RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Harajli v. Huron Township et al. No. 02-2169 ELECTRONIC CITATION: 2004 FED App. 0108P (6th Cir.) File Name: 04a0108p.06 _________________ COUNSEL UNITED STATES COURT OF APPEALS ARGUED: Kevin L. Laidler, LAW OFFICES OF KEVIN FOR THE SIXTH CIRCUIT LAIDLER, Pontiac, Michigan, for Appellant. Marcia L. _________________ Howe, JOHNSON, ROSATI, LaBARGE, ASELTYNE & FIELD, Farmington Hills, Michigan, for Appellees.

HASSAN HARAJLI , X ON BRIEF: Kevin L. Laidler, LAW OFFICES OF KEVIN Plaintiff-Appellant, - LAIDLER, Pontiac, Michigan, for Appellant. Marcia L. - Howe, JOHNSON, ROSATI, LaBARGE, ASELTYNE & - No. 02-2169 FIELD, Farmington Hills, Michigan, for Appellees. v. - > _________________ , HURON TOWN SHIP , a - OPINION Michigan Charter Township; - _________________ GILBERT POWELL , BRIAN - KOSTIELNEY , and JOHN - RONALD LEE GILMAN, Circuit Judge. Hassan Harajli MAIER, Jointly and Severally, - is an Arab-American who lives in Huron Township, Defendants-Appellees. - Michigan. On March 26, 2001, Harajli allegedly beat his ex- - wife, Nada Harajli (Nada), pointed a gun at her head, and N threatened to kill her unless she gave him sole custody of Appeal from the United States District Court their minor children. Two weeks later, officers from the for the Eastern District of Michigan at Ann Arbor. Huron Township Police Department accompanied Nada to No. 01-60158—Marianne O. Battani, District Judge. Harajli’s house and stood by while she removed her belongings. Harajli called the police later that day , claiming Argued: March 17, 2004 that Nada had broken into his house and stolen his property.

Two days later, a police lieutenant allegedly informed Harajli Decided and Filed: April 16, 2004 that the police department would not pursue an investigation of Nada’s conduct because “this is a domestic issue and, Before: KRUPANSKY and GILMAN, Circuit Judges; another thing, in this country we don’t pull gun on woman RUSSELL, District Judge.* [sic].”

Harajli subsequently filed this lawsuit, contending that (1) the officers’ presence at his house constituted a search in violation of the Fourth Amendment, (2) the officers’ presence made him more vulnerable to the loss of his property, in * The Honorable Thomas B. Russell, United States District Judge for violation of his substantive due process rights, and (3) the the Western District of Kentucky, sitting by designation.

No. 02-2169 Harajli v. Huron Township et al. 3 4 Harajli v. Huron Township et al. No. 02-2169 lieutenant’s refusal to pursue the investigation of Nada was Nada gained access to the house by using her garage-door based on Harajli’s gender and national origin, in violation of opener. She then went inside to pack her clothes into bags. the Equal Protection Clause of the Fourteenth Amendment. The movers, meanwhile, entered the garage to remove Nada’s The district court granted summary judgment in favor of the furniture that was stored there and went inside the house to defendants on all claims. For the reasons set forth below, we retrieve the bags of clothes.

AFFIRM the judgment of the district court.

Whether the officers themselves entered the house is I. BACKGROUND disputed. Officer Kostielney acknowledged at his deposition that he and Officer Powell “went in through the garage,” but Harajli and Nada were divorced in 1996. Nada moved back denied that the officers entered the interior of the house. But into Harajli’s house, along with their three children, in when Nada was asked at her deposition whether the officers February of 2001. She was given a garage-door opener in came inside, she replied, “I don’t know. Maybe, yeah. Yeah, order to have access to the house. I saw one.” And the legal assistant to Nada’s attorney, who was also present at the house that day, stated at his deposition: On March 26, 2001, Harajli asked Nada to sign papers giving him sole custody of the children. When she refused, The police told me that they were in the house. No, I Harajli allegedly beat Nada with his hands and with a didn’t see them actually in the house. They were in the handgun, pointed the gun at her head, and threatened to kill garage area, but they didn’t go through the door that led her. Nada reported the incident to the Huron Township Police from the garage area to the interior of the house while I Department. In her statement, Nada listed the address of was there, but they told me that they were in the house, Harajli’s house as her place of residence. Later that day, because my concern was that somebody was in the Huron Township police officers arrested Harajli on charges of house. It seemed like a house with a lot of floor space. assault and possession of a firearm during the commission of Maybe somebody was in the house, and they said they a felony. (Harajli was subsequently acquitted on both charges had checked the house, that nobody appears to be home. after a bench trial.)

