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11th Circuit Gives Third Opinion Upholding FL Docs v. Glocks Gun Act

Second Amendment gun rights trump First Amendment speech rights.

The 11th Circuit has issued an updated opinion in the "Docs v. Glocks" case of Wollschlaeger v. Florida. The third ruling in this case again upholds Florida’s Firearm Owners Privacy Act that

  • restricts doctors from inquiring and making any record about a patient’s firearm-ownership and
  • prohibits discussion of firearm ownership and storage unless the doctor believes it is relevant to the patient's care or safety.

The physicians in the case sought a review of the case citing a Supreme Court ruling in an Arizona case Reed v. Town of Gilbert, AZ that applied the strict scrutiny test to a content based speech restriction, finding the restriction unconstitutional.  Instead, the court sua sponte (on its own motion) reconsidered and revised its opinion, changing its position on the level of scrutiny to be used for restrictions on professional speech.

Prior opinion applied intermediate scrutiny

In the earlier opinion, the court determined that in order for the regulation on physician speech to be constitutional, the Act had to meet the intermediate scrutiny standard.  The court determined that the Act was constitutional because it advanced the substantial state interest of protecting patient’s privacy rights and from harmful professional practices through regulating physicians conduct while only incidentally affecting physician speech.

See also: 11th Circuit Stifles Physician Discussion of Gun Safety

What level of scrutiny?

In the third revised opinion, the court refused to indicate what level of scrutiny must apply to the Act. It did make note that the decision in Reed v. Town of Gilbert “makes clear that all content-based restrictions on speech are subject to strict scrutiny” but that professional speech before Reed received intermediate scrutiny and that since Reed “it is hardly clear that anything has changed.”

The court stated that it “need not decide [the] difficult question” of the level of scrutiny to be applied to professional speech, but found that the Act survived the strict scrutiny standard.  The court further wrote, “We pass no judgement on what level of scrutiny should apply here, but would of course hold that the Act also survives any less demanding level of scrutiny.”

The court, using much of the same information and wording from the previous opinion, found that the state of Florida had a compelling interest to protect patient’s fundamental Second Amendment right to keep and bear arms and to protect patient privacy.

The court wrote that although a physician’s questions about gun ownership “may not stop the patient from owning a gun, complete prohibition is hardly required to infringe on constitutionally guaranteed rights.  Such speech chills the patient’s exercise of his rights and that is sufficient.”

The court again focused on the fiduciary relationship between the physician and patient, and wrote that the imbalance of power could leave patients in a “position of great vulnerability” unable to stand up for their rights.

Gun ownership ‘cherished by American society’

The court also discussed the state interest in protecting the privacy of patient’s gun-ownership status from medical records.  The physicians in the case argued that gun ownership is not sacrosanct and does not give rise to a compelling privacy interest because gun ownership is disclosed to state and federal government.  The physicians further argued that existing state and federal laws sufficiently protect patient privacy.

The court disagreed, finding a person’s gun ownership status was sacrosanct because gun rights are “indisputably more valued and cherished by American society.”  The court also discusses its support of a ban of gun ownership records because of the potential for “hacking and data breaches” that may cause patient records to “fall into the wrong hands.”

The court emphasized that physicians should not be able to discuss gun ownership with patients without good cause and safety concerns for the patient.  However, some safety risks go undetected, including for suicide and domestic violence risk, which contribute to the more than 21,000 firearm suicides and 11,000 firearm homicides that occur each year.

The case is Wollschlaeger v. Florida, Case number 12-14009 in the U.S. Court of Appeals for The Eleventh Circuit.

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