Glocks V. Docs: Second Amendment Issues In The Crosshairs

Aug 8, 2012

By Barbara Atkinson, staff writer – August 8, 2012

There are few topics more evergreen in the U.S. political arena and consistently in the forefront of the news than a group protesting that either their First Amendment or Second Amendment rights are being curtailed. Therefore, it was only a matter of time before the two collided in a spectacular “Alien vs. Predator,” coliseum-like spectacle of battling rights.

In late July, U.S. District Judge Marcia Cooke ordered a temporary injunction against a controversial gun law. The Firearm Owners’ Privacy Act, nicknamed “Docs vs. Glocks,” was signed in June 2011 by Florida Governor Rick Scott. Strongly backed by the National Rifle Association, it restricted health care providers, including doctors, EMTs and other medical personnel, from asking patients about their gun ownership unless they believe “in good faith that this information is relevant to the patient’s medical care or safety, or the safety of others.” Under the law, providers were restricted from inquiring, either verbally or in writing, about firearm or ammunition ownership, unless deemed relevant to the patient’s medical care or safety, or for the safety of others; were instructed to respect the right to own or possess a firearm and “refrain from harassing” said patient about firearm ownership. [1] Providers were also barred from noting gun ownership status into medical records. [2]

Docs vs. Glocks is the first of its kind in the U.S., filed by Rep. Jason Brodeur, R-Sanford, and Sen. Greg Evers, R-Baker, though ultimately it was modified to omit the suggested punishment of up to five years in prison, plus a $5 million fine to any healthcare professional who inquired about a patient’s gun ownership status. The Act was drafted in support of a Florida couple who reported that a doctor, during routine examinations, allegedly inquired whether they had access to guns in their home. The couple refused to answer, and as a result, the physician refused to continue to treat them as his patients. [3]

“We passed a bill that was endorsed by the medical association and signed by the governor, that protected privacy rights without jeopardizing safety,” said Brodeur. “If folks felt like that’s not what happened, they’re certainly welcome to pursue that. We’ll see what the courts ultimately say.” [4]

A suit contesting the Act was brought on behalf of the Florida chapters of the American Academy of Pediatrics, Academy of Family Physicians and American College of Physicians, joined by the Washington-based Brady Center to Prevent Gun Violence, arguing that the law infringed on free speech rights as well as a practitioner’s moral obligation to practice good medicine. They countered that asking about safety issues in the home encompasses gun ownership, use of bike helmets and the presence of swimming pools. [5]

“Guns in the home are a proven deadly risk,” said Dan Gross, president of the Brady Center, in a statement to the Miami Herald following Cooke’s decision. “Guns kill eight children every day. The government cannot tell us or our doctors that we are prohibited from discussing the deadly risks posed by guns.” [6]

In her July ruling, Judge Cooke agreed with the petitioning groups of physicians. She stated that the Firearm Owners’ Privacy Act law violated free speech rights and that the legislation’s privacy provisions “fail to provide any standards for practitioners to follow” and was so vague, as written, that it violated physicians’ First Amendment rights. “The law directly targets protected expression by restricting it,” she wrote. “A practitioner who counsels a patient on firearm safety, even when entirely irrelevant to medical care or safety, does not affect or interfere with the patient’s right to continue to own, possess or use firearms,” she added. Any information about gun ownership as part of an overall medical record was already protected from disclosure by federal law. [7]

“What is curious about this law,” said Cook, “and what makes it different from so many other laws involving practitioners’ speech is that it aims to restrict a practitioner’s ability to provide truthful, non-misleading information to a patient, whether relevant or not at the time of the consult with the patient.” [8]

“The impact of this law has already caused serious rifts in physician-patient relationships,” said Dennis Mayeaux, MD, Chair, Board of Directors, Florida Academy of Family Physicians. “Casual conversations with patients often bring other medical issues to light, and erosion of these opportunities also erodes the quality of care.” [9]

“Pediatricians simply want to do what they do best: protect children,” said Lisa Cosgrove, president of the Florida Pediatric Society. “We hope that now we will be able to get back to working with parents to maintain their guns, pools and poisons to keep kids safe.” [10]

With a population of about 19 million, Florida currently has some 900,000 licensed concealed weapons carriers and is among the most aggressive states when it comes to testing the expansion of gun laws. In 1987, Florida was the first state to approve the gun rights provision known as the “shall issue” law, instructing police to license concealed carry permits to all eligible applicants, unlike “may issue” where licensing is granted at the discretion of local authorities. [11]

Another piece of Florida gun legislation, the 2005 “Stand Your Ground” law, which allows someone to use “deadly force” if they feel threatened, has come under increased scrutiny after the 2011 fatal shooting of Trayvon Martin by George Zimmerman. [12]

The Florida legislature also passed House Bill 45 in April 2011 targeting local officials who attempt to introduce or enforce certain gun restrictions. “The Gun Law” imposes fines on counties and municipalities that enforce their own firearms and ammunition ordinances; it allows mayors, council members and other officials to be fined $5,000 (the initial bill suggested a fine of $5 million) and removed from office if they are found to have “knowingly and willfully violate” the law. Any “persons or organization whose membership is adversely affected” by such a law may sue the officials for damages of up to $100,000 and costs with a “contingency multiplier.” [13]

Judge Cooke’s injunction is only a temporary matter – the ultimate fate of Docs vs. Glocks is liable to rest with the higher courts. “I expect the ruling to be appealed to the 11th Circuit (Court of Appeals in Atlanta),” Brodeur told the News Service of Florida, as reported by the Miami Herald. “But that will depend on the wording of the ruling. I haven’t read it, yet so we’ll have to see.” [14]

Governor Rick Scott has stated that his office does, in fact, plan to appeal. “The Department of Health today filed an appeal to the federal court decision blocking enforcement of the Firearm Owners’ Privacy Act,” Scott announced in a statement on July 30. “This law was carefully crafted to respect the First Amendment while ensuring a patient’s constitutional right to own or possess a firearm without discrimination. I signed this legislation into law because I believe it is constitutional, and I will continue to defend it.” [15]

Meanwhile, firearms rights’ legislation in Florida rolls on. In 2013, the state’s Energy and Water Development Related Agencies Appropriations bill is expected to pass; the bill includes an amendment to allow firearms on Army Corps of Engineers Water Resource Development lands. [16]

Whether the reversal of Docs vs. Glocks by Judge Cooke will be overturned or upheld will only be known in time, as will the importance of this case in solidifying – or softening – the stance of the Florida legislature on gun rights.