DLD-097                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 15-1438
                                       ___________

                                   RODNEY L. BURR,
                                               Appellant
                                         v.

           ATTORNEY GENERAL DELAWARE; TRINIDAD NAVARRO,
               in his official capacity as New Castle County Sheriff
                   ____________________________________

                     On Appeal from the United States District Court
                               for the District of Delaware
                             (D.C. Civil No. 1-13-cv-00810)
                      District Judge: Honorable Gregory M. Sleet
                      ____________________________________

                 Submitted Pursuant to Third Circuit LAR 34.1(a)
                               December 30, 2015
      Before: CHAGARES, GREENAWAY, JR. and SLOVITER, Circuit Judges

                                 (Filed: February 5, 2016)
                                         _________

                                        OPINION*
                                        _________

PER CURIAM

       Pro se appellant Rodney L. Burr appeals the District Court’s order dismissing his

complaint for a failure to state a claim upon which relief could be granted. Appellee


*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Attorney General of Delaware has moved for summary affirmance, arguing that the

appeal presents no substantial question. We agree and will grant the Attorney General’s

motion. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.

                                              I.

       Burr would like to drive in Delaware without wearing a seatbelt. As a result of

that desire, he filed a complaint in the District Court alleging that Delaware’s seatbelt law

is unconstitutional.1 Burr cited the Fourth, Fifth, Ninth, and Fourteenth Amendments to

the United States Constitution in his complaint and briefing, but primarily relied on an

argument that the United States Supreme Court’s overruling of Bowers v. Hardwick, 478

U.S. 186 (1986), in Lawrence v. Texas, 539 U.S. 558 (2003), required that the District

Court apply a strict scrutiny standard of review to Delaware’s seatbelt law because the

right not to wear a seatbelt is a fundamental right.

       The Attorney General moved to dismiss the complaint for a failure to state a claim

upon which relief could be granted, arguing, among other things, that rational basis

review should apply to the seatbelt law and that the law is clearly directed at satisfying

multiple legitimate government interests. The District Court granted the Attorney

General’s motion to dismiss and denied Burr’s subsequent motion for reconsideration.2


       1
         Burr has previously been ticketed for the failure to comply with this law, and
asserts that he must continue driving in Delaware for his commuting and shopping needs.
       2
        The District Court had also dismissed the other defendant, the Sheriff of New
Castle County, as an improper party. Burr did not object to that dismissal.

                                              2
       This appeal followed.

                                              II.

       There is no substantial question that the District Court was correct to dismiss

Burr’s complaint and deny his motion for reconsideration.

       Burr’s complaint was subject to dismissal “if the pleading [did] not plausibly

suggest an entitlement to relief,” and our review of that question is plenary. Huertas v.

Galaxy Asset Mgmt., 641 F.3d 28, 32 (3d Cir. 2011) (per curiam). We will summarily

affirm the District Court’s order if there is no substantial question presented in the appeal.

See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.

       Burr concedes that his complaint fails to state a claim if the rational basis test

applies. Thus, his appeal turns on the argument that the District Court should have

instead applied strict scrutiny to Delaware’s seatbelt law. As Burr frames it, the key

point from Lawrence is not that the case actually applied strict scrutiny to an asserted

fundamental right to intimate sexual relations. That is important to Burr’s argument

because the Attorney General argued that Lawrence instead applied the rational basis test.

Rather, Burr argues that the need to now apply strict scrutiny to a seatbelt law rests solely

on Lawrence’s overruling of Bowers, which Burr describes as having held that the right

to privacy extends only to “activities to include only child rearing and education, family

relationships, procreation, marriage, contraception, and abortion.” Complaint ¶ 12, D. Ct.

Doc. No. 2 (citing Bowers, 478 U.S. at 190). According to Burr’s logic, after Lawrence,

constitutional doctrine was restored to a pre-Bowers state where fundamental liberty is
                                              3
viewed broadly and extends to “virtually any physical activity which does not improperly

infringe upon the rights of others.” Motion for Reconsideration ¶ 5, D. Ct. Doc. No. 19.

