Federal Judge Bars Enforcement Of Doctor Gun Question Law

September 15, 2011

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

Comments

7 Responses to “Federal Judge Bars Enforcement Of Doctor Gun Question Law”

  1. David Huie Green on September 16th, 2011 5:41 am

    that’s between them and none of our business

  2. Mike Hall on September 15th, 2011 10:49 pm

    What makes anyone think that the doctor is going to get the truth when such a stupid question is asked? Of course the next thing the doctor will find is he has one less patient paying for his services and useless inquisitiveness.

  3. Leif Rakur on September 15th, 2011 9:47 am

    Gag-the-doctor laws violate the First Amendment and common sense. Of course the judge made the right decision.

  4. Kathy on September 15th, 2011 9:03 am

    Finally a Judge with common sense. I also agree with the new Health Care law. Thousands of people go without health insurance because they have no sense. IF you are so worried about your individual rights why would elect republicans to office.
    This gun law is to pay back NRA for contributions not for you.

  5. charlie w. on September 15th, 2011 8:22 am

    If any doctor, man or women ask me anything about guns I will tell them they are fired and then where they can go. Its none of a Dr. business!

  6. jp on September 15th, 2011 7:26 am

    If Obamacare is allowed to stand, anything discussed with a doctor, and made
    record of on medical records, will be shared with government through the IRS.
    The ACLU is, of coarse, interested in allowing Drs.to inquire as to gun ownership
    simply because it will allow another avenue to open to the government as to who
    has what. Remember gun registration is fairly new. Example, many guns have
    been past down from family members since well before they were registered.
    There’s no telling how many guns were brought, or sent, back to the US after
    foreign wars.

    I ask you to consider this, How can a nation call itself a Democracy if it denies
    its’ people what it allows itself? Remember Waco, Tx and Ruby Ridge, Id.

  7. 429SCJ on September 15th, 2011 6:50 am

    “We are for Socialism, DISARMAMENT and ultimately for abolishing the state itself” Rodger Baldwin, founder ACLU. Mr Simon why dont you go pitch this in the middle east, someplace.

Written by William Reynolds · Filed Under News