11th Circuit Stifles Physican Discussion of Gun Safety Posted on August 20, 2015 by Larry Bodine Doctors are forbidden to discuss gun safety with their patients, according to the 11th Circuit Court of Appeals, which allowed the controversial Florida’s Firearm Owners Privacy Act (“Act”) to go into effect. The appeals court denied a petition to rehear a case decided in 2014 and instead replaced its own prior decision, upholding the law, saying it is a permissible restriction of physician speech, striking down the trial court’s injunction against enforcement of the act. The Act bans doctors from inquiring and making a record about a patient’s firearm-ownership. It also prohibits doctors from discussing safe storage of guns in patient’s homes. Act in response to constitute complaints For an update, read Docs Say ‘Gun Gag’ Decision Could Kill People — Doctors challenging a Florida state law prohibiting them from asking questions about gun ownership want the full Eleventh US Circuit Court of Appeals to revisit the case. The Florida legislature passed the Act in response to constituent complaints that doctors were asking “unwelcomed questions regarding firearm ownership” causing them to feel harassed and discriminated against for owning a firearm, or for refusing to answer questions. The Act, signed into law in June 2011, amended Florida’s Patient’s Bill of Rights and Responsibilities to include provisions that health care practitioners and facilities: May not intentionally enter information about a patients firearm ownership Should refrain from inquiring about firearm ownership unless the practitioner believes in good faith that the information is relevant to the patient’s medical care or safety Should not discriminate against a patient on the basis of firearm ownership Should refrain from unnecessarily harassing a patient about firearm ownership The Act also amended the grounds for discipline of physicians, providing disciplinary measures for violation of the act, including “fines, restrictions of practice, return of fees, probation, and suspension or revocation of his or her medical license.” Physicians raise free speech violation concerns A group of physicians and physician advocacy groups filed a 42 U.S.C. §1983 civil rights action against Florida alleging that the Act violates the First and Fourteenth Amendments for imposing an unconstitutional, content based restriction on speech that is overly broad and vague. The district court, agreeing with the physicians, granted its motion for summary judgement. The court also permanently enjoined the State from enforcing the Act. Court reissues order upholding Act The Circuit court overturned the district court’s ruling in July 2014, and denied a petition for rehearing brought by the group of physicians. The court issued a revised ruling, reaffirming its 2014 decision and vacated the injunction against the Act, putting the law into effect. The court found that using a plain meaning construction of the act resolves the vagueness and over breadth claims against the act, providing clarity to the point that a person of common intelligence can understand what is prohibited. The court explained that if a physician believes that a patient’s ownership of a firearm pertains to the patient’s medical care, for example, if the patient is suicidal or has violent tendencies, then a physician can inquire and record firearm ownership information, otherwise, obtaining the information when it is not relevant to medical care is prohibited. First Amendment speech The court determined that portions of the act “regulate a significant amount of protected speech” and must pass the intermediate scrutiny standard to remain in effect. “When the state seeks to regulate speech by professionals in a context in which the State’s interest in regulating for the protection of the public is more deeply rooted, a lesser level of scrutiny applies,” reasoned the court. The court relied on anecdotes and legislator’s accounts of constituent complaints to determine that the professional speech regulated is particularized enough to meet the state’s substantial interest in protecting the public from exploitation as the weaker party in the quasi-fiduciary relationship between a physician and patient. The court further found that the cause prohibiting discrimination not a restriction on speech, but a “regulation of the professional conduct with merely an incidental effect on speech.” Court says Act does not violate physician rights The court found that the Act is a permissible restriction of physician speech and codifies the “commonsense conclusion that good medical care does not require inquiry or record-keeping regarding firearms when unnecessary to a patient’s care.” If a disciplinary action is brought against a physician, the court reasoned that a physician can then assert his First Amendment rights as an affirmative defense, but that the court will not “effectively hand Plaintiffs a declaration that such a defense will be successful.” Ironically after so many mass shootings, there is always a public desire for better mental health supervision. This decision stifles doctors, who would be the first to detect mental illness and the need to ensure gun safety for those patients, for their own safety and the safety of others. The case is Wollschlaeger v. Florida, Case number 12-14009 in the U.S. Court of Appeals for The Eleventh Circuit.