Thursday, February 16, 2017

Eleventh Circuit Strikes Down Flori-DUH Gun Gag Order Aimed at Physicians

Saint Augustine said, "An unjust law is no law at all." Flori-DUH's legislators turn them out all the time. One of them just got slammed dunked by unanimous ruling of eleven (11) Court of Appeals judges.

TRICKY RICK SCOTT's and fascist Florida legislators bizarre, brazen, brutish, bullying, beastly, unjust 2011 law forbidding Florida physicians from asking patients about guns in their home to which children may have access -- struck down unanimously by the United States Court of Appeals in Atlanta. You can feel the grandeur in their unanimous en banc opinions, joined in by eleven judges, affirming First Amendment values over the Philistinism of the National Rifle Association and the hysteria it created in Florida's legislature.

I never argued before the Eleventh Circuit, but I tried an environmental whistleblower case against retaliatory EPA in two of its courtrooms, including four days in the en banc courtroom before USDOL Judge Clement Kennington.

Once again, the majesty of the law has helped protected civil rights.

Kudos to Chief Judge Ed Carnes and Judges Gerald Bard Tjoflat, Frank M. Hull, Stanley Marcus, William Pryor, Beverly Baldwin Martin, Adalberto Jordan, Robin S. Rosenbaum, Julie Carnes and Jill A. Pryor. Kudos to Dr. Bernd Wollschlaeger and his lawyers at Ropes & Gray for bringing the case.

Read the unanimous en banc Court of Appeals decision in Dr. Bernd Wollschlaeger v. Governor of the State of Florida, here.

En Banc Courtroom of the Eleventh Circuit Court of Appeals, Atlanta, located in the Elbert Tuttle Courthouse, named for one of the judicial heroes of desegregation

Florida Doctors May Discuss Guns With Patients, Court Rules
FEB. 16, 2017
The New York Times

MIAMI — A federal appeals court cleared the way on Thursday for Florida doctors to talk to their patients about gun safety, overturning a 2011 law that pitted medical providers against the state’s powerful gun lobby.

In its 10-to-1 ruling, the full panel of the United States Circuit Court of Appeals for the 11th Circuit concluded that doctors could not be threatened with losing their license for asking patients if they owned guns and for discussing gun safety because to do so would violate their free speech.

“Florida does not have carte blanche to restrict the speech of doctors and medical professionals on a certain subject without satisfying the demands of heightened scrutiny,” the majority wrote in its decision. In its lawsuit, the medical community argued that questions about gun storage were crucial to public health because of the relationship between firearms and both the suicide rate and the gun-related deaths of children.

A number of doctors and medical organizations sued Florida in a case that came to be known as Docs v. Glocks, after the popular handgun.

“We are thrilled that the court has finally put to bed the nonsensical and dangerous idea that a doctor speaking with a patient about gun safety somehow threatens the right to own a gun,” said Howard Simon, the executive director of the American Civil Liberties Union of Florida, which helped organize a coalition of medical associations and family rights groups that filed a friends of the court brief. “This was a dangerous free speech restriction, especially for the health and lives of children.”

The federal appeals court found that one part of the law — on patient discrimination — was constitutional. That portion of the law stated that doctors could not deny service to patients who owned guns, a provision that was not at the heart of the lawsuit.

The Florida law was the first in the country to try to restrict the First Amendment rights of medical providers to discuss the safe storage of guns with patients, and the court ruling will probably make it more difficult for other states to pass a similar measure.

The Republican-controlled Florida legislature, with the support of the state’s Republican governor, Rick Scott, passed the restrictions in 2011, aimed primarily at pediatricians. Under the law, doctors could lose their licenses or risk large fines for asking patients or their families about gun ownership and gun habits. Pediatricians routinely ask parents questions about safety in the home, including the safe storage of guns and precautions to prevent drowning in pools.

The legislature grew concerned after it heard anecdotes about people who said they felt pressured to answer questions about gun ownership and harassment when they did not do so. One mother said she felt it was an invasion of privacy. The National Rifle Association also viewed the medical community’s gun-related questions as discriminatory and a form of harassment, a position that the state took in court when it argued the queries violated the right to bear arms.

