By DARA KAM
THE NEWS SERVICE OF FLORIDA
Six years after Florida lawmakers tried to stop doctors from asking patients about guns, health-care providers have emerged victorious in a legal battle as the state did not appeal a federal-court ruling striking down major parts of the 2011 law.
The controversial measure, dubbed the “docs vs. glocks” law and supported by the National Rifle Association, included a series of restrictions on doctors and other health providers. For example, it sought to prevent physicians from entering information about gun ownership into medical records if the physicians knew the information was 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 believed in “good faith” that the information was relevant to medical care or safety. And the law sought to prevent doctors from discriminating against patients or “harassing” them because of owning firearms.
“This law is dead,” Tom Julin, a First Amendment lawyer who represented a coalition of medical groups and others who took part in the case as “friends of the court,” told The News Service of Florida in a telephone interview.
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.
A February ruling by the full appellate court — in a 90-page decision comprised of two majority opinions authored by different judges, as well as a dissent — struck down the law. Florida officials did not appeal that ruling before a deadline last month, Attorney General Pam Bondi’s office confirmed.
“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,’ ” appeals-court Judge Adalberto Jordan wrote in one of two majority opinions on Feb. 17.
Bondi’s office referred questions about the case to state health officials, who, along with Gov. Rick Scott, were the defendants in the case.
Scott’s office also acknowledged the deadline had passed but did not say why the state decided not to appeal.
“As a strong supporter of (the) Second Amendment, Governor Scott is glad that a vast majority of this law was never challenged and upheld in court,” Scott spokeswoman Lauren Schenone said in an email last week.
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.
The law — the first of its kind in the country — also prohibits insurers from discriminating against gun owners, an element of the statute that was not challenged.
Howard Simon, executive director of the American Civil Liberties Union of Florida, called the state’s decision not to appeal a major victory for free speech and the medical community. The ACLU organized a coalition of medical groups, including children’s health-care groups, who, represented by Julin and others, joined the legal challenge.
“What is important is that every doctor in Florida knows that the First Amendment right guaranteeing freedom of speech once again provides protection for the medical community to honor its mission to protect the health and lives of patients. And this includes counseling patients who own guns to ensure that they are safely stored so as to prevent suicides and out of the reach of children to prevent tragic accidental shootings,” Simon said.
The Florida case was especially significant because it was considered a test case, Simon said.
But for the appellate decision striking down the statute, the NRA would have “had this dangerous law introduced in every state,” Simon predicted.
A number of Republican legislators pushed the law, entitled the “Firearms Owners’ Privacy Act,” in 2011 after learning that a pediatrician told an Ocala mother to find a new doctor because she refused to answer questions about guns in the family home.
Lawmakers learned of five other anecdotes, in which doctors asked patients about gun ownership, before passing the law, signed by Scott, according to court records.
State Sen. Dennis Baxley, an Ocala Republican who was one of the House sponsors of the measure, said the law may have done its job, even if it was ultimately stricken from the books.
“I think we certainly made our point,” Baxley, who has frequently sponsored NRA-backed proposals, told The News Service. “If you’ve been able to present your case and move the hearts of people, sometimes you’ve won and you don’t know it.”
Baxley said it was too soon to tell whether lawmakers would revisit the measure.
“I don’t assume that we’ll abandon the issue. If there’s already been an impact made by bringing this issue forward, it may have worked itself out. We’ll see,” he said.
The litigation may have informed the Legislature — and the medical community — about balancing First and Second Amendment rights, Baxley said.
“I don’t think anything’s ever finished here. It’s an ongoing conversation for 20 million people about how these various issues fit together,” he said.