                                                         NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                            ______________

                                  No. 12-3328
                                ______________

                   HEATHER HAGAN, INDIVIDUALLY;
                    S.H., A MINOR, BY AND THROUGH
                 HER PARENT AND NATURAL GUARDIAN,
                             HEATHER HAGAN

                                       v.

                ROCHELLE BILAL; CITY OF PHILADELPHIA

                              Heather Hagan; S.H.,
                                        Appellants

                                ______________

                 On Appeal from the United States District Court
                    for the Eastern District of Pennsylvania
                          (D.C. Civ. No. 2-11-04343)
                 Honorable Mary A. McLaughlin, District Judge
                               ______________

                   Submitted under Third Circuit LAR 34.1(a)
                                April 25, 2013

       BEFORE: JORDAN, GREENBERG, and NYGAARD, Circuit Judges

                             (Filed: April 29, 2013)
                                ______________

                            OPINION OF THE COURT
                                ______________

GREENBERG, Circuit Judge.
       This matter comes on before this Court on an appeal from a summary judgment

entered in the District Court on July 20, 2012, in favor of defendants Rochelle Bilal, a

Philadelphia police officer, and the City of Philadelphia. Plaintiffs-appellants Heather

Hagan and her infant daughter S.H., however, limit their appeal to the summary judgment

in favor of Bilal and thus the City is not a party to this appeal. Inasmuch as there is no

dispute of material fact the only issue that we address is whether the District Court

correctly granted Bilal summary judgment as a matter of law on the basis of the

undisputed facts. See Fed. R. Civ. P. 56(a); Kopec v. Tate, 361 F.3d 772, 775 (3d Cir.

2004). The parties agree that we should exercise plenary review on this appeal, citing

Dilworth v. Metro. Life Ins. Co., 418 F.3d 345, 349 (3d Cir. 2005); McGreevy v. Stroup,

413 F.3d 359, 363 (3d Cir. 2005).1

       The undisputed facts in this case are troublesome. On October 7, 2009, Hagan

was driving an automobile in a northerly direction on Broad Street, a principal roadway

in Philadelphia, near Girard Avenue, a major cross street. She intended at that time to

make a left turn across the southbound lanes of traffic on Broad Street to enter a parking

area at St. Joseph’s Preparatory High School to pick up her stepson at the school. The

proposed turn, however, was illegal, as traffic regulations did not permit a left turn at the

point that Hagan intended to make it.




1
 The District Court had jurisdiction under 28 U.S.C. § 1331 over the Hagans’ federal
claims and had supplemental jurisdiction under 28 U.S.C. § 1367(a) over their related
state law claims. The Hagans, however, have abandoned their state law claims and thus
we are not concerned with those claims on this appeal.
                                              2
       As it happened, Bilal, who was off-duty, at that time was in the vicinity operating

a private automobile on Broad Street and observed that Hagan intended to make an illegal

left turn. Bilal, however, was not in uniform and therefore Hagan could not identify her

as a police officer from her appearance. But inasmuch as Bilal intended to stop Hagan

from making the turn she orally identified herself as a police officer and, while still in her

automobile, told Hagan that if Hagan made the turn she would give her a ticket. At that

time Hagan asked to see Bilal’s identification but Bilal refused to produce it, apparently

because she believed that she did not have to produce her identification as she was off

duty. Hagan then made her turn into the school parking lot and Bilal followed her into

the lot in her own automobile, parking behind Hagan thus blocking Hagan’s automobile

in the lot. After Hagan and Bilal parked their automobiles, when Hagan asked to see

Bilal’s identification she still did not produce it.

       After the cars were parked, notwithstanding Hagan’s illegal left turn, Bilal did not

arrest Hagan or issue her a traffic ticket. On the other hand, Hagan did not attempt to

drive out of the parking lot. Rather, Hagan and her daughter entered the school building

from which Hagan called the Philadelphia police on the 911 number. Uniformed police

then arrived and gave an oral warning to Hagan about the illegal turn at which point the

incident seemed to be closed.

       But the incident was not closed as Hagan brought police department disciplinary

proceedings against Bilal that ultimately were not successful. Thereafter, the Hagans

instituted this action against Bilal and the City, asserting both federal and state law

claims. On this appeal, however, the Hagans only are pursuing a 42 U.S.C. § 1983

                                                3
Fourth Amendment constitutional claim against Bilal predicated on Bilal having made an

illegal, excessive, and unreasonable seizure of them. Both in the District Court and here

Bilal has contended that the Hagans’ Fourth Amendment claims were not meritorious as

Bilal did not seize them. In its opinion the District Court did not determine if there had

been a seizure. Instead, it indicated that even if Bilal had seized the Hagans, an event that

the Court believed could not have happened until Bilal blocked the Hagan automobile

after Hagan parked, the seizure would have been “neither unreasonable nor excessive and

therefore did not violate the Fourth Amendment.” App. at 34. Accordingly, the Court

granted Bilal summary judgment.2 This appeal followed.

       As we indicated above we find this case troublesome. We can understand why

Bilal did not want to produce her identification while the automobiles were on Broad

Street as the identification process could have obstructed traffic. Yet once Hagan and

Bilal drove their automobiles into the school parking lot Bilal should have produced

identification for Hagan had every right to be certain of the identity of the person

confronting her as sometimes people impersonate police officers. In this regard, we see

nothing in Bilal’s brief justifying her failure to produce identification once the

automobiles were parked.

       The above said, there simply was no seizure in this case so this Fourth

Amendment action cannot succeed. We recently pointed out in James v. City of Wilkes-

Barre, 700 F.3d, 675, 680 (3d Cir. 2012) (internal quotation marks, citations and


2
 Bilal claimed qualified immunity as a defense but the District Court did not consider
that defense as it ruled in favor of Bilal on the merits of the Hagans’ claims.
                                              4
parentheses omitted), citing and quoting many cases, including some from the Supreme

Court that:

       [o]nly when the officer, by means of physical force or show of authority,
       has in some way restrained the liberty of a citizen, may we conclude that a
       seizure has occurred. A person is seized for Fourth Amendment purposes
       only if he is detained by means intentionally applied to terminate his
       freedom of movement. When a person claims that her liberty is restrained
       by an officer’s show of authority, a seizure does not occur unless she yields
       to that show of authority.

       In this case nothing Bilal did on Broad Street affected Hagan’s movements as

notwithstanding Bilal’s directions not to make a left turn Hagan pulled into the school

parking lot just as she had planned to do before her encounter with Bilal. Furthermore,

even though Bilal parked her automobile in a way that would have obstructed Hagan

from leaving the lot in her automobile had she sought to do so immediately after parking,

we see no reason to believe that her intentions with respect to her movements prior to

encountering Bilal were curtailed or changed by Bilal’s actions as Hagan intended to park

and then enter the school building just as she did. Overall, it is clear that Bilal did not

restrain the Hagans’ freedom of movement and therefore there was no Fourth

Amendment violation.

       For the foregoing reasons, the order of July 20, 2012, will be affirmed. The

parties will bear their own costs on this appeal.




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