Sixth Circuit Denies Dismissal of Claims Related to Mayor’s Alleged Order of Building and Safety Employees to Aggressively Enforce City Code Violations Against Plaintiffs’ Properties

This post was authored by Matthew Loescher, Esq.

In 2005, Defendant City of Dearborn, Michigan, awarded a bid to Plaintiff Hakim Fakhoury’s business, Dearborn Venture Partners, for a Preferred Development Agreement. The Agreement was to lead to Plaintiff Hakim purchasing city-owned property for redeveloping the West Dearborn area. In late 2006, Mayor Guido died and O’Reilly became Mayor. Shortly after O’Reilly assumed Mayor, Plaintiff Hakim, a real estate developer, approached him about a Building and Safety Inspector who allegedly attempted to extort Hakim to obtain the City’s cooperation and approval for his projects. In early 2010, Plaintiff Hakim objected to difficulties surrounding the project and to paid parking in West Dearborn, which allegedly hurt businesses in the area. Plaintiffs claimed that personal animus led O’Reilly to order Building and Safety employees to aggressively enforce city code violations against Plaintiffs’ properties despite an agreement that the City would require that the properties be “existing nonconforming” because the buildings were to be demolished as part of the redevelopment plan. The district court denied Defendants’ motions for summary judgment on qualified immunity and they appealed in this case.

 On appeal, Defendants argued that they were entitled to qualified immunity because there was no clearly established law regarding Plaintiff’s Equal Protection class-of-one claim. Specifically, Defendants contended that there was no clearly established law because, after Engquist v. Or. Dep’t of Agric., 553 U.S. 591 (2008), class-of-one claims were not cognizable for challenges to state actions that are “inherently subjective and discretionary.” Here, the district court determined there was evidence that O’Reilly, driven by animus, purposely sabotaged Plaintiffs’ ability to collect rent, and ordered police to bar them from their properties, in an attempt “to rid Plaintiffs from the City and place their property into the hands of a rival family, the Hamames.” No mayor has the discretion —or power—to take these actions. Taking these facts in the light most favorable to Plaintiffs, the court dismissed Defendants’ appeal on this claim.

 Defendants next contended that they are entitled to qualified immunity on Plaintiff Hakim’s First Amendment retaliation claim. Defendants argued the first element of Hakim’s claim had not been met – that it was not “clearly established” that a citizen had the right to criticize public officials. Defendants further claimed that Plaintiffs could not establish an adverse action or causation. However, as both of these issues were deemed factual questions for a jury, the court did not address these arguments.

Fakhoury v O’Reilly, 2020 WL 6781236 (6th Cir CA 11/18/2020)