Kozma et al v. Livonia, City of et al

Filing 45

MEMORANDUM OPINION and ORDER Granting in Part and Denying in Part. 30 MOTION for Summary Judgment Per Fed R Civ P 56. Signed by District Judge Laurie J. Michelson. (JJoh)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JOHN KOZMA and WENDY KOZMA, as
Co-Guardians of JODI RENEE KOZMA,
Plaintiffs,

Case No. 14-12268
Honorable Laurie J. Michelson
Magistrate Judge Michael J. Hluchaniuk

v.
CITY OF LIVONIA, LIVONIA POLICE
DEPARTMENT, SGT. GIBBS, OFFICER
CAMMARATA, OFFICER SULLIVAN,
OFFICER SALTER, AND POLICE CHIEF
CURTIS CAID,
Defendants.
OPINION AND ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [30]
Plaintiff Jodi Kozma is a mentally disabled woman in her 20s. When leaving a Walmart
with her grandmother and cousin, Walmart asset protection employees confronted her and
accused her of shoplifting. They reported to the Livonia police that they had her on video
stuffing merchandise into her waistband. They said that Kozma was disruptive and
uncooperative, and that she stated she was “special needs.” Four Livonia police officers
responded. They noticed a bulge in Kozma’s waistband, but she refused to talk with them.
Officers Salter and Sullivan thus tried to handcuff her. But she struggled, and they wrestled her
to the floor. She stopped resisting, but an officer put his body weight onto her back while trying
to cuff her, making it difficult for her to breathe. When the dust settled, it became clear that
Walmart made a mistake: Kozma had not stolen anything.
Through her parent-guardians, Kozma sued the four officers. She claims that they
violated her constitutional rights by arresting her without probable cause and using excessive

force. Before the Court is Defendants’ Motion for Summary Judgment on all of Kozma’s claims.
(Dkt. 30, Defs.’ Mot. Summ. J.) After careful consideration of the briefs and thorough review of
the record, the Court finds that oral argument will not aid in resolving the pending motion. See
E.D. Mich. LR 7.1(f)(2). The Court finds that Kozma has raised a genuine issue of material fact
concerning whether Salter and Sullivan used excessive force when they forced her to the ground
and handcuffed her. But the officers are otherwise entitled to qualified immunity.
I.
A.
Jodi Kozma is a mentally disabled woman in her mid-20s with an IQ of around 50 to 60.
(Dkt. 39, Pl.’s Resp. Ex. C, Evaluation.) She is under the guardianship of her parents. (Pl.’s
Resp. Ex. T, Wendy Kozma Dep. at 25–26.)
On August 3, 2012, Kozma went shopping with her grandmother, Janice Dodd, and
cousin, Jennifer Dodd, at a Walmart in Livonia, Michigan. (Pl.’s Resp. Ex. L, Janice Dodd Dep.
at 32.) For around five to ten minutes, Kozma went off on her own to look for hair ties. (Id. at 15,
19.) Kozma and her grandmother got in line together and paid for their purchases separately. (Id.
at 20–21.) Kozma bought hair ties for $3.87 and stickers for $3.00. (Pl.’s Resp. Ex. E, Receipt.)
When Kozma and her grandmother were about to leave the store with their cart, two male
and one female “asset protection” employees from Walmart confronted them. (Pl.’s Resp. Ex. A,
Video at 00:15.) The Walmart employees accused Kozma of shoplifting. (Janice Dodd Dep. at
25–26.) They thought they had seen in surveillance videos that Kozma had taken something from
a shelf in the hair accessories aisle and stuffed it into the waistband of her pants. (Pl.’s Ex. P,
Golinske Dep. at 138, 140, 144.) Kozma’s grandmother lifted Kozma’s shirt to show she did not
take anything. (Pl.’s Ex. A at 1:19.) Kozma called her mother, Wendy Kozma, on a cell phone to

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explain the situation, and she paced around while talking. (Id. at 1:52.) Once off the phone, Jodi
lifted her shirt and tucked her phone into the waistband of her pants. (Id. at 4:09.)
During the confrontation with Kozma and her grandmother, one of the Walmart asset
protection employees, Amanda Golinske, called the Livonia Police and spoke with Officer
Nicholas Schroeder. (Defs.’ Mot. Ex. P, Call.) In a recorded call, she told him, “We have a
shoplifter that isn’t cooperating. She’s just screaming in the store. . . . We can’t detain her, and
she’s claiming that she’s special needs. We don’t want to . . . put our hands on her, but she’s out
there right now flailing her arms around, screaming, yelling.” (Id. at 0:08–0:25.) Schroeder
asked, “And the retail fraud has been completed, correct?” (Id. at 1:05.) She replied, “Yes.” (Id.
at 1:07.) Schroeder also asked, “They are arrestable for retail fraud?” Golinske replied, “I’m not
sure if it would be the prosecuting price.1 I don’t know how much she has on her, but I know that
she’s been taking things.” (Id. at 1:18.) The recording also captures Golinske saying, “I had her
on camera.” (Id. at 1:47.) Golinske described Kozma as a 5’9” or 5’10” white female in her 20s,
wearing a green shirt and black pants. (Id. at 1:59.) Golinske later told Schroeder, “She’s
walking back into the store now. She’s not complying at all. . . .You did catch that she’s special
needs, right?” (Id. at 3:43.)
In response to Golinske’s report, Schroeder put a call out to other officers concerning “a
retail fraud at Wal-Mart North.” (Pl.’s Mot., Ex. W, Schroeder Dep. at 61.) This part of the
recording is not clearly audible. Around eight minutes after the Walmart employees first
confronted Kozma, four uniformed and armed officers arrived at Walmart. (Pl.’s Ex. A at 8:25.)
Sergeant John Gibbs arrived first, and three other officers—John Cammarata, Mark Salter, and

