Constitutional Law

First and Second Amendments square off in 'Docs v. Glocks' case before en banc 11th Circuit

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Should a physician ask a patient about gun ownership, even if she doesn’t appear to have an ailment that could cause her to hurt someone with a firearm? A Florida law says no, and an en banc hearing regarding its constitutionality is scheduled for Tuesday.

The Florida Firearm Owners Privacy Act, passed in 2011, restricts licensed health care providers and health care facilities from inquiring about firearm ownership or possession with patients unless the information is relevant to the person’s safety or medical care. Violating the law could be grounds for discipline, including fines, practice restriction, probation, suspension or revocation of a medical license.

Known as “Docs v. Glocks,” according to the Daily Report (sub. req.), the case will be heard by the Atlanta-based 11th U.S. Circuit Court of Appeals less than two weeks after a Florida nightclub shooting that left 53 people injured and 49 dead. Among the dead was the shooter, Omar Mateen. It’s been described as the worst mass shooting in recent United States history.

Dr. Bernd Wollschlaeger, a plaintiff in the lawsuit, told the Daily Report that the Florida nightclub shooting “underscores the importance of having conversations—frank conversations—about the dangers that guns impose. Whatever side you are on, I think you should be in favor of people’s ability to speak freely about these issues of public import.”

In 2012 the U.S. District Court for the Southern District of Florida found that the law violated doctors’ First Amendment rights and was not a permissible regulation of professional speech or conduct, reported. The state argued that the law protected the right to keep and bear arms.

“I recognize that the state may have, in the abstract, a legitimate interest in protecting patients’ privacy regarding their firearm ownership or use. The state, however, fails to provide any evidence that the confidentiality of this information is at risk,” U.S. District Court Judge Marcia Cooke wrote in a June 2012 summary judgment order (PDF). “If a patient does not want to provide the information, she may simply refuse to do so.”

Since then, the case has been appealed to the 11th Circuit three times, Bloomberg BNA reports. The plaintiffs sought en banc review twice, according to the article, which were pre-empted by sua sponte orders that the panel would reconsider.

Each of the 11th Circuit panel rulings found in the state’s favor. First the panel ruled that the law was valid regulation for professional conduct. The next opinion found that professional speech, including conversations between doctors and patients, could be regulated in the way the law stated. The third opinion found that the state had a compelling interest that justified the speech restrictions.

The finding could be important nationally, the Atlanta Journal Constitution reports. It quotes from a letter the National Rifle Association’s Institute for Legislative Action reportedly sent members in 2015.

“Physicians interrogating and lecturing parents and children about guns is not about gun safety. It is a political agenda to ban guns. Parents do not take their children to physicians for a political lecture against the ownership of firearms, they go there for medical care,” the letter stated.

Besides Wollschlaeger and two other physicians, plaintiffs in the case include the Florida Pediatric Society, the Brady Campaign to Prevent Gun Violence, and the Florida chapters of the American Academy of Pediatrics and the American Academy of Family Physicians. They argue that for doctors, asking patients about guns is no different than asking about other child safety issues, including asking parents and guardians about illegal drugs, drinking habits and car seat use.

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