any emergency, and that the officers should have heeded her demands that
they leave, is to engage in the very sort of second-guessing that we [have
previously] eschewed . . . . How were the officers to know that Sutterfield was
competent to assess the state of her own mental health or that, regardless of
what she herself said, there was no longer any risk that she might harm
herself?”).
      Finally, the fact that Arnold’s entry into Rice’s home may have violated
departmental policies does not deprive him of qualified immunity. Admittedly,
the fact that Arnold allegedly failed to follow departmental policy makes his
actions more questionable, because it is questionable whether it is objectively
reasonable to violate such a departmental rule.         But “[o]fficials sued for
constitutional violations do not lose their qualified immunity merely because
their conduct violates some statutory or administrative provision.” Davis v.
Scherer, 

, 194 (1984). Violating a departmental regulation, on its
own, is not sufficient to deprive Arnold of qualified immunity. See Gagne v.
City of Galveston, 

, 559–60 (5th Cir. 1986) (holding that police
officer was entitled to qualified immunity after he placed a prisoner into a cell
without removing the prisoner’s belt, which violated departmental regulations,
and the prisoner hung himself). Without more, the Rice Plaintiffs have not
met their burden of showing that Arnold is not entitled to qualified immunity.
      Thus, we hold the district court did not err in granting Arnold’s motion
for summary judgment on the warrantless entry claim because Arnold is
entitled to qualified immunity.
              b. Excessive Force
      To maintain a claim for excessive force, the Rice Plaintiffs must prove
(1) Rice sustained an injury, (2) the injury resulted from Deputy Arnold’s use
of force that was excessive to the needs, and (3) the force used was objectively
unreasonable. See Ballard v. Baldwin, 

, 402 (5th Cir. 2006).
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Deadly force is considered reasonable when the officer “has probable cause to
believe that the suspect poses a threat of serious physical harm, either to the
officer or to others.” Tennessee v. Garner, 

, 11 (1985). Thus, “[a]n
officer’s use of deadly force is not excessive, and . . . no constitutional violation
occurs, when the officer reasonably believes that the suspect poses a threat of
serious harm to the officer or to others.” 

(citation
and internal quotation marks omitted).
      The Rice Plaintiffs make three arguments to explain how the district
court erred in granting summary judgment on their excessive force claim.
First, they argue that there is a genuine dispute of material fact regarding
whether Rice actually had a gun in his hand at the time Arnold shot him. They
point to two specific facts: (1) they say that the officers both claimed that Rice
held the gun in his right hand but that Rice’s family claimed he always held
his gun with his left hand; and (2) they also argue that Arnold said he shot
Rice because Rice was entering the kitchen with a gun but that the location of
Rice’s body after the shooting shows he was actually shot in the garage not in
his home. Second, they argue that even if Rice had a gun, Arnold is not entitled
to qualified immunity under circuit precedent. Finally, they claim the district
court erred in failing to admit evidence of Arnold’s “lack of impulse control,”
specifically the page allegedly showing Arnold’s MySpace page with the image
of Clint Eastwood.
      We disagree with each of these arguments and hold Arnold is entitled to
qualified immunity from the Rice Plaintiff’s excessive force claim. First, any
dispute about whether Rice had a gun in his hand at the time he was shot is
not genuine.    Arnold’s interaction with Rice was audio-recorded, and the
transcript of the recording shows that in the ten seconds before Arnold fired at
Rice, Arnold can be heard shouting at Rice to “put the gun down” at least three
times and warning him not to “come in here.” While the conflicting evidence
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                                 No. 13-30639
about what hand Rice held his gun in is potentially circumstantial evidence
that Rice did not actually have a gun in his hand when he was shot, the audio
recording of Arnold shouting at Rice to put his gun down seconds before he shot
Rice is evidence such that a reasonable jury could not return a verdict for the
Rice Plaintiffs. See 