1

Walmart generally only notifies the police of suspected shoplifting if more than $25 of
merchandise is at issue. (Golinske Dep. at 100–101.)
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Daniel Sullivan—followed within 30 seconds. (Pl.’s Ex. A at 8:56.) Gibbs came to find out that
the alleged theft involved hair ties. (Pl.’s Resp. Ex. O, Gibbs Dep. at 83.)
When Gibbs first arrived, one of the Walmart employees told him (in a recorded
conversation): “We have her grabbing one object and then go right into her waistband.” (Defs.’
Mot., Ex M, Audio at 18:23:12–18:23:38.) The Walmart employee also said that Kozma “kep[t]
yelling” she is “special needs” but that he could not confirm that. (Id.) Gibbs approached
Kozma’s grandmother, walked with her slightly away from Kozma, and asked, “Can I speak to
you, Grandma?” (Pl.’s Ex. A at 8:23; Defs.’ Ex. M at 18:23:44.) Kozma herself grabbed her
grandmother’s phone from the shopping cart and tried to call her mother again. (Pl.’s Ex. A at
8:26.) Her grandmother told Gibbs that Jodi had been falsely accused of shoplifting and that the
Walmart employees said they had her on video. (Janice Dodd Dep. at 30; Defs.’ Ex. M at
18:23:53.)
While Kozma used her grandmother’s phone, she left her own phone in her waistband.
Officers therefore noticed a bulge in Kozma’s waistband. (See, e.g., Pl.’s Resp. Ex. K,
Cammarata Dep. at 164.) So Gibbs asked, “What’s in her waistband right now?” (Defs.’ Ex. M
at 18:24:02.) The video shows that Kozma’s grandmother walked away from Gibbs to approach
Kozma. (Pl.’s Ex. A at 8:49.) In recorded audio, Kozma said, “stop, please don’t touch me,” and
it sounds like her grandmother said, “that’s her phone.” (Defs.’ Ex. M at 18:24:14.) Gibbs then
asked, “Whose phone is this?” (Defs.’ Ex. M at 18:24:17.) Kozma’s grandmother testified that
she explained that Jodi’s phone was in her waistband. (Janice Dodd Dep. at 30, 38, 74.) But
officers were skeptical, as Kozma already had a phone in her hand. (See Pl.’s Resp. Ex. X,
Sullivan Dep. at 96.)

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The four officers then approached Kozma directly, and she backed away in response.
(Pl.’s Resp. Ex. B, Video at 0:24.) Right after Gibbs asked, “Whose phone is this,” Kozma said,
“No, I’m special needs. I don’t want to talk to you.” (Defs.’ Ex. M at 24:19; Gibbs Dep. at 81,
89.) Gibbs stopped moving toward her, and she “calmed down” momentarily. (Gibbs Dep. at
89.) Kozma then lifted her shirt up to her waistband very briefly. (Pl.’s Ex. B at 0:26.) As Gibbs
did not know where the supposedly stolen merchandise was, he decided to take her to the asset
protection office to search her, and he says he wanted her in handcuffs to avoid any further
escalation. (Gibbs Dep. at 89–90.) So he ordered another officer to handcuff her. (Gibbs Dep. at
89.) The recording captures Gibbs saying, “Settle down. You don’t have a choice but to talk to
us. For now, put your hands behind your back.” (Defs.’ Ex. M at 18:24:23.) Kozma complied
and put her hands behind her back. (Pl.’s Ex. B at 0:30; Gibbs Dep. at 95–96.) The decision to
handcuff her came roughly six seconds after the officers approached Kozma directly, and less
than a minute after Gibbs first arrived in the store. (Pl.’s Ex. B at 0:24–0:30; Pl.’s Ex. A at 8:56.)
At some point, Kozma’s grandmother tried to show the police the receipts for the hair
ties. (Pl.’s Resp. Ex. Q, Graves Dep. at 66; Janice Dodd Dep. at 73.) But the record does not
make clear when she did that. In any case, none of the officers looked at the receipt, in Janice’s
bag, or in Jodi’s purse for the stolen items or proof of payment before arresting Kozma. (Janice
Dodd Dep. at 73.)
B.
After initially complying with Gibbs’ request to put her hands behind her back, Kozma
started to struggle with the officers. (Pl.’s Ex. B, at 0:29–0:39.) The audio recording reflects that
within several seconds of Gibbs telling Kozma to put her hands behind her back, loud screaming
followed for over a minute, but it is unclear whether it was Kozma’s voice the whole time.

