*

The Honorable Thomas B. Russell, United States District Judge for

the Western District of Kentucky, sitting by designation.

1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2004 FED App. 0108P (6th Cir.)

File Name: 04a0108p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

HASSAN HARAJLI,

Plaintiff-Appellant,

v.

HURON TOWNSHIP, a

Michigan Charter Township;

GILBERT POWELL, BRIAN

KOSTIELNEY, and JOHN

MAIER, Jointly and Severally,

Defendants-Appellees.

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No. 02-2169

Appeal from the United States District Court

for the Eastern District of Michigan at Ann Arbor.

No. 01-60158—Marianne O. Battani, District Judge.

Argued: March 17, 2004

Decided and Filed: April 16, 2004 

Before: KRUPANSKY and GILMAN, Circuit Judges;

RUSSELL, District Judge.*

2 Harajli v. Huron Township et al. No. 02-2169

_________________

COUNSEL

ARGUED: Kevin L. Laidler, LAW OFFICES OF KEVIN

LAIDLER, Pontiac, Michigan, for Appellant. Marcia L.

Howe, JOHNSON, ROSATI, LaBARGE, ASELTYNE &

FIELD, Farmington Hills, Michigan, for Appellees.

ON BRIEF: Kevin L. Laidler, LAW OFFICES OF KEVIN

LAIDLER, Pontiac, Michigan, for Appellant. Marcia L.

Howe, JOHNSON, ROSATI, LaBARGE, ASELTYNE &

FIELD, Farmington Hills, Michigan, for Appellees.

_________________

OPINION

_________________

RONALD LEE GILMAN, Circuit Judge. Hassan Harajli

is an Arab-American who lives in Huron Township,

Michigan. On March 26, 2001, Harajli allegedly beat his exwife, Nada Harajli (Nada), pointed a gun at her head, and

threatened to kill her unless she gave him sole custody of

their minor children. Two weeks later, officers from the

Huron Township Police Department accompanied Nada to

Harajli’s house and stood by while she removed her

belongings. Harajli called the police later that day , claiming

that Nada had broken into his house and stolen his property.

Two days later, a police lieutenant allegedly informed Harajli

that the police department would not pursue an investigation

of Nada’s conduct because “this is a domestic issue and,

another thing, in this country we don’t pull gun on woman

[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

violation of his substantive due process rights, and (3) the
No. 02-2169 Harajli v. Huron Township et al. 3

lieutenant’s refusal to pursue the investigation of Nada was

based on Harajli’s gender and national origin, in violation of

the Equal Protection Clause of the Fourteenth Amendment.

The district court granted summary judgment in favor of the

defendants on all claims. For the reasons set forth below, we

AFFIRM the judgment of the district court.

I. BACKGROUND

Harajli and Nada were divorced in 1996. Nada moved back

into Harajli’s house, along with their three children, in

February of 2001. She was given a garage-door opener in

order to have access to the house. 

On March 26, 2001, Harajli asked Nada to sign papers

giving him sole custody of the children. When she refused,

Harajli allegedly beat Nada with his hands and with a

handgun, pointed the gun at her head, and threatened to kill

her. Nada reported the incident to the Huron Township Police

Department. In her statement, Nada listed the address of

Harajli’s house as her place of residence. Later that day,

Huron Township police officers arrested Harajli on charges of

assault and possession of a firearm during the commission of

a felony. (Harajli was subsequently acquitted on both charges

after a bench trial.)

On April 9, 2001, Nada’s attorney called the Huron

Township Police Department to request that officers

accompany Nada to Harajli’s house so that she could safely

remove her belongings. This procedure 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

in this case, drove separately to Harajli’s house. When Nada

and the officers arrived at the house, representatives of a

moving company were at the scene, waiting to move Nada’s

belongings. A legal assistant employed by Nada’s attorney

also arrived at the house sometime thereafter. 

4 Harajli v. Huron Township et al. No. 02-2169

Nada gained access to the house by using her garage-door

opener. She then went inside to pack her clothes into bags.

The movers, meanwhile, entered the garage to remove Nada’s

furniture that was stored there and went inside the house to

retrieve the bags of clothes. 

