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finding that plaintiff had failed to show that photograph requirement on firearms license was not rationally related to a legitimate state interest
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CIVIL ACTION No. 03-1476
May 26, 2004
MEMORANDUM AND ORDER
This case presents the question of whether the City of Philadelphia may condition the grant of a license to carry a firearm upon the submission of the applicant's photograph where such a submission violates the applicant's religious beliefs. As set forth below, such conditioning is constitutionally permissible despite claims by Plaintiff that it infringes on his First Amendment right to free exercise of religion and his asserted right under the Second Amendment of the United States Constitution.
I. INTRODUCTION
In the City of Philadelphia, an applicant seeking to obtain a license to carry a firearm must submit to a photograph for the license. Phila. Code, § 10-814(4)(c) (June 2003). As a member and trustee of The Church of the Living God The Pillar and Ground of the Truth, Plaintiff Gregory Green refrains from any self-likeness, including photographs, pursuant to the biblical proscription against idolatry. See, e.g., Deut. 4:16-18 (New International Version); (Compl. ¶ 20). On April 11, 2001, Plaintiff applied for a gun permit with the Gun Permit Unit of the Philadelphia Police Department. (Compl. ¶ 21.) Although Plaintiff was notified that his application met all other requirements, the Gun Permit Unit would not issue a permit to Plaintiff because of his refusal to submit photographic identification. (Id. ¶ 22.)
On January 16, 2002, Plaintiff brought suit against the City of Philadelphia. (Id. ¶ 34.) Thereafter, the parties started settlement negotiations and eventually entered into a settlement agreement that "contemplated that [the City] would allow exceptions from the photographic requirement for the plaintiff and other members in good standing of the Church." (Id. ¶ 35.) Approximately two months after the settlement agreement was signed and the initial action was dismissed without prejudice, the City contacted Plaintiff's counsel and informed him that an exception could not be accommodated. (Richman Dep., Ex. 1.; Compl. ¶¶ 37-38.) As a result, Plaintiff brought the instant class action alleging breach of contract, violations of the United States Constitution, including the First and Second Amendments, the Pennsylvania Constitution, and the Pennsylvania Religious Freedom Protection Act against Defendants City of Philadelphia, Commissioner of the Philadelphia Police Department, Sylvester Johnson, and Supervisor of Gun Permits for the City of Philadelphia, Sergeant John Sharkey (collectively "the City" or "Defendants"). Presently before the Court is Defendants' motion for summary judgment. For the reasons set forth below, I grant Defendants' motion.
After a conference pursuant to Federal Rule of Civil Procedure 16 and Local Rule of Civil Procedure 16.1(b), the parties agreed to stay the disposition of the breach of contract claim until the Court ruled on whether the photographic identification requirement violated the United States Constitution. The Court's Scheduling Order dated September 26, 2003 ordered Defendants to file a memorandum of law regarding the constitutionality of requiring Plaintiff and the other alleged class members to provide photographic identification in order to obtain a permit to carry a firearm in the City of Philadelphia. On November 25, 2003, Defendants filed a motion for summary judgment. After Plaintiff responded to Defendants' motion, the Court ordered limited discovery regarding the City of Philadelphia's decision to require photographic identification for gun permits. (Order of Jan. 22, 2004.) Thereafter, a status conference was held and counsel were requested to submit supplemental briefing. At the conference, the Court also stayed briefing regarding the class allegations.
II. BACKGROUND
The Pennsylvania Uniform Firearms Act, 18 PA. CONS. STAT. ANN. § 6109, confers authority upon the local sheriff or city police commissioner to issue a license to carry a firearm throughout the Commonwealth of Pennsylvania. Id. The statute specifically vests discretion with the sheriff or police commissioner to require the inclusion of a photograph of the licensee on the license. 18 PA. CONS. STAT. ANN. § 6109(e)(3) (2004).