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(Defs.’ Ex. M at 18:24:29–18:25:30.) Gibbs is heard in the background at times saying, “we’ll
take care of it, don’t interfere,” and “settle down.” (Id.)
Once Kozma’s arms were behind her back, Officer Sullivan tried to grab ahold of her
hands to handcuff her. (Pl.’s Ex. B at 0:34; Sullivan Dep. at 126.) She resisted, moving abruptly
forward, away from Sullivan. (Pl.’s Ex. B at 0:36; Sullivan Dep. at 124; Pl.’s Resp. Ex. V, Salter
Dep. at 102–103.) Sullivan and Salter then tried to secure her again. (Salter Dep. at 114; Sullivan
Dep. at 129–30.) The video—though blurry—appears to show that Kozma struggled for a couple
of seconds. (Ex. B at 0:38–0:41.) Then, for several seconds—though the view of her is
obstructed by a pillar—she stood still with her hands behind her back, an officer holding her
hands or arm from behind. (Id. at 0:41–49.)
Then she started to struggle again. Sullivan testified that one of Kozma’s arms broke free
and she “started swinging it in wide gesturing movements . . . flailing.” (Sullivan Dep. at 129.)
Other witnesses, including Kozma’s cousin, agreed that at least one arm was “flailing.” (Jennifer
Dodd. Dep. at 14, 23; Salter Dep. at 125; Cammarata Dep. at 208.) Kozma herself testified, “All
I remember was saying, whoa, don’t touch me, don’t touch me. So I went like this, like my hands
went up like that and I just said don’t touch me.” (Pl.’s Resp. Ex. S, Jodi Kozma Dep. at 21.)
While the video does not clearly show whether one or both arms “flailed,” it does show that she
squirmed from side to side as she moved toward the ground. (Pl.’s Ex. B at 0:49–0:55.)
Officers Salter and Sullivan admit that they took her to the ground intentionally. Salter
testified and wrote in a report that they “muscled” her to the ground. (Salter Dep. at 115.)
Sullivan also wrote in a report that they “muscled” Kozma to the ground. (Pl.’s Resp. Ex. D,
Sullivan Statement.) But he later testified that they just “fell” to the ground unintentionally while
trying to secure her. (Sullivan Dep. at 130, 137, 141.) Valeria Graves, a third party eyewitness,

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said that the officers “manhandled her” and “threw her on the floor.” (Graves Dep. at 15.) The
video shows that at least one officer was in contact with her on the way down, which took
roughly seven seconds. (Pl.’s Ex. B at 0:51–0:57.)
Once down, the officers and Kozma are not visible in the video, as a ledge obstructed the
camera’s view. But it appears that she was on the ground for roughly 45 seconds, at which point
her torso becomes upright and visible again, with officers at her side. (Pl.’s Ex. B at 0:53–1:36.)
Salter ultimately handcuffed Kozma while she was on the ground. (Salter Dep. at 114.) But as
Janice Dodd testified, she saw “Jodi on the ground with this guy on her with his knees in her
back. All his weight on her.” (Pl.’s Resp. Ex. M, Jennifer Dodd Dep. at 41.) For his part, Salter
did not recall putting his knee into her but said that doing so “wouldn’t be an uncommon thing.”
(Salter Dep. at 115.) Kozma testified that while on the ground, she had trouble breathing and felt
like she was going to die. (Jodi Kozma Dep. at 44.)
Sullivan and Cammarata wrote in their statements that Kozma continued to struggle on
the ground until she was handcuffed. (Pl.’s Ex. D, Sullivan Statement, Cammarata Statement.)
Graves, the bystander, testified, “[the officer] had their knee on her back to pin her down, to put
on the handcuffs. . . . Because she was squirming. She wasn’t refusing. It was that . . . she didn’t
understand.” (Graves Dep. at 16, 23.) Salter recalled that once they brought her to the ground,
“[t]here was no chance to resist at that point.” (Salter Dep. at 128.)
On a use of force form, Officers did not check boxes indicating that the reason for force
was “To Restrain for Subjects [sic] Own Safety,” “Necessary to Defend Officer,” or “Necessary
to Defend Another.” (Pl.’s Resp. Ex. F.) Instead, they wrote that the reason was that Kozma was
“[i]nterfering with a police investigation.” (Id.) Consistent with that, none of the officers

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personally felt like they were in any danger. (Sullivan Dep. at 97; Gibbs Dep. at 109–110; Salter
Dep. at 99; Cammarata Dep. at 152.)
C.
From there, the situation calmed down—at least from a physical standpoint. The officers
walked Kozma—with her hands cuffed behind her back—to Walmart’s asset protection office.
(Pl.’s Ex. B at 2:00.) The police refused to allow Kozma’s grandmother to enter the office.
(Jennifer Dodd Dep. at 46.) When Wendy Kozma arrived, she asked repeatedly to enter, and the
officers initially refused her as well. (Wendy Kozma Dep. at 25.)
When the officers finally allowed Wendy Kozma into the room, she asked them to
remove her daughter’s handcuffs. (Id. at 30–31.) The officers refused. (Id. at 31.) But they
eventually moved her cuffs from the back to the front. (Cammarata Dep. at 213–14.) Officers
questioned Jodi about Walmart’s allegations. (See Defs.’ Ex. M. at 18:34:25.) They also
reviewed the store’s surveillance video and finally concluded that it did not reveal any crime.
(Gibbs Dep. at 111–112.) Video of the questioning shows that the officers removed Jodi’s cuffs
entirely after around 12 and a half minutes of holding her in the loss prevention office and
released her a couple of minutes later. (See generally Pl.’s Ex. I.)
Kozma claims she suffered from bruising and emotional harm as a result of the officers’
force. (Pl.’s Ex. G, Photos; Wendy Kozma Dep. at 108–112.)
D.
Kozma filed a five-count complaint on May 7, 2014 in Wayne County Circuit Court.
(Dkt. 1–2, Compl.) Count I asserted excessive force and false arrest claims under § 1983 against
the City of Livonia, the Livonia Police Department, and the following Livonia police officers:
Sergeant Gibbs, Officer Cammarata, Officer Sullivan, Officer Salter, Officer Schroeder, and

