Florida Not Seeking to Revive Gun-Gag Law

June 15, 2017

A defunct Florida law that essentially prohibited physicians from asking patients if they own a gun will not return after a federal appeals court struck it down on February 16 as an unconstitutional infringement on free speech.

The state of Florida, which lost the case, had until May 17 to ask the Supreme Court to overturn the appellate decision, said Miami attorney Tom Julin, who represented area medical societies and other groups that filed a "friend-of-the-court" brief in support of physicians challenging the law. May 17 came and went without any action by the state.

"I think this debate is over," Julin told Medscape Medical News.

One of the plaintiffs in the case, however, fears another attempt by lawmakers to ban the gun-ownership question, which he describes as a prelude to advising patients about safely storing firearms, lest children happen upon them in a chest of drawers.

"They'll try another way around the subject," said family physician Bernd Wollschlaeger, MD, himself a gun owner, in North Miami Beach.

Florida enacted the Firearm Owners' Privacy Act (FOPA) in 2011 in response to a handful of anecdotes about patients feeling harassed by physicians asking about gun ownership. In one case, a patient who refused to answer was dismissed from the practice. The law prohibited the gun question unless it was medically relevant. Recording gun ownership in the medical chart, "unnecessarily harassing" gun owners, and otherwise discriminating against them also were forbidden. FOPA had the backing of the National Rifle Association (NRA).

Dr Wollschlaeger and other individual physicians along with several state medical societies immediately challenged FOPA as a violation of their First Amendment rights in a federal district court in Miami. The judge agreed with them, ruling in 2012 that the medical-relevance exception in the law was so vague that it had a chilling effect on physicians fearful of getting in trouble.

Florida won the next round of the legal match when a three-judge panel of the US Court of Appeals for the Eleventh Circuit in Atlanta, Georgia, said that FOPA merely regulated clinical practice, not a physician's right to free speech. In round three, however, a full roster of the appellate judges voted 10 to 1 to uphold the original decision by the federal district court to strike down the law. The gun question, they said, did not threaten the Second Amendment right of patients to bear arms, anecdotal evidence aside.

Medscape Medical News asked the Florida Department of Health and the Florida Attorney General's office why the state chose not to take the FOPA case upstairs to the Supreme Court, but did not receive an explanation.

"America Can Be Truly Proud of Its Legal System"

The ruling by the appellate court in Atlanta probably will discourage other states from passing their own versions of the Florida law, predicts Julin, who specializes in First Amendment cases.

"You had a very strong statement from a very conservative Eleventh Circuit," he said. "The NRA has better things to do, or worse things to do, depending on how you look at it."

Julin said Florida lawmakers wrote their law "in kneejerk reaction" to NRA lobbying without amassing sufficient evidence to prove that gun inquiries in the exam room create widespread problems.

For his part, Dr Wollschlaeger isn't crowing about the legal victory for physicians. He still worries that Florida lawmakers may try to pass a new version of FOPA that could survive court scrutiny. In addition, he fears that the short-lived law and the court fight that it sparked has made many Florida physicians gun-shy about the gun question.

"I get calls from doctors asking, 'Does the court decision mean I can or can't ask it?' " he said. "Some people may hold back — that's my concern."

Dr Wollschlaeger said he tells physicians that improperly stored guns in the home are on par with other household hazards such as unfenced swimming pools and bottles of paint thinner within reach of small children. He has no ideological ax to grind on the subject, he added. "I exercise my Second Amendment rights safely."

Although many Florida physicians reportedly stopped asking patients about gun ownership while FOPA was litigated, Dr Wollschlaeger didn't. He said patients invariably haven't minded, although one NRA supporter replied, "You cannot ask me that question."

"I told him 'Yes, I can, and you don't have to answer me,' " he said. "Our relationship continued. I would never throw a patient out of my practice because of his attitude about guns. I treat everyone with respect."

Dr Wollschlaeger, who emigrated from Germany to the United States in 1991 and became a citizen, said the 6-year court battle over FOPA taught him a lesson about his new country.

"America can be truly proud of its legal system, and its thoughtful judges," he said. "I'd say this even if we had lost."

Follow Robert Lowes on Twitter @LowesRobert

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