On Thursday, the 11th Circuit Court of Appeals struck down key parts of Florida’s Firearm Owners Privacy Act (a/k/a the “Docs vs. GLOCKs” law, and “FOPA”*) holding that the act’s provisions violated the First Amendment’s ban on abridgments to freedom of speech.
Enacted by the Florida Legislature in 2011, FOPA was intended to stop physicians and other healthcare providers from asking questions about firearms unrelated to medical treatment. In the current case, Wollschlaeger v. Governor of Florida, the 11th Circuit examined four specific provisions of the law that barred physicians from:
(1) asking questions relating to firearms ownership that were unrelated to a patient’s medical treatment,
(2) recording information relating to patients’ firearms ownership that were unrelated to medical treatment,
(3) unnecessarily harassing a patient about firearm ownership during an examination, and
(4) discriminating against a patient solely on the basis of the patient’s ownership and possession of a firearm.
Violations of the Act were potentially punishable by a fine of up to $10,000 per offense, a letter of reprimand, probation, suspension, compulsory education, or license revocation.
The law was always in tension with the First Amendment, which commands that Congress (and, through the Fourteenth Amendment, the several States,) can “make no law…abridging the freedom of speech,” but lawmakers couched the act as a regulation of professional conduct, expressing concern that physicians might use the context of a doctor-patient consultation to propagandize against gun ownership.
Given that organizations such as the American Academy of Family Physicians have taken official stands in favor of gun control laws, this wasn’t an idle concern. As Dr. Arthur Przebinda expressed rather cogently in TTAG last year, regulations of professional conduct in the doctor-patient setting, particularly when it comes to matters irrelevant to medical treatment, are hardly beyond the constitutional pale.
Indeed, the Atlanta Journal-Constitution reported:
One Florida legislator said during the 2011 debate his daughter’s pediatrician asked him to remove his gun from his home. Another lawmaker said a doctor refused to treat a constituent’s child because there were guns in the house. Yet another Florida legislator recounted a complaint from a constituent that his health care provider falsely told him that disclosing firearm ownership was a Medicaid requirement.
The case had already been before a three judge panel from the 11th Circuit Court of Appeals in 2014, which upheld the law, stating that FOPA “simply codifies that good medical care does not require inquiry or record-keeping regarding firearms when unnecessary to a patient’s care….”
The Appellate Court, however, decided to re-hear the case en banc — before the entire Court of Appeals — and heard oral arguments from both parties last summer. It was very clear that, the full Court was concerned–rhetorically, at least–about the law’s infringements on the freedom of speech.
“The record-keeping and inquiry provisions expressly limit the ability of certain speakers—doctors and medical professionals—to write and speak about a certain topic—the ownership of firearms,” wrote Judge Adalberto Jordan in one of the majority opinions in the case. (Oddly, there were two majority opinions in this case, one by Judge Jordan, and the other by Marcus.)
“[T]here was no evidence whatsoever before the Florida Legislature that any doctors or medical professionals have taken away patients’ firearms or otherwise infringed on patients’ Second Amendment rights,” wrote Judge Jordan.
In the end, the court struck down three FOPA provisions relating to: doctor inquiries about patient firearm ownership, the ban on record-keeping, and the anti-harassment provision as violating the First Amendment. It upheld, however, the ban against discrimination, construing that provision as the regulation of an act, not speech. It also let stand several other provisions of the law that are not insignificant:
(1) the provision relating to firearm inquiries by emergency medical technicians and paramedics,
(2) the provision allowing patients to decline to answer questions or provide information about firearm ownership (although doctors still remain authorized to choose his or her own patients),
(3) the provision “prohibiting insurers from denying coverage, increasing premiums, and otherwise discriminating against an applicant or insured based on the lawful ownership of firearms or ammunition, but allowing insurers to consider the fair market value of firearms or ammunition in setting premiums for scheduled personal property coverage…”; and
(4) FOPA’s disciplinary provisions.
(It’s likely that the ban on EMT speech was allowed to stand because it simply wasn’t challenged at this point.)
From my personal point of view, that ban against increasing insurance premiums simply because of firearms ownership is far more significant when the rubber hits the road in my life than any ban on professional speech.