Whether the officers themselves entered the house is

disputed. Officer Kostielney acknowledged at his deposition

that he and Officer Powell “went in through the garage,” but

denied that the officers entered the interior of the house. But

when Nada was asked at her deposition whether the officers

came inside, she replied, “I don’t know. Maybe, yeah. 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 me that they were in the house. No, I

didn’t see them actually in the house. They were in the

garage area, but they didn’t go through the door that led

from the garage area to the interior of the house while I

was there, but they told me that they were in the house,

because my concern was that somebody was in the

house. It seemed like a house with a lot of floor space.

Maybe somebody was in the house, and they said they

had checked the house, that nobody appears to be home.

The officers apparently did not participate in the removal of

any property from either the house or the garage. At his

deposition, Officer Kostielney agreed with the statement that

the officers “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 arrived at the house, the

officers left. The movers then finished loading Nada’s

belongings onto the truck without incident. Later that day,

Harajli contacted the police department to report that property

had been stolen from his house. The police investigated the

incident by interviewing a neighbor who had seen the moving

truck outside, talking to representatives of the moving
No. 02-2169 Harajli v. Huron Township et al. 5

company, and speaking with Nada. Two days later, on April

11, 2001, Harajli went to the police station and asked Police

Lieutenant John Maier, another defendant in this case, about

the status of the investigation. Harajli, at his deposition, gave

the following account of his conversation with Maier:

[Maier] comes out to the lobby and he says—I said okay,

what are you guys doing about the investigation. He said

well, nothing. I said what do you mean nothing. He said

well, this is a domestic issue and, another thing, in this

country we don’t pull gun on woman [sic], he points his

finger in my face like that.

Maier, according to Harajli, also refused to accept a stolen

property form that Harajli had filled out. 

Later that day, Maier received a call from Fred 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 was a civil matter.” Nine days later, Maier

met with Harajli’s attorney and once again stated that the

police department would not pursue the investigation. 

Maier subsequently changed his mind and, on April 25,

2001, filed a form recommending that the prosecutor’s office

request a warrant for Nada’s arrest. The prosecutor’s office

rejected the warrant recommendation the following day. 

In July of 2001, Harajli filed this lawsuit in the district

court, naming as defendants Huron Township, Lt. Maier, and

Officers Kostielney and Powell. The complaint alleged that

the defendants were liable under 42 U.S.C. § 1983 because

the conduct of the police violated his rights under the Fourth

and Fourteenth Amendments to the United States

Constitution. In August of 2002, the district court granted

summary judgment in favor of the defendants. This timely

appeal followed.

6 Harajli v. Huron Township et al. No. 02-2169

II. ANALYSIS

Harajli brought this lawsuit pursuant to 42 U.S.C. § 1983,

which provides in pertinent part as follows:

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 jurisdiction thereof to the

deprivation of any rights, privileges, or immunities

secured by the Constitution and laws, shall be liable to

the party injured in an action at law, suit in equity, or

other proper proceeding for redress . . . .

“Section 1983 has two basic requirements: (1) state action

that (2) deprived an individual of federal statutory or

constitutional rights.” Flint ex rel. Flint v. Ky. Dep’t of Corr.,

270 F.3d 340, 351 (6th Cir. 2001).

A. Standard of review

We review the district court's grant of summary judgment

de novo. Sperle v. Michigan Dep’t of Corr., 297 F.3d 483,

490 (6th Cir. 2002). Summary judgment is proper where no

genuine issue of material fact exists and the moving party is

entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).

In considering such a motion, the court must view the

evidence and draw all reasonable inferences in favor of the

nonmoving party. Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 587 (1986). The central issue is

“whether the evidence presents a sufficient disagreement to

require submission to a jury or whether it is so one-sided that

one party must prevail as a matter of law.” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).

B. Harajli’s Fourth Amendment claim

Harajli contends that Officers Kostielney and Powell

violated the Fourth Amendment by conducting an
No. 02-2169 Harajli v. Huron Township et al. 7

unreasonable search of his house. The Fourth Amendment

protects “[t]he right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable

searches and seizures.” In analyzing any Fourth Amendment

issue, the threshold question is whether there has been either

a “search” or a “seizure.” 