Prior to October 1995, Pennsylvania law provided the City with the discretion to require an applicant for a gun permit to demonstrate a showing of need. (Richman Dep. at 16-17; Richman Dep., Exs. 2, 7 (Memorandum Regarding LiveScan fingerprinting and Photo Capturing System) (hereinafter "Exs. 2, 7").) In October 1995, the Pennsylvania Legislature changed the law such that the City no longer could require a showing of need. (Richman Dep. at 17; Exs. 2, 7.) At the time of the change in law, the City's licenses did not include photographs and were "typed on a standard [three] part snap-out form," making them extremely susceptible to counterfeiting or transfer from person to person. (Richman Dep. at 11-12; Exs. 2, 7.) In the years following this change in the law, the number of applicants for gun licenses dramatically increased from 1, 200 to 12, 000 per year and the number of issued licenses rose from 4, 500 to over 38, 000. (Richman Dep. at 17-18; Exs. 2, 7.) Because these licenses did not include photographic identification, they were highly susceptible to tampering and police officers on patrol had difficulty determining whether the person possessing the license was in fact the licensee. (Richman Dep. at 33.)
In 2001, in response to the growing number of applicants and the increasing problems regarding the ability to counterfeit and transfer the licenses, the Gun Permit Unit changed the form of the license and implemented a plan to require all licensees to submit to a photograph for their gun license pursuant to Philadelphia Code section 10-814 and Philadelphia Police Department Directive 137 ("Directive 137"). Phila. Code, § 10-814(4)(c); (Richman Dep., Ex. 3 (Phila. Police Dep't Directive 137); Richman Dep. at 18-19, 33, 35; Exs. 2, 7). Implementation of the plan included obtaining the technology to take a digital photograph of the applicant and imbed it into the permit itself. (Richman Dep. at 18-19, 33, 35; Exs. 2, 7.) Inclusion of the imbedded photograph on the license made the license more difficult to falsify, alter, or transfer. (Richman Dep. at 19, 33, 35-36, 43, 54-55.)
Since this requirement was put into place, the Gun Permit Unit has not granted any exemptions. (Richman Dep. at 47.) Additionally, during training, police officers are informed that gun licenses include the imbedded photograph of the licensee and that there are no exemptions from this requirement. (Id. at 56-57.) Directive 137 further instructs that officers may demand that an individual produce his license for inspection (Richman Dep., Ex. 3 at 4), and may take temporary possession of the license holder's firearm "during the course of a pedestrian or vehicle investigation if there are concerns for the officer's safety or questions regarding the validity of the License to Carry." (Richman Dep., Ex. 3 at 6.) Directive 137 also states that "the firearm should be promptly returned to the license holder when the investigation reveals that the person under investigation possesses a valid License to Carry, or there are no reasonable grounds involving public safety requiring confiscation of the firearms." (Id.)
Bradford A. Richman, Special Assistant to the Police Commissioner, testified that alternative means of identification, such as fingerprinting and DNA analysis, are not feasible methods of policing gun permits because neither are readily available to patrolling police officers. Mr. Richman testified that the Philadelphia Police Department ("Police Department") does not have the technology to quickly identify a person by his fingerprints and therefore, a person presenting a license would need to be transported and fingerprinted in order to conduct a fingerprint analysis. (Richman Dep. at 54-55.) Mr. Richman also explained that the Police Department is prohibited from keeping a registry of fingerprints of gun owners. (Id. at 30-31.) Similarly, DNA analysis would also require transportation of the person presenting the license in question for collection of a sample. Furthermore, the Police Department is also prohibited from keeping a database of DNA samples for non-criminal purposes. (Id.)
III. DISCUSSION
A. Summary Judgment Standard
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). A genuine issue of material fact exists if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party bears the initial burden of identifying those portions of the record that it believes illustrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 325 (1986). Where the nonmoving party has the burden of proof on a particular issue at trial, the moving party meets its burden by "pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." Id. at 325. Once the moving party meets this burden, the nonmoving party must offer admissible evidence that establishes a genuine issue of material fact that should proceed to trial. Id. at 324; see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). In order to meet this burden, the opposing party must point to specific, affirmative evidence in the record and not simply rely on mere allegations, conclusory or vague statements, or general denials in the pleadings. See Celotex, 477 U.S. at 325; Williams v. Borough of West Chester, 891 F.2d 458, 460-61 (3d Cir. 1989). "Such affirmative evidence-regardless of whether it is direct or circumstantial-must amount to more than a scintilla, but may amount to less (in the evaluation of the court) than a preponderance." Williams, 891 F.2d at 460-61.
A court may grant summary judgment if the nonmoving party fails to make a factual showing "sufficient to establish an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. In making this determination, the nonmoving party is entitled to all reasonable inferences. Anderson, 477 U.S. at 255. A court may not, however, make credibility determinations or weigh the evidence in making its determination. Id.; see also Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 150 (2000); Goodman v. Pa. Tpk. Comm'n, 293 F.3d 655, 665 (3d Cir. 2002).
