                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 12a0892n.06

                                            No. 10-2683
                                                                                             FILED
                           UNITED STATES COURT OF APPEALS                              Aug 14, 2012
                                FOR THE SIXTH CIRCUIT
                                                                                 LEONARD GREEN, Clerk

RUSSELL MARCILIS, II, FELICIA MARCILIS,
JASMINE MARCILIS, RUSSELL MARCILIS, I, and
MARIE MARCILIS,                                                       ON APPEAL FROM THE
                                                                      UNITED STATES DISTRICT
       Plaintiffs-Appellees,                                          COURT FOR THE EASTERN
                                                                      DISTRICT OF MICHIGAN
v.

BRIAN JONES, ERIC WOODALL, ERIC GILLMAN, and
JOHN BUTLER,

       Defendants-Appellants,

TOWNSHIP OF REDFORD,
KEVIN JEZIOROWSKI, WILLIAM HAND,
BRAD BOYLE, DAVE LIVINGSTON, and
CHRIS RICHARDSON,

       Defendants.



                                                       /

BEFORE:        MARTIN, SUTTON, and KETHLEDGE, Circuit Judges.

       BOYCE F. MARTIN, JR., Circuit Judge. This is an appeal from a denial of qualified

immunity arising from a case concerning a federal task force narcotics raid at two homes. Plaintiffs,

members of the Marcilis family and the residents of the searched homes, filed a civil rights action

pursuant to 42 U.S.C. § 1983. The Marcilises’ civil rights action alleged: (1) that they were

subjected to excessive force, illegal search and seizure, and malicious prosecution; (2) retaliation in
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Page 2

violation of the First Amendment; and (3) violations of the “knock and announce” rule. The Redford

Township, Michigan, and Detroit, Michigan police officers involved in the raid, and Redford

Township, moved for summary judgment. The district court granted the motion for summary

judgment on all claims except the alleged violation of the “knock and announce” rule. The district

court denied the police officers qualified immunity on the alleged violation of the “knock and

announce.” The Redford Township police officers appeal the denial of qualified immunity. We

AFFIRM the judgment of the district court.

                                                     I.

           On March 2, 2007, search warrants were executed for two residences: 5966 Manistique

Street, in Detroit, Michigan, the home of Russell Marcilis I and his wife, Marie Marcilis; and 17268

Suffield Drive, in Clinton Township, Michigan, the home of Russell Marcilis II and his wife, Felicia

Marcilis, and where Jasmine Marcilis was visiting. The ensuing raids were conducted by agents

from the Drug Enforcement Administration, Redford Township police officers, and a Detroit police

officer.

           At approximately 10 a.m., the federal agents and the police officers arrived at 17268 Suffield

Drive. Both Marcilis II and Felicia testified by affidavit that, at the time of the search, they were

inside the house and approximately fifteen feet from the front door; they were in bed and awake; the

television and radio were off; and there were no other distractions in the house. They “never heard

[the police officers] knock on the door, announce their presence, or announce their purpose.” The

federal agents and the police officers entered and searched the Suffield Drive home.
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Russell Marcilis, II, et al. v. Township of Redford, et al.
Page 3

        After searching the Suffield Drive home, the federal agents and the police officers went to

5966 Manistique Street. Marie testified that, at the time the officers arrived at the house, she was

inside the house and approximately three feet from the front door, next to her husband Russell I, and

that “no one ever knocked or announced their presence.” She also stated that there were “no

televisions or radios playing or any other noises or distractions which would have prohibited me

from hearing anyone knock on the door or announce their presence had this in fact been done.”

Jasmine testified by affidavit that she was inside the house and approximately ten feet from the door;

that the police did not knock or announce their presence; and that there were no distractions.

Marcilis I testified that he was inside the house and two feet from the door, and stated that the police

did not knock or announce their presence and that he was not distracted by noises or other auditory

distractions.

        According to the Police Incident Report recounting both searches, the federal agents and the

police officers knocked and announced at each house. Redford Township Police Officer Brian Jones

executed an affidavit stating that the officers “knocked on the front doors of the homes and

announced their presence and purpose prior to entering the homes.”

        The Marcilises filed this suit on April 30, 2009, and twice thereafter amended the complaint.

On August 16, 2010, the district court dismissed all claims against the federal agents for failure to

state a claim under Federal Rule of Civil Procedure Rule 12(b)(6), but allowed the claims to proceed

against the police officers and Redford Township. On November 18, the district court granted in part

Redford Township and the police officers’ motion for summary judgment. The district court

dismissed all pending claims against Redford Township and the police officers except the claim for
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Russell Marcilis, II, et al. v. Township of Redford, et al.
Page 4

failure to knock and announce. As to this claim, the police officers asserted the defense of qualified

immunity; the district court rejected that defense. The Redford Township police officers appeal the

denial of qualified immunity.

                                                  II.

