The United States Court of Appeals for the Eleventh Circuit has handed down a ruling that vacated an injunction of the Florida law barring physicians from discussing guns in their homes when it is not related to medical care. The lower court found the law violative of the first amendment, but the Eleventh Circuit found that it does not violate free speech. I have always found this law highly troubling on both free speech grounds as well as policy grounds. Just as I have long objected to legislatures interfering with teachers, I have the same reservations about their micromanaging doctors. The law is commonly referred to as “Docs for Glocks.”
On June 2, 2011, Florida Governor Rick Scott signed Fla. Stat. § 790.338, entitled “Medical privacy concerning firearms; prohibitions; penalties; exceptions,” and amended the Florida Patient’s Bill of Rights and Responsibilities. The Act provides follows:
(1) A health care practitioner licensed under chapter 456 [of the Florida Statutes] or a health care facility licensed under chapter 395 [of the Florida Statutes] may not intentionally enter any disclosed information concerning firearm ownership into the patient’s medical record if the practitioner knows that such information is not relevant to the patient’s medical care or safety, or the safety of others.
(2) A health care practitioner licensed under chapter 456 or a health care facility licensed under chapter 395 shall respect a patient’s right to privacy and should refrain from making a written inquiry or asking questions concerning the ownership of a firearm or ammunition by the patient or by a family member of the patient, or the presence of a firearm in a private home or other domicile of the patient or a family member of the patient. Notwithstanding this provision, a health care practitioner or health care facility that in good faith believes that this information is relevant to the patient’s medical care or safety, or the safety of others, may make such a verbal or written inquiry. . . .
(5) A health care practitioner licensed under chapter 456 or a health care facility licensed under chapter 395 may not discriminate against a patient based solely upon the patient’s exercise of the constitutional right to own and possess firearms or ammunition.
(6) A health care practitioner licensed under chapter 456 or a health care facility licensed under chapter 395 shall respect a patient’s legal right to own or possess a firearm and should refrain from unnecessarily harassing a patient about firearm ownership during an examination. . . .
Fla. Stat. § 790.338.
Putting aside the intrusion into doctor and patient discussions, the law seems to be dangerously vague on provisions like “may not intentionally enter any disclosed information concerning firearm ownership into the patient’s medical record if the practitioner knows that such information is not relevant.”
The District Court concluded that the State acted on the basis of purely anecdotal information and provided no evidence that discrimination or harassment based on firearm ownership is pervasive and lacks a legitimate or compelling interest in protecting its citizens “from barriers to the receipt of medical care arising from [such] discrimination or harassment.”
In the 2-1 panel decision, the majority emphasizes the need of the law to protect the privacy of patients who are faced with a more powerful authority figure in medical examinations:
The Act seeks to protect patients’ privacy by restricting irrelevant inquiry and record-keeping by physicians regarding firearms. The Act recognizes that when a patient enters a physician’s examination room, the patient is in a position of relative powerlessness. The patient must place his or her trust in the physician’s guidance, and submit to the physician’s authority. In order to protect patients, physicians have for millennia been subject to codes of conduct that define the practice of good medicine and affirm the responsibility physicians bear. In keeping with these traditional codes of conduct—which almost universally mandate respect for patient privacy—the Act simply acknowledges that the practice of good medicine does not require interrogation about irrelevant, private matters.
As such, we find that the Act is a legitimate regulation of professional conduct.
Judge Tjoflat draws a line that may be difficult for doctors to discern: “Any burden the Act places on physician speech is thus entirely incidental. Plaintiffs remain free—as physicians always have been—to assert their First Amendment rights as an affirmative defense in any actions brought against them. But we will not, by striking down the Act, effectively hand Plaintiffs a declaration that such a defense will be successful.” The panel later explains:
The State argues that physicians may engage in such conduct when it is relevant to patients’ care, and even when not relevant, the Act merely suggests that physicians “should refrain” from inquiring as to firearm ownership. § 790.338(2). Such hortatory language, the State argues, does not constitute a mandate that physicians must not inquire. Thus, the State argues, because the Act does not in fact actually prohibit the conduct Plaintiffs wish to engage in, Plaintiffs lack standing to challenge the Act because they have not demonstrated injury-in-fact. Moreover, the State argues, we have an obligation to read the Act as a mere recommendation that physicians refrain from irrelevant inquiry and record-keeping about firearms, in order to construe the Act as valid.
Judge Wilson dissents, stating that “Simply put, the Act is a gag order that prevents doctors from even asking the first question in a conversation about firearms. The Act prohibits or significantly chills doctors from expressing their views and providing information to patients about one topic and one topic only, firearms.”
I would be surprised if this case was not appealed for en banc review and then was appealed to the Supreme Court. This is a very interesting issue upon which people of good faith can certainly disagree. For those of us associated with the free speech community, the law obviously raises serious concerns about its vagueness and its chilling effect. This would make for a fascinating appeal and we will try to follow it. It would seem odd to drop the appeal with a split panel on such important questions.
Here is the ruling: WOLLSCHLAEGER
54 thoughts on “Docs For Glocks: Federal Appellate Court Upholds Law Preventing Physicians From Asking About Guns In Homes”
My half blind pal for whom I am guide dog went to the doctors office for a check up. He had his small pistol in its holster on his left ankle so that he can reach down and get it with his right hand. My pal stripped down a bit so the doc could look at his rear end and the doc noticed the firearm. “What is that doing there, or in here?” “That is my back up weenie.” My pal said. This was the end of the discussion and I don’t think the second thing was put into the doctor notes because the doc was yakking into a recorder device and said nothing.
I’m thinking privacy is privacy. And none of it is any of the government’s purview.
It is legal and private to possess a gun. No crime here. No suspicion.
The government abused its power, with consequences, by passing unconstitutional laws and illegally invading privacy.
Congress shall make no law…
“But sloppy gun security by parents kills a couple thousand kids each year in this country”
More like maybe a couple of hundred if you count the 15-24 age bracket.
Unless doctors are getting training on how to properly secure a firearm & the actual risks involved with firearm ownership*, I’m not exactly sure what qualifies them to have this discussion with patients, beyond a suggestion that the patient look into getting a good lockbox/safe for the guns & ammo, and maybe some recommendations of a good store where they will be able to help. Unless the doctor owns & shoots guns, then I guess he might have a clue. But the number of times I’ve had doctors give me bad, or not up to date, information with regard to topics they should be informed about, makes me skeptical that they are qualified to have an informed discussion with patients on this topic.
That said, the law is over-reach. My libertarian sentiments are offended by it.
*Despite the Kellerman & related studies having been roundly debunked over & over, I still see them quoted as gospel.
I do get it, and it comes down to this. It’s none of your business what I discuss with my clients and it’s likewise none of my business what your doctor discusses with you during that 10 or 15 minutes. I can’t make it any simpler than that.
Mike – you are charging by the minute. Do you want the state to require that you speak to your clients about their gun ownership?
“The NRA’s Murder Mystery”
anonymous – not sure what your point is. Dowlut was clearly pressured by police to confess. The cops screwed up. Although Mother Jones would like to lay it at the door of the NRA, it actually lays at the door of the police.
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