It isn’t clear how big of an impact this will have on the gun rights movement. After all, there was some opposition among gun rights advocates — yes, even here at TTAG — toward the law in the first place on civil liberties grounds. At the same time, the ‘culture war’ concerns raised by Dr. Przebinda were pretty well grounded, too.
It is also unclear at this point whether the State of Florida will try to take the fight to the Supreme Court. As always, stay tuned.
Doctors, lawyers and people, just can’t trust em’.
On to another thought: What socially unacceptable and personal questions may now be asked at work while being protected as free speech? Looks like company management may enjoy this.
So telling a supervisor/co-worker to go fuck themselves should be covered under 1A and not subject to any harassment or sexual mumbo-jumbo laws, eh?
There is no constitutional prohibition against nongovernmental actors–your boss for example–from limiting acceptable speech on the job. Racist or other hate speech can be prohibited as such speech consitutes an act of di8llegal discriminatory animus.
The 1st A protects many things including free speech. It doesn’t give a platform to malign others and be exempt from any forthcoming consequences.
This court decision seems to allow any physician with an agenda to doggedly harass a patient under the mere suspicion that they might own firearms.
Now imagine what it might be like if other professionals in different occupations enjoyed the same leeway. A boss asking/accusing an employee if for example they have AIDS or are screwing another coworkers husband/wife. Afterall an AIDS carrier could put others at risk and messing around with another employees wife/husband might cause some unproductive drama. Or maybe said employer is just against unions and wishes to know if any employees support the notion of unionizing before a vote. Extrapolation from this ruling seems to equivocate such inquiries as free speech, so long as it serves some vaguely decent interest.
” Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
CONGRESS. Not your employer.
“CONGRESS. Not your employer.”
It’s the implications of this case that are disconcerting, the employer scenario is merely a parallel. If a law legally enacted by a legislature, that prevents patients from being harassed by so called licensed professionals with unnecessary vitriolic inquisitions, can be overturned on 1st A grounds, then what of anti-harassment laws in the work place?
This isn’t about the 1st A or even necessarily the 2nd. It’s about furthering an agenda that has been in play for the last 70 or so years of eroding privacy rights.
Congress. Also says nothing about your state, county, or city.
As is always the case, the true impact of Second Amendment issues can only be clearly understood when the same issues are framed in terms of OTHER Constitutionally guaranteed rights. And in that light, this ruling is utterly repugnant. Imagine the outrage if doctors were allowed to interrogate, record, and harass their patients based on their church of preference, or their preferred political party. The “First Amendment protection” so piously offered here would not exist if it were those things under fire.
Exceptionally well articulated. If a doctor were to lecture a Muslim woman that her religion increased her susceptibility to domestic violence, that doctor would more than likely lose his job.
Can the doctor lose his license (and not merely his job)?
Probably depends on the jurisdiction. In the more politically correct states and cities, it’s more than probable.
Q: “Do you own any firearms?”
A: “Just turn your head and cough, Doc.”
Telling your Dr that you’re not a gun owner, or that it’s none of their business, is perfectly acceptable. I’m not sure why this was an issue in the first place.
Glad I’m not the only one who wondered about that. If your doctor asks about any guns you may or may not have, you can simply tell them to stay out of your personal life. If they persist, find another doctor
“If they persist, find another doctor.”
Understand, that can be a very real problem for those who’s health insurance only covers a very narrow pool of doctors in the area…
I could twist that argument for or against the ACA so fast it would make your head spin…
Let the free market work. Your hardship us not my burden.
In light of the latest court ruling that a business (and a doctor’s office IS a business) can’t turn away homosexual couples based on the business owners religious beliefs, (first amendment right anyone?) but MUST provide services for them; how is a doctor allowed to refuse to see a patient who is exercising a numerated, Constitutionally protected natural right? Sounds inconsistent to me.
If we lived in a free country and could pick our doctor, it wouldn’t be an issue. We could just tell Dr. Inappropriate to screw himself.
But we live in Obamacareland, where the government knows what’s best for us. Healthcare choice is all but dead. Government meddling creates the need for stupid laws.