B. Claims Under the United States Constitution
Plaintiff asserts that the City's ordinance requiring submission to a photograph for a license to carry a gun violates his rights under the First and Second Amendments of the United States Constitution. The First Amendment, which is applicable to the States pursuant to the Fourteenth Amendment, provides that "Congress shall make no law . . . prohibiting the free exercise [of religion]." U.S. CONST. amend. I; Cantwell v. Connecticut, 310 U.S. 296, 303 (1940). This First Amendment protection of the free exercise of religion provides the "right to believe and profess whatever religious doctrine one desires," and does so by prohibiting "all 'governmental regulation of religious beliefs as such.'" Employment Div., Dep't of Human Res. of Or. v. Smith, 494 U.S. 872, 877 (1989) (quoting Sherbet v. Verner, 374 U.S. 398, 402 (1963)). For example, the Free Exercise Clause prohibits the government from "compel[ling] affirmation of religious beliefs," "punish[ing] the expression of religious doctrine it believes to be false," "impos[ing] special disabilities on the basis of religious views or religious status," or "lend[ing] its power to one or the other side in controversies over religious authority or dogma." Id. (discussing history of caselaw regarding Free Exercise Clause) (internal quotations and citations omitted).
In the complaint, Plaintiff summarily alleges "unconstitutionality," stating that the ordinance at issue "encompasses within its coverage activities which are clearly protected by the guarantees of the [F]irst [A]mendment and the [S]econd [A]mendment to the United States Constitution contrary to the due process clause of the [F]ourteenth [A]mendment to the United States Constitution." (Compl. ¶¶ 26, 27.) In his responses to Defendants' motion for summary judgment, he clarifies that his arguments under the United States Constitution consist solely of violations of his First and Second Amendment rights. (Pl.'s Resp. at 2.) Similarly, Plaintiff does not make arguments in any of his supplemental briefing regarding due process violations.
While these proscriptions of the Free Exercise Clause are axiomatic, "the 'exercise of religion' often involves not only belief and profession but the performance of (or abstention from) physical acts." Id. When performance of or abstention from certain acts as an exercise of religion comes into conflict with a law or other government action, the free exercise analysis is dependent upon the nature of the challenged law or government action, prompting either strict scrutiny or rational basis review. Smith, 494 U.S. at 879; Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531 (1993); see also Tenafly Eruv Ass'n, Inc. v. Borough of Tenafly, 309 F.3d 144, 165-66 (3d Cir. 2002) (discussing application of Free Exercise Clause). The framework for this analysis is delineated by two Supreme Court decisions: Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1989) and Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520(1993).
In order to survive strict scrutiny, "a challenged [law or] government action must be narrowly tailored to advance a compelling governmental interest." Tenafly Eruv Ass'n, Inc. v. Borough of Tenafly, 309 F.3d 144, 165 n. 24 (3d Cir. 2002). Accordingly, a state must demonstrate that the challenged law or government action "serves a compelling state interest and that the state's objective could not be achieved by a measure less restrictive of the plaintiff's fundamental right." Summon v. N.J. Bd. of Med. Exam'rs, 66 F.3d 639, 645 n. 9 (3d Cir. 1995) (quoting Lutz v. City of York, 899 F.2d 255, 268-69 (3d Cir. 1990)).
Alternatively, "rational basis review requires merely that the action be rationally related to a legitimate government objective." Tenafly Eruv Ass'n, 309 F.3d at 165 n. 24. "Under rational basis review, legislation enjoys a presumption of validity, and the plaintiff must negate every conceivable justification for the classification in order to prove that the classification is wholly irrational." Brian B. v. Pa. Dep't of Educ., 230 F.3d 582, 586 (3d Cir. 2000) (citing Fed. Communications Comm'n v. Beach Communications, 508 U.S. 307, 314-15 (1993)).
In Smith, members of the Native American Church, who ingested peyote for ceremonial purposes, challenged Oregon's general criminal prohibition of the use of peyote. Smith, 494 U.S. at 878-79. The Supreme Court held that, as a general proposition, a law that is neutral and of general applicability need not be justified by a compelling governmental interest to avoid violating the Free Exercise Clause, even if the law has the incidental effect of burdening a particular religious practice. Lukumi, 508 U.S. at 531 (discussing Smith, 494 U.S. at 879). Justice Scalia, writing for the Court, explained the importance of the ruling in Smith by reasoning that:
The government's ability to enforce generally applicable prohibitions of socially harmful conduct, like its ability to carry out other aspects of public policy, cannot depend on measuring the effects of a governmental action on a religious objector's spiritual development. To make an individual's obligation to obey such a law contingent upon the law's coincidence with his religious beliefs, except where the State's interest is "compelling" — permitting him, by virtue of his beliefs, to become a law unto himself, — contradicts both constitutional tradition and common sense.Id. at 886 (internal citations and quotations omitted).
