Doctors, Free Speech, and Guns in Florida – Court Rules in Docs Versus Glocks

Court Rules in Docs Versus Glocks, 790.338, Docs vs Glocks
Docs vs Glocks
After years of court battles on Doctors, Free Speech, and Guns in Florida, the Second highest court in the land has ruled in the Docs Versus Glocks case.

“The Second Amendment provides that 
“A well regulated Militia, being necessary to 
the security of a free State, 
the right of the people to keep and 
bear Arms, shall not be infringed.”

The Florida legislature passed a law limiting what doctors can discuss with patients regarding firearms. The law that limited doctors questions about guns is constitutional. The law is complex, so excerpts from the court opinion are below. The complete opinion is here:


Case Excerpts

Having concluded that the Case: 12-14009 Date Filed: 12/14/2015 Page: 80 of 82 81 Act does not offend either the First or the Fourteenth Amendments of the Constitution, we must uphold it.”

“[W]e hold that the District Court erred by concluding that the Act violates the First Amendment. The Act withstands strict scrutiny as a permissible restriction of speech.”

Second Amendment Gun Rights


“The Second Amendment provides that “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const. amend. II. It is now undisputed that the Second Amendment right to keep and bear arms is a fundamental right.”

The State of Florida asserts four compelling interests: (1) protection of the Second Amendment right to keep and bear arms; (2) protection of patients’ privacy rights; (3) elimination of barriers to healthcare access; and (4) prevention of discrimination and harassment of firearm owners.”

When the State seeks to impose content-based restrictions on speech in a context in which its regulatory interests are diminished, such as when a professional speaks to the public in a nonprofessional capacity, courts apply the most exacting scrutiny.”

The inquiry provision of the Act, § 790.338(2), requires physicians to “refrain from making a written inquiry or asking questions concerning the ownership of a firearm . . . .” On its face, this provision also inhibits protected speech—inquiring about firearm ownership. It too must survive some level of First Amendment scrutiny.”

Court Rules in Docs Versus Glocks


To summarize, we read the Act to prohibit record-keeping about firearm ownership only when the physician knows such information to be irrelevant to the patient’s medical care or safety, or the safety of others; inquiry about firearm ownership only when the physician lacks a good-faith belief that the information is relevant to the patient’s medical care or safety, or the safety of others; and harassment about firearm ownership only when the physician does not believe it necessary for the patient’s medical care or safety, or the safety of others.”
“Having determined that the record-keeping, inquiry, and harassment provisions are of sufficient clarity to conform to the requirements of due process, we hold that the District Court erred in holding them void for vagueness”
“The Act provides, in relevant part, that licensed healthcare practitioners and facilities (1) “may not intentionally enter” information concerning a patient’s ownership of firearms into the patient’s medical record that the practitioner knows is “not relevant to the patient’s medical care or safety, or the safety of others,” id. § 790.338(1); (2) “shall respect a patient’s right to privacy and should refrain” from inquiring as to whether a patient or their family owns firearms, unless the practitioner or facility believes in good faith that the “information is relevant to the patient’s medical care or safety, or the safety of others,” id. § 790.338(2); (3) “may not discriminate” against a patient on the basis of firearm ownership, id. § 790.338(5); and (4) “should refrain from unnecessarily harassing a patient about firearm ownership,” id. § 790.338(6).”
“[I]n a widely publicized incident that took place in Ocala, Florida, a pediatrician, during a routine visit, asked a patient’s mother whether she kept any firearms in her home. Because she felt that the question constituted an invasion of her privacy, the mother refused to answer. The pediatrician then terminated their relationship and advised the mother that she had 30 days to find a new doctor. Fla. H.R. Comm. on Health & Human Servs., H.B. 155 (2011) Staff Analysis 2 (Apr. 7, 2011); see also Fred Hiers, Family and pediatrician tangle over gun question, Ocala StarBanner, July 24, 2010, http://www.ocala.com/article/20100724/articles/7241001”
“On June 2, 2011, Florida Governor Rick Scott signed the Act into law. The Act created Fla. Stat. § 790.338, entitled “Medical privacy concerning firearms; prohibitions; penalties; exceptions,” and amended the Florida Patient’s Bill of Rights and Responsibilities, Fla. Stat. § 381.026, to include several of the same provisions. The Act also amended Fla. Stat. § 456.072, entitled “Grounds for discipline; penalties; enforcement,” to provide for disciplinary measures for violation of the Act.”
“On June 6, 2011, four days after Governor Scott signed the Act into law, Plaintiffs filed a 42 U.S.C. § 1983 action seeking declaratory and injunctive relief against the State in the United States District Court for the Southern District of Florida, alleging that the inquiry, record-keeping, discrimination, and harassment provisions of the Act facially violate the First and Fourteenth Amendments of the United States Constitution. Plaintiffs contended that the Act imposes an unconstitutional, content-based restriction on speech, is overbroad, and is unconstitutionally vague.”
“The Act seeks to protect patient privacy by restricting irrelevant inquiry and record-keeping by physicians on the sensitive issue of firearm ownership and by prohibiting harassment and discrimination on the basis of firearm ownership. The Act does not prevent physicians from speaking with patients about firearms generally. Nor does it prohibit specific inquiry or record-keeping about a patient’s firearm-ownership status when the physician determines in good faith, based on the circumstances of that patient’s case, that such information is relevant to the patient’s medical care or safety, or the safety of others.” 

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