South Florida

Stage set for major appeal in Florida’s ‘Docs vs. Glocks’ case

The 9mm Glock, held here by a federal agent after a gun seizure, is a popular handgun. A politically contentious legal fight, dubbed Docs vs. Glocks, over a Florida law that restricts doctors from discussing gun ownership with patients will be taken up by an entire federal appeals court after it threw out a prior decision upholding the statute as constitutional.
The 9mm Glock, held here by a federal agent after a gun seizure, is a popular handgun. A politically contentious legal fight, dubbed Docs vs. Glocks, over a Florida law that restricts doctors from discussing gun ownership with patients will be taken up by an entire federal appeals court after it threw out a prior decision upholding the statute as constitutional. Miami Herald

A politically contentious legal fight over a Florida law that restricts doctors from discussing gun ownership with patients will be taken up by an entire federal appeals court after it threw out a prior decision upholding the statute as constitutional.

The case, dubbed Docs vs. Glocks, will likely be heard this year by the 11th Circuit Court of Appeals in Atlanta. On Wednesday, the 11-member court vacated last year’s ruling by a smaller appellate panel that backed the law adopted by the Republican-controlled Florida Legislature and signed by Gov. Rick Scott.

The full court’s brief decision, issued on one page after taking a poll of its members, means the state law is in limbo and cannot be enforced.

The legal dispute between groups of Florida doctors and the Scott administration — with the National Rifle Association playing a supporting role — has raged for the past five years. In 2012, a Miami federal judge blocked the state from enforcing the law, concluding that it violated the free speech rights of doctors under the First Amendment and that it did not interfere with the right to bear arms under the Second Amendment. But last year, a three-judge panel of the Atlanta appeals court — in a 2-1 decision — overturned that ruling.

Now, the stage is set to resolve the ideological battle, unless the U.S. Supreme Court eventually intervenes.

“Finally, a federal [appeals] court will have an opportunity to end the nonsense that doctors talking about gun safety somehow threatens the right to own a gun,” said Howard Simon, executive director of the ACLU in Florida, which joined various physicians who filed suit challenging the constitutionality of the state law. The ACLU organized a coalition, including the Broward County Pediatric Society and Florida Public Health Association, to file amicus briefs supporting the doctors.

The 2011 law includes a series of restrictions on doctors and other healthcare providers, requiring them to refrain from asking about gun ownership by patients or family members unless the physicians believe in “good faith” that the information is “relevant” to medical care or safety. The law also seeks to prevent doctors from discriminating against patients or “harassing” them because of owning firearms.

Four years ago, U.S. District Judge Marcia Cooke ruled in favor of groups of physicians, finding that the law was so “vague” that it violated the constitutional rights of doctors, especially because the legislation’s privacy provisions “fail to provide any standards for practitioners to follow.”

In her 25-page order imposing an injunction, Cooke said evidence showed that the Florida law had a “chilling” effect on physicians who began “self-censoring” in their discussions of gun ownership with patients because of fears about possible state sanctions.

“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.”

Her decision was appealed by the Scott administration, leading to contrary rulings in 2014 and last year by the three-judge panel in Atlanta.

In July, the panel sided with the state’s position on the law, concluding that it was constitutional in a 2-1 vote.

“The purpose of the act, as we read it, is not to protect patient privacy by shielding patients from any and all discussion about firearms with their physicians; the act merely requires physicians to refrain from broaching a concededly sensitive topic when they lack any good-faith belief that such information is relevant to the medical care or safety of their patients or others,” said the majority opinion, written by Judge Gerald Tjoflat and joined by Judge L. Scott Coogler.

But Judge Charles Wilson wrote a lengthy dissent arguing that the law violates the First Amendment rights of physicians.

“Simply put, the act is a gag order that prevents doctors from even asking the first question in a conversation about firearms,” Wilson wrote. “The act prohibits or significantly chills doctors from expressing their views and providing information to patients about one topic and one topic only, firearms.”

But Wilson’s dissent raised questions about whether the law stemmed from anecdotal incidents. He also argued that doctors should have the right to ask questions about guns in addressing the well-being of patients.

“There is nothing to suggest that the doctors’ inquiries or messages regarding firearms were not genuinely believed to be in the patients’ best medical interest when given,” Wilson wrote. “But there is evidence in the legislative history to suggest that the harassment provision [of the law] is designed to prevent these conversations from taking place in the future. That is certainly the result it will achieve. Doctors will largely cease inquiring into and counseling on the topic of firearms, lest they be accused of crossing the line between providing life-saving preventive medical information and promoting an anti-firearm political agenda.”

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

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