Later, in Lukumi, the Supreme Court found that "if the law is not neutral (i.e., if it discriminates against religiously motivated conduct) or is not generally applicable (i.e., it proscribes particular conduct only or primarily when religiously motivated), strict scrutiny applies and the burden on religious conduct violates the Free Exercise Clause unless it is narrowly tailored to advance a compelling governmental interest." Tenafly Eruv Ass'n, 309 F.2d at 165 (citing Lukumi, 508 U.S. at 532, 546). Accordingly, a government action or law is presumptively unconstitutional if it is not facially neutral with respect to religion. Locke v. Davey, 124 S.Ct. 1307, 1312 (2004) (citing Lukumi, 508 U.S. at 535)).
In the present case, the Philadelphia ordinance at issue provides that a person requesting a license to carry a firearm within the City of Philadelphia must obtain a license that bears the applicant's name, photograph, and fingerprints. Phila. Code, § 10-814(4)(c). As the ordinance is facially neutral, Plaintiff's challenge to this ordinance falls within the Smith analysis. While Plaintiff agrees that the Smith analysis is applicable, Plaintiff asserts that because the ordinance also implicates his Second Amendment right to bear arms, the ordinance must be subjected to strict scrutiny under the "hybrid-rights exception" to the Smith rule. (Pl.'s Resp. To Defs.' Mot. for Summ. J. at 4.)
After the Supreme Court's ruling in Smith, a "hybrid rights theory" developed positing an exception to the general rule of Smith in circumstances where a neutral, generally applicable law implicates other constitutional provisions in addition to the Free Exercise Clause. Proponents of the theory base the existence of the exception on the specific language from Smith wherein Justice Scalia discusses the intricate patchwork of previous Free Exercise Clause caselaw:
[T]he only decisions in which we have held that the First Amendment bars application of a neutral, generally applicable law to religiously motivated action have involved not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional protections, such as freedom of speech and of the press.Smith, 494 U.S. at 881 (citations omitted); see also Kissinger v. Bd. of Trs., 5 F.3d 177, 180 (6th Cir. 1993) (discussing hybrid rights theory). For several years since the Smith decision, a debate regarding the existence and application of a hybrid rights exception has been brewing in the circuit courts.
Some courts, including the Second, Sixth, and District of Columbia Circuits, reject that a hybrid rights exception can be inferred from the Smith decision, Leebaert v. Harrington, 332 F.3d 134, 144 (2d Cir. 2003); Prater v. City of Burnside, 289 F.3d 417, 430 (6th Cir. 2002); Henderson v. Kennedy, 253 F.3d 12, 19 (D.C. Cir. 2001); Kissinger, 5 F.3d at 180, and hold that the language in Smith was merely dicta. Leebaert, 332 F.3d at 144 ("Smith's language relating to hybrid claims is dicta and not binding on this court."). Writing in a concurring opinion in Lukumi, Justice Souter commented on the confusion surrounding the Smith decision and the tenable nature of an exception to its general rule:
Though Smith sought to distinguish the free-exercise cases in which the Court mandated exemptions from secular laws of general application, . . . The distinction Smith draws [between a pure free exercise case and a "hybrid" situation], strikes me as ultimately untenable. If a hybrid claim is simply one in which another constitutional right is implicated, then the hybrid exception would probably be so vast as to swallow the Smith rule, and, indeed, the hybrid exception would cover the situation exemplified by Smith, since free speech and associational rights are certainly implicated in the peyote ritual. But if a hybrid claim is one in which a litigant would actually obtain an exemption from a formally neutral, generally applicable law under another constitutional provision, then there would have been no reason . . . to have mentioned the Free Exercise Clause at all.Lukumi, 508 U.S. at 567 (Souter, J., concurring); see also Henderson, 253 F.3d at 19 ("For this [hybrid rights] argument to prevail, one would have to conclude that although the regulation does not violate the Free Exercise Clause . . . and although they have no viable First Amendment claim against the regulation . . . the combination of two untenable claims equals a tenable one."); Leebaert, 332 F.3d at 144 ("We too can think of no good reason for the standard of review to vary simply with the number of constitutional rights that the plaintiff asserts have been violated."); Knight v. Conn. Dep't of Pub. Health, 275 F.3d 156, 167 (2d Cir. 2001) (holding that "state action that regulates public conduct [that] infringes more than one of a [plaintiff's] constitutional rights does not warrant more heightened scrutiny than each claim would warrant when view separately"); Kissinger, 5 F.3d at 180 (holding that varying legal standard under Free Exercise Clause dependent upon "whether a free-exercise claim is coupled with other constitutional rights" is "completely illogical").
