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1st Amendment Trumps 2nd: Court Says Doctors Have Right To Ask About Guns at Home

| February 17, 2017

guns glocks first amendment

A First Amendment zone after all. (© FlaglerLive)

Siding with a coalition of individual doctors and medical groups, a federal appeals court ruled Thursday that major portions of a controversial Florida law restricting physicians and other health-care providers from asking patients about guns is unconstitutional.

The statute, dubbed the “docs vs. glocks” law, included a series of restrictions on doctors and health providers. For example, it sought to prevent physicians from entering information about gun ownership into medical records if the physicians know the information is not “relevant” to patients’ medical care or safety or to the safety of other people.

Also, the 2011 law said doctors should refrain from asking about gun ownership by patients or family members unless the doctors believe in “good faith” that the information is relevant to medical care or safety. And the law sought to prevent doctors from discriminating against patients or “harassing” them because of owning firearms.

The plaintiffs in the case, including individual doctors, argued that the restrictions were a violation of their First Amendment rights. A federal district judge agreed with them and blocked the law from going into effect. A three-judge panel of the 11th U.S. Circuit Court of Appeals upheld the constitutionality of the law in three separate rulings, but the ban keeping the law from going into effect remained in place.

Thursday’s 90-page decision — comprised of two majority opinions authored by different judges, as well as a dissent — came from the full appellate court after the plaintiffs requested what is known as an “en banc” review.

The court found that the record-keeping, inquiry and anti-harassment provisions of the law are unconstitutional, but upheld the portion of the law that bars doctors from discriminating against patients who have guns.

“Florida may generally believe that doctors and medical professionals should not ask about, nor express views hostile to, firearm ownership, but it ‘may not burden the speech of others in order to tilt public debate in a preferred direction,’ ” Judge Adalberto Jordan wrote in one of the majority opinions.

Lawyers for the state argued that the law did not violate the First Amendment.

“Despite its majestic brevity—or maybe because of it—the freedom of speech clause of the First Amendment sometimes proves difficult to apply.”

“The act’s goals are not only substantiated; they are compelling,” the state argued in one brief. “The act shields patients who own firearms from purposely irrelevant record-keeping, questioning, discrimination, and harassment, and thereby furthers the state’s compelling interest in protecting citizens’ fundamental right to keep and bear arms for defense of self and state.”

But Jordan noted that lawmakers relied on six anecdotes as the basis for the “Firearms Owners’ Privacy Act,” or FOPA, and that the court’s analysis focused on the First Amendment, not gun rights.

“The first problem is that there was no evidence whatsoever before the Florida Legislature that any doctors or medical professionals have taken away patients’ firearms or otherwise infringed on patients’ Second Amendment rights. This evidentiary void is not surprising because doctors and medical professionals, as private actors, do not have any authority (legal or otherwise) to restrict the ownership or possession of firearms by patients (or by anyone else for that matter),” Jordan wrote.

The court also rejected the state’s argument that the restrictions in the law were minor.

“Saying that restrictions on writing and speaking are merely incidental to speech is like saying that limitations on walking and running are merely incidental to ambulation,” Jordan wrote.

And Jordan pointed out that patients are free to refuse to answer questions about guns or firearms if they want to.

“There is nothing in the record suggesting that patients who are bothered or offended by such questions are psychologically unable to choose another medical provider, just as they are permitted to do if their doctor asks too many questions about private matters like sexual activity, alcohol consumption, or drug use,” he wrote.

The “anti-harassment” provision in the law “forces doctors to choose between adequately performing their professional obligation to counsel patients on health and safety on the one hand and the threat of serious civil sanctions on the other,” Judge Stanley Marcus wrote in the other majority opinion.

But in a dissent, Judge Gerald Tjoflat argued that the state law was narrowly drawn and is an “attempt to regulate a very specific part of the relationship” between a health care provider and a patient.

“It does not prevent medical professionals from speaking publicly about firearms, nor does it prevent medical professionals from speaking privately to patients about firearms so long as the physician determined in good faith the relevancy of such discussion to the patient’s medical care, safety, or the safety of others,” he wrote. “The act does not categorically restrict the speech of medical professionals on the subject of firearms. Instead, it simply requires an individualized, good faith judgment of the necessity of speech related to firearm ownership to provide competent medical care to a patient.”

