Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-9-2006

Rodgers v. Johnson
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-4390




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Recommended Citation
"Rodgers v. Johnson" (2006). 2006 Decisions. Paper 1466.
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NOT PRECEDENTIAL

                  IN THE UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                         Case Nos: 04-4390, 05-2396, 05-3563

                    PATRICK RODGERS, ON HIS OWN BEHALF
                    AND ALL OTHER PERSONS SO SITUATED,

                                                    Appellant

                                               v.

            SYLVESTER JOHNSON, COMMISSIONER OF POLICE FOR
           THE CITY OF PHILADELPHIA; CITY OF PHILADELPHIA, PA



                    On Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                              District Court No.: 04-CV-4963
                   District Judge: The Honorable Lawrence F. Stengel


                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                  January 26, 2006

                    Before: RENDELL and SMITH, Circuit Judges,
                             and IRENAS, District Judge*

                                 (Filed: March 9, 2006)


                                       OPINION


SMITH, Circuit Judge.



  *
  The Honorable Joseph E. Irenas, Senior District Judge for the United States District
Court for the District of New Jersey, sitting by designation.
       On October 22, 2004, Patrick Rodgers filed a civil rights action against Sylvester

Johnson, the Philadelphia Commissioner of Police, and the City of Philadelphia. Rodgers

alleged that, contrary to the requirements of Pennsylvania’s Uniform Firearms Act of

1995, the City failed to provide him an application for renewal of his gun license sixty

days before his license expired. See 18 Pa.C.S.A. § 6109(f)(2). Nonetheless, Rodgers

attempted to renew his license to carry a firearm. He was informed by the employees of

the City’s police department, however, that he would have to submit to fingerprinting.

Rodgers refused to do so. He filed this civil rights action, averring that his rights under

the Fourth Amendment and Equal Protection Clause were being violated because the

fingerprinting requirement, which was not contained in Pennsylvania’s Uniform Firearms

Act of 1995, was not imposed by any of the other counties in the Commonwealth of

Pennsylvania.1

       Rodgers’s complaint was filed together with a motion for a preliminary injunction.

The District Court denied the motion after conducting a hearing. Rodgers appealed that



  1
    Rodgers also alleged that the City violated his constitutional rights by failing to
comply with the requirement of the Pennsylvania’s Uniform Firearms Act that it provide
advance notice of the need to renew an expiring firearm license. The District Court
dismissed this claim in an order dated June 23, 2005. Although Rodgers filed an appeal
of that order, No. 05-3563, he did not brief the viability of this claim alleging a violation
of the state statute. For that reason, we conclude that Rodgers has abandoned the issue
and we will dismiss appeal number 05-3563. See Laborers’ Int’l Union v. Foster
Wheeler Corp., 

, 398 (3d Cir. 1994) (“An issue is waived unless a party raises
it in its opening brief, and for those purposes a passing reference to an issue . . . will not
suffice to bring that issue before this court”); Kost v. Kozakiewicz, 

, 182 (3d
Cir. 1993).
                                              2
order. Thereafter, the parties filed cross-motions for judgment on the pleadings pursuant

to Federal Rule of Civil Procedure 12(c). The District Court granted the motion for

judgment on the pleadings filed by Commissioner Johnson and the City. Rodgers

appealed, and this latter appeal was consolidated with his earlier appeal of the denial of

his preliminary injunction.

       The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331and 1343. We

exercise appellate jurisdiction under 28 U.S.C. § 1291. Our review of a grant of a motion

for judgment on the pleadings is plenary. Wolf v. Ashcroft, 

, 307 (3d Cir.

2002). We must “view the facts in the complaint and any reasonable inference that can

be drawn from them in favor of the non-moving party,” affirming the dismissal only if no

relief could be granted under any set of facts that could be proved. 

with the District Court’s analysis that Rodgers’s equal protection claim

fails because the fingerprinting requirement applies to any person applying for a gun

permit in the City of Philadelphia. In other words, Rodgers has not asserted that he is

being treated differently than other similarly situated persons who are applying for gun

permits in the City of Philadelphia. See City of Cleburne, Texas v. Cleburne Living

Center, 

, 439 (1985); Congregation Kol Ami v. Abington Township, 

, 136-37 (3d Cir. 2002) (instructing that equal protection analysis requires establishing

that plaintiff is similarly situated to other persons, and that there was no rational reason

for the differential treatment of similarly situated persons). As the District Court pointed

out, the fact that the other sixty-six counties in Pennsylvania do not impose the

                                              3
fingerprinting requirement does not make his claim viable because the “Equal Protection

Clause relates to equality between persons as such, rather than between areas . . . .”

McGowan v. State of Maryland, 

, 427 (1961).2

       Rodgers’s Fourth Amendment claim fares no better. In United States v. Dionisio,

(1973), the Supreme Court considered whether a subpoena to appear before a

grand jury to provide a voice exemplar violated the Fourth Amendment. 

The

Court instructed that the inquiry was twofold. First, a court must determine if there was a

seizure of the person. If so, the next inquiry was whether there was a search for and

seizure of evidence. 

Court concluded that the subpoena to appear

before a grand jury did not constitute a seizure of the person even though it may have

been “inconvenient or burdensome.” 

With respect to the voice exemplar, the

Supreme Court compared it to fingerprinting, which “itself ‘involves none of the probing

into an individual’s private life and thoughts that marks an interrogation or search.’”

(quoting Davis v. Mississippi, 

, 727 (1969)). Thus,

the voice exemplar was not a search or seizure of evidence for Fourth Amendment

purposes. We find Dionisio instructive, and conclude that the request of civil authorities

for fingerprinting as a condition of obtaining a firearm license constitutes neither a

seizure of the person nor a search for evidence under the Fourth Amendment. See


  2
   We are by no means declaring as a general rule that so long as all residents of a county
are treated similarly when a uniform state law is applied to them in a unique manner,
there is no Equal Protection violation when that same law is administered differently
elsewhere in the state.
                                              4
Dionisio, 

, 8-15 (1973); Trade Waste Mgmt. Ass’n, Inc. v. Hughey, 

, 234 (1985) (rejecting argument that fingerprinting requirement to obtain hazardous

waste license violated the Fourth Amendment).

      Because a preliminary injunction requires a demonstration that the movant has a

likelihood of success on the merits, see Adams v. Freedom Forge Corp., 

,

484 (3d Cir. 2000), and because we have concluded that Rodgers’s pleadings failed to

state a violation of either the Fourth Amendment or the Equal Protection Clause, the

appeal of the preliminary injunction, by definition, becomes moot.

      Accordingly, we will affirm the District Court’s judgment in favor of

Commissioner Johnson and the City of Philadelphia.