. The Rice Plaintiffs have not
questioned or otherwise undermined the authenticity of the recording or
argued that Arnold was lying about Rice having a gun when he was heard
telling Rice to put the gun down on the recording. Thus, any dispute about
whether Rice had a gun could only be resolved in Arnold’s favor.
      With that factual dispute resolved, we hold that Arnold did not violate
Rice’s right to be free of excessive force. See, e.g., Harris v. Serpas, 

, 770, 772–73 (5th Cir. 2014) (holding that police officers had not violated
Harris’s right to be free from the use of excessive force when, after responding
to a 911 call saying that Harris was suicidal, officers shot Harris when he stood
up out of bed with a knife raised over his shoulder in a stabbing position and
refused to drop the knife); Elizondo v. Green, 

, 510 (5th Cir. 2012)
(police officer had not used excessive force when Elizondo “ignored repeated
instructions to put down the knife he was holding,” and at the time the officer
fired, Elizondo “was hostile, armed with a knife, in close proximity to [the
officer], and moving closer”); Ramirez v. Knoulton, 

, 127, 131 (5th
Cir. 2008) (concluding that a police officer had not violated the plaintiff’s
constitutional rights after firing at Ramirez where the officer stopped Ramirez
in a traffic stop, knew Ramirez was armed, Ramirez exited the car, refused to
drop his weapon, and put his hands together while standing near the officer).
      We encountered a similar situation in Rockwell, when we considered
whether police officers had violated the right to be free from excessive force.
There too officers killed a suicidal young man, Rockwell, they were called to
aid. 

. Officers responded to a 911 call reporting that
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                                  No. 13-30639
Rockwell had become a danger to himself and others; that he was bi-polar and
schizophrenic; off his medication; and that he had locked himself in his
bedroom.    

    When officers entered Rockwell’s room holding
pepperball guns, Rockwell rushed toward the officers holding two serrated
knives. 

Three of the six officers fired shots at Rockwell, and he
eventually died from his wounds. 

We held that the officers’ use of
deadly force was objectively reasonable and that Rockwell’s “Fourth
Amendment right to be free from the use of excessive force was not violated.”

The facts are analogous here—Rice was suicidal, Rice had been
drinking heavily, the officers had responded to a 911 call because of Rice’s
behavior, the officers knew Rice mistrusted police officers, Rice was armed, and
Rice was moving towards the officers—and support our holding that Arnold
did not violate Rice’s constitutional rights.
      Further, any dispute about whether Rice was in the kitchen or the
garage at the time he was shot is not material. It is undisputed that, at the
time Rice was shot, he had exited his truck, was walking toward the door into
his house, and as discussed above, had a gun in his hand. The material fact
here is that Rice was armed and moving toward the officers. Thus, a potential
discrepancy in Rice’s precise physical location at the time he was shot is
inapposite, given that he was undisputedly approaching the officers with a
loaded weapon which he had recently fired and which he refused to surrender.
      Our conclusion would not change even if the district court had not struck
paragraphs 27 and 29 of the complaint and had considered the MySpace page.
Though the Rice Plaintiffs are not entirely clear how they would have asked
the district court to consider this evidence, they appear to argue that the
evidence shows Arnold was prone to bursts of anger and violence, so he is not
entitled to qualified immunity. But the Supreme Court has been clear that the
“question is whether the officers’ actions are ‘objectively reasonable’ in light of
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                                  No. 13-30639
the facts and circumstances confronting them, without regard to their
underlying intent or motivation.”       

.           Arnold’s
subjective beliefs are irrelevant here. Taking an objective view of the facts in
this case, we hold that Arnold is entitled to qualified immunity because he did
not violate Rice’s constitutional right to be free from excessive force.
      2. State Law Claims against Arnold
            a. Assault and Battery
      Under Louisiana law, a battery is a “harmful or offensive contact with a
person, resulting from an act intended to cause the plaintiff to suffer such a
contact.” Caudle v. Betts, 

, 391 (La. 1987). Battery does not
require the intent to inflict damage: “[i]t is sufficient if the actor intends to
inflict either a harmful or offensive contact without the other’s consent.” 

