No decision in round two of ‘Docs vs. Glocks’ in Miami federal appeals court

 

jweaver@MiamiHerald.com

Lawyers representing Florida doctors sparred with state government attorneys Thursday in Miami federal appeals court over whether physicians have the legal right to ask their patients about gun ownership during medical consultations.

Lawyers for the doctors, who won the first round in U.S. District Court last year, seemed to have the support of at least one member of the three-judge appellate panel, Charles Wilson. He agreed that the First Amendment right to free speech protects physicians’ inquiries about firearms in patients’ homes.

But the two other judges, Gerald Tjoflat and Scott Coogler, raised critical questions about the physicians’ lawsuit challenging a Florida law limiting what doctors can ask their patients about guns. At issue: the Second Amendment right to bear arms.

Tjoflat, a longtime member of the 11th U.S. Circuit Court of Appeals, wondered aloud whether doctors who gather such firearms information would turn over their patient records to the feds and become “agents of the government.”

A group of physicians after the hearing scoffed at Tjoflat’s characterization, saying that all medical information about their patients is kept private by law.

“Our only agenda is their well-being,” said pediatrician Judith Schaechter of the University of Miami School of Medicine and Jackson Memorial Hospital.

The legal showdown has been dubbed “Docs vs. Glocks.” Now, with round two over, the panel will decide whether the state law is constitutional, a process that typically takes months.

A year ago, a federal judge blocked the state of Florida from enforcing the new law pushed by firearm advocates. U.S. District Judge Marcia Cooke imposed the injunction, concluding the law was so “vague” that it violated doctors’ First Amendment rights. She further noted the legislation’s privacy provisions “fail to provide any standards for practitioners to follow.”

The state Department of Health appealed her summary judgment, which addressed legislation signed into law in 2011 by Gov. Rick Scott.

The Florida law, known as the Firearm Owners’ Privacy Act, would subject health care providers to possible sanctions, including fines and loss of license, if they discuss or record information in a patient’s chart about firearms safety that a medical board later determined was not “relevant” or was “unnecessarily harassing.” The law, however, did not define these terms.

Allen Winsor, a lawyer with the state attorney general’s office, argued Thursday that Judge Cooke misconstrued the law when she concluded that it gags doctors from asking patients about firearms. Winsor pointed out the law says doctors “should refrain,” not “shall refrain” or “must refrain.”

“It’s not mandating anything,” Winsor said.

But Wilson, the appellate judge, challenged the law’s threatened sanctions such as a $10,000 fine and/or loss of license if violated by a physician.

“So, the purpose of the statute is the state Legislature is saying, ‘We don’t like the viewpoint of doctors when it comes to guns,’ ” Wilson said. “That’s a classic content-based restriction on speech.”

Winsor, the state solicitor general, countered: “It’s not a restriction on speech.”

A lawyer for the doctors’ groups that filed suit, however, said certain state legislators considered the practice of physicians asking about firearms safety as a “political attack on gun rights” and fired back with an unconstitutional law.

“The injury of this statute is the chill on doctors’ speech,” argued Doug Hallward-Driemeier, with the law firm Ropes & Gray. “The state cannot stop speech that it considers to be a political attack.”

During another exchange, Coogler, a federal judge from Alabama sitting as a visitor on the panel, questioned whether the physicians’ suit was premature because no Florida doctor has yet been punished under the law. The law has not been in effect since Judge Cooke issued her injunction last summer.

In her 25-page ruling, Judge Cooke clearly sided with the physicians, saying evidence showed that physicians began “self-censoring” because of the “chilling” effect of the legislation.

“What is curious about this law — and what makes it different from so many other laws involving practitioners’ speech — is that it aims to restrict a practitioner’s ability to provide truthful, non-misleading information to a patient, whether relevant or not at the time of the consult with the patient,” Cooke wrote, citing the benefit of such “preventive medicine.”

“The state asserts that it has an interest in protecting the exercise of the fundamental right to keep and bear arms,” Cooke wrote in another section about the Second Amendment issue. “I do not disagree that the government has such an interest in protecting its citizens’ fundamental rights. The Firearm Owners’ Privacy Act, however, simply does not interfere with the right to keep and bear arms.”

The Republican-controlled state Legislature adopted the Firearm Owners’ Privacy Act in 2011 after an Ocala couple complained that a doctor asked them about guns and they refused to answer. The physician refused to see them anymore.

Cooke said the legislation was based on anecdotal information and unfounded conjecture. Her decision was praised by the plaintiffs, which included the Florida Pediatric Society and Florida Academy of Family Physicians. They argued that the law was pushed by the National Rifle Association.

The legislation, indeed, was backed by the NRA, which tried to intervene in the doctors’ lawsuit. But Cooke denied the powerful lobbying group’s request, saying the state could adequately defend itself.

Lawyers for the Washington-based Brady Center to Prevent Gun Violence are also involved in the case, representing the doctors’ side.

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