NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 11a0283n.06 No. 09-2375 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

L E O N I D M A R M E L S H T E IN ; a n d A R L E N E MARMEL SHTEI

N, Plaintiffs-Appellee s, and MARC MARMEL SHTEI N, Plaintiff,

v. CI TY OF SOUTHF I EL D; SW ART, Police Offic er; L ASK, S gt .; J EFF REY J AGI EL SKI , Police Offic er; BA UMAN, Det.; SI MERL Y, Sgt.; L I T E RA CK I , D e t.; MOI L ENAN, D et.; and MEDI CI , Police Offic er, Def endants-A

ppellants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) O N A P P E A L F R O M T H E UNI TED STATES DI STRI CT COU R T FOR THE EASTERN DI STRI CT OF MI CHI GAN

BEF ORE: GRI FF I

N and KE THL EDGE, Circuit Judges; and B ERTEL SMAN, District J udg e. * GRI FF I N, Circuit J udg e. Plaintiffs L eonid and Arlene Marmelshtein filed suit under 42 U.S.C. § 1983 ag ainst the City

o f Southfield (“Southfield”) and sever al police office rs and supervisors employ ed by S o u t h fi el d (collec tively “off

icer s”), alleg ing that their constitutional rig hts wer e violated by defe ndants during

The Honora

ble Wil liam O. Be rtelsman, Senior United States District J udg e for the Easter n * District of Ke ntucky , sitti ng by desig nation.No. 09-2375

Marmelshtein, e t al. v. City of Southf ield, et al.

the execution of a sear ch war rant of their home. The district court denied defe ndants’ summary 1 judgme nt motions, holding that plaintiffs demonstrated a g enuine question of materia l fac t reg arding whether the office rs are entitle d t o qualified immunit y and whether Southfield had an unwritten policy reg arding the deploy ment of flash-ba

ng g rena des. Def

endants now timely appea l. Plaintiffs have filed a motion to dismiss Southfield’s interlocutory appea l, arg uing that we lack jurisdiction. For the rea sons that follow, we g rant plaintiffs’ motion to dismiss Southfield’s appea l, reve rse in part the decision of the district court, dismiss the balanc e of the appea l for lack of jurisdicti o n , and

rema nd for f urther pr ocee dings c onsistent with thi s opinion. I

. On or befor e Dec ember 13, 2004, the Southfield Police Depa rtment rec ei v ed an “anony mous” complaint from plai n t i ff s ’ n ei g hbor t hat t here was “narc otics ty pe of activity ” in or around the Marmelshtei n ’s home. Ba sed on this repor t, defe ndant Detec tive Ba uman drove by plaintiffs’ home and observe d a car in the drivewa y reg istered to Arlene Marmelshtein and her oldest
son, David. Upon checking the L I EN database, Bauma n discovere d that David had pled g uilty in 2001 to a misdemeanor char g e of “[p] ossession of marijuana ” and that he was placed o n t welve months’ probation. There afte r, Ba uman and defe ndant Detec tive Simerly undertook a “tra sh pull” from the Ma

rmelshtein home that y ielded what was de termined to be ma rijuana “ residue.” Ba sed

The plaintiffs’ son, Marc Marmelshtein, was initially a party to the suit but w as dismiss ed 1 upon an ag ree ment by

the par ties. - 2 -No. 09-2375

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on this evidenc e, Ba

uman reque sted and obtained a war rant to conduct a sear ch of the Marmelshtein home. I n the late afte rnoon of Dec emb er 1 3, 2004, the defe ndant office rs arr ived at the Marmelshte i n h o m e to conduct their sear ch. The parties sharply disag ree , howeve r, about what 2 happene d next. Plaintiffs contend that the office rs broke down their front door with a battering ram without announcing their prese nce. To the contra ry , defe ndant Offic er J eff

