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Judge blocks Florida law restricting doctor gun talk

MIAMI — A federal judge Wednesday blocked a Florida gun law that restricted doctors from asking patients about firearms.

Judge Marcia G. Cooke said doctors had a First Amendment right to ask about firearms, and she rapped the state's lawyers for failing to provide more than anecdotal evidence to show the law was needed.

"The State has attempted to inveigle this Court to cast this matter as a Second Amendment case," Cooke wrote. "Despite the State's insistence that the right to 'keep arms' is the primary constitutional right at issue in this litigation, a plain reading of the statute reveals that this law in no way affects such rights."

Gov. Rick Scott, who signed the "Firearm Owners' Privacy Act" into law June 2nd vowed to appeal.

"The privacy of firearm owners' legislation was carefully crafted to respect the First Amendment. We plan to appeal the judge's block, and we're confident we'll win the appeal," Scott's office said in a written statement.

In an interesting twist, the judge arrived at her ruling, in part, based on a free-speech case brought by Scott's former chain of urgent-care clinics, Solantic, which sued the City of Neptune Beach over a sign ordinance.

Under that ruling, an appeals court said that in some free-speech cases "a law must constitute the least restrictive means of advancing a compelling government interest," Cooke wrote.

The firearm law didn't prohibit doctors outright from asking about guns; it said they should refrain from inquiring about firearm ownership unless there's a compelling medical reason.

Many doctors don't ask about firearms, but some pediatricians do — in addition to inquiring about pools and drugs in the home. But some Medicaid patients in the Panhandle and in Ocala complained that the questions about guns infringed on their privacy, and they complained to lawmakers.

Originally, the legislation banned doctors from asking about firearms at all. But the National Rifle Association and the Florida Medical Association agreed on compromise legislation that said doctors "should" refrain from the line of questioning. The bill then passed the Legislature.

Pediatricians, though, continued to protest and then sued. They said the law was vague enough to expose doctors to nuisance complaints to the Department of Health.

"Physicians concerned that a patient may interpret unsolicited counseling as 'unnecessarily harassing' have stopped or curtailed their practice of counseling patients on firearm safety," Cooke wrote in her ruling.

The sponsor of the legislation, Sen. Greg Evers, said the law was designed to protect people from harassment from physicians.

"What's more important: the First Amendment or the Second Amendment? I thought a judge should value all the amendments to the Constitution," Evers said. "This is one judge's opinion. And there are lots of judges between here and the Supreme Court."

But one of the lawyers for the doctors, Miami's Dennis Kainen, said Cooke's ruling will be tough to overcome.

"It's more than 1,100 miles to the Supreme Court from Miami. There are a lot of hoops to jump through," Kainen said. "It's a really well-reasoned opinion. The law was so clearly wrong."

Judge blocks Florida law restricting doctor gun talk 09/14/11 [Last modified: Wednesday, September 14, 2011 9:13pm]
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