       The Redford Township police officers argue that the district court erred in denying summary

judgment on the Marcilises’ claim that the officers failed to knock and announce their presence

because they are entitled to qualified immunity on this claim. The failure of police officers to knock

and announce prior to forcibly entering a location to execute a search warrant, absent exigent

circumstances, is a violation of the Fourth Amendment. United States v. Dice, 200 F.3d 978, 982

(6th Cir. 2000) (abrogated on other grounds by Hudson v. Michigan, 547 U.S. 586 (2006)). Because

the Marcilises allege and provide supporting evidence that the police officers did not knock and

announce their presence, the district court determined that there is an issue of material fact as to

whether the police officers actually did knock and announce, and a legal question as to whether they

are due qualified immunity on this claim.

       “We review de novo denials of motions for summary judgment on purely legal grounds [and]

we review for abuse of discretion denials based on the finding of a genuine issue of material fact.”

Watson Carpet & Floor Covering, Inc. v. Mohawk Indus., Inc., 648 F.3d 452, 459 (6th Cir. 2011).

This Court reviews de novo “a district court’s denial of summary judgment on the grounds of

qualified immunity.” Bishop v. Hackel, 636 F.3d 757, 765 (6th Cir. 2011).

       A.      Jurisdiction
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Russell Marcilis, II, et al. v. Township of Redford, et al.
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        Under 28 U.S.C. § 1291, we have jurisdiction over an appeal “only from a ‘final decision’

of the district court.” Bishop, 636 F.3d at 764. An order denying qualified immunity—though not

considered a final judgment—is immediately appealable on the issue of qualified immunity “to the

extent that a summary judgment order denies qualified immunity based on a pure issue of law.”

Gregory v. City of Louisville, 444 F.3d 725, 742 (6th Cir. 2006).

        We conclude that we have jurisdiction. In Chappell v. City of Cleveland, 585 F.3d 901, 906

(6th Cir. 2009), we held we had jurisdiction to review on appeal the question of whether the district

court erred in denying qualified immunity to police officers who were accused of having failed to

announce their presence outside of a bedroom door during the search of a home. In Chappell,

witnesses maintained that they did not hear the officers announce their presence; the officers

maintained that they had announced their presence; and the district court determined that this conflict

created a genuine issue of material fact. The officers argued on appeal that the factual discrepancy

was not material to the issue in the case—whether the officers’ use of deadly force violated the

Fourth Amendment. In Chappell, we clarified that “the district court’s determination that there is

a factual dispute does not necessarily preclude appellate review [of a denial of qualified immunity]

where . . . the ruling also hinges on legal errors as to whether the factual disputes (a) are genuine and

(b) concern material facts.” Id. As in Chappell, the question at issue on appeal here is whether the

testimony by the Marcilises that they did not hear the officers knock and announce is legally

sufficient to establish a genuine issue of material fact as to whether the officers committed a

constitutional violation. Thus, as in Chappell, we determine that the police officers are not “merely

quibbling with the district court’s reading of the factual record,” but instead have identified a purely
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legal issue that is within our appellate jurisdiction as a review of a denial of qualified immunity. Id.

(internal quotation marks omitted). Because we have jurisdiction to hear the police officers’ appeal

of this matter, we now assess the police officers’ qualified immunity claim.

        B.      Qualified Immunity

        The police officers argue that the district court was wrong to find that the dispute over

whether a knock and announce took place at each searched house presents genuine issues of material

fact. The police officers rely primarily on Chappell, id. at 914, to support their claim that these facts

were insufficient to support a finding that there is a genuine issue of material fact. In Chappell, we

found that there was no genuine issue of material fact despite witness accounts that they did not

“hear” officers announce their presence prior to entering a bedroom where a suspect was located

during the search of a residence. We found that three witnesses’ failure to hear announcements

“establishe[d] only that the witnesses didn’t hear the announcements,” and not that the

announcement didn’t occur. Id. As a result, we found that the evidence regarding whether an

announcement was heard did not actually raise a genuine issue of material fact as to whether the

announcement had actually occurred.

        Chappell is distinguishable from this case. In Chappell, it was pivotal to our analysis that

whether the officers had failed to announce their presence was not material to the question of

whether the officers had used reasonable force because any announcement by the officers of their

presence would not have been a factor in determining if the officers had probable cause to use deadly

force. In this case, whether the officers knocked on the doors and announced their presence before

entering the Suffield Drive and Manistique Street residences is material to the question of whether
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the police actually complied with the constitutional rule requiring that police knock and announce

their presence before entering a residence. The dispute is also genuine. In Chappel, evidence

showed that the plaintiffs were distracted in conversation during the knock. Id. Here, there is no

evidence to suggest that any of the Marcilises would have failed to hear a knock. It has long been

clearly established in this Circuit that “the Fourth Amendment forbids the unannounced, forcible

entry of a dwelling in the absence of exigent circumstances.” United States v. Francis, 646 F.2d 251,

258 (6th Cir. 1981). The district court did not err in declining to find the officers are entitled to

qualified immunity at this stage.

                                                  III.

       For the forgoing reasons, we AFFIRM the judgment of the district court.