Burr characterizes the alleged right not to wear a seatbelt as just that kind of activity

protected as a fundamental liberty.

       Burr’s logic fails. Courts have repeatedly rebuffed challenges to safety laws like

Delaware’s seatbelt law, both before and after Bowers. See, e.g., Picou v. Gillum, 874

F.2d 1519, 1522 (11th Cir. 1989) (“Although a narrow range of privacy rights are

shielded from the political process by the Constitution, the desirability of laws such as the

Florida helmet requirement is a matter for citizens and their elected representatives to

decide. . . . We think the district court was correct to conclude that appellant has shown

no reason in history, in policy, or in logic why a constitutional right should extend to his

decision to forego a motorcycle helmet.”); Pac. Legal Found. v. Dep’t of Transp., 593

F.2d 1338, 1347 n.72 (D.C. Cir. 1979) (“Petitioners also assert that the passive restraint

rule violates the individual’s right to privacy. We find no basis for this contention.

Passive restraints protect not only the owner or driver of the car, but also any passengers,

and thus involve more than a purely individual concern. Also, by their very nature

passive restraints involve no intrusion on an intimate area of activity, as in cases

concerning the family or procreation decisions where courts have defended privacy

interests.”). The United States Supreme Court itself rejected a due process attack on a

similar traffic-safety law during the pre-Bowers period, albeit by summary affirmance of

a lower court decision. See Simon v. Sargent, 409 U.S. 1020 (1972), aff’g 346 F. Supp.
                                              4
277, 279 (D. Mass.) (concluding there was no constitutional right not to wear a

motorcycle helmet).

       Moreover, in Obergefell v. Hodges, 576 U.S. ___, 135 S. Ct. 2584 (2015), the

United States Supreme Court has recently commented further on the judicial process for

identifying fundamental liberties. That commentary forecloses Burr’s argument here,

which depends on the idea that fundamental liberty interests extend presumptively to

nearly any activity, leaving only a narrow domain in which the government may regulate

without triggering strict scrutiny. Appellant’s Informal Brief at ¶¶ 28, 57, 80, 97-98. In

Obergefell, the Supreme Court was more circumspect, stating that fundamental liberties

“extend to certain personal choices central to individual dignity and autonomy, including

intimate choices that define personal identity and beliefs.” Obergefell, 135 S. Ct. at

2597. Thus, it remains the case that the courts must carefully consider whether any

particular activity is protected by fundamental liberty interests. The Obergefell decision

confirms that Lawrence’s overruling of Bowers did not eliminate the need for that careful

process.

       In Obergefell, the Supreme Court concluded that the right to marry was

fundamental due to certain of its essential attributes, none of which applies to seatbelt

laws. See id. at 2597-602. And unlike the laws at issue in Obergefell, Delaware’s

seatbelt law does not treat a group of persons unequally in ways that disrespect and

subordinate that group. See id. at 2602-05. Also, the right to marry implicated “only the

rights of two consenting adults whose marriages would pose no risk of harm to
                                              5
themselves or third parties”—in contrast to seatbelt laws, which reduce the risk of harm

to a person who otherwise would not wear a seatbelt while driving. See id. at 2607. In

light of these distinctions, whatever the scope is of the fundamental liberty interest after

Obergefell, we are confident that the asserted right not to wear a seatbelt does not fall

within it.

       No fundamental liberty interest has been recognized to encompass the decision to

forgo wearing a seatbelt, and nothing in Lawrence, Obergefell, or any other precedent

requires us to recognize such a right. The District Court was correct to uphold

Delaware’s seatbelt law after applying the rational basis standard. Accordingly, we will

grant the Attorney General’s motion to summarily affirm the District Court’s orders

dismissing Burr’s complaint and denying Burr’s motion to reconsider that dismissal.




                                              6