rey J ag ielski testified that he knocked and announce d the office rs’ prese nce, and then waited approximately ten seconds befor e using the battering ram. Once the door was rammed, defe ndant Offic er Swart states that he looked into the home, saw no one , and thre w in a fla sh-bang g rena de. Acc ording to J ag ielski, upon entry , he saw L eo n i d, a 69 y ear old man, 5' 7" in heig ht, and weig hing about 140 lbs., “with his fists up in t h e ai r . . . with his head down y elling and running towards [ him] .” J ag i el ski instructed L eonid t o “g et down[ ,]” but he did not immediately comply , leading J ag ielski to g rab L eonid by either the throat or chest and forc e him onto the floor. Def endant Serg eant L ask then a ssisted J ag ielski in handcuff ing him. L eonid t estified that, afte r hearing the flash-bang g rena de go off, he “walked” towards the masked men at his door, not y et awa re that these wer e police o ff i ce rs , as k i ng “wha

t did I do? ” Acc ording to L eonid, the office rs held a g un to his head; threa tened repe atedly to shoot and kill him; and then drove him to t h e gro u n d wh er e they struck him in the fac e and head befor e handcuf fing

The Southfield Po li c e D e partment Special Entry and Response Tea m (“SERT”) was dresse d 2 completely in black helmets and hoods cover ing their fac es, g og g les cover ing their ey es, and tactica l vests cover ing the ir bodies. - 3 -No. 09-2375

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him. L eonid indicated that the blows to his fac e and head resulted in visible bruising. Photogra phs
t ak en o f h i m following the raid corr oborate his injuries. J ag ielski testified, howeve r, that these “abr asions wer e ca

used whe n [L eonid] . . . tried to dive head f irst out the door.” Around the same time, Arlene , “sca red” that “somebody was brea king in the house[,] ” fled
out of the back of the home. When defe ndant office rs witnessed her flee ing, an unidentified SERT member threw a second flash-ba ng g rena de throug h a side window into her g ener al vicinity

. After Ar l en e fled outside, she was met by office rs, handcuf fed, and broug ht back inside the house. Plaintiffs did not suffer a

ny phy sical injuries fr om the flash-ba ng g rena des. During the sear ch, office rs found 0.16 g rams of marijuana on Marc ’s dresse r. The office rs

arr ested L eo n i d and charg ed him with (1) resisting and obstructing a poli ce office r, (2) assaulting

a police office r, (3) disorderly conduct, and (4) criminal jostli ng . L eonid enter ed a no-conte st plea to disorde rly conduct; the rema ining char g es wer e dismiss ed with prejudice

. Marc pled g uilty to a misdemeanor c harg e of posse ssion of marijuana a nd was plac ed on proba tion. Plaintiffs there afte r filed a § 1983 complaint, alleg ing: (1) excessive forc e as to L eonid only ; (2) false arr est and malicious prosec ution as to L eonid only ; (3) unrea sonable execution of a sear ch

war rant; and (4) a claim ag ainst Southfield based on Monell v. Departme nt of Social Servic es of

New Y ork , 436 U.S. 658 (1978). Def enda n t s m o v ed for judgme nt on the pleading s on the plaintiffs’ second claim. The distr i ct co u rt grante d the motion, finding that L eonid’s no-conte st plea established the exis tence of probable cause and, thus, undermined his claim o f fa l s e arr est. The district court further conclude d that L eonid’s plea undermined his claim for malicious prosec ution.