The officers apparently did not participate in the removal of On April 9, 2001, Nada’s attorney called the Huron any property from either the house or the garage. At his Township Police Department to request that officers deposition, Officer Kostielney agreed with the statement that accompany Nada to Harajli’s house so that she could safely the officers “simply stood by while the property was being remove her belongings. This procedure is known as a “civil removed from the premises . . . .” Harajli cites no evidence standby.” Nada drove to the police station later that day and in the record that contradicts Kostielney’s assertion. spoke with Officer Gilbert Powell, a defendant in this case.

She then drove from the station to Harajli’s house in her own Soon after the legal assistant arrived at the house, the car. Powell and Officer Brian Kostielney, another defendant officers left. The movers then finished loading Nada’s in this case, drove separately to Harajli’s house. When Nada belongings onto the truck without incident. Later that day, and the officers arrived at the house, representatives of a Harajli contacted the police department to report that property moving company were at the scene, waiting to move Nada’s had been stolen from his house. The police investigated the belongings. A legal assistant employed by Nada’s attorney incident by interviewing a neighbor who had seen the moving also arrived at the house sometime thereafter. truck outside, talking to representatives of the moving No. 02-2169 Harajli v. Huron Township et al. 5 6 Harajli v. Huron Township et al. No. 02-2169 company, and speaking with Nada. Two days later, on April II. ANALYSIS 11, 2001, Harajli went to the police station and asked Police Lieutenant John Maier, another defendant in this case, about Harajli brought this lawsuit pursuant to 42 U.S.C. § 1983, the status of the investigation. Harajli, at his deposition, gave which provides in pertinent part as follows: the following account of his conversation with Maier: Every person who, under color of any statute, ordinance, [Maier] comes out to the lobby and he says—I said okay, regulation, custom, or usage, of any State . . . subjects, or what are you guys doing about the investigation. He said causes to be subjected, any citizen of the United States or well, nothing. I said what do you mean nothing. He said other person within the jurisdiction thereof to the well, this is a domestic issue and, another thing, in this deprivation of any rights, privileges, or immunities country we don’t pull gun on woman [sic], he points his secured by the Constitution and laws, shall be liable to finger in my face like that. the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .

Maier, according to Harajli, also refused to accept a stolen property form that Harajli had filled out. “Section 1983 has two basic requirements: (1) state action that (2) deprived an individual of federal statutory or Later that day, Maier received a call from Fred Berry, a constitutional rights.” Flint ex rel. Flint v. Ky. Dep’t of Corr., Dearborn police officer and member of the Arab-American 270 F.3d 340, 351 (6th Cir. 2001).

League. Berry asked Maier why the Huron Township police were not pursuing the investigation of Nada. Maier A. Standard of review responded that “it was a civil matter.” Nine days later, Maier met with Harajli’s attorney and once again stated that the We review the district court's grant of summary judgment police department would not pursue the investigation. de novo. Sperle v. Michigan Dep’t of Corr., 297 F.3d 483, (6th Cir. 2002). Summary judgment is proper where no Maier subsequently changed his mind and, on April 25, genuine issue of material fact exists and the moving party is 2001, filed a form recommending that the prosecutor’s office entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). request a warrant for Nada’s arrest. The prosecutor’s office In considering such a motion, the court must view the rejected the warrant recommendation the following day. evidence and draw all reasonable inferences in favor of the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith In July of 2001, Harajli filed this lawsuit in the district Radio Corp., 475 U.S. 574, 587 (1986). The central issue is court, naming as defendants Huron Township, Lt. Maier, and “whether the evidence presents a sufficient disagreement to Officers Kostielney and Powell. The complaint alleged that require submission to a jury or whether it is so one-sided that the defendants were liable under 42 U.S.C. § 1983 because one party must prevail as a matter of law.” Anderson v. the conduct of the police violated his rights under the Fourth Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). and Fourteenth Amendments to the United States Constitution. In August of 2002, the district court granted B. Harajli’s Fourth Amendment claim summary judgment in favor of the defendants. This timely appeal followed. Harajli contends that Officers Kostielney and Powell violated the Fourth Amendment by conducting an No. 02-2169 Harajli v. Huron Township et al. 7 8 Harajli v. Huron Township et al. No. 02-2169 unreasonable search of his house. The Fourth Amendment authority over the premises,” the search is still valid under the protects “[t]he right of the people to be secure in their Fourth Amendment if the police officers reasonably believed persons, houses, papers, and effects, against unreasonable that the third party had such authority. Id. at 186. In searches and seizures.” In analyzing any Fourth Amendment evaluating the officers’ actions under this objective standard, issue, the threshold question is whether there has been either we must ask: “[W]ould the facts available to the officer at the a “search” or a “seizure.” moment . . . warrant a man of reasonable caution [to believe] that the consenting party had authority over the premises?”

