In Florida's Docs v. Glocks Fight, Docs Win

By Casey C. Sullivan, Esq. on February 17, 2017 | Last updated on March 21, 2019

An en banc Eleventh Circuit yesterday struck down a Florida law that prevented doctors generally from asking their patients about gun ownership. The law was an unconstitutional restriction on the doctors' free speech, the court ruled.

The legal battle over that law, Florida's Firearms Owners' Privacy Act, earned the moniker Docs v. Glocks, after doctors complained that the law prevented them from properly screening patients and discussing possible health risks.

The Long Battle Over FOPA

Under FOPA, doctors and other medical professionals could not ask patients whether they owned guns unless they believed "in good faith" that the information was "relevant to the patient's medical care or safety." Other challenged provisions prohibited doctors from recording gun ownership in a patient's medical records in most instances, from discriminating against gun owners, and from "unnecessarily harassing a patient about firearm ownership during an examination."

Doctors who violated the law faced a range of disciplinary actions, including the possibility of losing their medical license.

The law was struck down by a federal district court judge in 2012, but reinstated by a three-judge panel. There, the court ruled 2-1 that FOPA was a "legitimate regulation" of the medical profession. That divided court produced three different opinions over three two years, each applying a different standard of review. (Rather than Docs v. Glocks, the case is actually Wollschlaeger v. Governor of Florida. By 2015, the case was up to Wollschlaeger IV.)

Enter the full Eleventh Circuit, who heard the case en banc and ruled yesterday, 10-1, to strike down the law, in a decision that produced two majority opinions.

Law Doesn't Survive Heightened Scrutiny

In the first majority opinion, written by Judge Adalberto Jordan and joined by eight other judges, the court concluded that the challenged provisions "constitute speaker-focused and content-based restrictions on speech." Usually, such restrictions would trigger strict scrutiny, Judge Jordan wrote. But the court declined to decide whether strict scrutiny was required, finding that the law failed even under heightened scrutiny.

The state had urged the Eleventh to apply to "professional speech" standard articulated by Justice Byron White in his dissent to Thornburgh v. American College of Obstetricians & Gynecologists. While the Eleventh had used that framework before, in a case involving licensure for interior designers, the court acknowledged, it was not appropriate here.

Instead, the court applied the heightened level of scrutiny as articulated in 2011's Sorrell v. IMS Health Inc., which requires the government to show that it is directly advancing "a substantial governmental interests" and that the challenged measures are "drawn to achieve that interest."

The law didn't meet that standard. While protecting Floridian's gun ownership rights from "private encumbrances" is important, the court acknowledged, "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," Judge Jordan wrote. Indeed, in crafting the law, the legislature "relied on six anecdotes and nothing more."

The second majority opinion, written by Judge Stanley Marcus and joined by six others, agreed with the first's free speech determinations, but included a discussion of FOPA anti-discrimination clause's "second constitutional infirmity" -- namely, that it was "incomprehensibly vague".

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