Kozma et al v. Livonia, City of et al
Filing
48
OPINION and ORDER DENYING 47 MOTION for Leave to File Supplemental Brief, and DENYING 46 MOTION for Reconsideration - 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
v.
CITY OF LIVONIA, et al.,
Defendants.
OPINION AND ORDER DENYING DEFENDANTS’ MOTION FOR PARTIAL
REHEARING OR RECONSIDERATION [46] AND DENYING DEFENDANTS’
MOTION FOR LEAVE TO FILE SUPPLEMENTAL BRIEF [47]
Interpreting the record in the light most favorable to the Plaintiff supports that two
Livonia police officers wrestled a mentally disabled woman, Plaintiff Jodi Kozma, to the ground
after they mistakenly suspected she had tried to steal a $3.87 hair tie from a Walmart—even
though they admitted she posed no threat. Once they had her on the ground, some evidence
indicates that one of the officers applied pressure to her back, making it difficult for her to
breathe—even though they admitted she did not resist them.
This Court recently issued an opinion and order granting in part and denying in part
Defendants’ motion for summary judgment. (Dkt. 45, Order.) The Court held that the officers
were entitled to qualified immunity for Kozma’s § 1983 false arrest claim because, though the
officers were ultimately proved wrong, they had probable cause to arrest her for shoplifting. The
Court also held that of the four officers on the scene, two were entitled to summary judgment for
Kozma’s excessive force claim because they were mere bystanders. The case was not dismissed,
however, because the Court held that the two officers who forced Kozma to the ground during
the arrest, Salter and Sullivan, were not entitled to qualified immunity.
Defendants now seek rehearing or reconsideration, raising two main arguments. (Dkt. 46,
Defs.’ Mot.) First, Defendants argue that the Court erred in concluding that there was evidence
suggesting that officers applied pressure or force to Kozma’s back after she was subdued or
compliant. Second, Defendants assert that qualified immunity must apply because the officers
were at least “reasonably mistaken with regard to the effort to take Jodi Kozma to the ground.”
(Dkt. 46.) The Court has reviewed its decision in light of these arguments and concludes that
there is no basis for altering it. And a hearing is not necessary to reach that conclusion.
I.
The Local Rules of this district provide that a motion for reconsideration may be granted
when the moving party can “demonstrate a palpable defect by which the Court and the parties
and other persons entitled to be heard on the motion have been misled,” and “show that
correcting the defect will result in a different disposition of the case.” E.D. Mich. LR 7.1(h)(3).
“A ‘palpable defect’ is a defect which is obvious, clear, unmistakable, manifest, or plain.” Mich.
Dep’t of Treasury v. Michalec, 181 F. Supp. 2d 731, 734 (E.D. Mich. 2002) (citations omitted).
The Local Rules further provide that any “motions for rehearing or reconsideration which merely
present the same issues ruled upon by the Court, either expressly or by reasonable implication,
shall not be granted.” E.D. Mich. LR 7.1(h)(3).
II.
A.
In three separate sections of their brief, Defendants take issue with the Court’s conclusion
that a reasonable jury could find that the officers put pressure on Kozma’s back when she was
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compliant. For instance, in a section of their brief titled “Inference v. Speculation,” Defendants
argue that “while the Court has stated that it has drawn an inference from the record,” namely
that an officer put pressure on Kozma’s back when she was compliant, “[the Court] has instead
articulated a possibility that is merely allowed by the record.” (Defs.’ Mot. at 6.)
The Court finds no palpable defect in its ruling on this issue. As the video of the incident
does not show this portion of the struggle, the Court relied on testimony from eyewitnesses. And
viewing the evidence in the light most favorable to Kozma, officers put significant pressure on
her back. For instance, Kozma’s grandmother testified that she saw “Jodi on the ground with this
guy on her with his knees in her back. All his weight on her.” (Dkt. 44, Pl.’s Resp. to Defs.’ Mot.
Summ. J., Ex. M, Jennifer Dodd Dep. at 41.) Kozma herself testified that while on the ground,
she had trouble breathing and felt like she was going to die. (Pl.’s Resp., Ex. S, Jodi Kozma Dep.
at 44.) Furthermore, again viewing the evidence in the light most favorable to Kozma, she was
not resisting at that time. Specifically, Officer Salter testified that once they brought Kozma
down, “[t]here was no chance to resist at that point.” (Pl.’s Resp. Ex. V, Salter Dep. at 126, 128.)