In contrast, the First, Seventh, Eighth, Ninth, and Tenth Circuits have held that Smith requires a higher level of scrutiny for a hybrid rights claim than for a free exercise claim standing alone. Civil Liberties for Urban Believers v. Chicago, 342 F.3d 752, 765 (7th Cir. 2003) (finding heightened level of scrutiny may be applied to neutral, generally applicable law that implicates other constitutional protections in addition to Free Exercise Clause); Miller v. Reed, 176 F.3d 1202, 1207-08 (9th Cir. 1999) ("Although the [Supreme] Court has been somewhat less than precise with regard to the nature of hybrid rights," Smith "excepts a hybrid-rights claim from its rational basis review") (internal quotations and citations omitted); Swanson v. Gutherie Ind. Sch. Dist. No. I-L, 135 F.3d 694, 700 (10th Cir. 1998) (recognizing hybrid rights exception); Brown v. Hot, Sexy Safer Prods. Inc., 68 F.3d 525, 539 (1st Cir. 1995) (same); Cornerstone Bible Church v. City of Hastings, 948 F.2d 464, 475 (8th Cir. 1991) (same). Even among these courts, however, debate remains regarding how the hybrid rights exception is triggered. Compare Axson-Flynn v. Johnson, 356 F.3d 1277, 1296-97 (10th Cir. 2004) (holding that hybrid rights claimant is required "to show that the companion constitutional claim is 'colorable'"); Miller, 176 F.3d at 1207-08 (same); with Brown, 68 F.3d at 539 (requiring free exercise challenge to be conjoined with independently protected constitutional protection in order to trigger hybrid rights exception); Cornerstone Bible Church, 948 F.2d at 475 (reversing and remanding to district court after "breath[ing] life back into the [plaintiff's] 'hybrid rights' claim'" without further discussion); Gary S. v. Manchester Sch. Dist., 241 F. Supp.2d 111, 121 (D.N.H. 2003) ("[T]he First Circuit [held] that the exception can be invoked only if the plaintiff has joined a free exercise challenge with another independently viable constitutional claim."). For example, the Ninth Circuit in Miller v. Reed, 176 F.3d 1202, 1207-08 (9th Cir. 1999) and the Tenth Circuit in Axson-Flynn v. Johnson, 356 F.3d 1277, 1297 (10th Cir. 2004), both held that in order to bring a hybrid rights claim, a "plaintiff must make out a 'colorable claim" that a companion right has been violated — that is, a 'fair probability' or 'likelihood,' but not certitude, of success on the merits." Miller, 176 F.3d at 1207-08 (internal citation and quotations omitted); see also Axson-Flynn, 356 F.3d at 1297 (holding same). These courts require an inquiry that "is very fact-driven and must be used to examine hybrid rights on a case-by-case basis." Axson-Flynn, 356 F.3d at 1297. Conversely, the First Circuit, in Brown v. Hot, Sexy, Safer Prods., Inc., held that a hybrid rights claim is not triggered unless a plaintiff joins a free exercise challenge with another independently viable constitutional claim. 68 F.3d 525, 539 (1st Cir. 1995); see also Gary S., 241 F. Supp.2d at 121 (discussing Brown).