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The office rs and Southfield separ ately moved for summary judgme nt. Although defe ndants acknow ledg ed that there wer e g enuine issues of materia l fac t, the office rs claimed that the doctrine of qualified immunit y barr ed plai n t i ff s ’ claims. Ba sed upon their contention that the office rs committed no constituti onal violation, Southfield asserted that it was not liable unde r Monell

. The district court denied defe ndants’ motions for summary judgme nt. After concluding that “the Four th Amendment clea

rly establishes the rig ht to be fre e from excessive forc e[,] ” the district
court found that there wer e g enuine issues of materia l fac t conce rning whether the office rs lawfully executed the sear ch war

rant or used excessive forc e. Viewing the fac ts in the light most fa vorable
to plaintiffs, the district court found “that no rea sonable law enfor ceme nt office r would have considere d a conf

used and e lderly

couple to be c apable of produc ing the kind of t ense and rapidly evolving uncer

tain situation which would require ten police office rs to make split-second decisions including the use of two ‘ flash-ba ng ’ g rena des.” The court ther efor e dete rmined that the off icer s’ actions violated p l ai n t i ff s’ constitutional rig ht to be fre e from excessive forc e. Reg ardle ss of whether the offic ers we re e ntitled to qualified immuni ty , the district court also found that g enuine issues of mater ial fac t exi sted reg arding whether Southfield was liable. Def endants now timely

appea l. I I

. I n this appea l, defe ndant s ra i s e t hree arg uments: (1) the office rs are entitled to summary judgme nt and qualified immunit y on L eonid’s excessive-for ce claim; (2) the office rs are entitled to summary judgme nt and q

u a li f ied immunit y on plaintiffs’ unrea sonable execution of a sear ch war rant

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cl ai m ; an d (3) Southfield is entitled to summary judgme nt on plaintiffs’ Monell claim. E ac h arg ument is addresse d in turn. 3 Plaintiff s fi rs t claim that defe ndants are liable under § 1983 for violating L eonid’s Four th Amendment rig ht to be fre e from excessive forc e. Under § 1983, an individual may bring a private rig ht of action ag ainst any one who, under color of state law, deprive s a person of rig hts, privileg es, or i mmuniti es sec ured by the Constitut ion or confe rre d by fede ral statutes. Blessing v. Freestone , 520 U.S. 329, 340 (1997); Maine v . Thiboutot , 448 U.S. 1, 4 (1980). I n acc ordanc e with Graham

v. Conner , 490 U.S. 386, 395 (1989), excessive-for ce claims are analy zed under a “‘r easona

bleness’ standard[.]” Def endant office rs contend that they are entitled to summary judgme nt on plaintiffs’ § 1983 claims on the basis of qualified immunit y . Gene rally , s u m mary judgme nt based on qualified immunit y is proper if the law did not put the office r on notice that his co n d u ct would be clea rly unlawful. See Higgason v. Stephens , 288 F.3d 868, 876 (6th Cir. 2002). Howeve r, if g enuine issues

I n their appellate brief, plaintiffs ref ere nce for the first time “Ar lene Marmelshtein’s 3 excessive forc e claim.” Although plaintiffs’ pleading s alleg ed that Arlene challeng ed the execution of the sear ch war

rant, plaintiffs did not alleg e in the district court a separ ate excessive-for ce claim on behalf of Arlene

. Acc ording ly , we hold that plaintiffs have forf eited revie w of said claim to the extent that it is separ ate from her challeng e of the execution of the sear ch war rant. See Thurman v. Y ellow Freight Sys., Inc ., 90 F.3d 1160, 1172 (6th Cir. 1996) (“I ssues that are not square ly prese nted to the trial court are considere d waived and may not be raised on appea l.”); see also Estate of Quirk v. Comm’r of Internal Rev enue , 928 F.2d 751, 757-58 (6th Cir. 1991) (I n the Six th Circuit, “[i ]t is well-settled that, absent exceptional circ umstances, a court of appea ls will not consider an arg ument by an appe llant that was not prese nted to or consider ed by the trial cour

t.”). - 6 -No. 09-2375

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of materia l fac t exis t as to whether the office r committed acts that would violate a clea rly established rig ht, then summary judgme nt is improper. Poe v. Haydon , 853 F.2d 418, 425-26 (6th Cir. 1988). “We revie w the denial of summary judgme nt on g rounds of qualified immunit y de novo beca use application of t his d o ct ri n e is a question of l aw.” McCloud v. Testa , 97 F.3d 1536, 1541 (6th Cir. 1996). Qualified imm unity is “an entitlement not to stand trial or face the other burdens of litigation[.] ” Mitchell v. Forsyth , 472 U. S

