In 2011, Florida's Firearm Owners Privacy Act (the "Act") made it illegal for doctors to ask patients whether they own firearms unless the doctor believes the "information is relevant to the patient's medical care or safety, or the safety of others." § 790.338, Fla. Stat. (2014). After the United States District Court for the Southern District of Florida enjoined enforcement of the Act for nearly three years, a three judge panel for the Eleventh Circuit Court of Appeal lifted the injunction on July 25th, 2014. Accordingly, Florida doctors are once again barred from asking patients whether they own a firearm unless the "information is relevant to the patient's medical care or safety, or the safety of others." Id.
Florida Governor Rick Scott signed the Act into law on June 2, 2011 in response to complaints by Florida constituents that medical personnel were asking questions regarding gun ownership and discriminating against them based on their answers. Wollschlaeger v. Governor of Florida, No. 12-14009, 2014 WL 3695296 (11th Cir. July 25, 2014). Pursuant to the Act:
(1) A health care practitioner . . . may not intentionally enter any disclosed information concerning firearm ownership into the patient's medical record if the practitioner knows that such information is not relevant to the patient's medical care or safety, or the safety of others.
(2) A health care practitioner . . . shall respect a patient's right to privacy and should refrain from making a written inquiry or asking 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. Notwithstanding this provision, a health care practitioner or health care facility that in good faith believes that this information is relevant to the patient's medical care or safety, or the safety of others, may make such a verbal or written inquiry.
. . .
(5) A health care practitioner . . . may not discriminate against a patient based solely upon the patient's exercise of the constitutional right to own and possess firearms or ammunition.
(6) A health care practitioner . . . shall respect a patient's legal right to own or possess a firearm and should refrain from unnecessarily harassing a patient about firearm ownership during an examination.
§ 790.338, Fla. Stat. Penalties for violating the Act include "fines, restriction of practice, return of fees, probation, and suspension or revocation of [the practitioner's] medical license." Wollschlaeger, 2014 WL 3695296, at *2.
The district court barred enforcement of certain provisions within the Act, holding that the Act unconstitutionally restricted a health care practitioner's right to free speech guaranteed by the First Amendment. Wollschlaeger v. Farmer, 880 F. Supp. 2d 1251, 1262 (S.D. Fla. 2012), rev'd in part, vacated in part sub nom, Wollschlaeger, 2014 WL 3695296. While the court acknowledged that the state has an interest in protecting an individual's right to bear arms guaranteed by the Second Amendment, the court held that the state's interest was not compelling because the Act did not interfere with that right. Wollschlaeger, 880 F. Supp. 2d at 1264. Furthermore, the court held that the Act was void for vagueness due to prohibitions such as "unnecessarily harassing a patient about firearm ownership during an examination," which failed to adequately inform an individual of the proscribed conduct. Id. at 1268-69.
On appeal, the Eleventh Circuit lifted the injunction imposed by the district court, barring doctors from asking patients whether they own a firearm once again. The Eleventh Circuit held that the Act is not unconstitutional under the First Amendment because "the Act is a valid regulation of professional conduct that has only an incidental effect on physicians' speech." Wollschlaeger, 2014 WL 3695296, at *13. Additionally, the Eleventh Circuit held that the Act is not void for vagueness because the four challenged provisions are easily understood by people of "common intelligence." Id. at 24.
As stated by the dissent, the American Medical Association (AMA) "adopted a policy encouraging 'members to inquire as to the presence of household firearms as a part of childproofing the home.'" Id. Moreover, the dissent labels the Act as "a gag order that prevents doctors from even asking the first question in a conversation about firearms." Id. An appeal from doctors and gun-control advocates to a full panel of Eleventh Circuit may be next, which will constitute round four of the "Docs v. Glocks" legal battle.
If you have any questions concerning this topic, please contact the member of our GrayRobinson health care practice group member with whom you work.