The Supreme Court has explained that “a Fourth

Amendment search occurs when the government violates a

subjective expectation of privacy that society recognizes 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 which it secures, have a long history. At the very core

stands the right of a man to retreat into his own home and

there be free from unreasonable governmental intrusion.”).

An intrusion into Harajli’s home by the police would

therefore constitute a Fourth Amendment search.

Officer Kostielney acknowledged at his deposition that he

and Officer Powell entered the garage of Harajli’s house, but

denied entering the interior. But Nada and her attorney’s

legal assistant both recalled facts indicating that the officers

did enter the house. Because the issue in this case is whether

summary judgment was proper, we must view the evidence

and draw all reasonable inferences in favor of Harajli as the

nonmoving party. Matsushita Elec. Indus. Co., 475 U.S. at

587. We must therefore assume for the purposes of this

appeal that the officers entered both the garage and the

interior of Harajli’s house, thereby conducting a Fourth

Amendment search of the entire premises.

A search by police, however, does not violate the Fourth

Amendment if “voluntary consent has been obtained, either

from the individual whose property is searched . . . or from a

third party who possesses common authority over the

premises.” Illinois v. Rodriguez, 497 U.S. 177, 181 (1990).

Even if the third party does not in fact possess “common

8 Harajli v. Huron Township et al. No. 02-2169

authority over the premises,” the search is still valid under the

Fourth Amendment if the police officers reasonably believed

that the third party had such authority. Id. at 186. In

evaluating the officers’ actions under this objective standard,

we must ask: “[W]ould the facts available to the officer at the

moment . . . warrant a man of reasonable caution [to believe]

that the consenting party had authority over the premises?”

Id. at 188.

An analogous case is Rhodes v. McDannel, 945 F.2d 117

(6th Cir. 1991) (per curiam), where the police received

consent to enter a home from a third party who had previously

called the police from that location, occasionally lived there,

and “referred to the residence as her home address.” Id. at

119. This court held that the police reasonably believed that

the third party had the authority to consent to their entry. Id.

In the present case, the evidence of apparent authority is even

stronger than in Rhodes. When Nada provided the police with

a written statement after she was allegedly beaten by Harajli,

she listed the address of Harajli’s house as her place of

residence. The police therefore knew that Nada had resided

at the house in the recent past. And evidence that Nada still

had “common authority over the premises” was provided by

the fact that she possessed a garage-door opener, which she

used to gain access to the house. The officers therefore could

have reasonably believed that Nada had the authority to

consent to their entry inside.

One remaining question is whether Nada actually gave

consent to the officers’ entry. In her deposition, she recalled

seeing an officer in the house, but never stated that she

expressly gave the officers permission to enter. On the other

hand, Nada had requested that the officers accompany her to

the house because she was “scared to go by myself over

there.” And Nada apparently never objected to the entry of at

least one officer into the interior of the house. As one state

supreme court has observed, “a search may be lawful even if

the person giving consent does not recite the talismanic

phrase: ‘You have my permission to search.’” State v. Flippo,
No. 02-2169 Harajli v. Huron Township et al. 9

575 S.E.2d 170, 178 (W. Va. 2002). In the present case, even

if Nada did not recite that talismanic phrase, the

circumstances clearly indicate that she wanted the officers to

accompany her inside the house in order to ensure her safety.

The officers’ purported entry into Harajli’s house therefore

did not violate the Fourth Amendment because it was based

upon Nada’s consent.

C. Harajli’s substantive due process claim

Harajli next contends that the civil standby conducted by

Officers Kostielney and Powell made him more vulnerable to

the loss of his property, violating his rights under the

substantive component of the Fourteenth Amendment’s Due

Process Clause. Specifically, Harajli argues that “Civil

Standby procedures . . . placed plaintiff in a much more

precarious position than had the authorities not become

involved.” 

Harajli relies upon DeShaney v. Winnebago County, 489

U.S. 189 (1989), in which the Supreme Court held that no

substantive due process violation occurred where state

officials knew that a minor was being abused by his father but

“did not act to remove [the minor] from his father’s custody.”