Gov. Rick Scott’s office is reviewing the decision, an aide said Thursday evening.

House Minority Leader Janet Cruz hailed the ruling.

“From the beginning, this was nothing more than a solution in search of a problem. Unfortunately, that’s an all-too-common occurrence among Republicans in Tallahassee who write legislation that’s intended to appeal to their base rather than the best interests of all Floridians,” Cruz, D-Tampa, said in a statement.

–Dara Kam, News Service of Florida

Wollschlaeger v. Scott (2017)

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13 Responses for “1st Amendment Trumps 2nd: Court Says Doctors Have Right To Ask About Guns at Home”

  1. Freddy says:

    People waste so much time and money on issues like this So everyone with a gun says no to the question and the problem is solved. There are so many problems in this state and this country that we spend more time on than real important issues.

  2. Just sayin' says:

    Let the heated comments commence…

  3. A.S.F. says:

    Thank God! I used to work in an ER. It’s an important question to ask.

  4. MannyHM says:

    Some gun owners are made to feel that having guns in the house is a wrong idea. The physician can just state that guns, fireworks, power tools, electrical wires all have inherent dangers. There is no need to ask questions specific just for guns.

  5. RickG says:

    Its always good to hear that the courts every once in a while injects some pragmatism into this crazy gun discussion. Th paranoid gun dolts think that every time someone asks them about what you do with your weapons at home and if you securely keep them there that Obama is coming for their guns. He’s not there anymore so that false flag is gone.

  6. Steve Robinson says:

    A brief glimpse of sanity

  7. Veteran says:

    Just another attempt by the left to get rid of guns.

  8. Richard Smith says:

    If I ever get asked that question my answer will be exactly the same as every thug, felon and criminal who have guns illegally in this country. What’s the difference?

    As one previous poster has stated you people need to focus more on the really serious problems versus the ones you have no control over.

    Next thing you know every person coming to a medical facility for care will have to take a lie-detector test.

    Get a life!

  9. Gunny says:

    Doctors sometimes forget the power of the purse…Its none of their business if I own weapons.. They too can be fired!

  10. Mark101 says:

    Most of the doctors and surgeons I know also own guns,

  11. Layla says:

    When did we allow the Nanny State to rule over every facet of our lives? If you consider this to be progress, you have no idea what that is and it has never been more apparent.

  12. Dutch says:

    Doctor can ask, and I can tell him or her it’s none of their business. And I have!

  13. I/M/O says:

    Doctors to give patients lectures about Gun Safety?

    What qualifies them to do so?

    Did they take a Firearms Instructor Course and get the proper licensing?

    Firearms Instruction is considered a High Liability Topic under the guidelines of he Florida Department of Law Enforcement.

    For High Liability Topics, individuals must:
    Possess or be eligible for and apply for General Instructor Certification.
    Complete three years experience as a certified criminal justice officer or three years experience in the topic of instruction.

    “Class “K” Firearms Instructor License Proof of Training Required
    In addition to the application, photograph, requisite fees and a full set of fingerprints, an applicant for Class “K” license must also submit one of the following:
    The Florida Criminal Justice Standards and Training Commission Instructor Certificate and written confirmation by the commission that the applicant possesses an active firearms certification.
    The National Rifle Association Private Security Firearm Instructor Certificate (see course schedule).
    A firearms instructor certificate issued by a federal law enforcement agency.
    Proof of having passed an examination administered by the department which is based upon, but not necessarily limited to, a firearms instruction manual provided by the department.”

    However since this is what the Court wants I think every patient should receive the lecture on gun safety. Just in case they find a gun on the street or one of their children find one and bring one home to them.

    Also of course every Doctor must be held Civilly Liable if they give a patient the wrong information as to gun safety and something then goes wrong. So if your Doctor insists you keep your gun(s) unloaded and locked in a safe and you get assaulted, raped in your home hire a good Attoney and SUE YOUR DOCTOR FOR EVERYTHING HE/SHE OWNS.

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