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Police Chief Curtis Caid. (Compl. ¶¶ 87–92.) Count II asserted an intentional infliction of
emotional distress claim against the Livonia Defendants and several Walmart Defendants,
including Walmart Stores Inc., and loss prevention employees Amanda Golinske, Amilcar
Ireland, and Christopher Preston II. (Compl. ¶¶ 93–99.) Count III asserted assault and battery
claims against the Livonia Defendants. (Compl. ¶¶ 100–107.) Counts IV and V asserted claims
under the Michigan Persons with Disabilities Civil Rights against the Livonia and Walmart
Defendants respectively. (Compl. ¶¶ 108–17.)
Kozma filed her first amended complaint on May 22, 2014, and the suit was removed to
this Court on June 9, 2014. (Dkt. 1, Notice of Removal.) On August 13, 2014, this Court
remanded Counts II, III, IV and V to Wayne County Circuit Court and limited discovery to the
issue of qualified immunity. (Dkt. 13.) On August 26, 2014, Kozma filed a second amended
complaint with only one count: her excessive force and false arrest claims under § 1983 against
the Livonia Defendants. (Dkt. 17.) The parties stipulated to Officer Schroeder’s dismissal on
January 26, 2015. (Dkt. 25.) The remaining Livonia Defendants filed their motion for summary
judgment on March 24, 2015. (Dkt. 30, Defs.’ Mot. Sum. J.) The motion is fully briefed. (Dkts.
39, 44.)
II.
“The court shall grant summary judgment if 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). The moving party may discharge its initial summary judgment burden by “pointing
out to the district court . . . that there is an absence of evidence to support the nonmoving party’s
case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). If the moving party does so, the party
opposing the motion “must come forward with specific facts showing that there is a genuine

9

issue for trial.” Matsushita, 475 U.S. at 587. The Court must determine whether the evidence
presents a sufficient factual disagreement to require submission of the challenged claims to a
jury, or whether the evidence is so one-sided that the moving party must prevail as a matter of
law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–52 (1986) (“The mere existence of a
scintilla of evidence in support of the plaintiff's position will be insufficient; there must be
evidence on which the jury could reasonably find for the plaintiff.”).
On summary judgment, the Court views the evidence, and any reasonable inferences
drawn from the evidence, in the light most favorable to the non-moving party, here Kozma. See
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
III.
Defendants argue that as a matter of law they are qualifiedly immune from Kozma’s false
arrest and excessive force claims. Qualified immunity shields the officers from suit if they
“reasonably believe[d] that . . . [their] conduct complie[d] with the law.” See Pearson v.
Callahan, 555 U.S. 223, 244 (2009). The doctrine “balances two important interests—the need to
hold public officials accountable when they exercise power irresponsibly and the need to shield
officials from harassment, distraction, and liability when they perform their duties reasonably.”
Id. at 231.
To defeat a qualified immunity defense, “a plaintiff must establish (1) that the defendant
violated a ‘constitutional right’ and (2) that the right ‘was clearly established.’” Leary v.
Livingston Cty., 528 F.3d 438, 441 (6th Cir. 2008) (quoting Saucier v. Katz, 533 U.S. 194, 201
(2001)). District courts may “exercise their sound discretion in deciding which of the two prongs
of the qualified immunity analysis should be addressed first in light of the circumstances in the
particular case at hand.” Pearson, 555 U.S. at 236.

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A.
The Court begins with Kozma’s false arrest claim. Starting with the first prong of
qualified immunity, “A false arrest claim under federal law requires a plaintiff to prove that the
arresting officer lacked probable cause to arrest the plaintiff.” Webb v. United States, 789 F.3d
647, 666 (6th Cir. 2015) (quoting Voyticky v. Vill. of Timberlake, 412 F.3d 669, 677 (6th
Cir.2005)). “The Fourth Amendment standard for probable cause requires ‘facts and
circumstances within the officer’s knowledge that are sufficient to warrant a prudent person, or
one of reasonable caution, in believing, in the circumstances shown, that the suspect has
committed, is committing, or is about to commit an offense.’” Goodwin v. City of Painesville,
781 F.3d 314, 333 (6th Cir. 2015) (quoting Michigan v. DeFillippo, 443 U.S. 31, 37 (1979)).
In Boykin v. Van Buren Township, 479 F.3d 444 (6th Cir. 2007), circumstances similar to
this case gave rise to a finding of qualified immunity. Loss prevention employees at Meijer (a
major retailer like Walmart) saw Boykin take a drill from the shelf and leave the store, but they
failed to notice he had already paid for the drill while checking out for another purchase. Id. at
446. So they called the police and reported retail fraud. Id. at 447. Officers confronted Boykin at
his home shortly thereafter. Id. They called Meijer to confirm that he was accused of taking a
drill and called again to confirm there was “good retail fraud.” Id. After some questioning, the
officers handcuffed Boykin, took him into custody, and brought him to Meijer, where they
ultimately realized Meijer’s mistake and released him. Id. at 447–48. The Sixth Circuit affirmed
the district court’s conclusion that the officers had probable cause to arrest Boykin, holding that
the officers “cannot be held liable—at least not on grounds of unconstitutionally arresting an
individual without probable cause—for an error . . . wholly attributable to Meijer employees.” Id.
at 450.

