A federal appeals court has struck down key portions of a Florida law that barred medical professionals from asking their patients whether they owned guns.
The ruling, issued Thursday by the 11th Circuit Court of Appeals in Atlanta, finds that the Firearms Owners Privacy Act (FOPA) — known colloquially as “Docs vs Glocks” — violates medical practitioners’ free speech rights under the First Amendment. Advocates of the law, which took effect in 2011, had argued that prohibiting doctors from discussing firearm ownership with their patients was necessary to protect Second Amendment freedoms.
The court roundly rejected that argument, ruling that questions from a physician cannot in any way be construed as infringing upon an individual’s gun rights.
“The Second Amendment right to own and possess firearms does not preclude questions about, commentary on, or criticism for the exercise of that right,” the court wrote in its majority decision. There was one dissent.
The ruling is a major defeat for the National Rifle Association, which lobbied for the law’s passage, and which has voiced support for the legislation as it endured multiple legal challenges. Thursday’s opinion reverses a 2015 decision by a three-judge panel that upheld the controversial law. The latest challenge to the law, brought by the Brady Campaign to Prevent Gun Violence and by professional associations representing 11,000 Florida health care providers, argued that the law interfered with the ability of doctors to provide medical advice to their patients.
The physicians who challenged the law said it is common practice to routinely ask patients about various potential health and safety risks in their homes, including household chemicals, drugs, alcohol — and firearms. In an effort to prevent and reduce firearm-related deaths and injuries, particularly to children, the American Medical Association “encourages its members to inquire as to the presence of household firearms as a part of childproofing the home and to educate patients to the dangers of firearms to children.”
Research shows that people with access to firearms are three times more likely to kill themselves than people without access to a gun and twice as likely to be victims of homicide.
But under FOPA, doctors who asked their patients whether they kept guns in the home could be subject to disciplinary action by the Florida Board of Medicine. Punishments could include a $10,000 fine, a letter of reprimand, probation, suspension, compulsory remedial education, or permanent license revocation.
Florida officials defending the law argued that it was necessary to protect citizens against “private encumbrances” on their Second Amendment rights by doctors. The NRA has ramped up this language, saying Floridians “were harassed or denied access to services because they refused to be interrogated by their doctors about their ownership of firearms.”
The court noted in Thursday’s ruling that there was no substance to claims that patients had been harassed by their doctors for practicing their Second Amendment rights.
“There was no evidence whatsoever before the Florida Legislature that any doctors or medical professionals have taken away patients’ firearms or otherwise infringed on patients’ Second Amendment rights,” the judges wrote.
An appeals court just ruled that the state is allowed to ban physicians from talking about guns with their patients. But educating doctors about firearms could lead to an honest conversation about health risks with gun owners.
“This evidentiary void is not surprising because doctors and medical professionals, as private actors, do not have any authority (legal or otherwise) to restrict the ownership or possession of firearms by patients (or by anyone else for that matter),” the court wrote. “The Second Amendment right to own and possess firearms does not preclude questions about, commentary on, or criticism for the exercise of that right.”
Most physicians acknowledge the risks of firearms ownership, but they rarely speak with their patients about them, research has found. As The Trace has reported, this is often because doctors believe that they are barred from doing so, or they fear harming their relationship with patients. A 2014 survey found that while 86 percent of doctors believe guns are a public health issue, 58 percent of practitioners do not ask their patients about access to, or ownership of, firearms.
“Doctors are taught how to screen for lots of sensitive issues, but nobody has brought up the gun thing,” Jahan Fahimi, an emergency medicine physician at the University of California, San Francisco, told The Trace. “We don’t know how to talk to gun owners, and they do make us uncomfortable.”
The NRA wields enormous power in the Republican-dominated Florida Legislature, which passed FOPA after a series of local news stories emerged about residents who said they felt harassed by medical providers who asked if they had firearms in the home and if they stored them securely.
“Whether I have a gun has nothing to do with the health of my child,” Amber Ullman, a 26-year-old mother of three, told the Ocala Star Banner in 2010. “If I don’t have to register my gun with the state of Florida, why do I have to tell my pediatrician whether I own a gun?”
Florida is not the only state to have a law regulating doctor-patient conduct and medical record-keeping with regards to gun ownership, but its statute was the most restrictive. Minnesota bans state health authorities from collecting data on firearm ownership. In Missouri, medical practices cannot require doctors to ask about access to guns. Doctors in Montana cannot refuse treatment to patients who opt not to answer questions about their weapons.
The decision by the 11th Circuit on Thursday overturns a ruling by a three-judge panel from the same court from 2015. In 2012, a federal district court judge had ruled that the law was invalid.
Free speech, the court ruled Thursday, supersedes the sensitivities that people might have about being asked questions they don’t like.
“Doctors and patients undoubtedly engage in some conversations that are difficult and uncomfortable,” the judges ruled, adding that patients have the “right to refuse to answer questions about firearm ownership.”
“Many are those who must endure speech they do not like, but that is a necessary cost of freedom,” the court said.