. 5 1 1 , 5 2 6 (1985). “Throug h the use of qualified immunit y , the law shields ‘g overnme nt officials pe rfor ming discr etionary

functions . . . from c ivil dam age s l i abil ity as long as their actions could rea sonably have been thought consistent with the rig hts they are alleg ed to have violated.’” Solomon v. Auburn Hills Police Dep’ t , 389 F.3d 167, 172 (6th C i r. 2004) (quoting Anderson v. Creighton , 483 U.S. 635, 638 (1987))

. Once raised, the plaintiff bear s the burden of showing that a defe ndant is not en t i t l ed to qualified immunit y . Ciminil lo v. Streiche r , 434 F.3d 461, 466 ( 6th Cir. 2006). I n deter mining whether a defe ndant i s entitled to qualified im munity , the cour t makes two inquiries: (1 ) “[ t ] ak en i n the light most favor able to the party asser ting the injury , do the fac ts alleg ed show the office r’s conduct violated a cons t i t u tional rig ht[ ,]” and (2) was the rig ht clea rly establ i s h ed t o the extent that a rea sonable person in the office r’s position would know that the conduct complained of was unlawful. Saucier v. Katz , 533 U.S. 194, 201 (2001), overruled on other grounds by Pearson v. Callahan , 129 S. Ct. 808, 818 (2009). Although Saucier mandated that these questions be addr essed in orde r, that re quirement ha s since been rela x ed. See P earson , 129 S. Ct

.

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at 818 (“O n rec onsidering the proce dure require d in Saucier , we conclude that, while the sequenc e set forth ther e is often a

ppropriate , it should no l ong er be reg arde d as manda tory .”). As a p reliminary matter, we must decide whether we have jurisdiction over L eonid’s

exc es s i v e- fo rc e claim. Gene rally , a dis trict court’s denial of a claim of summary judgme nt is not

co n s i d er ed to be an appea lable final decision within the meaning of 28 U.S.C. § 1291. Phelps v. Coy , 286 F.3d 295, 298 (6th Cir. 2002) (citing Johnson v. Jones , 515 U.S. 3 0 4 , 3 0 9 (1995))

. Howeve r, a denial of a motion for summary judgme nt based on qualified immunit y may be deeme d “a final, appea lable order ” under 28 U.S.C. § 1291 “if the appea l prese nts ‘a neat abstrac t [i ssue] of law’ rathe r than the question of whe ther the r ecor d demonstrates a g enuine issue of fac t f

or trial.” Id. (alter ation in orig inal) (quoting Berrym an v. Riege r , 150 F.3d 561, 563 ( 6th Cir. 1998)). We do not have jurisdiction over L eonid’s excessive-for ce claim beca use it does not prese nt

a “nea t abstrac t [i ssue] of law,” but rathe r a question of whether the rec ord demonstrates a g enuine issue of materia l fac t for trial. Id

. (alter ation in orig inal). Her e, plaintiffs maintain that they neither resisted nor r efuse d to follow the defe ndant offic ers’ direc tives once it beca me rea dily appar ent to them that these individuals we re police office rs and detec tives, all of whom wer e in the proce ss of executing a s ear ch warra

nt. Plaintiffs also maintain that the officers held a gun to L eo n id’s head, threa tened to shoot and kill hi m, and nee dlessly drove him to the g round wher e they struck him in the fa ce a nd head. Def endants have denied all of plaintiffs’ alleg ations and asser t that they “ac ted rea sonably ” under the circ umstances. As they did in the di strict court, de fenda nts make much of L eonid’s no-

