Eleventh Circuit (Once Again) Upholds Florida's "Gun Gag" Law

Wednesday, December 23, 2015
By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

For the third time now, the Eleventh Circuit ruled on Monday, December 14, 2015, that a Florida law restricting physicians' questions about patients' gun ownership is constitutional.  The ruling eliminated an injunction against enforcement and again reversed a district court's grant of summary judgment in favor of a group of physicians challenging what has become known as the "gun gag" law.  

The "gun gag" law, more officially termed Florida's Firearm Owners Privacy Act (FOPA), has been under fire since its implementation in 2011.  In an ongoing case branded "Docs v. Glocks" and fraught with controversy, physicians (and even the American Bar Association (ABA)) continually challenged the law arguing it violates the First Amendment.  The Eleventh Circuit, however, maintained (for the third time) that the law is a common sense restriction which does not prevent physicians from speaking of firearms generally and therefore, does not constitute a First Amendment violation. 

The Intent of the "Gun Gag" Law.

The law provides that a licensed practitioner or facility may not record firearm ownership information in a patient's medical record (exceptions provided).  The law further restricts physician inquiries regarding firearm ownership or possession unless such information is relevant to a patient's medical care or safety or the safety of others (exceptions provided for EMTs and paramedics).  Additionally, it permits patients to decline to provide information regarding ownership or possession of firearms and prohibits the following:

(a)    physicians discriminating against patients based solely on a patient's firearm ownership or possession;

(b)    harassment of patient regarding firearm ownership during examination; and

(c)    denial of insurance coverage, increased premiums or other discrimination by insurance companies issuing policies on basis of insured's or applicant's ownership, possession, or storage of firearms or ammunition.  Section 790.338, Florida Statutes (2015).  

The Eleventh Circuit noted in its ruling that physicians are awarded with a high degree of deference that reaches its apex in the examination room with patients who are situated in a position of relative powerlessness.  Therefore, patients place an immense amount of trust in their physician, and essentially submit to the physician's authority.  This understanding concludes that physicians have a responsibility to protect patients; and inquiry and record-keeping that constitutes such a substantial intrusion upon patient privacy or could result in discrimination does not amount to good medical care.  On Petition for Rehearing 4 & 5, Dec. 14, 2015.

How Does the "Gun Gag" Law Affect Physicians?

Physicians argued in an August petition for en banc rehearing on a divided opinion by the Eleventh Circuit from July 2015, that the First Amendment precedent and public safety was at-risk if the ruling upholding the highly contentious law as constitutional remained intact.  The ABA argued in its amicus brief filed in Atlanta, that such legislation "interferes with the preventive care duties that are a foundation of modern medicine, and violates the First Amendment rights of both health care practitioners and their patients."  

However, the Eleventh Circuit found that the "gun gag" law closes a "small but important hole" in Florida's patient-privacy protection scheme.  The court also noted that physicians still retain their First Amendment rights to speak of firearms generally, and that they may assert such rights as an affirmative defense in any actions brought against them as a result of the law. Although, the Eleventh Circuit panel also noted that such an assertion does not guarantee a successful defense.  

However, with the threat of the revocation of a physician's license for violations of FOPA looming, it is likely that many practitioners will be reluctant to speak up even where exceptions apply and patient or public safety is at issue. 

Editor's Comments:

Unfortunately, when state lawmakers enact a law, there is a strong presumption that the law is valid and constitutional.  Unless we can move our lawmakers away from their current love affair with guns and their fear of the NRA, anything that remotely resembles an attack on gun ownership is likely to fail.  Courts are not likely to rule against lawmakers.

However, given that guns are one of the leading causes of death in the U.S., it is regrettable that doctors find themselves handcuffed by such "gag laws."  It seems lawmakers are willing to allow all other constitutional rights that citizens have to be destroyed by the Second Amendment.  

In this case, the right to free speech guaranteed by the First Amendment to the U.S. Constitution was "killed" by the "gun gag" law.  However, the right to privacy that governs communications between doctors and patients was also shot in the head.  

When it comes to a test between the right of life, liberty and pursuit of happiness that all citizens are supposed to have versus the right to bear arms, how can any sane person ever contend that the right to bear trumps the right to life?

Doctors need to get behind a constitutional amendment to amend or repeal the Second Amendment.  The lives saved each year in the U.S. from such action could exceed the number of lives saved by the polio vaccine. 


Do you agree with the Eleventh Circuit's ruling on the constitutionality of the "gun gag" law (or FOPA)?  How will this affect your standard preventive medicine practices?

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Section 790.338, Florida Statutes (2015)

On Petition for Rehearing 4 & 5, Dec. 14, 2015

Norder, Lois.  "Bar Association Challenges Doctor Gun-Gag Law."  AJC.com: 3 Sept. 2015.  Web.  17 Dec. 2015.

Wolf, Alex.  "11th Cir. Again Says Fla. 'Gun Gag' Law is Constitutional."  Law360.  Portfolio Media Inc.: 15 Dec. 2015.  Web.  16 Dec. 2015.

About the Author:
George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law.  He is the President and Managing Partner of The Health Law Firm, which has a national practice.  Its main office is in the Orlando, Florida area.  www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

Florida health attorney, physician licensing defense attorney, DOH investigations, patient-privacy protection, Florida gun gag law, patient and public safety, health law attorney, Florida health lawyer, The Health Law Firm, health law defense lawyer, health professional attorney, Firearm Owner's Privacy Act (FOPA), physicians' First Amendment rights, patients' gun ownership, Docs v. Glocks case, physician preventive care duties, First Amendment affirmative defense, physicians license revocation hearing

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.

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