Id. at 191. Subsequently the father beat his son severely,

causing permanent brain damage. Id. at 193. The Court held

that “[a]s a general matter . . . a State’s failure to protect an

individual against private violence simply does not constitute

a violation of the Due Process Clause.” Id. at 197. But the

Court also recognized an exception to this general rule: 

[W]hen the State by the affirmative exercise of its power

so restrains an individual's liberty that it renders him

unable to care for himself, and at the same time fails to

provide for his basic human needs—e.g., food, clothing,

shelter, medical care, and reasonable safety—it

transgresses the substantive limits on state action set by

the Eighth Amendment and the Due Process Clause.

10 Harajli v. Huron Township et al. No. 02-2169

Id. at 200.

Assuming for the sake of argument that DeShaney applies

to cases that involve a deprivation of property, rather than the

liberty interest at stake in DeShaney, Harajli might be able to

establish a substantive due process violation if he could

demonstrate that the Huron Township police officers placed

Harajli in a position where he was unable to prevent the

removal of the property from his house. But Harajli

apparently had advance notice, from Nada’s attorney, that she

intended to remove her property from the house. At that point

Harajli could have attempted to recover the garage-door

opener from Nada, asked his lawyer to seek an injunction

preventing her from entering the house, or called the police

and asked them to intervene. As the defendants point out,

Harajli “had ample legal and financial resources to protect

himself from any alleged perceived harm from his ex-wife,

but chose not to do so . . . .” Harajli was certainly more

capable of defending his rights than was the injured son in

DeShaney. Because no substantive due process violation

occurred in DeShaney, clearly none occurred in the present

case. We therefore agree with the district court’s decision on

this issue.

D. Harajli’s equal protection claim

Harajli finally contends that Lt. Maier refused to accept the

stolen property form, or to pursue the investigation of Nada,

because of Harajli’s national origin or gender, thereby

violating his Fourteenth Amendment right to the equal

protection of the laws. He argues that the statement “in this

country we don’t pull gun on woman” demonstrates that

Maier’s decision not to pursue the investigation of Nada was

based upon Harajli’s status as a male Arab-American.

Neither party cites a case where an equal protection claim

was based upon the failure to prosecute someone for a crime,

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

prosecution, where the issue was whether the decision to

prosecute a particular person was based upon discriminatory

criteria. These cases apply with equal force to the present

case. The facts are slightly different but the ultimate issue is

the same—did law enforcement officials prosecute members

of one group but not another because of a constitutionally

protected characteristic?

In Gardenhire v. Schubert, 205 F.3d 303 (6th Cir. 2000),

this court explained that “[s]elective enforcement claims are

judged according to ordinary Equal Protection standards,

which require a petitioner to show both a discriminatory

purpose and a discriminatory effect.” Id. at 318. Gardenshire

also articulated the following elements of a selective

prosecution claim:

First, [an official] must single out a person belonging to

an identifiable 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 prosecute

persons not belonging to that group in similar situations.

Second, [the official] must initiate the prosecution with

a discriminatory purpose. Finally, the prosecution must

have a discriminatory effect on the group which the

defendant belongs to.

With regard to the first element, it is an absolute

requirement that the plaintiff make at least a prima facie

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).

12 Harajli v. Huron Township et al. No. 02-2169

The district court in the present case granted summary

judgment in favor of the defendants on Harajli’s equal

protection claim because “[t]here’s no evidence at all that he

was treated differently” from either similarly situated women

or non-Arab-Americans. And according to Gardenhire, “it is

an absolute requirement that the plaintiff make at least a

prima facie showing that similarly situated persons outside

[his or] her category were” treated differently. Harajli,

however, has produced no evidence showing that either Maier

or the Huron Township Police Department as a whole have

pursued investigations in similar circumstances where the

complaining party was a woman or non-Arab-American. His

equal protection claim therefore fails.

E. Qualified immunity and municipal liability

Harajli also challenges the district court’s determination

that the defendant officers are entitled to qualified immunity

and that Huron Township is not liable for the actions of the

officers. Because we have concluded that the actions of the

defendant police officers did not violate Harajli’s

constitutional rights, we have no need to consider these

affirmative defenses.

III. CONCLUSION

For all of the reasons set forth above, we AFFIRM the

judgment of the district court.