Court Monitor

Second Amendment Victory for Patients

In a long-running legal battle called "Docs vs. Glocks" (a Glock is a popular handgun), which includes liberal medical societies challenging a Florida pro-Second Amendment law, a federal appellate court has ruled in favor of the Second Amendment. Wollschlaeger v. Florida (11th Cir. Dec. 14, 2015). This highly watched litigation is a tremendous victory for gun owners everywhere.

Gun-control zealots have persuaded liberal medical societies to include in their guidelines for pediatricians and other physicians that they ask patients about gun ownership. For pediatricians, this interrogation includes asking children whether their parents own guns, and then putting that sensitive information in the medical record.

One's medical record is fully available to governmental authorities at any time without any Fourth Amendment protections such as a warrant. A mere agency subpoena, never approved by a judge, can be used by a government official to obtain a copy of anyone's medical records. Placing information about gun ownership into a medical record is tantamount to creating a Big Brother government database about who owns guns and who does not. Some gun owners face mandatory prison sentences merely for possessing a gun, so these questions by physicians can elicit incriminating information.

Numerous instances of these improper interrogations by physicians were recounted at a legislative hearing in Florida. For example, during a routine visit a pediatrician asked a patient's mother whether she had any firearms in her home. The mother refused to answer, feeling that the question was an invasion of her privacy, and the pediatrician then terminated the relationship and told her she had 30 days to find another doctor.

In response to these incidents, the State of Florida passed a law that physicians (1) "may not intentionally enter" information about firearm ownership into the patient's medical record when the physician knows it is "not relevant to the patient's medical care or safety, or the safety of others," (2) "shall respect a patient's right to privacy and should refrain" from asking about firearm ownership unless the physician believes in good faith that the "information is relevant to the patient's medical care or safety, or the safety of others," (3) "may not discriminate" against a patient based on firearm ownership, and (4) "should refrain from unnecessarily harassing a patient about firearm ownership." Liberal physician organizations sued to overturn this law, and won at the trial level.

But on appeal, a three-judge panel rendered a 2-1 decision upholding the law. Then, in unprecedented fashion, the panel vacated (erased) and replaced its opinion with a new opinion two more times, such that a total of three opinions were rendered by the same panel on the same issue!

The third and final opinion of the 2-1 panel was 82 pages long. It upheld the law because it "narrowly protects patients in a focused manner in order to advance the State's compelling interest in protecting the Second Amendment's guarantee to keep and bear arms and patients' privacy rights in their medical records, exactly the sort of tailoring strict scrutiny requires. Those are rights that must always be protected in ways big and small." Patients can now visit a physician in Florida without being asked nosy questions about guns.