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contest plea to disorderly conduct resulting from the subject incident, arg uing that “ther e is no fac tual dispute here since L eonid’s no-conte st pl ea . . . cannot be disputed.” L eonid’s no contest plea, howeve r, i s n o t d i spositive of the issue. Even though L eonid admitted that “he behave d in a disorderly manner by ref

using to immediately obey the police office rs and by ap proac hing one of them[,] ” this does not g ive the office rs license to use disproportionate forc e to subdue him. Acc ord Cabrera v. City of Huntington Park , 159 F.3d 3 7 4 , 3 8 0 -81 (9th Cir. 1998) (re cog nizi ng that plaintiff’s excessive-for ce claim, if succe ssful, would not nece ssarily imply the invalidity o f h i s conviction for disturbing the peac e). Be cause the appea l of this claim is premised solely on a fac tual dispute, we lac k jurisdiction to consider it. We also hold, howeve r, that “[t] he district c ourt err ed in this case by failing to evalua te the liability of eac h [officer] individually .” Bishop v. Hack el , No. 09-1791, 2011 WL 291951 at *6 (6th Cir. Fe b. 1, 2011); s ee a l s o B i n ay v. Bettendorf

, 601 F.3d 640, 650 (6th Cir. 2010) (“Ea ch defe ndant’s liability must be assessed individually based on his own actions.”)

. I n the district court, plaintiffs t ar get ed o n ly two office rs for L eonid’s excessive-for ce claim, fra ming it as “a fac tual question

. . . as to whether the forc e used by J ag ielski to put Plaintiff on the floor was excessive.

. . . [and whether ] the beat i n g d el i v ered by J ag ielski and L ask while Plaintiff was on the floor was excessive.” L eonid denied that J ag ielski knocked befor e brea king the door open, and sug g ested that the no-knock entry may have contributed to L eonid’s apparent failure to comply with J ag ielski’s instructions upon entry

. L eonid conclude d: “The only question then befor e this Court, is whether , based on the fac ts viewed in a lig ht most fa vorable to Plaintiff, there is a fac tual basis for a jury to

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find that Def

endants J ag ielski and L as k used m ore force than was rea sonably nece ssary under the circ umstances.” Neve rtheless, the “district court did not distinguish betwee n the actions of [t he office rs], but lumped them toge ther” for purposes of deter mining liability

. Dorsey v. Barber , 517 F.3d 389, 399 (6th Cir. 2008). The dist rict cour t had no leg al or fac tual basis for doing so. We there fore acc ept jurisdiction over this purely leg al question and reve rse the denial of qualified immunit y as to all of the offic ers e x cept Jag ielski and L ask on L eonid’s excessive- forc e cla im. I I I

. The Four th Amendment proscr ibes only “unre asonable ” sear ches and seizures. U.S. Const. amend. I V. Howeve r, the rea sonablene ss of a sear ch or a seizure “depe nds on not only when [i t] is made, but also on how it is car ried out.” Tennessee v. Garner , 471 U.S. 1, 8 (1985). I n other words,

even when support ed b y probable cause , a sear ch or seizure may be invalid if car ried out in an

unrea sonable fashion. See Zurcher v. Stanford Daily , 436 U.S. 547, 559- 60 (1978) (possession of

a war rant and probable cause does not immuniz e how and when sear ches are executed from revie w for F ourth Amendment re asonable ness). Her e, the district court held that “whe n the fac ts are taken in the light most favor able to the Plaintiffs, there is a g enuine issue of materia l fac t reg arding whether the office rs lawfully executed the sear ch war

rant.” “F irst,” it conclude d that “ther e is a g enuine issue [of materia l fac t] reg arding whether the office rs knocked and announce d their prese nce prior to the entry into the Plaintiffs’ residenc e.” “Second,” the court found that “ther e is