Similarly, Officer Cammarata said she was “for the most part” compliant. (Pl.’s Resp. Ex. K,
Cammarata Dep. at 209.)
Defendants seem to urge that testimony from Valeria Graves, an eyewitness shopper,
undercuts these conclusions. (Defs.’ Mot. at 2–4, 7.) But the Court did not rely entirely on her
testimony, which was at best ambiguous. On one hand, the Court agrees with Defendants that
some of Graves’ testimony supports the conclusion that, as Defendants put it, the officers “took
her down, held her down, handcuffed her, and brought her up in quick sequence.” (Defs.’ Mot. at
3.) For instance, Graves said that after they handcuffed Kozma, while she could not remember,
“I would assume they got her right up.” (Pl.’s Resp. Ex. Q, Graves Dep. at 71–72.) But then
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again, the video evidence suggests that officers had Kozma on the ground for around 45 seconds.
(Pl.’s Resp. Ex. B at 0:53–1:36.) On the other hand, Graves also testified that when an officer
had his knee in Kozma’s back, she was “squirming” but “wasn’t refusing.” (See Graves Dep. at
16, 23.) That squirming may well have been resistance. But it could also have been an
involuntary response to the officer’s pressure.
Given these circumstances—including eyewitness accounts that do not fully overlap and
gaps and shortcomings in the video evidence—a jury must decide what happened and whether
the officers’ force was reasonable.
B.
Defendants next essentially argue that the Court skipped the second step of the qualified
immunity analysis for Kozma’s excessive force claim, (see Defs.’ Mot. at 11), which requires the
Court to assess whether the constitutional right allegedly violated was “clearly established,” see
Leary v. Livingston Cty., 528 F.3d 438, 441 (6th Cir. 2008) (quoting Saucier v. Katz, 533 U.S.
194, 201 (2001)).
The Court notes that Defendants barely addressed the second prong of qualified
immunity in their summary-judgment briefs. In their opening brief, Defendants laid out the
standards regarding qualified immunity (Defs.’ Mot. at 19–22), and reserved argument for their
reply brief, (Defs.’ Mot. at 36–37). But in reply, Defendants simply asserted that Plaintiffs
waived any argument on qualified immunity for the excessive claim due to “substantive silence,”
(Defs.’ Reply at 10), despite that Kozma did argue for why the officers’ conduct satisfied the
second prong of qualified immunity, (Pl.’s Resp. at 35–36).
In any event, the Court sees no reason to disturb its findings concerning qualified
immunity for the excessive force claim. Defendants urge that “qualified immunity does not turn
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on whether a jury might find the force excessive” and that “[t]he test should focus on the
reasonable officer, not the reasonable jury.” (Defs.’ Mot. at 11.) But it is up to a jury to decide
what exactly transpired. Thus, under the first prong of qualified immunity—which here required
assessing whether a reasonable jury could find excessive force—the Court found that two of the
three factors for excessive force articulated in Graham v. Connor, 490 U.S. 386, 397 (1989),
weighed well in Kozma’s favor: the officers suspected her of at most a minor shoplifting offense,
(Gibbs Dep. at 83), and all agreed that she posed no threat, (Sullivan Dep. at 97; Gibbs Dep. at
109–110; Salter Dep. at 99; Cammarata Dep. at 152). And the Court found that while Kozma did
not willingly allow herself to be handcuffed before they forced her to the ground, a reasonable
jury could find that Salter and Sullivan “threw” or “manhandled” her to the ground. This was
Graves’ testimony. (Graves Dep. at 69.) And as the Court discussed, the imperfect video
evidence did not negate the possible accuracy of that testimony. Furthermore, the evidence
suggested that once the officers forced her to the ground, they put pressure on her back
significant enough to make it difficult for her to breath despite her compliance at that point.
Thus, on these facts a reasonable jury could find that the officers “threw” down or
“manhandled” a harmless mentally disabled woman for essentially no reason other than that she
did not immediately allow officers to handcuff her for a minor shoplifting offense—when she
was understandably confused about the false accusations lodged at her—and then put pressure
into her back once she was on the ground and compliant. Assuming a jury found that is what
happened, that would mean the officers’ actions contravened clearly established law: the Fourth
Amendment prohibits “gratuitous violence during an arrest,” Shreve v. Jessamine Cty. Fiscal
Court, 453 F.3d 681, 688 (6th Cir. 2006).
