* The Honorable Thomas B. Russ ell , Uni ted St ates Dist ric t Ju dge f

or the Western District of Kentucky, sitt ing by designati on. 1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206
ELECTRO NIC CIT

ATION: 2004 FED App . 0108P (6th C ir.) File Name: 04a01 08p.06


### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________ H ASSAN H ARAJLI ,

Plaintiff- Appellant
,

v.
H URON T OWN SHIP , a Michigan Charter Township; G IL BER T P OWELL , B RIAN K OSTIEL

NEY , and J OHN M AIER , J oi nt ly a nd Se ve ra ll y, Defenda nts-Appe llees. X - - - -> , - - - - - - - N No. 02-2169

Appeal from the United States District Court for the Eastern District of Michigan at Ann Ar bor. No. 01-60158—Marianne O. Battani, District Judge.

Argued: March 17, 2004 Decided and Filed: April 16, 2004
Befor e: KRUPAN SKY and GI LMAN , Circuit Jud

ges; RUSSELL, District Judge. * 2 Harajli v. Huron Towns hip et al. No. 02-2169

_________________ COUNSEL
ARGUED: Kev in L. Laid ler , LAW OFF ICES OF K EVIN LAI DLER, Pontiac, M ichiga n, f or A ppe ll ant . Ma rci a L. Howe, JOHNSON, ROSATI, LaB ARGE, ASELTYNE & FIEL D, Farming

ton Hills, M ichiga

n, for Ap

pellees

. ON BRIE F: Kevin

L. Laid ler , LAW OFF ICES OF K EVIN LAI DL ER, Pontiac, Michigan, for Appellant. Marcia L

. Howe, JOHNSON, ROSATI, LaB ARGE, ASELTYNE & FIELD, F arming

ton Hills, M ichiga

n, for Ap pellees

.

_________________ OPINION

_________________ RON ALD LEEGIL

MAN, Circ

uit Judge. Ha ssan Har

ajli is an Arab-American who lives in Huron Township, Michigan. On March 26, 2001, Hara jli al leg edly

beathis exwife, Nada Ha

rajli (Na da), poin t ed a gun at her head, and threatened

to kil l her un less she gave him sole custody of their mi nor children. Two weeks later, officer s from the Huron Township Po lice Dep artment a ccompan ied Nada to Harajli’s house and stood by while she r e moved her belong ings. Harajli called the police later that day , claiming that Nada had

broken in

to his ho us e a nd st ol en hi s p ro pe rt y. Two da ys later, a police lieutenant allege dly informed Harajli that the police department would not pursue an investigation of Nada’s conduct because “this is a domestic i ssue and, another thing, in this country we don’ t pull gun on woman [sic].” Harajli subsequently filed this lawsuit, contend ing that (1) the offic ers’ pr

esence at his hous e constitu

ted a sea rch in violation of the Fourth A

mendment , (2) the

office rs’ presence made him more v ulnerabl e to the lo ss of his pr operty, in violation of

h is substantive due process rights, and (3) theNo. 02-2169 Harajli v. Huron Towns hip et al. 3

lieutenant’s refu s al to pursue the investigation of Nada was based on Harajli’s gender

and national origin, in violation of the Equal Pro tectio n C lause of the Four teenth Amendment. The district court granted summary judgment in favor of the defenda nts on allclaims. For the reasons set forth below, we AFFIRM the judg ment of the

district c ourt. I. BACKGROUND Harajli and Nada we re divor ced in 1996. Nada moved back into Harajli’s house, along with their t hr ee child

ren, in February of 2001. She was given a g arage -door ope ner in order to have access to the house.
OnMarch 26, 2001, Harajli asked Nada to sign pa pers givinghim sole custody of the children. Whe n sh e refused, Harajli allegedly

beat Nada with his hands an d with a handgun, pointed the g un at he r head, a nd threa tened to k ill her. Nada reported

the incid ent to the Huron Township Police Department. In her statem ent, N ada listed the address of Harajli’s ho us e a s h er pl ac e o f r es id en ce . La te r t ha t d ay, Huron Townsh i p police officers arrested Har ajli on charges of assault and possession of a firearm during the commission of a felony . (Hara

jli was subsequently ac quitted on both charges after a bench trial.)
OnApril 9, 2001, Nada’s attorney called the Huron Township Police Department

to request that officers a ccompan y

Nada to H arajli’ s house so t hat she c ould safe ly remove her belon

gings . This procedu

re is known as a

“civil standby.” Nada drove to the police station later that day and spoke with Officer Gilbert Powell, a defendant in this case. She then drove from the station to Harajli’s house in her own car. Powell and