. . . a g enuine issue of materia l fac t as to whether

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the office rs wer e u n re as o n ab ly excessive in their deploy ment of the two ‘flash- bang ’ g rena des.” Having also found that “the office rs should have been awa re that residents within t h eir home in Southfield had a lawful right to be fr ee f rom excessive for ce[,]” it reje cted the defe ndant officers’ claim of qua lified immunit y . A. L aw enfor ceme nt office rs are g ener al l y require d to knock and announce their prese nce. Hudson v. Michigan , 547 U.S. 586, 589 (2006) (“The common-law principle that law enfor ceme nt office rs m ust announce their presence and provide residents an opportunity to open the door i s an ancie nt one.”) (citation omitted); see also United States v. Pennington , 328 F.3d 215, 220 (6th Cir. 2003) (“[A] una

n im o u s Su

p r e me Co u

r t h e ld th a t the Four th Amendment prohibition on unrea sonable

sear ches and seizures includes the g ener al rule that an office r’s unannoun ce d en t ry i nto a home, absent special circumstances, is unconstitutional.”) (citing W ilson v. Arkansas , 514 U.S. 927, 930 (1995))

. This well-e st ab l i s h ed rule protec ts important interests, including “(1) the reduc tion of potential for violence to both the pol ice officer and the occupa nts of t he house into which entry is soug ht; (2) the needle ss destruction of private proper ty ; and (3) a r e c o g nition of the individual’s rig ht
to privac y in his [or her] house.” United States v. Bates , 84 F.3d 790, 794 (6th Cir. 1996) (alter ation in orig inal) (c itation and internal quotation marks omitted). Her e, J ag ielski testified that the office rs knocked and announce d their prese nce, waited “ten seconds, may

be a littl e bit longe r[,] ” and then forc ed entry

. L eonid, Arlene , and Marc , howeve r, all testified that they did n o t hear a knock or announce ment. Although it is questionable whether

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L eonid and Marc wer e in a posi tion to hear the offic ers a nnounce the ir prese nce, the district court found that Arlene would have hear d such an announce ment had it occur red , an d y et she denies hear ing any knock or announce ment. As a result, the district court found a g enuine issue of materia l fac t on this claim. We ag ree and there fore dismiss this claim for lack of jurisdiction. See Meals v. City of Mem

phis, Tenn

. , 493 F.3d 720, 726 (6th Cir. 2007) (“A denial of a claim of qualified immunit y is immediately appea lable only if the appea l is premised not on a fac tual dispute, but rathe r on ‘nea t abstrac t issues of law.’” ) (quoting Johnson , 515 U.S. at 317). As was the case with L eonid’s ex cessive- forc e claim, the di strict court failed t o asse s s the liability of eac h defe ndant office r individu all y . Her e, the rec ord only supports a claim ag ainst J ag ielski, who say s he knocked, announce d, an d rammed the door open. We there fore acc ept jurisdiction and reve rse the denial of qualified immunit y as to all of the office rs except J ag ielski on the fa ilure-to-knoc k claim. B. De fe n dants next arg ue that their use of flash-ba ng g rena des was rea sonable and did n o t violate a clea

rly established rig ht. Assuming arg uendo that plaintiffs wer e able to satisfy the initial require ment of demonstrating a Four th Amendment violation, plaintiffs nonetheless fail to show that the rig hts they

claim def

endants violated w ere “cle arly established” such that a re asonable officia l in the office r’s position, at the time eac h flash-ba ng g rena de was thrown, would have understood that his behavior violated that rig ht. “F or a constitutional rig ht to be clea rly es t ab l ished, its contours ‘must be sufficie ntly clea

r that a rea sonable officia l would understand that what he is doing violates

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that rig ht.’” Hope v. Pelzer , 536 U.S. 730, 739 (2002) (quoting Anderso n , 4 8 3 U.S