The Supreme Court has explained that “a Fourth Id. at 188.

Amendment search occurs when the government violates a subjective expectation of privacy that society recognizes as An analogous case is Rhodes v. McDannel, 945 F.2d 117 reasonable.” Kyllo v. United States, 533 U.S. 27, 33 (2001). (6th Cir. 1991) (per curiam), where the police received There is no doubt that Harajli had a reasonable expectation of consent to enter a home from a third party who had previously privacy in his home. See Silverman v. United States, 365 U.S. called the police from that location, occasionally lived there, 505, 511 (1961) (“The Fourth Amendment, and the personal and “referred to the residence as her home address.” Id. at rights which it secures, have a long history. At the very core 119. This court held that the police reasonably believed that stands the right of a man to retreat into his own home and the third party had the authority to consent to their entry. Id. there be free from unreasonable governmental intrusion.”). In the present case, the evidence of apparent authority is even An intrusion into Harajli’s home by the police would stronger than in Rhodes. When Nada provided the police with therefore constitute a Fourth Amendment search. a written statement after she was allegedly beaten by Harajli, she listed the address of Harajli’s house as her place of Officer Kostielney acknowledged at his deposition that he residence. The police therefore knew that Nada had resided and Officer Powell entered the garage of Harajli’s house, but at the house in the recent past. And evidence that Nada still denied entering the interior. But Nada and her attorney’s had “common authority over the premises” was provided by legal assistant both recalled facts indicating that the officers the fact that she possessed a garage-door opener, which she did enter the house. Because the issue in this case is whether used to gain access to the house. The officers therefore could summary judgment was proper, we must view the evidence have reasonably believed that Nada had the authority to and draw all reasonable inferences in favor of Harajli as the consent to their entry inside. nonmoving party. Matsushita Elec. Indus. Co., 475 U.S. at 587. We must therefore assume for the purposes of this One remaining question is whether Nada actually gave appeal that the officers entered both the garage and the consent to the officers’ entry. In her deposition, she recalled interior of Harajli’s house, thereby conducting a Fourth seeing an officer in the house, but never stated that she Amendment search of the entire premises. expressly gave the officers permission to enter. On the other hand, Nada had requested that the officers accompany her to A search by police, however, does not violate the Fourth the house because she was “scared to go by myself over Amendment if “voluntary consent has been obtained, either there.” And Nada apparently never objected to the entry of at from the individual whose property is searched . . . or from a least one officer into the interior of the house. As one state third party who possesses common authority over the supreme court has observed, “a search may be lawful even if premises.” Illinois v. Rodriguez, 497 U.S. 177, 181 (1990). the person giving consent does not recite the talismanic Even if the third party does not in fact possess “common phrase: ‘You have my permission to search.’” State v. Flippo, No. 02-2169 Harajli v. Huron Township et al. 9 10 Harajli v. Huron Township et al. No. 02-2169 575 S.E.2d 170, 178 (W. Va. 2002). In the present case, even Id. at 200. if Nada did not recite that talismanic phrase, the circumstances clearly indicate that she wanted the officers to Assuming for the sake of argument that DeShaney applies accompany her inside the house in order to ensure her safety. to cases that involve a deprivation of property, rather than the The officers’ purported entry into Harajli’s house therefore liberty interest at stake in DeShaney, Harajli might be able to did not violate the Fourth Amendment because it was based establish a substantive due process violation if he could upon Nada’s consent. demonstrate that the Huron Township police officers placed Harajli in a position where he was unable to prevent the C. Harajli’s substantive due process claim removal of the property from his house. But Harajli apparently had advance notice, from Nada’s attorney, that she Harajli next contends that the civil standby conducted by intended to remove her property from the house. At that point Officers Kostielney and Powell made him more vulnerable to Harajli could have attempted to recover the garage-door the loss of his property, violating his rights under the opener from Nada, asked his lawyer to seek an injunction substantive component of the Fourteenth Amendment’s Due preventing her from entering the house, or called the police Process Clause. Specifically, Harajli argues that “Civil and asked them to intervene. As the defendants point out, Standby procedures . . . placed plaintiff in a much more Harajli “had ample legal and financial resources to protect precarious position than had the authorities not become himself from any