(citations omitted). “[A]ssault is the imminent threat of a battery.” Bulot
v. Intracoastal Tubular Servs., Inc., 98-2105, p. 13 (La. App. 4 Cir. 2/24/99);

, 1018, abrogated on other grounds by Bulot v. Intracoastal
Tubular Servs., Inc., 2004-1376 (La App. 4 Cir. 11/3/04); 

.
“Under ordinary circumstances the use of reasonable force to restrain an
arrestee shields a police officer from liability for battery.” Ross v. Sheriff of
Lafourche Parish, 

, 511 (La. App. 1 Cir. 1985). But, “[e]xcessive
force transforms ordinarily protected force into an actionable battery.” Penn
v. St. Tammany Parish Sheriff’s Office, 2002-0893, p. 7 (La App. 1 Cir. 4/2/03);

, 1161.
      The Rice Plaintiffs only make cursory reference to their assault and
battery claims on appeal, alleging that the district court’s decision is
“unsupported by the facts and contrary to law” and that the district court
“construe[d] the established fact[s] and inferences in Arnold’s favor and
against [the Rice Plaintiffs].” The only specific argument they make is that


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                                 No. 13-30639
Arnold was not entitled to use reasonable force against Rice because he was
not placing Rice under arrest.
      We disagree. “Police officers owe a duty of reasonableness when effecting
an arrest or approaching a subject to disarm him.” Manis v. Zemlik, 11-799,
p. 7 (La. App. 5 Cir. 5/8/12); 

, 513. Here, Arnold was trying to
disarm Rice; he asked Rice repeatedly to put down his weapon. The question
then becomes whether Arnold acted reasonably.          Louisiana courts use a
number of factors to evaluate the reasonableness of the officer’s actions:
      the known character of the arrestee; the risks and dangers faced
      by the officer; the nature of the offense or behavior involved; the
      chance of escape if the particular means are not employed; the
      existence of alternative methods of arrest or subduing the arrestee;
      the physical strength, size and weaponry of the officers as
      compared to that of the arrestee; and the exigencies of the moment.
See Penn, 2002-0893 at p. 

(citing Kyle v. City of New
Orleans, 

, 973 (La. 1977)). Applying those factors here, Arnold
acted reasonably. Arnold knew that Rice was suicidal and intoxicated, and he
knew that Rice was armed. Arnold had tried other means to subdue Rice,
repeatedly asking him not to harm himself and to put his weapon down and
come into the house. And in the moments right before he was shot, Rice was
approaching Arnold with a loaded weapon.
      Thus, we hold the district court did not err in granting summary
judgment for Arnold on the assault and battery claims.
            b. False Imprisonment
      False imprisonment is the “unlawful and total restraint of the liberty of
the person.” Crossett v. Campbell, 

, 664; 

, 143 (La. 1908).
To prove their claim for false imprisonment, the Rice Plaintiffs must prove that
(1) Rice was detained and (2) his detention was unlawful. See Kennedy v.
Sheriff of East Baton Rouge, 2005-1418, p. 32 (La. 7/10/06); 

, 690.

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                                 No. 13-30639
The Rice Plaintiffs argue that Rice was totally imprisoned because Arnold kept
Rice in the garage by use of force. They also claim that there is no legal excuse
for Arnold’s false imprisonment because Rice had not committed a crime.
      Despite these arguments, Rice was not detained. Our review of the
record shows that the officers were not trying to prohibit Rice from entering
the house completely and that Rice was not totally restrained. Instead, the
officers only told Rice not to enter the home with his gun. See Smith v. Knight,
39,781, p. 6 (La. App. 2 Cir. 6/29/05); 