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The officers in this case similarly relied on information from the professional loss
prevention staff of a major retailer. Walmart loss-prevention officer Amanda Golinske called the
Livonia Police and told Officer Schroeder, “We have a shoplifter that isn’t cooperating. She’s
just screaming in the store.” (Defs.’ Mot. Ex. P at 0:08.) Schroeder twice confirmed that the
retail fraud was completed. (Id. at 1:07–1:18.) Golinske also described Kozma in detail. (Id. at
1:59.) The four Defendant officers therefore arrived on the scene understanding that Walmart
had accused someone matching Kozma’s description of retail fraud and that she was not
complying with Walmart’s staff. For instance, Sergeant Gibbs testified that he heard two radio
transmissions including information that “there was a retail fraud,” “the suspect was
uncooperative and giving loss prevention a hard time,” and “the accused was special needs.”
(Gibbs Dep. at 43; see also Cammarata Dep. at 64; Sullivan Dep. at 66, 68; Salter Dep. at 73–74;
Pl.’s Resp., Ex. D. Salter Statement.)
Kozma claims that the information from Walmart was unreliable because this particular
Walmart was a new store, meaning Defendants had no firsthand knowledge of the qualifications
or training of the loss prevention employees there. (Pl.’s Resp. at 26.) Yet Kozma cites no
authority to support this argument. Furthermore, the Court reasoned in Boykin that the officers’
information did not lack the “indicia of reliability essential to support probable cause” because it
was based on “first-hand information about a suspected theft at a major local retail store.” See
Boykin, 479 F.3d at 450. The Court noted that officers “presumably receive such calls with
relative frequency, and there would have been no reason for them to doubt the veracity of the
information they received, especially in light of the facts they were able to corroborate once they
spoke with Boykin.” Id.

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Here, as in Boykin, the officers did corroborate some of Golinske’s report before arresting
Kozma. For one, as is clear from video footage, Kozma’s physical appearance matched
Golinske’s description. Also, when Sergeant Gibbs first arrived at Walmart, another loss
prevention employee told him: “We have her grabbing one object and then go right into her
waistband.” (Defs.’ Ex. M at 18:23:12–38.) Gibbs then noticed, consistent with that report, that
Kozma had a bulge in her waistband. (Gibbs Dep. at 114.) And finally, as soon as Gibbs inquired
about the bulge, Kozma refused to talk to him. (Defs.’ Ex. M at 24:19; Gibbs Dep. at 81, 89.)
This lack of response to Gibbs’ attempt at further investigation tended to corroborate Walmart’s
report that she was uncooperative. Thus, nothing in the record suggests that the information that
Defendants relied on, though ultimately wrong, lacked “the indicia of reliability essential to
support probable cause.” See Boykin, 479 F.3d at 450.
Kozma’s counsel attempts to undermine this corroboration by suggesting that Kozma’s
grandmother conclusively demonstrated before the arrest that the bulge in Kozma’s waistband
was a phone, not any stolen merchandise. (Pl.’s Resp. at 7, 26.) Granted, Kozma’s grandmother
testified that she “showed” Gibbs that the bulge in Kozma’s waistband was from a phone. (Janice
Dodd Dep. at 31, 38.) But Kozma had a phone in her hand, and it was not unreasonable for the
officers to doubt that she had two. More important, probable cause was already established by
that point. See Williams ex rel. Allen v. Cambridge Bd. of Educ., 370 F.3d 630, 637 (6th Cir.
2004) (observing that once probable cause is established, “an officer is under no duty to
investigate further or to look for additional evidence which may exculpate the accused . . . [or] to
give any credence to a suspect’s story [or alibi] nor should a plausible explanation in any sense
require the officer to forego arrest pending further investigation if the facts as initially discovered
provide probable cause” (internal quotation marks and citations omitted)).

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Kozma also disputes that probable cause existed because of uncertainty surrounding
whether the amount of money at stake surpassed the threshold at which Walmart would
prosecute a retail fraud claim. (Pl.’s Resp. at 26.) But that makes no difference. Though Walmart
generally only pursues retail fraud claims above $25, (see Golinske Dep. at 100–101), the police
in Michigan are not so limited. A person is guilty of retail fraud in the third degree under
Michigan law if she, “While a store is open to the public, steals property of the store that is
offered for sale at a price of less than $200.00.” Mich. Comp. Laws Ann. § 750.356d(4)(b).
Finally, Kozma argues that the officers lacked probable cause because a “receipt was
offered, and ignored.” (Pl.’s Resp. at 27.) Kozma thus contends that this case is entirely
distinguishable from Boykin because Boykin tried to find a receipt but was unable to produce it.
(Id. at 28.) The Sixth Circuit indeed noted that Boykin’s failure to provide a receipt corroborated
the retailer’s report of retail fraud, supporting the officers’ probable cause determination. Boykin,
479 F.3d at 450. But a careful reading makes clear that the police had already handcuffed Boykin
by the time it became apparent that he could not produce the receipt. Id. at 447–48. And in this
case, though testimony indicates that Kozma’s grandmother tried to show the police the receipt,
(see Graves Dep. at 66; Janice Dodd Dep. at 73), nothing establishes when this happened. Even
if Janice Dodd tried to show the police a receipt prior to the arrest, the officers would have had
no obligation to ignore the possibility that Kozma had stolen something else. See Williams, 370
F.3d at 637.
In short, no reasonable jury could find that the officers lacked probable cause to suspect
that Kozma had committed retail fraud. The officers received a firsthand report of shoplifting
from a major retailer, which they partially corroborated when they arrived on the scene. Yes,
they were ultimately proved wrong. But this Court does not evaluate whether officers had

