If a plaintiff loses a claim against the municipality on the merits of their constitutional claim, can the municipality still be liable?

As we recently stated in Demoret v. Zegarelli, 451 F.3d 140 (2d Cir. 2006), "the merits of a constitutional claim generally are inextricably intertwined with qualified immunity because we must determine whether a constitutional right has been violated before deciding whether the right was clearly established." Id. at 152. Moreover, where we premise a ruling that defendants are entitled to dismissal on the fact that no individual defendant violated the plaintiff's constitutional rights, and the possibility of a municipality's liability arises solely from the actions of an employee who is entitled to qualified immunity on that ground, "we may, in our discretion, reach the liability of the municipality under the doctrine of pendent appellate jurisdiction." Id.; see also Sadallah v. City of Utica, 383 F.3d 34, 39 (2d Cir.2004) (exercising pendent appellate jurisdiction where claim against the municipality was based on the same argument rejected in finding that the individual defendants had not violated the plaintiffs' rights and were therefore entitled to qualified immunity). Simply put, if a claim fails as to the individual defendants because there was no violation of the plaintiff's constitutional rights, then it necessarily fails as to the municipality as well.

[463 F.3d 217]