Officer Brian Kostielney , another defendant inthis case, drove separately to Harajli’s house. When Nada and the offic ers arr

ived at th e house, repres enta ti ves of a moving company we

re at the scene, waiting to move Nada’s belong ings. A legal assistant employ ed by Nada ’s attorney also arrived at the house sometime thereafter. 4 Harajli v. Huron Towns hip et al. No. 02-2169

Nada gained access to the house by using

her garage-door o pener. She then went inside to pack her clothes into bag s

. The movers, meanwhile, entered the gara ge to remove Nada’s furniture that was s tor ed there and went inside the

house to retrieve the bags of clothes. Whether the offi cer s themselv es enter ed the hou se is disputed. Officer Kostielney acknowledged at

his deposition that he and Of

ficer Powell“went

in through the garag e,” but denied that the officers entered the interior of the house . But when Nada was asked

at her deposition whether the officers cameinside, she replied, “I don’t know. Maybe, y eah. Yeah, I saw one.” And the legal assistant to Nada’s attorney, who was also present at the house that day , stated at his deposition: The police told m e that they were in the house. No, I didn’tsee them actually

in the house. Th ey

were in the garage ar ea, but they

didn’t go through the door that led fromthe garage ar

ea to t he interior of the house while I was there , but they

told me that they were

in the house, because my concer

n was tha t som ebody was in the house. It seemed like a house with a lo t of floor space. Maybe somebody was in the

ho use, and they sa

id they had checked the house, that

nobody appea

rs to be home. The office

rs appar ently did not par

ticipate inthe removal of any property fr

om either the house or the g arage. A t his deposition, Officer Kostielney agreed with thestatement that the o ffi cers “simply stood by while the property

was being removed from the premises . . . .” Harajli cites no evidence in the record that contradicts Kostielney ’s assertion.
Soon after the legal assistant arri ved at the house, the offic ers left. The movers then finished loading Nada ’ s belon gings onto the tr

uck witho

ut incide nt. La te r th at da y, Harajli contacted the police de

partmen t to report that prope

rty had been stolen from his house. The police investigated the incident by interviewing

a neighbor

who had seen

the moving truck ou tside , talking to representatives of the movingNo. 02-2169 Harajli v. Huron Towns hip et al. 5

co mp an y, and speaking

wi th Na da . T wo da ys later, on April 11, 2001, Harajli went to the police station and asked Police Lieutenant

John Maier, another

defenda nt in this case, about the status of t

he invest igation . Harajl i, at his deposition, gave the following account of his conversation with Maier: [Maier] comes outto th e l ob by a nd he sa ys— I sa id ok ay, what ar e yo u g uys doing about the investigation. Hesaid well, nothing. I sai d

what do you

mean noth

ing. He said
w ell, this is a dom

estic issu e and, a nother th ing, in th is country we don’t pull gun

on woman[sic], he poi

nts his finger in my face lik e that. Maier, according to Harajli, also refuse d to acce pt a sto len property for

m that Harajli had filled out.
L ater that day, Maier

received a call from Fre d Berry , a Dearborn police officer and member of the Arab -American League

. Berry

asked Maier why

the Huron Township police were not pursuing the investigation of Nada. Maier responded

that “it w as a

civil matter.” Nine day s later, Maier met w ith Harajli’s attorney and once again stated that the police department would not pursue the investigation.
Ma ier subsequently chang ed his mind and, on Apri l 25 , 2001, filed a form recommending that the prosecutor’s office request a warra nt f or Nad a’s arrest. The prosecutor’s offic e rejected the warrant rec ommendation the following day

. InJuly of 2001, Haraj li f iled this lawsuit in the district court, naming as defendants Huron Township, Lt. Maier, and Officers Kostielney and Powell. The complaint alleged that the def endants were lia

ble under 42 U.S.C. § 1 983 beca

use the conduct of the police violated his righ ts under the

Fourth andFourteenth Amendments to the United Stat e s Constitution. In A

ug ust of 2002, the district court granted summary judg men t in favor

of the de fendant s. This time ly appeal followed. 6 Harajli v. Huron Towns hip et al. No. 02-2169