, 835 (“Submission to the
mere verbal directions of the employer, unaccompanied by force or threats,
does not constitute false imprisonment.”). So, the Rice Plaintiffs have failed to
prove the first element of false imprisonment.
      Moreover, even assuming that Rice was detained, the Rice Plaintiffs
have failed to prove that any detention was unlawful. Arnold could reasonably
have believed that Rice had committed an offense by firing his gun in the
garage.   See, e.g., La. Rev. Stat. Ann. § 14:94 (“Illegal use of weapons or
dangerous instrumentalities is the intentional or criminally negligent
discharging of any firearm . . . where it is foreseeable that it may result in
death or great bodily harm to a human being.”); La. Rev. Stat. Ann. § 14:37.2
(“Aggravated assault upon a peace officer with a firearm is an assault
committed upon a peace officer who is acting in the course and scope of his
duties with a firearm.”). Committing either of these crimes would have been
sufficient to subject Rice to lawful arrest and detention.
      Thus, we affirm the district court’s grant of summary judgment for
Arnold on the false imprisonment claim.
            c. Intentional Infliction of Emotional Distress
      A claim for intentional infliction of emotional distress requires the
plaintiff to prove three things: “(1) that the conduct of the defendant was
extreme and outrageous; (2) that the emotional distress suffered by the
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                                 No. 13-30639
plaintiff was severe; and (3) that the defendant desired to inflict severe
emotional distress or knew that severe emotional distress would be certain or
substantially certain to result from his conduct.” White v. Monsanto, 

1205, 1209 (La. 1991). In support of their claim for intentional infliction of
emotional distress, the Rice Plaintiffs point to the image that they allege is
from Arnold’s MySpace page. They also argue more generally that the district
court failed to construe the evidence in their favor, as the court was required
to do on summary judgment.
      We agree with the district court that summary judgment was
appropriate for Arnold on the intentional infliction of emotional distress claim.
To support a finding of intentional infliction of emotional distress, Louisiana
law requires that “[t]he conduct must be so outrageous in character, and so
extreme in degree, as to go beyond all possible bounds of decency, and to be
regarded as atrocious and utterly intolerable in a civilized community.” White,

at 1209. While the facts in this case are tragic, the Rice Plaintiffs
have not alleged anything suggesting Arnold’s actions “go beyond all possible
bounds of decency” or that his behavior is “intolerable in a civilized
community.”
      The Rice Plaintiffs also have not presented any facts showing that
Arnold intended to cause severe emotional distress. The only evidence the Rice
Plaintiffs cite to support this claim is the MySpace printout, but that does not
change our decision. As the district court noted, there is nothing on the
MySpace printout in the record to link it to Arnold. This makes it impossible
for us to conclude that the MySpace page shows Arnold intended to inflict
severe emotional distress on the Rice Plaintiffs.      And even if there were
evidence linking the printout to Arnold, that image of a movie character still
does not show that Arnold specifically intended to cause the Rice Plaintiffs any
distress.
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                                 No. 13-30639
      Thus, we hold the district court correctly granted Arnold’s motion for
summary judgment on this claim.
B. The Rice Plaintiffs’ Claims against Graves
      The Rice Plaintiffs devote only one paragraph of their brief to their
claims against Graves. Essentially they argue that, because the district court
erred in finding Arnold was not liable, the district also erred in finding that
Graves was not liable. Graves argues the inverse: because Arnold was not
found liable for any of the state law claims and Arnold was entitled to qualified
immunity, Graves cannot be held liable.
      We hold the district court correctly granted Graves’s motion for summary
judgment. The Rice Plaintiffs offer only one argument for reversing the district
court: because we should reverse the district court on the claims against
Arnold, we should also reverse and remand the claims against Graves. But,
we have already held that the district court was correct in granting summary
judgment for Arnold on all of the federal and state claims asserted against him.
And as the Rice Plaintiffs’ argument on appeal demonstrates, their only theory
for Graves’s liability rests on the impropriety of Arnold’s actions.       Thus,
because we affirm the district court’s decision with respect to the claims
against Arnold, we also affirm the district court’s decision with respect to the
claims against Graves.
C. The Rice Plaintiffs’ Claims against ReliaStar
      Finally, the Rice Plaintiffs argue that the district court erred when it
granted summary judgment for ReliaStar on the Rice Plaintiffs’ claim that
ReliaStar improperly denied them accidental death benefits. This Court has
previously held that whether a death is accidental for purposes of an accidental
death benefit policy is a question of fact. 