. at 640). “Or dinarily , a Supreme Court or Six th Cir cu i t d ec i s i o n on point is nece ssary .” Carver v. City of Cincinnati , 474 F.3d 283, 287 (6t h C i r. 2007). “F or qualified immunit y to be surre ndere d, preexis ting law must dicta te, that is, truly compel (not just sug g est or allow to raise a question about), the conclusion for ever

y like-situated, rea sonable g overnme nt ag ent that what the defe ndant is doing

v iolates fede ral law in the circumstances .” Saylor v. Bd. of Educ

. of Harlan Cnty. , K y. , 1 1 8 F. 3 d 507, 515 (6th Cir. 1997) (c itation and internal quotation marks omitted). Plaintiffs’ rig ht not to endure flash-ba ng g rena des, under these circ umst a n c e s , w a s n o t c le arly established. As of the date of the incident at issue, Dec ember 13, 2004, there wer e no decisions by the S upreme Court, or t his court, finding a Four th Amendment viol ation on simil ar facts. I n fac t, the only published case from this circ uit dealing with flash-ba ng device s, held in 2006 that there was

no clea rly established rig ht ag ainst their use, even around known acc eler ants. See Bing ex rel. Bing

v. City of W

hitehall , Ohio , 456 F.3d 555, 570 (6th Cir. 2006) (“The Supreme Court ha s not c lear ly established such a rig ht, nor has this court or other circ ui t s . ”)

. Be ca u s e there is no g overning authority holding, or even sug g esting , that an office r abridg es Four th A mendment rig hts unde r the circ umstances of this case , we hold that the defe ndant office rs are entitled to summary judgme nt on the basis of qua lified immunit y . We theref ore r ever se the district cour t’s decision on this claim. I V. Southfield seeks interlocutory revie w of the district co urt’s order deny ing its motion for summary judgme nt, arg uing that plaintiffs lack a sufficie nt basis to impose municipal liability under

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Monell

. I t is not appar ent, howeve r, that we have jurisdiction over these issues beca use “[a]n order deny ing summar

y judgme nt is not ordinarily a final, appea lable decision.” Chesher v. Ney er , 477 F.3d 784, 793 ( 6th Cir. 2007); see also Swint v. Chambers Cnty. Comm’n , 514 U.S. 35, 43 (1995) (“A n err oneous ruling on [m unicipal] liability may be revie wed eff ectively on appeal from final judgme nt. There fore , the order deny ing the [m unicipality ]’s summary judgme nt motion was not an appea lable collate ral orde r.”)

. Pursuant to the doctrine of “[p] endent appellate jurisdiction,” we rec og nize a limit ed

ex ception to the non-appe alability of interlocutory revie w of municipal liability issues that are “inextricably intertwined” with qualified immunit y issues “over which the appellate court proper ly and independe ntly has jurisdiction.” See McKenna v. City of Royal Oak , 469 F.3d 559, 562-63 (6th Cir. 2006) (citation and interna l quotation marks omitted). More specific ally , we have exercised “pende nt appellate jurisdiction” over municipal liability issues only in t h e l i mited circ umstance wher e “the finding of nonexis tence of a constitutional claim for [ q ualified] immunit y purposes

nece ssarily decide [s] the whole case not only in favor of the o ff i ce r, but also in favor of the [m unicipality ] as well[,] ” B r en n a n v. Twp. of Northville , 78 F.3d 1152, 1158 (6th Cir. 1996), “bec ause there can be no municipal liability under section 1983 for [unconstit utional conduct] when

no [constit utional violation] has actua lly occur red.” Tucker v. City of

Richmond, Ky. , 388 F.3d 216, 224 (6th Cir. 2004).

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Marmelshtein, e t al. v. City of Southf ield, et al.

Her e, we are not fa ce d wi t h a situation in which the constitutional claims have failed as a matter of law. We there fore do not exercise pendent appellate jurisdiction over the Monell claim and dismiss Southfield’s appea l. V. For these rea sons, we g rant plaintiffs’ motion to dismiss Southfield’s appea l, reve rse in part the decision of the district court, dismiss the balance o f the appea l for lack of jurisdiction, and

rema nd for f urther pr ocee dings c onsistent with thi s opinion.

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