II. ANALY SIS Harajli brought

this lawsuit pursuantto 42 U.S.C. § 1983, which pr ovides in p ertinen

t part as f ollows: Every person who, under color of any

statute, ordinance, regulation, custom, or

usage , of any

State . . . subjects, or causes to be subjected, any citizen of the United States or other person within the ju

risdiction th ereof to the deprivation

of any rig

hts, privileg e s, or immunities se cured by the Constitution and laws, shall be liabl e t o th e pa rt y in

ju re d i n a n a ct io n a t l aw , s ui t i n e qu it y, o r other proper proceeding for redress . . . . “Section1983 has two basic r equirements: (1) state action that (2) deprived an individual of federal statutory or constitutional rights.” Flint exrel. Flint v. Ky. Dep’ t of Corr. , 270 F.3d 340, 351 (6th Cir. 2001).
A. Standard of review We reviewthe district court's grant of summary judgment de novo. Sperle v

. Michiga n Dep’t o

f Corr. , 297 F.3d 483, 490 (6th Cir. 2002). Sum mary judgmen t is proper where no genuine issue of ma

terial f act existsand the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). Inconsider

ing such a motion, the court m ustview the evidence and draw all reasonable inferenc es in favor of t he nonmoving pa rt y. Matsushita Ele c. In dus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587 (1986). The centra l issue is

“ whethe r the evide nce pre sents a sufficien

t disagr eement to require submission to a jury or whether it is so one-sided that one party must prev ail a s a matter of law.” Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 251-52 (1986).
B. Harajli’ s Fourt h Amendm ent claim Harajli contends t hat Offi cers Ko stielney and Powel l
v iola ted the Fourth Amendment by conducting anNo. 02-2169 Harajli v. Huron Towns hip et al. 7

unreasonablesearch of his house. The F ourt h Amendment protect s “[ t]he righ

t of the pe ople to be

secure in their persons, houses, p apers, a nd effe cts, ag ainst unr

easonab le searches and seizur

es.” I n analy zing any Fourth Amendment issue, the threshold question is whether there has been either a “search” or a “seizure.” The Supreme C ourt has e xplained th at “a Fo

urth Amendment

search occur s when the

gover nment viola

tes a subjective expe ctatio n of privacy that society rec ognizes as reasonable.” Kyllo v. United States , 533 U.S. 27, 33 (2001). There is no doubt that Harajli had a reasonable expectation

of privacy in his home. See Silverman v. United States , 365 U.S. 505, 511 (1961) (“The Fourth Amendment, and the personal rights w hich it secures, have a long

history. At the very

core stands the right of a man to retreat into his own hom e and there be free from unreasonable govern ment al intrusion.”). Anintrusio n into Hara jli’s home

by t he police would therefore constitute a Fourth Amendment sear ch. Officer Kostielney acknow

ledged at his deposition that he and Office r Powe ll ent ered th e garage of Harajli’s house, but d enied entering the interior. But Nada a nd her attorn ey’ s leg al assistant both recalled facts indicating that the office r s did enter th e house. Becau se the issue in this case is whether summary judgment was proper, we must view the evi d ence and draw all reasonable inference s in fa vor of Ha rajli as the nonmoving pa rt y. Matsushita Elec. In dus. Co. , 475 U.S. at 587. We must th erefor

e assume for the p

urposes o f this appeal that the o fficers entere d both the garage and the interior of Harajli’s hous e, thereby conducti ng a Fo urth Amendmen

t search of the e

ntire pre mises.
A search by p olice, however, does not vi olate the Fourth Am end ment

if “voluntary c onsent has been obtained, either fromthe individ

ual whose propert y is searc hed . . . or from a third party who posse sses c ommon authority over the premises.” Illinois v. Rodriguez , 497 U.S. 177, 181 (1990). Even if the third party does not in fa c t possess “common 8 Harajli v. Huron Towns hip et al. No. 02-2169
authority over the prem ises,” th e searc