alleged perceived harm from his ex-wife, involved.” but chose not to do so . . . .” Harajli was certainly more capable of defending his rights than was the injured son in Harajli relies upon DeShaney v. Winnebago County, 489 DeShaney. Because no substantive due process violation U.S. 189 (1989), in which the Supreme Court held that no occurred in DeShaney, clearly none occurred in the present substantive due process violation occurred where state case. We therefore agree with the district court’s decision on officials knew that a minor was being abused by his father but this issue. “did not act to remove [the minor] from his father’s custody.” Id. at 191. Subsequently the father beat his son severely, D. Harajli’s equal protection claim causing permanent brain damage. Id. at 193. The Court held that “[a]s a general matter . . . a State’s failure to protect an Harajli finally contends that Lt. Maier refused to accept the individual against private violence simply does not constitute stolen property form, or to pursue the investigation of Nada, a violation of the Due Process Clause.” Id. at 197. But the because of Harajli’s national origin or gender, thereby Court also recognized an exception to this general rule: violating his Fourteenth Amendment right to the equal protection of the laws. He argues that the statement “in this [W]hen the State by the affirmative exercise of its power country we don’t pull gun on woman” demonstrates that so restrains an individual's liberty that it renders him Maier’s decision not to pursue the investigation of Nada was unable to care for himself, and at the same time fails to based upon Harajli’s status as a male Arab-American. provide for his basic human needs—e.g., food, clothing, shelter, medical care, and reasonable safety—it Neither party cites a case where an equal protection claim transgresses the substantive limits on state action set by was based upon the failure to prosecute someone for a crime, the Eighth Amendment and the Due Process Clause. and we have been unable to find any. But this court has decided several cases that involved a claim of selective No. 02-2169 Harajli v. Huron Township et al. 11 12 Harajli v. Huron Township et al. No. 02-2169 prosecution, where the issue was whether the decision to The district court in the present case granted summary prosecute a particular person was based upon discriminatory judgment in favor of the defendants on Harajli’s equal criteria. These cases apply with equal force to the present protection claim because “[t]here’s no evidence at all that he case. The facts are slightly different but the ultimate issue is was treated differently” from either similarly situated women the same—did law enforcement officials prosecute members or non-Arab-Americans. And according to Gardenhire, “it is of one group but not another because of a constitutionally an absolute requirement that the plaintiff make at least a protected characteristic? prima facie showing that similarly situated persons outside [his or] her category were” treated differently. Harajli, In Gardenhire v. Schubert, 205 F.3d 303 (6th Cir. 2000), however, has produced no evidence showing that either Maier this court explained that “[s]elective enforcement claims are or the Huron Township Police Department as a whole have judged according to ordinary Equal Protection standards, pursued investigations in similar circumstances where the which require a petitioner to show both a discriminatory complaining party was a woman or non-Arab-American. His purpose and a discriminatory effect.” Id. at 318. Gardenshire equal protection claim therefore fails. also articulated the following elements of a selective prosecution claim: E. Qualified immunity and municipal liability First, [an official] must single out a person belonging to Harajli also challenges the district court’s determination an identifiable group, such as those of a particular race or that the defendant officers are entitled to qualified immunity religion, or a group exercising constitutional rights, for and that Huron Township is not liable for the actions of the prosecution even though he has decided not to prosecute officers. Because we have concluded that the actions of the persons not belonging to that group in similar situations. defendant police officers did not violate Harajli’s Second, [the official] must initiate the prosecution with constitutional rights, we have no need to consider these a discriminatory purpose. Finally, the prosecution must affirmative defenses. have a discriminatory effect on the group which the defendant belongs to. III. CONCLUSION With regard to the first element, it is an absolute For all of the reasons set forth above, we AFFIRM the requirement that the plaintiff make at least a prima facie judgment of the district court. showing that similarly situated persons outside her category were not prosecuted. Furthermore, there is a strong presumption that the state actors have properly discharged their official duties, and to overcome that presumption the plaintiff must present clear evidence to the contrary; the standard is a demanding one. Id. at 319 (emphasis added) (quotation marks and citations omitted).