At a time when gun violence is running rampant in Chicago and across the nation, I am floored by the 11th Circuit’s decision to vacate an injunction against enforcement of Florida’s Firearm Owners Privacy Act (“Act”). The Act, also known as “Glocks vs. Docs,” restricts physicians from asking patients 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.” The Act also prevents physicians from entering information regarding firearm ownership into the patient’s medical record, unnecessarily harassing patients about gun ownership, and discriminating against patients based on gun ownership status. Any physician found to be in violation of the law risks disciplinary action, fines, or revocation of his or her medical license.
While the Act carves out an exception if such information is relevant to the safety of the patient or safety of others, it nevertheless runs afoul of the First Amendment and essentially has a chilling effect on physicians’ speech. The District Court agreed with this view, finding that plaintiffs had standing, incurred an injury, and the issue was ripe as physicians were self-censoring their speech to avoid disciplinary action under the Act.[1] The 11th Circuit, however, cloaked this violation of the First Amendment as a law that “simply acknowledges that the practice of good medicine does not require interrogation about irrelevant, private matters.”[2]
The 11th Circuit’s justification for upholding the Act is that physicians may raise the First Amendment as an affirmative defense. Considering that the Act does not define what constitutes inquiry that is relevant to patient safety, or what constitutes unnecessary harassment or discrimination, a physician is now sailing through unchartered waters when communicating with a patient. The 11th Circuit acknowledges that plaintiffs have standing; however, the court likens a patient’s claim under the Act to that of a patient suing a physician for malpractice.[3] The Court reasons that states may regulate professional conduct and that inquiring about a patient’s gun ownership status where it is irrelevant goes beyond the physician-patient relationship. Thus, the Court asserts that the Act merely has an incidental effect on physician speech.[4]
In my opinion, speaking to patients about firearms in their home in the broadest sense promotes public safety and decreases the risk of injury to patients and their family members. Limiting this discussion not only has a chilling effect on speech, but also places physicians at odds with their oath to do no harm. Talking to a patient about firearms safety is no different than telling a patient that he or she should quit smoking. Physicians in Florida have lost both their ability to provide the best care to their patients and their right to free speech. I applaud any brave physicians in Florida who risk their medical licenses and twenty-plus years of education to raise a First Amendment affirmative defense. I certainly would not want to choose between providing the best treatment for my patient and facing discipline. Hopefully, this issue will make its way to the Supreme Court for a better analysis.
Sources:
[1] Wollschlaeger v. Farmer, 880 F. Supp. 2d 1251, 1259 (S.D. Fla. 2012).
[2] Wollschlaeger v. Governor of Fla., 2014 U.S. App. LEXIS 14192 at *5-6 (11th Cir. Fla. July 25, 2014).
[3] Id. at *23-24; *46-49.
[4] Id. at *73-74.
0 Comments