h is still valid under the Fourth Amendmen

t if the pol ice off

icers reasonably believed that the third party had suc h authority. Id. at 186 . In evaluatingthe offic ers’ actions under this objective standard, we must ask: “[W]ould the facts available to the officer at the moment. . . warrant a man of reas onable

caution [to believe] that the co nse nti ng pa rty ha d a uthority ove r the p re mis es ?” Id. at 188.
Ananalog ous c ase is Rhodes v. McDannel , 945 F.2d 117 (6th Cir. 1991) (per curiam ), wher e the police received consent to enter a home fr om a third party who had pr

eviously called the police from that location, occasionally lived there, and “referred to the residence as her home address.” Id. a t 119. This court

held that the police reasonably believed that the third party had the a uthority to consen

t to their entry. Id. Inthe present

case, the evidence of apparent authority is even stronger than in Rhodes

. When Nada provided the polic e with a written statement after she was allege dly beaten by H arajli, she listed the

address of Hara jli’s house as her place of residence. The police therefore knew that Nada had resided at the hou se in

the recent past. And evidence that Nada stil l had “commonauthority over the pr emises” was provided by the fact that she possessed a garage-door op ener , which she used to gain a ccess to the house . The off

icers the refore could have reasonably

believed that Nada had the aut ho ri ty to consent to their entry inside.
One remaining question is whether Nada actua ll y ga ve consent to the officers’ entry

. In her deposition, she reca lled se eing an officer in the house, but never stated that she expressly gave the offic ers per

mission to enter. On the other hand, Nada had requested that the officers accompa ny her to the house because she was “scare d to go by my self ove r there.” And Nada

apparently ne

ver objected to the entry

of at least one officer into the int erior of th e house. As one sta

te supreme court ha s observe d, “a sea rch may be lawfu l even if t he p erson g iving consent doe s not rec ite the ta lismanic phrase: ‘You have my pe

rmission to search.’” State v. Flippo ,No. 02-2169 Harajli v. Huron Towns hip et al. 9

575 S.E.2d 170, 178 (W. Va. 2002). In the present ca se, even if Nada did not re cite that talismanic phrase, the circumstances clearly

indicate that she w anted the

office rs to accompany

her insid e the hous e in

or de r t o e ns ur e h er sa fe ty. T he o fficers’ purported entry into Harajli’s house therefore did not viol ate the Fourth Amendment because it was based upon Nada ’s conse

nt. C. Harajli’ s substantiv e due proc ess claim Harajli next contends that the civil standby conducted by Officers Kostielney

and Powel l made him more vulne rable to t he loss of his property, violating his rig hts under the substantive component of the Fourtee nth Amend

ment’s Due Process Clause. Specifically, Ha rajli argues tha t “Civil Standby procedures . .

. placed plaintiff in a much more precarious position tha

n had the a

uthoritie s not become involved.” Harajli relies upon DeShaney v . W innebagoCounty , 489 U.S. 189 (198 9) , in which the Supreme Court held that no substantive due p rocess v iolation oc curred

where s tate officia ls knew that a minor was being abused by his father but “did not act to remove

[the minor] f

rom his father’s custody .” Id. at 191 . Subseq ue nt ly t he fa th er be at hi s s on se ve re ly, causingpermanent brain damage. Id. at 193. The Court held that “[a]s a general matter . . . a State’s failure to pr otect an individual against private violence simply does notconstitute a violation of the Due Process Clause.” Id. at 197. But t he Court also

recog nized an exception to

this general ru

le: [W]hen the State by the

affirmative exercise of its power so restrains an i ndiv idual's liberty that it re

nders him unable to care for himself, and at thes ame time f ails to provide for his basic human needs—e.g., food, cloth ing, shelte r, medical c are, an d reasonable saf

ety —it transg resses the substan

tive limits on stateaction set by the Eighth Amendment and the Due Process Clause. 10 Harajli v. Huron Towns hip et al. No. 02-2169

