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Federal Judge Bars Enforcement Of Doctor Gun Question Law

A new state law prohibiting health care providers from asking patients about guns cannot be enforced while the merits of the new law are being litigated, a federal judge in Miami ruled Wednesday in a temporary victory for physicians in the battle between the First and Second Amendments.

U.S. District Judge Marcia Cooke granted a temporary injunction to a group of physicians who filed suit over the Firearm Owners Protection Act, which was sponsored by Sen. Greg Evers,  passed by lawmakers in May and signed into law by Gov. Rick Scott.

In a 22-page ruling, Cooke dismissed the argument that allowing health care providers to query their patients on gun ownership violated the patient’s Second Amendment right to bear arms under the U.S. Constitution.

“A practitioner who counsels a patient on firearm safety, even when entirely irrelevant to medical care or safety, does not affect nor interfere with the patient’s right to continue to own or use firearms,” Cooke wrote.

The lawsuit was filed in June on behalf of a group of physicians who argued their First Amendment right of free speech was being violated if they could not speak freely with their patients about guns. Health care providers sometimes ask patients, especially those with young children, if they own guns and how those weapons are stored.

Witnesses testified during legislative debate that the queries were part of a battery of questions often given to patients to address potential health hazards in the home such as the storage of poisons or whether the patient owns a pool.

“It is hard to imagine that even legislators who voted for this bill thought that the state could legislate the doctor-patient relationship – in this case by imposing a gag order on doctors prohibiting them from asking about firearms and ammunition,” said Howard Simon of the ACLU of Florida, which opposed the law, following the ruling Wednesday.

The measure (HB 155) was backed heavily by the National Rifle Association and other gun rights groups.

Cooke said the law doesn’t just infringe on doctors’ speech rights, it restricts the right of patients to receive information about safety issues.

Rep. Jason Brodeur, R-Sanford, said he stood by the intent of the bill, which he said was to protect the privacy of gun owners. “Direct questions about firearm ownership when it has nothing to do with medical care is simply pushing a political agenda, which doesn’t belong in exam rooms,” Brodeur said. “If physicians are worried about safety then I encourage them to give the safety talk to all patients. It is important to note that firearm safety talks are not prohibited at all.”

That is a reference to the fact that bill was watered down considerably from its original language, allowing for doctors to discuss some safety issues if they believe someone might be in danger because of the presence of a gun. In some discussions of the legislation this year, the example of a suicidal patient who says he plans to use a gun to kill himself was used. A doctor might be justified in that case in asking if the patient actually has a gun.

Brodeur said he thought that if doctors were discussing gun safety with all patients, instead of only with those patients who they know have guns, it would likely make the state even more safe because more people would have that talk with a physician.

Marion Hammer, former NRA national president and executive director of Unified Sportsmen of Florida who lobbied extensively in favor of HB 155 didn’t immediately respond to a request for comment. But through the debate over the measure, Hammer said the difference between discussion by doctors of guns as a potential safety issue and things like poisons or swimming pools is the constitutional protection afforded by the constitution to the keeping of guns.

By granting the injunction Cooke ruled that the physicians in the case have a substantial likelihood of success in their pending challenge and that granting the injunction would not harm the public interest.

“The state’s interest in assuring the privacy of this piece of information from practitioners does not appear to be a compelling one,” wrote Cooke, noting that states and the federal government already heavily regulate firearms ownership and sales. “Information regarding gun ownership is not sacrosanct.”

By Michael Peltier
The News Service of Florida