While the Third Circuit has not squarely addressed whether there is a hybrid rights exception to the Smith rule, it has noted the possibility of such a claim. Salvation Army v. Dep't of Cmty. Affairs, 919 F.2d 183, 197 (3d Cir. 1990) (discussing possibility of Smith exception); see also Fraternal Order of Police Newark Lodge No. 12 v. City of Newark, 170 F.3d 359, 363 (3d Cir. 1995) (holding that plaintiffs were entitled to religious exemption on other grounds without "reach[ing] the plaintiffs' 'hybrid' free speech/free exercise argument"). Most recently, in Tenafly Eruv Ass'n, Inc. v. Borough of Tenafly, the Third Circuit briefly noted:
Strict scrutiny may also apply when a neutral, generally applicable law incidentally burdens rights protected by "the Free Exercise Clause in conjunction with other constitutional protections, such as freedom of speech and of the press, or the rights of parents . . . to direct the education of their children," . . . but the plaintiffs do not assert such a "hybrid rights" claim.309 F.3d 144, 165 n. 26 (3d Cir. 2002) (quoting Smith, 494 U.S. at 881).
Reading this language as indicative that the Third Circuit may allow a hybrid rights claim to go forward, the question then becomes under what circumstances does such a claim trigger strict scrutiny. Extrapolating from First, Ninth, and Tenth Circuit caselaw on point, a plaintiff asserting a hybrid rights claim must show either that an independent constitutional right has also been violated by the challenged law or, at a minimum, the plaintiff must make out a "colorable" claim that a companion right has been infringed in order to trigger heightened scrutiny under the hybrid rights analysis. In the present case, the plaintiff cannot show a fair probability or likelihood that his Second Amendment right would succeed on the merits. The Third Circuit "has on several occasions emphasized that the Second Amendment furnishes no absolute right to firearms." United States v. Rybar, 103 F.3d 273, 286 (3d Cir. 1996); see also United States v. Graves, 554 F.2d 65, 66 n. 2 (3d Cir. 1977) ("It must be remembered that the right to keep and bear arms is not a right given by the United States Constitution."); Eckert v. City of Philadelphia, 477 F.2d 610 (3d Cir. 1973) (citing United States v. Miller, 307 U.S. 174, 178-79 (1939)); Potts v. City of Philadelphia, 224 F. Supp.2d 919, 939 (E.D. Pa. 2002) (citing Miller)); accord United States v. Parker, 362 F.3d 1279, 1284 (10th Cir. 2004) ("[A]bsent a showing that a person is part of a well-regulated state-run militia, the Second Amendment does not establish a citizen's right to possess a firearm."); Silveira v. Lockyer, 312 F.3d 1052, 1087 (9th Cir. 2002) (rejecting argument that individuals have fundamental right to bear arms and holding that "the Second Amendment imposes no limitation on [a state's] ability to enact legislation regulating or prohibiting the possession or use of firearms"), cert. denied, 124 S.Ct. 803 (2003); United States v. Napier, 233 F.3d 394, 403 (6th Cir. 2000) ("It is well-established that the Second Amendment does not create an individual right."); Gillespie v. Indianapolis, 185 F.3d 693, 710 (7th Cir. 1999) ("The Second Amendment establishes no right to possess a firearm apart from the role possession of the gun might play in maintaining a state militia."); Love v. Pepersack, 47 F.3d 120, 124 (4th Cir. 1995) ("[L]ower federal courts have uniformly held that the Second Amendment preserves a collective, rather than individual, right."); United States v. Hale, 978 F.2d 1016, 1019 (8th Cir. 1992) (holding that Second Amendment does not protect individual possession of weapons); Thomas v. Members of City Council of the City of Portland, 730 F.2d 41 (1st Cir. 1984) (holding that Second Amendment applies only to weapons that have reasonable relationship to the preservation or efficiency of a well regulated militia, confers rights as against activity by federal government only, and grants right to the state, not the individual); United States v. Toner, 728 F.2d 115, 128 (2d Cir. 1984) (holding that right to possess gun is "clearly" not a fundamental right); United States v. Wright, 117 F.3d 1265, 1267 (11th Cir. 1997) (holding that Second Amendment was intended to protect only use or possession of weapons that is reasonably related to militia actively maintained and trained by the states); but cf. United States v. Emerson, 270 F.3d 203, 233, 261 (5th Cir. 2001), cert. denied, 536 U.S. 907 (2002). Absent a change in Third Circuit precedent or a ruling from the Supreme Court, Plaintiff cannot demonstrate a likelihood of success on his Second Amendment claim. Thus, because Plaintiff cannot show that a "colorable" claim of a companion right has been infringed, strict scrutiny is not triggered under the hybrid rights analysis, and the City must only show that the ordinance requiring photographic identification is rationally related to a legitimate governmental objective.
