Judge Marcia Cooke Strikes Down Florida’s “Firearms Owners’ Privacy Act”; State Appeals

BY SCOTT SQUIRES — In 1983, the American Academy of Pediatrics (“AAP”) implemented “The Injury Prevention Program” (“TIPP”). TIPP provides pediatricians with safety counseling guidelines to discuss with patients and parents. A quick read through the guidelines provides a crash course in Parenting 101: secure the car seat, install gates on stairways and pools, keep safety caps on toxic products, make your child wear a bicycle helmet, store firearms securely, etc. The AAP believes that effective preventive care requires that a doctor discuss each of these items with a patient.

The State of Florida disagrees. Despite the fact that 18 children and young adults die every day from firearm-related injuries, if Governor Rick Scott and the Florida Legislature have their way, a doctor who discusses firearm safety with a patient risks losing her medical license.

Governor Scott signed the “Firearms Owners’ Privacy Act” into law on June 2, 2011. In relevant part, the Act provides that a doctor “should refrain from” asking a patient about firearm ownership, unless she believes “in good faith” that the “information is relevant to the patient’s medical care or safety, or the safety of others.” Additionally, according to the Act, doctors “should refrain from unnecessarily harassing a patient about firearm ownership during an examination.”

Multiple physician interest groups and individual physicians joined as plaintiffs and alleged that the Act violates the First and Fourteenth Amendments of the U.S. Constitution. The case was heard in the United States District Court for the Southern District of Florida and both parties moved for summary judgment.

Judge Marcia Cooke permanently enjoined the State from enforcing five out of the Act’s eight provisions, primarily because the Act violates the First Amendment and because the Act is unconstitutionally vague. Judge Cooke determined that the Act is a “content-based” restriction on physicians’ speech because it regulates speech related to “one narrow subject or viewpoint—the exercise of the right to own and possess a gun.” The Supreme Court has held that content-based restrictions are “presumptively invalid.” To overcome this presumption the State had to establish that the law is the “least restrictive means of advancing a compelling government interest.”

The State asserted three primary interests that the Act purported to protect. Judge Cooke rejected all three. First, the interest in protecting the right to keep and bear arms was deemed non-compelling because a physician does not interfere with a patient’s right to possess a firearm by initiating a dialogue about firearm safety. Second, the interest in protecting patients from “barriers to the receipt of medical care arising from discrimination or harassment based on firearm ownership” was held non-compelling because the State was unable to provide any actual evidence that harassment and discrimination based on firearm ownership is “widespread or pervasive.” Third, the interest in protecting a firearm owner’s privacy rights was determined to be non-compelling because firearm ownership information is “not sacrosanct”—regulations already exist that require firearm owners to divulge ownership information in certain circumstances.

Judge Cooke additionally held the following language to be unconstitutionally vague: (1) “relevant to the patient’s medical care or safety, or the safety of others,” and (2) “should refrain from unnecessarily harassing a patient about firearm ownership during an examination.” The Supreme Court defined “unconstitutionally vague” as “so vague and standardless that it leaves public uncertain as to conduct it prohibits or leaves judges and jurors free to decide, without any legally fixed standards, what is prohibited and what is not in each particular case.” Here, there is evidence that physicians are no longer questioning patients about firearm ownership nor counseling patients about firearm safety due to fear of sanctions. The court held that these vague provisions are particularly troublesome because they have had a “chilling effect” on physicians’ ability to practice preventive medicine.

The State has appealed the case to the Eleventh Circuit.

I was raised in the suburbs. I have never been hunting. In fact, I have never held a gun. I cannot pretend to have perspective on what it is like to be a gun owner in America. However, I am married to a pediatrician, which provides me with some perspective on the role a doctor plays in a family’s life. I have learned that, to many patients, a doctor is not just a doctor, but also a social worker, a caretaker, a part-time surrogate parent, and, perhaps most importantly, an educator. We cannot afford to pass laws that restrict a physician’s ability to educate patients about the serious dangers they may face. Perhaps it is time that the Florida Legislature worries less about the Second Amendment and more about the safety of the children living its state.