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probable cause to arrest with “the 20/20 vision of hindsight.” Radvansky v. City of Olmsted Falls,
395 F.3d 291, 302 (6th Cir. 2005). Kozma has therefore failed to meet her burden to raise a
genuine issue of material fact under the first prong of qualified immunity for her false arrest
claim.
As for the second prong of the qualified immunity analysis, even if Kozma raised a fact
issue concerning whether the officers falsely arrested her, she has not demonstrated that their
conduct violated clearly established law. Other than saying in conclusory fashion that the arrest
violated clearly established law because it was unsupported by probable cause, Kozma has done
nothing to attempt to meet her burden under the second prong. (See Pl.’s Resp. at 25, 35.) Her
entire qualified immunity argument rests on her emphasis that “[i]n a § 1983 action, the
existence of probable cause is a question of fact.” (Pl.’s Resp. at 25 (quoting United States v.
Gaudin, 515 U.S. 506, 521 (1995).) But under the second prong, “[t]he reasonableness of an
officer’s probable cause determination is a question of law.” See Goodwin v. City of Painesville,
781 F.3d 314, 333 (6th Cir. 2015) (citing Jeffers v. Heavrin, 10 F.3d 380, 381 (6th Cir. 1993).
“[T]he Supreme Court has made clear that the sine qua non of the ‘clearly established’
inquiry is ‘fair warning.’” See Baynes v. Cleland, 799 F.3d 600, 612–13 (6th Cir. 2015) (quoting
Hope v. Pelzer, 536 U.S. 730, 741 (2002). “A right is ‘clearly established’ if ‘[t]he contours of
the right [are] sufficiently clear that a reasonable official would understand that what he is doing
violates that right.’” Baynes, 799 F.3d at 610 (quoting Anderson v. Creighton, 483 U.S. 635, 640
(1987)). However, “government officials can still be on notice that their conduct violates
established law even in novel factual circumstances.” Baynes, 799 F.3d at 611. Still, it is the
plaintiff’s burden “to demonstrate that the government official violated a right that was so clearly
established ‘that every ‘reasonable official would have understood that what he [was] doing

15

violate[d] that right.’” Webb v. United States, 789 F.3d 647, 659 (6th Cir. 2015) (quoting
Ashcroft v. al–Kidd, 563 U.S. 731, 131 S.Ct. 2074, 2083 (2011)).
The Court has been given no basis to find that every reasonable officer should have
understood that it violated the Fourth Amendment to arrest someone based on a partially
corroborated report of shoplifting from the professional loss prevention staff of a major retailer.
If anything, Boykin suggests that doing so is not a violation of clearly established law. And
Kozma cites nothing to the contrary. Thus, for Kozma’s false arrest claim, she has failed to meet
her burden under both qualified immunity prongs. The Court therefore finds that Defendants are
entitled to qualified immunity as a matter of law for Kozma’s false arrest claim.
B.
Just because officers had cause to arrest Kozma does not mean that the force they used to
carry out that arrest was reasonable: “The Fourth Amendment prohibits the use of excessive
force during the seizure of a free citizen.” See Monday v. Oullette, 118 F.3d 1099, 1104 (6th Cir.
1997). When analyzing excessive force claims, “the 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.” Graham v. Connor, 490 U.S. 386, 397 (1989). The
“proper application” of the reasonableness test “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.
Kozma claims that the officers used excessive force when they forced her to the ground,
and once down, when an officer put a knee into her back to restrain her while handcuffing her.
(Pl.’s Resp. at 33–34.)

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Beginning with the first qualified immunity prong, while Kozma discusses Graham’s
excessive force factors only in the segment of her brief addressing her false arrest claim, it is
clear that the first two Graham factors weigh in her favor. First, when the officers attempted to
handcuff her, they suspected she was guilty of a non-violent misdemeanor—retail fraud. (Gibbs
Dep. at 83.) Second, though Walmart employees described her as “yelling” and “screaming”
before officers arrived, no evidence suggests that she threatened the safety of the officers or
anyone else. The officers themselves unanimously agreed that she did not. (Sullivan Dep. at 97;
Gibbs Dep. at 109–110; Salter Dep. at 99; Cammarata Dep. at 152.) The final Graham factor—
whether Kozma actively resisted officers’ attempts to handcuff her—is not clearly in her favor.
Kozma’s counsel claims that Jodi was “compliant and not-resistive” and that “no one has
asserted there was a basis for any force at the moment of the takedown, given Jodi’s total lack of
resistance.” (Pl.’s Mot. at 33 (emphasis in original).) Plaintiff’s counsel suggests that Kozma was
“just standing there” before officers suddenly threw her to the ground. (Pl.’s Mot. at 33.) In
particular, she relies on Officer Salter’s stray remark that once he grabbed Kozma’s arm, and
Sullivan had her other arm, she was “[j]ust standing there, or still going to the ground.” (Salter
Dep. at 116–117.) But taken in the context of his testimony, this statement does not support the
inference that officers wrestled a totally compliant Kozma to the ground. For instance, Salter also
testified that before they took her to the ground, “she took like a step away and started swinging
her arms.” (Salter Dep. at 125.) This is consistent with the testimony of other witnesses who
described this portion of the events in detail—including Kozma’s cousin. All agreed that Kozma
swung one or both arms. (Sullivan Dep. at 129; Jennifer Dodd. Dep. at 14, 23; Cammarata Dep.
at 208.) Kozma herself testified, “All I remember was saying, whoa, don’t touch me, don’t touch