If some doctor asked me questions about gun ownership, the ensuing conversation would make that doctor afraid to pursue that line of questioning on any patient in the future.
Exactly. As I said a week or so ago: people lie to doctors about tons of stuff.
Why not just say “No, I don’t own a gun” and leave it at that? At least in this case there are no symptoms to tell them that you’re lying. Unless of course you accidentally shoot yourself.
The medical profession is being used as a tool to further control people. This might sound crazy to someone asleep at the wheel, but at some point it will be illegal to lie to your doctor. Lying about this just kicks the can down the road and does not address the situation we are facing.
“This might sound crazy to someone asleep at the wheel, but at some point it will be illegal to lie to your doctor.”
Of course. The entire theme is to make firearms a healthcare matter. Then the government can bypass the second amendment. Got guns? Healthcare will be limited, or not available.
Problem is that this doesn’t stop them from asking your wife or your kids behind your back. In many cases, these d-bags are going at it through the kids and recording the answers without their parents’ knowledge. It’s easy to make flip answers about what you would or wouldn’t do, but your circumstances don’t apply to everyone.
^This, it’s an irrelevant question so it doesn’t matter. Just lie and get on with your visit. Doc may as well be asking you the exchange rate between unicorns and leprechauns.
Just tell them politely that it’s none of their business. And don’t ever let your child be alone with a doctor in Florida.
For every American murdered by a firearm, 40 Americans are murdered by Healthcare “Professionals”.
Doctors are 40 times more dangerous than guns.
‘Consumers Reports’ magazine has stats that put medical errors at 440,000 deaths per year; your ratio of 40 per murder puts your figure right in the ball park. I personally have not been to a physician in over 50 years, hope it stays that way. What’s wrong with lying to the doc anyhow? None of their Fny business.
Can you cite that figure? I’ve never seen a number that high reported, not even close.
Sure can, here is the link: http://www.consumerreports.org/doctors-hospitals/medical-errors-third-leading-cause-of-death/ Here is quote from that article, copy & pasted: “In fact, previous research suggests that as many as 440,000 Americans a year die from medical errors in hospitals.” Not only that, but some studies put the figure at close to ONE MILLION if ALL errors were listed on death certificates instead of the ones they are forced to. I am serious when I state that I have not seen a physician in over 50 years & don’t intend to. There are a few people I personally knew that died from going to the doctor, plus several that nearly did so from medical incompetence.
Oh please, I am so tired of this drivel. I am a physician, and I know that those figures, much like the crap peddled about firearms is largely garbage. If you want to be foolish and not go to a doctor, fine. But, don’t impune my profession with this propaganda. Far more people die from their stupid choices than from legitimate medical malpractice.
Regard the law / subject at hand, as a physician in Florida, I have always had mixed feelings about it. I see why it was done, and the good that came from it, but I do feel that it had questionable constitutionality. That being said, regulation of professionals with a license is a far different thing than a law for the general public. There are many laws/regulation for professionals that regulate what can be said, and what can not. FDA does it with drug reps, and physician speakers. Why is that ok and this is not?
http://www.consumerreports.org/doctors-hospitals/medical-errors-third-leading-cause-of-death/
Uuuhhh, uuummmm, like, guns?
As a Florida resident. Its none of my doctors business as to where when or if I own a fire arm. I dont care what a court says in that matter.
My doctor can ask me anything while in his care.
It doesnt mean I will/have to answer him truthfully..
Now next time he says to me. Unbuckle your pants and drop your draws.
He will indeed see my gun. The metal one that is, a nice big honkin 45acp 1911.
My doctor has never asked me anything. It’s probably because she lives just above me and sees and hears me shooting all the time. I live in the country and there is shooting around me all the time and we don’t know or care which neighbor is doing it. It could be my doctor or the family.
Doctors, lawyers, engineers, financial planners….all share one distinct characteristic. They are employees/contractors. You are management. Act accordingly.
Of course it could be fun. When asked about guns, simply return the favor and ask, “Did you get rid of all the kiddie porn on your computer?” More fun if there are assistant in the room at the time.
Speaking from experience?