. The fact
question has both an objective and a subjective component.         We consider


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                                  No. 13-30639
whether (1) the decedent had a subjective expectation of survival and (2) if so,
was the expectation objectively reasonable. 

      The Rice Plaintiffs claim the district court’s decision was wrong for
several reasons.     First, they argue that under ERISA, there is a federal
common law presumption in favor of accidental death. Second, they argue that
because ReliaStar both pays death benefits and evaluates claims for those
benefits, there was an inherent conflict of interest that the district court failed
to consider. Finally, the Rice Plaintiffs argue that the district court improperly
deferred to ReliaStar’s factual determinations; the district court should only
have deferred to ReliaStar’s factual determinations if they reflected a
“reasonable and impartial judgment,” and here, they did not. Essentially, they
argue the evidence does not support ReliaStar’s determination that Rice’s
death was not accidental.
      We need not decide whether there is a federal common law presumption
in favor of accidental death, because even if there were, we would affirm the
district court’s grant of summary judgment for ReliaStar. Assuming arguendo
that the presumption the Rice Plaintiffs allege exists, based on the facts in this
case, ReliaStar did not abuse its discretion in determining that Rice’s death
was not accidental.      ReliaStar relied on an administrative record that
supported finding Rice’s death was not accidental. Rice was suicidal and had
been drinking heavily on the day he was shot. Rice took eleven prescription
pills while drinking, and he told the bartender at the bar where he had been
drinking that he left his pills behind because “it’s over.” Rice was also heard
revving the engine in his truck while the garage was closed, suggesting he may
have been trying to kill himself through carbon monoxide poisoning. Further,
Rice approached police officers with a loaded weapon even after the officers
told him to put his gun down; he told the officers “I want to commit suicide”;


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                                  No. 13-30639
and after Rice’s death, the sheriff’s investigation committee found a note Rice
left his sister that appeared to be a suicide note.
      The Rice Plaintiffs do not dispute the accuracy of these facts. Instead,
they point to facts that, they claim, show Rice’s expectation of survival was
objectively reasonable: he did not ask the officers to come to his home, and he
asked the police officers to leave.          But even taking these facts into
consideration, ReliaStar did not abuse its discretion in finding that either Rice
did not have a subjective expectation of survival or that, if he had that
expectation, it was not objectively reasonable. See, e.g., Holland v. Int’l Paper
Co. Retirement Plan, 

, 247 (5th Cir. 2009) (“Our review of the
administrator’s decision need not be particularly complex or technical; it need
only assure that the administrator’s decision fall somewhere on a continuum
of reasonableness—even if on the low end.” (citation and internal quotation
marks omitted)). Thus, ReliaStar did not abuse its discretion in finding that
Rice’s death was not accidental, that is, not an “unexpected, external, violent
and sudden event.”
      Moreover, while the Rice Plaintiffs correctly point out the structural
conflict of interest issue, that is just one factor courts consider in evaluating
ReliaStar’s decision to deny benefits. As this Court explained in Holland,
      In addressing how such a conflict must be accounted for under an
      abuse of discretion review, the Supreme Court in [Metropolitan
      Life Insurance Co. v.] Glenn[, 

, 

(2008)]
      eschewed “special burden-of-proof rules, or other special
      procedural or evidentiary rules, focused narrowly upon the
      evaluator/payor 

. In particular, the
      Court held that weighing a conflict as a factor in the abuse of
      discretion analysis does not “impl[y] a change in the standard of
      review, say, from deferential to de novo review.” 

Quite
      simply, “conflicts are but one factor among many that a reviewing
      judge must take into account.” 

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                                 No. 

–48. As discussed above, the administrative record was replete
with factual evidence that ReliaStar relied on in determining that Rice’s death
was not accidental, demonstrating that ReliaStar could have reached its
determination without resorting to the conflict of interest.
      Thus, we hold the district court did not err in granting summary
judgment for ReliaStar.
                              V. CONCLUSION
      For the foregoing reasons, we AFFIRM the decision of the district court.




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