           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.

                                  1
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,
                                                                    490 (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).