I have “fired” more than one “professional” for impertinence.
“Doctors, lawyers, engineers, financial planners….all share one distinct characteristic. They are employees/contractors. You are management. Act accordingly.”
Actually, you are a client. As a client, you have the right to become the client of someone else, but you are definitely not management.
No, I am not a client (which is a term “professionals” use to intimidate the person hiring them for service). I hire suppliers, I do not apply for employment. I manage my suppliers, they do not manage me. I can overrule every recommendation and instruction given by one of my suppliers.
But if “client” is necessary to make the point, the client is the superior partner. The supplier depends on “clients” to provide the money necessary to sustain the supplier’s business. As the “client”, the supplier/professional must serve my needs, and please me, not the other way around. Every business that supplies solutions to my needs is the same, doctor or auto mechanic.
BTW, when I am hired by a “client” I recognize the client controls the relationship. Either I perform satisfactorily, or the “client” finds another supplier.
law was always in tension with the First Amendment BS ORIGINAL INTENT applies the 1st same as the 2nd.
The 1st.was written to protect POLITICAL SPEECH. That’s all. Section 1 of the 14th applies to former slaves. That’s all.
No jars of urine or degenerate activities. No spawn of illegals/”refugees”. Run the out of control progtard “so called” judges out of the village.
I passed a law that says you can’t tell your neighbor that his dog barks all the damn time.
It’s not political speech.
Shut the hell up and wear ear protection, Snowflake.
Would you like to re-assess your definition of the scope of the First?
People who let their f*ing dogs bark incessantly are shitty neighbors. Especially when it’s before sunrise.
They can ask whatever they want. I’ll straight up lie. People can lie all they want it’s our right. Except to police then just don’t talk.
Yeah, I ain’t that great? Po po is under no such obligation to not lie to us, but if we lie to them it’s a crime.
Im in FL.
My doctor and I talk about carry guns as well as recreational guns.
This strikedown does bring up some serious questions about the government.
George Orwell was a little premature with his date.
And you help to make my point which is that the proper response to this sort of thing is not more laws or regulations or government involvement. In this day of the Internet the response to this sort of problem should be obvious – a website/database listing Florida doctors as Anti-gun rights, Neutral on gun rights, or pro gun rights. Let the market decide, let the consumer decide.
It does not resolve the issue in the case of emergency room visits, however, in which case I also advise you to lie through your teeth, unless you are there for treatment of a gunshot wound.
“Let the market decide, let the consumer decide.”
Thanks to Obama, “the market” has been socialized and the consumer has nothing to decide. Go to the doctor you are assigned according to the plan you have been given.
I have spoken directly with hospital executives about this. They acknowledge that patients will have fewer choices in the future when it comes to their health care providers.
“George Orwell was a little premature with his date.”
Just a slightly different angle to view this: By writing his book and picking a date, Orwell engaged the people, and in doing so, delayed the process. If Orwell had not written the book, then 1984 may have been right on schedule, but fewer would have realized what was happening. This is one of those paradoxes sort of like time travel.
This is simple. Unless the doctor has been trained and certified by a properly credentialed firearms instructor, I would argue that any advice he gives related to firearms is malpractice. I bet I could find an attorney that would take the case. A few hundred people sue for the same thing, even if only a few win, and the insurance companies would stop these liberal fascist doctors cold in their tracks.
Why is this a big deal? If someone asks me if I own a gun my answer is normally “no”. People I don’t trust don’t need to know what weapons I may or may not have on me.
Exactly!
I think it’s stupid for doctors to ask about guns, but this is a win for freedom. If a state can stop your doctor from asking about guns, it could just as well require your doctor to ask about guns. Read Judge Pryor’s concurring opinion, which explains this point well.
I’d rather doctors be allowed to use their own judgment and their patients be allowed to switch doctors if they think their doctors’ questions are stupid or inappropriate.
Free speech is awesome. It doesn’t mean that you are compelled to answer.
So why not just add a provision to the law mandating that all doctore and patients must each explicitly opt out of being covered by this law? Treat like any other contract term.
