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Florida Firearm Owners' Privacy Act Under Review

Monday, June 24, 2013

On June 29, 2012 a federal district court in Florida blocked enforcement of several provisions of the state’s Firearm Owners’ Privacy Act, resulting from the case Wollschlaeger v. Governor State of Florida

The 2011 law was enacted to stop activist doctors from pushing an anti-gun agenda upon the residents of Florida by unnecessarily inquiring about patients’ gun ownership, and to protect patients’ privacy by making sure doctors cannot record gun ownership information in a patient’s medical file. Under the law, medical professionals and insurance companies are also not allowed to discriminate against patients based upon gun ownership. The law also makes clear that patients have a right to refuse to answer health practitioners’ questions about gun ownership. The legislation was inspired by the experiences gun owners have faced while receiving medical treatment from anti-gun doctors.

The law is not an outright ban on doctor-patient speech, as has been portrayed in the media. It provides clear exceptions for gun ownership information that is “relevant to the patient's medical care or safety,” and for medical personnel to inquire about gun ownership or possession in an emergency. It also does not stop interested patients from inquiring with their physician about firearms.

Following the ruling, the only protections remaining are the recognition that a patient may refuse to give gun ownership information to a medical professional, and the ban on insurers discriminating against gun owners.

In her opinion, Judge Marcia C. Cooke held that the law is a content-based restriction on speech that violates the First Amendment, rejecting arguments that the act was a “permissible regulation of professional speech or occupational conduct.” She rejected Florida’s argument that the law is valid because of the state’s interest in protecting the right to keep and bear arms, stating that the argument was a “legislative illusion” and that patients’ rights wouldn’t be adversely affected in absence of the law. Also dismissed is Florida’s argument that the State has an interest in removing “barriers to the receipt of medical care arising from discrimination or harassment based on firearm ownership.” Despite numerous accounts of patients facing hardships due to owning firearms, Judge Cooke shuns these cases as anecdotal.

On July 31, Florida Governor Rick Scott announced the State’s intention to appeal the case to the U.S. Circuit Court of Appeals for the 11th Circuit, noting, “This law was carefully crafted to respect the First Amendment while ensuring a patient's constitutional right to own or possess a firearm without discrimination."

Since July, the case has been taken up by the 11th Circuit and briefs have been filed by both sides. On October 1, the NRA filed a “friend of the court” brief in defense of the statute. In the brief, lawyers for the NRA explain that the legislation “simply recommends that practitioners ‘should refrain’ from asking questions about firearms unless related to medical care or safety,” noting that the act targets “discrimination and harassment, not speech.” The brief goes on to contend that even if the statute were to pose a remote restriction on free speech, it is well within the state’s authority as it “regulates speech only as part of the practice of medicine.”

Oral arguments are likely to be heard before the court later this summer. The NRA will be sure to alert you to any developments in the defense of this important patient privacy legislation.

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