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

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.

“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)

Click to access docs-v-glocks-decision-first-amendment.pdf