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In its prior opinion, the Court further concluded that if a jury found that the officers put
significant pressure on Kozma’s back at a time when she was subdued, that would have also
violated clearly established law. See Champion v. Outlook Nashville, Inc., 380 F.3d 893, 903
(6th Cir. 2004) (holding 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”).
Defendants take issue with this finding for two key reasons. First, Defendants say that
there is no evidence of “substantial or significant” pressure. (Defs.’ Mot. at 15.) But as discussed
above, Kozma’s grandmother testified that an officer had all of his weight on her, and Kozma
herself testified that she could not breathe. Second, Defendants urge that “claiming one was held
down too much or too long should be properly analyzed under the law like the handcuff cases.”
(Defs.’ Mot. at 16.) Yet in handcuffing cases, a plaintiff must show: “(1) he or she complained
the handcuffs were too tight; (2) the officer ignored those complaints; and (3) the plaintiff
experienced ‘some physical injury’ resulting from the handcuffing.” See Morrison v. Bd. Of
Trustees of Green Twp., 583 F.3d 394, 401 (6th Cir. 2009) (citing Lyons v. City of Xenia, 417
F.3d 565, 575–76 (6th Cir. 2005)). So even if this standard applied, which no case so holds,
qualified immunity would still be inappropriate. Kozma screamed throughout the duration of the
encounter—given her mental disability, this could have been her best effort to complain that the
officers were too forceful. (Dkt. 34, Defs.’ Mot. Summ. J. Ex. M at 18:24:29–18:25:30.) Second,
as the officers apparently held her down for 45 seconds and Kozma said she felt like she was
going to die, a reasonable jury could find they ignored her complaints. And finally, Kozma
claims that she suffered injury, in the form of bruising. (Pl.’s Resp. Ex. G, Photos; Wendy
Kozma Dep. at 108–112.)
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Finally, Defendants assert that the Court erred by relying on cases that suggest officers
must de-escalate force when confronted with someone with diminished mental capacity. (Defs.’
Mot. at 16–18.) For instance, in Champion v. Outlook Nashville, Inc., 380 F.3d 893, 904 (6th Cir.
2004), the Sixth Circuit held, “The diminished capacity of an unarmed detainee must be taken
into account when assessing the amount of force exerted.” Defendants have cited no authority to
support their contention that Champion does not “mandate” officers to use less force when
confronting someone with a diminished mental capacity. This is not surprising, as the Sixth
Circuit has subsequently characterized Champion as “requir[ing] . . . officers to de-escalate the
situation and adjust the application of force downward” when confronted with such a person. See
Martin v. City of Broadview Heights, 712 F.3d 951, 962 (6th Cir. 2013) (emphasis added).
Defendants’ suggestion that Champion should not even apply because, “there is no record
evidence that Ms. Kozma was in a state of excited delirium” (Defs.’ Mot. at 18), is not well
taken. For one, it is illogical to suggest that any requirement to use less force on someone who is
mentally diminished applies only when the person is volatile instead of calm. Moreover, even if
“excited delirium” were required to trigger this duty of de-escalation, Defendants do not
acknowledge the evidence, as noted above, that someone—likely Kozma—was screaming quite
loudly throughout the ordeal.
III.
For these reasons, Defendants have not demonstrated that the Court committed any
palpable error in partially denying their motion for summary judgment. Thus, Defendants’
Motion for Partial Rehearing or Consideration (sic) (Dkt. 46) is DENIED.
Finally, in response to Plaintiff’s January 11, 2016 letter to the Court attaching a recent
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Sixth Circuit case addressing excessive force, Kent v. Oakland Cty., No. 14-2519, 2016 WL
66566, — F.3d —, (6th Cir. Jan. 6, 2016), Defendants filed a Motion for Leave to File
Supplemental Brief (Dkt. 47). Defendants say that Plaintiff’s two sentence letter informing the
Court of this recent authority, amounts to an unauthorized brief responding to its motion for
reconsideration. While Plaintiff’s letter was unnecessary, as the Kent opinion does not give the
Court any reason to alter its holdings in this case, no supplemental briefing is necessary, and
Defendants’ Motion for Leave to File Supplemental Brief (Dkt. 47) is DENIED.
SO ORDERED.
s/Laurie J. Michelson
LAURIE J. MICHELSON
UNITED STATES DISTRICT JUDGE
Dated: January 25, 2016
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 January 25, 2016.
s/Jane Johnson
Case Manager to
Honorable Laurie J. Michelson
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