Id. at 200. Assuming for the sake of argume nt that DeShaney

applies to cases that involve a deprivation of property, r

ather than the liberty interest at stake in DeShaney , Harajl i might be able to establish a substantive due process violation if he coul d demonstrate that the Huron Tow nship police officers placed Haraj l i in a position where he was unable to prevent the removal of

th e proper

ty f rom his hou se. But H arajli appare ntly had advance notice, from Nada’s a ttorney, that

she intended to remove her property

from the house. At that point Harajli could have attempted to recover the ga rage-door opener from Nada, asked his lawy er to seek an injunction prevent ing her fro m enterin g the ho use, or c alled the

polic e and a sked them

to interve

ne. As the

defenda nts point ou

t, Har aj li “had ample legal and financial r esources to protect himself from a ny allege d per ceived harm from his ex-wife, butchose not to do so . . . .” Harajli was certainly more capable of de fending

his righ ts than wa s the injur

ed son in DeShaney

. Becau se no subst antive du e proce ss vio lation occurred in DeShaney , c le ar ly none oc curred in the present case. We therefore agree with the district court’s decision on this issue.
D. Harajli’ s equal prot ection c laim Harajli finally contends that Lt. Maier ref used to accept

the stolen property for

m, or to pursue the investigation of Nada, becau se of Harajli’s national origin or gende r, there b y v iolating his Fourteenth Amendment right to the equa l protection

of the laws. He

argue s that the s tatement “in this country we don’t pull gun on woman” d emonstr ates that Maier’s decision

not to pursue the investigation of Nada was based upon Harajli’s status as a male Arab-Amer ican. Neither party cites a

case where an

equal pr otection claim was based

upon the failure

to prosecute someone for a crime, and we ha ve be en un ab le to fi nd an y. But this court has decided several cases that involved a claim of selectiveNo. 02-2169 Harajli v. Huron Towns hip et al. 11

prosecution, where the issue was whether the dec ision to prosecu te a particular

person was based upon

discriminatory criteria. These cases apply with equal force to the present case. The facts a

re slig htly differe nt but the u

ltimate iss

ue is the same—did

law enforcemen

t officia ls prosec ute members of one gr oup but not a

nother be cause of

a constitu

tionally protected characteristic?
In Gardenhi

re v. Sch ubert , 205 F.3d 303 (6th Cir. 2000 ) , this court explained

that “[s]ele ctive en forcement claim s are judged according to ordinary

Equ al Protectio

n standar ds, whichrequire

a petitione r to show both a discriminatory purpose and a discriminatory e ffect.” Id. at 318. Gardensh ire also articulated the following elem e nts of a selective prosecu tion claim : First, [an offic ial] must sing le outa person

belong ing to anidentifiable group, such as those of a particular race or religion, or a group exercising constitutional rights, for prosecution

even though he has decided

not to pros ecute persons not belongingto that g roup in similar sit

uations. Second, [the official] must initiate the pro se cution wit h a discriminatory purpose. F inally, the pros ecuti on must have a discriminatory ef fect on the gro up which the defendant belongs to. With regard to t

he first el

ement, it is an a bsolute requirement

that the plainti

ff make at

least a prima fac ie showing that similarly situated persons outside her category were not prosec u ted . Furthe rmore, there is a strong presumption that the state actor s h ave prop erly discharged

their official duties , and to overcome that presumptionthe plain

tiff must present c lear ev

idence t o the contrary ; the standard is a demanding one. Id. at 319 (emphasis added) (quotation marks and citations omitted). 12 Harajli v. Huron Towns hip et al. No. 02-2169

The district c ourt in the present c as e granted summary judgment in favor of the def

e ndants on Harajli’s equal protection

claim because “[t]here’s no evidence at all that he was treated differently

” from either similarly situate d women or non-Ara b-Ameri cans. And according to Gardenhi re , “it is anabsolute requirement that the p lain tiff make at least a prima facie showing t

hat simila rly situated p erso ns o utside [his or] her cat

egory were” treated differe ntly . Harajl i, however, has produced no evidenceshowing that either Maier or the Huron Township

Police De

partm ent as a

whole have pu rsued investigations in similar circumstances where t h e complaining party was a

womanor

non-Ara b-Ameri can. His equal pr otection claim the refore fails. E. Qualified immunity and municipal liability Harajli also c halle nge s th e district court’s determination that the defendant officers are e ntitledto qualified

immunity and that Huron Township is not liable for the actions of the of ficers. Becau se we ha

ve conc luded tha

t the acti ons o f th e defendant police officers did not violate Harajli’s constitut ional rights, we have no need to

consider these affirma tive def enses. III. CONCL USION
For all of the reasons set forth above, we AFFIRM th e judgmen t of the dis trict cou

rt.