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May 26, 2004.

CITY OF PHILADELPHIA, et al., Defendants

The opinion of the court was delivered by: BERLE M. SCHILLER, District Judge


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.


  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").*fn1 Presently before the Court is Defendants' motion for summary judgment. For the reasons set forth below, I grant Defendants' motion. 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.)


  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 ...

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