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The city of Philadelphia has the right to require a photograph on licenses to carry a gun, a federal judge has ruled, rejecting a challenge brought by a lifelong member of the Church of the Living God the Pillar and Ground of the Truth who claimed the ordinance violated his First and Second Amendment rights. In Green v. City of Philadelphia, plaintiff Gregory Green claimed that members of his church “consider the biblical prohibition against graven images to be one of the Ten Commandments” and that they are therefore “bound to refrain from any method of self-likeness, including photographs.” His lawyer, Paul J. Bartolomeo Jr., argued that church members “make no exceptions” to the rule, “not for weddings, driver’s licenses or identification cards.” But U.S. District Judge Berle M. Schiller of the Eastern District of Pennsylvania concluded that the ordinance easily survived a challenge under the rational basis test since requiring photos on gun permits was designed to prevent “counterfeiting or transferring licenses as well as safe, expedient law enforcement during pedestrian and automobile stops related to guns.” The decision is a victory for Deputy City Solicitor Lynne A. Sitarski who argued that requiring photos promoted “numerous governmental interests, including … instant and definitive identification of the permittee, which will enable police officers to instantly ascertain whether the person proffering a permit is in fact the permittee; [and] elimination of a ‘black market’ in the … photo-free permits.” Analyzing Green’s constitutional claims, Schiller refused to submit the law to a strict scrutiny test, saying Green’s free-exercise-of-religion claim was governed by the U.S. Supreme Court’s 1990 decision in Oregon v. Smith. In Smith, the justices rejected a claim that members of the Native American Religion should be exempted from state laws prohibiting ingestion of peyote since use of the drug was a tenet of their religion. The Smith Court held that an individual’s religious beliefs cannot “excuse him from compliance with an otherwise valid law prohibiting conduct that a state is free to regulate.” Bartolomeo conceded that Smith applied, but he argued that since the Philadelphia ordinance also implicated Green’s Second Amendment right to bear arms, the ordinance must be subjected to strict scrutiny under the “hybrid-rights exception” to the Smith rule. On that point, Schiller found that the federal circuits are sharply divided on the issue of whether such a “hybrid-rights exception” even exists. Although the 3rd Circuit has never squarely addressed the issue, Schiller found hints in dicta from recent cases that suggested it may one day recognize such an exception. But even assuming that the exception is valid, Schiller found that Green’s claim would nonetheless fail because “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.” Green can’t meet that test, Schiller said, since he “cannot show a fair probability or likelihood that his Second Amendment right would succeed on the merits.” The 3rd Circuit, Schiller noted, “has on several occasions emphasized that the Second Amendment furnishes no absolute right to firearms.” In the open paragraphs of his 18-page opinion, Schiller outlined the framework of state and local gun laws, and the history that led to Philadelphia’s decision to require photos on all gun permits. The Pennsylvania Uniform Firearms Act empowers local sheriffs and city police commissioners to issue licenses to carry a firearm throughout the Commonwealth of Pennsylvania. The statute specifically vests discretion with the sheriff or police commissioner to require the inclusion of a photograph of the licensee on the license. Before October 1995, Pennsylvania law also allowed cities the discretion to require an applicant for a gun permit to demonstrate a showing of “need.” But the Pennsylvania Legislature changed the law to take away that discretion, effectively making it much easier for city residents to obtain permits. Schiller noted that, following the 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 more than 38,000. At the time of the change in law, Philadelphia’s licenses did not include photographs, Schiller noted, but city officials soon grew concerned that the typed licenses were “extremely susceptible to counterfeiting” or transfer from person to person. “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,” Schiller wrote. In response, Schiller said, the city changed the form of the license in 2001 and implemented a plan to require all licensees to submit to a photograph. “Inclusion of the imbedded photograph on the license made the license more difficult to falsify, alter or transfer,” Schiller found. Since the ordinance was passed, Schiller said, the city “has not granted any exemptions.” Bartolomeo argued that the city could accomplish its goals by other means that would not violate Green’s religious belief against allowing photographs of himself. “While there undoubtedly exists a compelling interest to secure proper and reliable identification from gun permit applicants, we dispute that it must be by photograph. There exist in today’s world numerous other methods of identification, many more accurate than photographs,” Bartolomeo wrote. Green’s religious beliefs could be accommodated, he argued, by requiring DNA or fingerprinting. “Each of these alternative means of identification, even if more intrusive, would be less restrictive of the plaintiff’s religious exercise than photographs,” Bartolomeo wrote. But Schiller said the city had proven that the alternatives simply weren’t feasible. Schiller noted that Bradford A. Richman, a special assistant to the police commissioner, testified that alternatives such as fingerprinting and DNA analysis don’t work as methods of policing gun permits because neither are readily available to patrolling police officers. Richman testified that the Philadelphia Police Department does not have the technology to quickly identify a person by his fingerprints. Therefore, a person presenting a license would have to be transported and fingerprinted in order to conduct a fingerprint analysis, Schiller noted. As a result, Schiller concluded that the city was entitled to summary judgment. “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,” Schiller wrote. “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,” Schiller wrote.

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