For example, everyone has the right to go sue anyone else in court, at the outset. However, many contracts contain provisions that disputes must first be handled via binding arbitration. That is, from the start, you opt out of the court system in the context of this agreement or relationship.
Binding arbitration clauses have become very common in employment contracts. You also see them in some consumer contracts, too. (Read the fine print on your cell phone contract.)
The default could be that this law governs the doctor/patient relationship. If, however, the doctor and patient both agreee that this law improperly prohibits doctors from abusing their special position of prestige, power, and influence, then they can mutually and voluntarily subject themselves to the law’s provisions.
Can’t agree with your doctor? Find another doctor.
My wife is a Visiting Nurse and is directed to ask if there are any guns in the house. (There are no lectures)
Because one of her patients showed her an LCP is the reason she went out and bought one.
I don’t know if she has to document this, but she also has to ask if there are any dogs in the house. If there are. then they have to be secured in an other room. So I’m thinking it might just be for the Nurses safety.
“I don’t know if she has to document this”
And NOW you’ve hit the nail on the head. This law NEVER demanded that doctors could not discuss firearms with a patient. NEVER. It was all about putting your answer into the DIGITAL MEDICAL DATA BASE with the intent that anyone with a “need” could access. And that “need” for access list keeps getting longer and longer and longer.
You’ve let the lying press re-frame the argument for you and lead you down the Alensky path to get you arguing the wrong question.
The idiots in black robes just allowed the government (surprise!) to document those who are clueless enough or intimidated enough into admitting firearm ownership, or be forced to lie about it.
Welcome to the site Dr Dryer!
This is the first post I have seen from you
I am a south Florida doctor and gun enthusiast
I had mixed feelings about this law
There are definitely times when asking about gun ownership is medically indicated
Patients who are suicidal or depressed should be counseled to remove their guns from their home until they feel better
For people who have toddlers in the house a discussion of gun safety and how to keep your self defense gun available yet safe is a wise idea
They should also be reminded to use car seats and have a gate around the pool
Most doctors have no special training or interest in firearms and firearm safety so this was actually a good law to keep them from misinforming their patients
Now that it has been struck down I hope we can all use common sense when it comes to speaking to patients about guns
“They should also be reminded to use car seats and have a gate around the pool.”
And…safety catch for drawers with sharp things in them. And lock up all manual and power tools when not using them. And avoid any empty plastic bags, from any source. And make sure there are no objects in the house that can fit into a child’s ear. And make sure all furniture and home objects with sharp edges or corners are covered with padding. And keep children off stairs. And don’t allow children to go to school with any sort of communicable disease. And….
Yes, all those safety precautions should be discussed at every visit, even if asking and answering all the safety questions takes up the entire appointment time.
Answering a question with a question is often an effective way to control a conversation, especially if related to the initial question.
“Oh, are you interested in firearms?” “Are you more of a Glock or 1911 guy?” “How does your expertise on self-defense compare to your expertise as a doctor?” “What do you think about alternating target and hollow points in a magazine?” “What’s your opinion on the second amendment?” “Is this small talk costing me any extra?” “How many gunshot wounds have you treated in the past year?” “If some disgruntled patient charges in going postal, what’s the plan?”
” but lawmakers couched the act as a regulation of professional conduct…”
Then they should have made the penalties consist only of the revoking of a license (or warning, etc) instead of fines, probation, etc…
Just another unnecessary law.
Doc: “Do you own or have access to firearms?”
Patient: “None of your fucking business.”
Problem solved, no law required.
The problem isn’t questions or even unsolicited advice; it’s databases, and what they cram into them. You are the product being cultivated and sold.
If we want to enjoy continued unbridled freedom of speech, we must also continue to extend it to the opposition. So what if a doctor quizzes you about gun ownership? Just say No Thank You, vote with your feet, and find another doctor. There’s hardly a shortage.
All these “gag order” laws are misguided. Without complete freedom of speech, we would never know who the jerks are. Better for someone to expose their views so you can choose.
The problem isn’t the discussion, its the Orwellian data recording and mining. Do YOU know what your doctor is plugging into the damn database? When doctors can recommend removal of your guns, backed up by fed law and the force of the police state, liberty is just an illusion.
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