MIAMI — A Florida law that restricts what doctors can ask patients about gun ownership should be reinstated because it doesn't limit free speech as a federal judge ruled, an attorney for the state argued Thursday.
The law, which has become popularly known as "Docs vs. Glocks," does not flatly ban physicians from having discussions about firearms with patients, Florida Solicitor General Allen Winsor told a three-judge panel of the 11th U.S. Circuit Court of Appeals.
"The wording in the law is 'should refrain,'" Winsor said. "It's not mandating anything. It's recommending. The use of the term is critical in this case."
Passed by the Legislature in 2011, the Firearm Owners Privacy Act prohibited doctors from asking patients about gun ownership or recording such information in medical records unless it was medically necessary — although that term was not defined. U.S. District Judge Marcia Cooke declared the legislation unconstitutional last year as an impermissible restriction on free speech, and the state appealed.
In his rebuttal, the attorney representing physicians and gun-control advocates, Douglas Hallward-Driemeier, said the law was sufficiently strong to prompt doctors to censor themselves, because none would risk a potential loss of license or fines up to $10,000 for violating it.
He said most doctors ask about gun ownership as a common practice on questionnaires filled out by patients and that it's particularly important in homes where children are present or in cases of mental illness.
"We think it's relevant to ask every patient, every time," Hallward-Driemeier said. "Doctors will self-censor."
But one member of the panel, U.S. Circuit Judge Gerald Tjoflat, had a different concern.
Tjoflat grilled Hallward-Driemeier about the possibility that allowing doctors to ask about gun ownership could devolve into a situation in which they are somehow used by the federal government to collect lists of gun owners.
"It goes to Uncle Sam in Washington. You understand my concern," the judge said. "You can put it in a computer and spit out everybody who owns a gun."
Hallward-Driemeier said he knew of no state or federal provision for doctors in Florida or elsewhere to provide gun owner lists to the government, noting that medical records are already protected by strict privacy laws. He argued that the law restricting doctors' ability to discuss guns only came into being because the Republican-dominated Florida Legislature was trying to make a political point.
"The state simply cannot stop speech it believes to be a political attack," Hallward-Driemeier said.
The panel did not issue an immediate ruling and seemed split on what to do. Judge Charles Wilson said the law appeared to him a "classic content-related restriction on speech" that impermissibly singles out doctors.
Judge L. Scott Coogler, an Alabama district judge sitting by invitation on the appeals panel, said one possible ruling could be to allow doctors to ask about guns but leave intact the law's restrictions on record-keeping and the requirement that the information be medically necessary.
"Do you have some other reason other than medical treatment that you want to ask patients about guns?" Coogler asked.
The law has been challenged by organizations representing 11,000 Florida health providers, including the Florida chapters of the American Academy of Pediatrics and the American Academy of Family Physicians. The Brady Center to Prevent Gun Violence, the American Civil Liberties Union and numerous other groups have joined them.
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