17

me. So I went like this, like my hands went up like that and I just said don’t touch me.” (Jodi
Kozma Dep. at 21.)
As for the video evidence, for a few seconds, it indeed shows that Kozma was “just
standing there” before she went to the ground, with an officer holding her from behind. (Pl.’s Ex.
B at 0:41–0:49.) But immediately before, she had stepped away, apparently refusing to be
handcuffed. (Id. at 0:36–0:39.) And immediately after, while the video does not clearly show
whether she swung one or both of her arms, she did continue to struggle, twisting and turning as
she ultimately went to the ground with the officers. (Id. at 0:49–0:55.)
Kozma also cites Graves’ testimony that Kozma “wasn’t trying to fight them.” (Graves
Dep. at 23.) But testimony that she did not try to fight the officers does not undermine the
irrefutable evidence that she refused to cooperate with the officers. One does not have to fight an
officer to resist actively: “Active resistance includes physically struggling with, threatening, or
disobeying officers.” See Rudlaff v. Gillispie, 791 F.3d 638, 641 (6th Cir. 2015). It also includes
“refusing to move your hands for the police to handcuff you, at least if that inaction is coupled
with other acts of defiance.” Id. at 641 (citing Caie v. W. Bloomfield Twp., 485 F. App’x 92, 94,
96–97 (6th Cir. 2012)).
Kozma also asserts that Gibbs testified that she “never resisted arrest.” (Pl.’s Resp. at 12.)
But this is the testimony she cites:
Q: Jodi never resisted arrest because she was never told she was being arrested; correct?
Mr. Goldstein: Object to the form.
A. Correct.
(Gibbs Dep. at 110.) Kozma’s counsel did not simply ask whether Kozma resisted. She asked a
compound question: whether Kozma resisted arrest because she was never told she was being

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arrested. It is unclear which part of that question Gibbs confirmed by saying “correct.”
Moreover, Gibbs testified that he did not even witness the full struggle: “The only thing I could
notice is—when I turned to the grandmother and I was talking to her . . . I noticed out of my
peripheral vision off to my right . . . that they fell to the floor.” (Gibbs Dep. at 103.)
Because it is clear that Kozma did not willingly allow herself to be handcuffed, the
question becomes whether it was reasonable for officers to force her to the ground and then put a
knee into her back her while she was down. “Not every push or shove, even if it may later seem
unnecessary in the peace of a judge’s chambers . . . violates the Fourth Amendment.” See
Graham, 490 U.S. at 396 (internal quotation marks and citations omitted). As such, Courts have
found that it is not necessarily unreasonable to force a resisting suspect to the ground to apply
handcuffs. See Thacker v. Lawrence Cty., 182 F. App’x 464, 472 (6th Cir. 2006) (holding that it
was not excessive force for two officers to take to the ground “an upset, loud, and swearing
individual who refused to calm down” when trying to handcuff him); see also Ezell v.
Malczewski, No. 06-14994, 2007 WL 3037723, at *6 (E.D. Mich. Oct. 17, 2007) (holding that it
was not excessive force to use a “straight-arm-bar take down” technique to bring resisting
suspect to the ground to handcuff him).
Kozma attempts to characterize the officers’ conduct as unreasonable by saying that they
“threw” her to the ground. (Pl.’s Mot. at 13, 32, 33.) This stems from Graves’ testimony: “They
threw her down. And that’s what I call—I call that throwing down. . . . And not just pushing a
person down. . . . They manhandled her like a male. . . . And threw her down.” (Graves Dep. at
69.) While Defendants dispute that the video supports this testimony, the video is not entirely
inconsistent with idea that the officers threw—or least slammed—Kozma to the ground. The
video appears to show that it took roughly seven seconds of struggling for the officers to bring

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Kozma totally to the ground. (Pl.’s Ex. B at 0:51–0:57.) But once she was half-way down, the
level of force the officers used to bring her all the way down is not clear from the video; a ledge
blocked the camera’s view. So the video does not foreclose the possibility that Graves’ testimony
was accurate. Kozma also suffered some bruising as a result of this incident, suggesting that the
officers were less than gentle with her. (See Pl.’s Ex. G, Photos.) Even in their own words, they
“muscled” her to the ground. (Salter Dep. at 115.)
Kozma further asserts that “In addition to throwing [her] to the ground with such force as
to bruise her body, . . . the Defendants used knees and body pressure to asphyxiate her on the
ground” at a time when she was “non-resistant.” (Pl.’s Resp. at 34.) Though it is clear that
Kozma did not willingly allow herself to be handcuffed before officers forced her to the ground,
once they had her on the ground, drawing all inferences in her favor, she no longer resisted at all.
While this portion of the confrontation does not appear in the video, even the officers’ testimony
supports the conclusion that Kozma no longer resisted once she was down. Salter confirmed that
she just laid there and “[t]here was no chance to resist at that point.” (Salter Dep. at 126, 128.)
Similarly, Cammarata said she was “for the most part” compliant. (Cammarata Dep. at 209.)
Graves additionally said that though Kozma was “squirming,” she “wasn’t refusing.” (Graves
Dep. at 23.)
Despite Kozma’s non-resistance at this point, a reasonable jury could conclude that the
officers applied significant pressure to her back. Her grandmother said that she saw “Jodi on the
ground with this guy on her with his knees in her back. All his weight on her.” (Jennifer Dodd
Dep. at 41; see also Graves Dep. at 16.) Though the record is not clear, this was likely Salter. He
acknowledged that he handcuffed Kozma, and though he did not recall putting a knee into her
back, he also did not deny it. (Salter Dep. at 114–15.) As a result of this pressure to her back,

