Federal appeals court takes up challenge to Florida's 'Docs vs. Glocks' law

Published June 22, 2016

ATLANTA — As a national debate rages on gun rights and gun control, a federal appeals court is mulling a Florida law that restricts doctors from talking about gun ownership with patients.

The 11th U.S. Circuit Court of Appeals on Tuesday heard arguments on a legal challenge to the 2011 law that requires doctors to have a legitimate safety concern before they start asking a patient about guns. Doctors who violate the law could face professional discipline, such as a fine, or even lose their medical licenses.

Enforcement of the law is currently on hold pending the outcome of the legal challenge.

Supporters of the law, including the National Rifle Association, say it is necessary because they believe doctors were overstepping their bounds by pushing an anti-gun, anti-Second Amendment political agenda to patients.

The lawsuit, commonly known as "Docs vs. Glocks," was filed by doctors, medical organizations and other groups, including the American Civil Liberties Union. They say the law violates doctors' free speech rights and has a chilling effect on meaningful conversations about firearms between doctors and patients.

Florida Deputy Solicitor General Rachel Nordby argued that the law doesn't prevent doctors from asking about guns as long as they are acting in good faith and believe the questions are relevant to the patient's medical care or safety. The doctor is the "gatekeeper" and gets to determine what is relevant, she said.

Several judges expressed doubt about the effectiveness of the law during oral arguments Tuesday.

"How is that even enforceable, just from a reality point of view?" Circuit Judge Robin Rosenbaum asked, adding that there is no objective standard by which it can be determined that a doctor is acting in good faith.

The state has argued that the law protects patients from discrimination or harassment and reaffirms a patient's right to refuse to answer a doctor's questions. It also prohibits doctors from dropping patients because they own a gun.

The law was prompted by complaints legislators received about doctors asking their patients inappropriate questions, Nordby said.

Rosenbaum said that in her opinion, none of the incidents outlined in the state's court filings included behavior that would violate the law as Nordby described it. Nordby responded by saying the law represented a compromise that protected privacy and Second Amendment rights while also preserving free speech rights.

A main problem with the law is that it effectively stops many doctors from asking relevant questions about guns because they fear that a patient will take offense and file a complaint with the Florida Board of Medicine, argued Douglas Hallward-Driemeier, an attorney for the doctors.

Circuit Chief Judge Ed Carnes asked Hallward-Driemeier whether the state has the right to prohibit a doctor from discriminating against a patient based on gun ownership. Hallward-Driemeier replied that there would be no problem if that was all the law said.

The law also violates doctors' First Amendment right to free speech by targeting speech on a specific topic, Hallward-Driemeier argued.

In 2012, U.S. District Judge Marcia Cooke in Florida ruled that the law violated free speech rights and was unconstitutional.

A three-judge panel of the 11th Circuit overruled Cooke by a 2-1 vote three times, with each opinion replacing the previous one. The most recent opinion, in December, said any free speech concerns were outweighed by the state's interest in keeping doctors from using their "power disparity" to discourage patients from exercising their constitutional right to bear arms.

The full 11th Circuit later tossed out the panel's decision and agreed that all of the appeals court's 11 judges would consider the case.