Plaintiff's "pure" Second Amendment claim must also fail for this reason. Furthermore, even assuming that the Third Circuit or the Supreme Court were to find that there is an individual fundamental right to bear arms under the Second Amendment, the City of Philadelphia would then have the opportunity to meet its burden of showing that the photographic identification requirement is narrowly tailored to further a compelling governmental interest.
The City contends that the requirement of photographic identification is rationally related to legitimate government objectives, namely prevention of counterfeiting or transferring licenses as well as safe, expedient law enforcement during pedestrian and automobile stops related to guns. The record in this case demonstrates that the City required photographs on the licenses after ascertaining that the photo-free permits were susceptible to transfer and falsification. The number of applicants and thus licenses also increased the need for the Police Department to be able to instantly and easily identify whether a person carrying a gun in the City of Philadelphia was properly licensed. Imbedding the photograph in the license achieved both prevention of falsification and quick, efficient identification of the licensee. Accordingly, the City clearly has a legitimate interest in controlling gun possession within the City by identifying licensees.
Plaintiff fails to demonstrate that the requirement is not rationally related to legitimate governmental objectives. At most, Plaintiff asserts that requiring DNA samples or fingerprints could also be effective means of achieving the City's goals. Mr. Richman testified, however, that not only is the technology to quickly identify a person by their fingerprints or DNA currently unavailable, but also police officers patrolling the streets would not have the means of identifying the alleged licensees by DNA or fingerprints at their immediate disposal. Therefore, Plaintiff has failed to meet his burden of demonstrating that the law does not bear a rational relationship to a legitimate governmental objective. Accordingly, summary judgment must be granted on the constitutional claims as the ordinance passes rational basis review.
C. Claims Under Pennsylvania Law
The remainder of Plaintiff's claims arise under state law. Plaintiff alleges violations of the Pennsylvania Constitution's right to bear arms and the Pennsylvania Religious Freedom Act. Additionally, Plaintiff brings a breach of contract claim under the settlement agreement that has been held in abeyance until disposition of the federal claims. Under 28 U.S.C. § 1367, a district court may decline supplemental jurisdiction in certain limited circumstances. 28 U.S.C. § 1367 (2004). These circumstances include: (1) where the claim "raises a novel or complex issue of State law;" (2) state law substantially predominates over the federal issue; (3) the district court has dismissed claims over which it had original jurisdiction; or (4) in exceptional circumstances, where there are other compelling reasons for declining jurisdiction. 28 U.S.C. § 1367(c)(l-4); see also Trump Hotels Casino Resorts, Inc. v. Mirage Resorts, Inc., 140 F.3d 478, 487 (3d Cir. 1998); Borough of West Mifflin v. Lancaster, 45 F.3d 780, 788 (3d Cir. 1995).
As summary judgment is granted on all federal claims, I decline to exercise jurisdiction over the remainder of Plaintiff's state law claims, including the breach of contract claim and the claims under the Pennsylvania Constitution and the Pennsylvania Religious Freedom Act. 28 U.S.C. § 1367(c)(3); see also Potts, 224 F. Supp.2d at 945. Therefore, I dismiss the remainder of Plaintiff's state law claims.
The Court also notes that Plaintiff's claim under the Pennsylvania Religious Freedom Act presents a novel issue of state law. In fact, the only case mentioning the Act comes out of the Western District of Pennsylvania in which Judge Schwab noted that the Act "has not been judicially interpreted and this Court is hesitant to sail the uncharted waters within its reach." Nichol v. ARIN Intermediate Unit, 268 F. Supp.2d 536, 561 n. 1 (W.D. Pa. 2003). I join his flotilla and decline to exercise jurisdiction over this claim for this reason as well.
IV. CONCLUSION
For the reasons stated above, summary judgment is granted on all of Plaintiff's federal claims and, accordingly, as I decline to exercise jurisdiction over the state law claims, I dismiss the remainder of Plaintiff's complaint without prejudice to refiling in state court. An appropriate Order follows.
ORDER
AND NOW, this 26th day of May, 2004, upon consideration of Defendants' Motion for Summary Judgment and all responses, replies and supplemental briefing thereto, it is hereby ORDERED that:1. Defendants' Motion for Summary Judgment (Document No. 16) is GRANTED.
a. Judgment on Plaintiff's federal claims is entered for Defendants and against Plaintiff.
b. Plaintiff's state law claims are DISMISSED without prejudice.
2. The Clerk of Court is directed to close this case for statistical purposes.