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Court rules that Florida doctors can talk to patients about guns

Published Feb. 17, 2017

MIAMI — A controversial Florida law that restricted doctors from asking patients about firearm ownership violates medical professionals' constitutional right to free speech, a federal appeals court ruled Thursday.

The opinion striking down key provisions of the law was the latest ruling in a legal challenge to the so-called "Docs vs. Glocks" law, backed by the powerful National Rifle Association gun lobby. The law quickly became a heated ideological battle pitting gun rights groups against advocates of free speech and firearms control.

"This is a hugely important victory for the First Amendment, for the rights of doctors and perhaps most importantly, the patients and families who are trying to protect themselves from guns in the home," said Jonathan Lowy, one of the lawyers in the case and the director of the Brady Center to Prevent Gun Violence's Legal Action Project.

The 8-3 decision by the full U.S. 11th Circuit Court of Appeals overturned an earlier decision by a divided three-judge panel that upheld the Florida law. The opinion applies only to portions of the law that restricted doctors inquiring about firearms.

The case will return to U.S. District Judge Marcia Cooke in Miami for a ruling that follows the 11th Circuit's direction. The decision could be appealed to the U.S. Supreme Court.

Circuit Judge William Pryor, who was a finalist in President Donald Trump's search for a Supreme Court nominee, said in a separate concurring opinion that the First Amendment must protect all points of view.

"The promise of free speech is that even when one holds an unpopular point of view, the state cannot stifle it," he wrote. "The price Americans pay for this freedom is that the rule remains unchanged regardless of who is in the majority."

The Republican-controlled state Legislature adopted the Firearm Owners' Privacy Act in 2011 after an Ocala couple complained that a doctor asked them about guns and they refused to answer. The physician refused to see them anymore.

The law includes a series of restrictions on doctors and other health care providers, requiring them to refrain from asking about gun ownership by patients or family members unless the physicians believe in "good faith" that the information is "relevant" to medical care or safety.

The statute also sought to prevent doctors from entering information about gun ownership in a household into medical records, and discriminating against patients or "harassing" them because of owning firearms.

The law immediately spurred a lawsuit by the Brady Center to Prevent Gun Violence, on behalf of a group of individual Florida doctors, including North Miami Beach physician Bernd Wollschlaeger, and organizations representing 11,000 Florida health care providers.

A Miami federal judge in 2012 ruled in their favor, saying the legislation was based on anecdotal information and unfounded conjecture. Two years later, the 2-1 decision by 11th Circuit reversed her decision.

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But the plaintiffs asked that the entire appeals court consider the case — and the majority ruled in their favor.

"There was no evidence whatsoever before the Florida Legislature that any doctors or medical professionals have taken away patients' firearms or otherwise infringed on patient' Second Amendment rights," Judge Adalberto Jordan wrote, noting that doctors and medical professionals don't have any legal authority to take away anyone's guns anyway.

"None of the anecdotes cited by the Florida Legislature involved the improper disclosure or release of patient information concerning firearm ownership," Jordan wrote.

The NRA and Florida attorneys had argued that under the law, doctors could ask about firearms if the questions were relevant to a patient's health or safety, or someone else's safety, and that the law was aimed at eliminating harassment of gun owners. But the 11th Circuit said there was no evidence of harassment or improper disclosure of gun ownership in health records, as law supporters also claimed.

Attorney Doug Hallward-Driemeier, who also worked on the suit, said the decision was "critical to the health and safety of Florida families."

"It makes clear that the First Amendment does not allow the government, on the basis of politics, to interfere with a doctor providing her best medical advice to her patient," he said.

Information from the Associated Press was used in this report.

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