It became one in a series of gun-rights laws that Florida — a state known for its “Stand Your Ground” self-defense law — has passed over the last few years. But the Court of Appeals decided on Thursday that the law did not violate the Second Amendment. Instead, the court found that there was little evidence beyond a few anecdotes to demonstrate that this constituted harm.

“The first problem is that 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.

For the doctors, the decision to allow them to ask patients, or the parents of patients, whether they are safely storing their guns goes to the heart of their ability to care for patients and protect them from harm, lawyers said.

“This decision is critical to the health and safety of Florida families,” said Doug Hallward-Driemeier of Ropes & Gray, the law firm that represented the plaintiffs in the case. “It makes clear that the First Amendment does not allow the government to interfere with a doctor providing her best medical advice to her patient.”


Court: Florida doctors can ask patients about guns

A federal appeals court ruled on Thursday that Florida doctors can talk to patients about gun safety, declaring a law aimed at restricting such discussions a violation of the First Amendment's right to free speech.

The 11th U.S. Circuit Court of Appeals found that the law does not trespass on patients' Second Amendment rights to own guns and noted a patient who doesn't want to be questioned about that can easily find another doctor.

"The Second Amendment right to own and possess firearms does not preclude questions about, commentary on, or criticism for the exercise of that right," wrote Circuit Judge Adalberto Jordan in one of two majority opinions covering 90 pages. "There is no actual conflict between the First Amendment rights of doctors and medical professionals and the Second Amendment rights of patients."

Circuit Judge William Pryor, who was a finalist in President Donald Trump's search for a Supreme Court nominee, said in a separate concurring opinion that the First Amendment must protect all points of view.

"The promise of free speech is that even when one holds an unpopular point of view, the state cannot stifle it," he wrote. "The price Americans pay for this freedom is that the rule remains unchanged regardless of who is in the majority."

The law was passed in 2011 and signed by Republican Gov. Rick Scott with strong support from the National Rifle Association. It was the only one of its kind in the nation, although similar laws have been considered in other states.

Supporters in the Republican-controlled Florida Legislature insisted it was necessary because doctors were overstepping their bounds and pushing an anti-gun, anti-Second Amendment agenda.

The law was challenged almost immediately by thousands of physicians, medical organizations and other groups such as the American Civil Liberties Union as a violation of free speech in what became known as the "Docs v. Glocks" case. A legal battle has raged in the courts since then, with several conflicting opinions issued.

"We are thrilled that the court has finally put to bed the nonsensical and dangerous idea that a doctor speaking with a patient about gun safety somehow threatens the right to own a gun," said Howard Simon, executive director of the ACLU of Florida.

The 11th Circuit noted that Florida lawmakers appeared to base the law on "six anecdotes" about physicians' discussions of guns in their examination rooms and little other concrete evidence that there is an actual problem. And doctors who violated the law could face professional discipline, a fine or possibly loss of their medical licenses.

"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," Jordan wrote for the court.

The NRA and Florida attorneys had argued that under the law doctors could ask about firearms if the questions were relevant to a patient's health or safety, or someone else's safety, and that the law was aimed at eliminating harassment of gun owners. But the 11th Circuit said there was no evidence of harassment or improper disclosure of gun ownership in health records, as law supporters also claimed.

"There is nothing in the record suggesting that patients who are bothered or offended by such questions are psychologically unable to choose another medical provider, just as they are permitted to do if their doctor asks too many questions about private matters like sexual activity, alcohol consumption, or drug use," the court ruled.

The ruling did determine that some parts of the law could remain on the books, such as provisions allowing patients to decline to answer questions about guns and prohibiting health insurance companies from denying coverage or increasing premiums for people who lawfully own guns.

The case will return to U.S. District Judge Marcia Cooke in Miami for a ruling that follows the 11th Circuit's direction. The case could, however, also be appealed to the U.S. Supreme Court.

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