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Kozma had trouble breathing and felt like she was going to die. (Jodi Kozma Dep. at 44.) And as
the video implies that Kozma was on the ground for over forty seconds, (Pl.’s Ex. B at 0:53–
1:36), a reasonable jury could conclude that neither the amount nor the duration of the force were
insignificant.
Consider also that officers are required to “de-escalate the situation and adjust the
application of force downward” when confronted with a mentally disabled person. Martin v. City
of Broadview Heights, 712 F.3d 951, 962 (6th Cir. 2013). Here, a reasonable jury could find that
the officers did not. That would further call into question the reasonableness of their actions,
especially considering that none of the four armed officers viewed Kozma as a threat.
In sum, the undisputed record establishes that Kozma offered some resistance to the
officers, at least at first. But given the admittedly minimal threat that the unarmed Kozma posed,
the number of officers involved, and the evidence before the officers concerning Kozma’s mental
disability, there is a genuine issue of material fact concerning whether the officers’ reaction—
throwing or muscling her to the ground and then applying pressure to her back—was an
unreasonable use of force in the circumstances of this case.
Moving to the second prong, a finding that the officers’ force was unreasonable in these
circumstances would support the conclusion that their conduct violated clearly established law.
The Fourth Amendment guarantees the “right of an unarmed, minimally threatening, and
mentally unstable individual to be free from gratuitous violence during an arrest.” Martin v. City
of Broadview Heights, 712 F.3d 951, 960 (6th Cir. 2013); see also Shreve v. Jessamine Cty.
Fiscal Court, 453 F.3d 681, 688 (6th Cir. 2006) (“Cases in this circuit clearly establish the right
of people who pose no safety risk to the police to be free from gratuitous violence during
arrest.”). If a jury finds that the officers manhandled and muscled Kozma to the ground when she

21

posed no threat—in circumstances that due to her mental disability warranted de-escalation
instead—that would qualify as gratuitous force.
Kozma also had a clearly established right to be free from the force that she claims the
officers used once they had her on the ground: a knee into her back, making it difficult for her to
breath despite her non-resistance at that point. See Sweatt v. Doxtader, 986 F. Supp. 2d 886, 898
(E.D. Mich. 2013) (“[I]t was clearly established as of May 24, 2010, that a suspect had the right
to be free from being forcibly kneed in the back while not actively resisting arrest and lying on
his stomach on the ground not resisting arrest.”). Defendants take issue with Kozma’s
characterization of what happened as “asphyxiation.” (Dkt. 44, Defs.’ Repl. at 9.) But even if
Kozma’s trouble breathing did not amount to actual asphyxiation, the Sixth Circuit noted in
Champion v. Outlook Nashville, Inc., 380 F.3d 893, 903 (6th Cir. 2004), that it is “clearly
established that putting substantial or significant pressure on a suspect’s back while that suspect
is in a face-down prone position after being subdued and/or incapacitated constitutes excessive
force.” (emphasis added.); see also Griffith v. Coburn, 473 F.3d 650, 659-60 (6th Cir. 2007)
(holding that the use of a neck restraint on a mentally ill arrestee who posed no threat “violate[d]
a clearly established constitutional right to be free from gratuitous violence during arrest and is
obviously inconsistent with a general prohibition on excessive force”). Here, a reasonable jury
could find that officers put “significant pressure” on Kozma’s back when she was no longer
resisting.
Accordingly, the officers who used force—Sullivan and Salter—are not entitled to
qualified immunity for Kozma’s excessive force claim. Sergeant Gibbs and Officer Cammarata
will be dismissed, however, as Kozma has failed to respond to Defendants’ argument that they
should not be individually liable because they were mere bystanders (see Defs.’ Mot. at 38). See

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McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir. 1997) (“Issues adverted to in a perfunctory
manner, unaccompanied by some effort at developed argumentation, are deemed waived”).
IV.
For the reasons stated, the officers are entitled to qualified immunity as a matter of law
for Kozma’s false arrest claim. However, Kozma has a raised a genuine issue of material fact as
to whether Officers Sullivan and Salter are entitled to qualified immunity for her excessive force
claim.
Accordingly, Defendants’ Motion for Summary Judgment (Dkt. 30) is DENIED as to
Sullivan and Salter for Plaintiff’s excessive force claim in Count I but GRANTED as to Sullivan,
Salter, Cammarata, and Gibbs in all other respects. As there is a genuine issue of material fact
concerning whether a constitutional violation occurred, pursuant to the Court’s order limiting
preliminary discovery (Dkt. 13), discovery may now proceed to Kozma’s Monell claims against
the City of Livonia and Police Chief Caid.2
SO ORDERED.

s/Laurie J. Michelson
LAURIE J. MICHELSON
UNITED STATES DISTRICT JUDGE
Dated: December 9, 2015

2

Kozma has also sued the Livonia Police Department, but that claim is more
appropriately covered by her claim against the City of Livonia. See Haverstick Enterprises, Inc.
v. Fin. Fed. Credit, Inc., 32 F.3d 989, 997 n.1 (6th Cir. 1994) (“A suit against a city police
department in Michigan is one against the city itself, because the city is the real party in
interest.”); see also Laise v. City of Utica, 970 F.Supp. 605, 608 (E.D.Mich.1997) (“[T]he police
department is not a legal entity against whom a suit can be directed.”). Thus, the Livonia Police
Department is dismissed from this case as a Defendant.
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CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing document was served on the attorneys
and/or parties of record by electronic means or U.S. Mail on December 9, 2015.
s/Jane Johnson
Case Manager to
Honorable Laurie J. Michelson

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