Court hears ‘Docs v. Glocks’ case: Is law unenforceable?

Several of the 11 judges on the federal appeals court in Atlanta were skeptical — and at times perplexed — about the purpose of a Florida law that prohibits physicians from asking patients about guns in their households.

The occasion for the unusual “en banc” hearing — in which all the judges on the 11th U.S. Circuit Court of Appeals hear a case rather than the usual three-judge panel — was a law that has infuriated doctors and pleased gun-rights advocates. The measure, nicknamed “Docs v. Glocks,” was not well-received by the crowd of jurists at Tuesday’s hearing.

The hourlong proceeding included a striking exchange among the judges and Rachel Nordby, the deputy solicitor general of Florida, who was representing the state. The court questioned why the law seems to contradict itself, at one point evoking a strict prohibition and at another seeming to say the law is more of a suggestion.

Nordby said the law allows doctors to ask questions about guns if they believe that information is “relevant. They are the gate keepers.”

“Are you telling us we should assume the law is totally ineffective?” Judge Charles Wilson asked Nordby.

“All of these provisions are illusionary? They have no legal effect?” Judge William Pryor asked.

“How is this enforceable?” Judge Robin Rosenbaum asked. “There’s no objective standard by which a physician can know.”

Nordby paused for several seconds before answering and then said, “The legislative intent was to express its views on an important public policy,” she said. “These provisions were not meant to be enforced.”

That briefly stirred the spectators, who grumbled audibly at Nordby’s reply.

The argument before the appeals court Tuesday came the day after the U.S. Senate voted no to some fairly modest proposals on guns: one that would have shored up the government’s background check system, and another that would have placed tougher restrictions on gun sales to keep extremists from buying them. Pressure on Congress to do something has increased even more in the days after the massacre of 49 men and women at a gay nightclub in Orlando.

The legal issue in Atlanta Tuesday was a tug of war between the First Amendment protection of free speech and the Second Amendment right to bear arms. A federal judge in Florida struck down the “Docs v. Glocks” law in the months after it passed. But last year a three-judge panel with the federal appeals court in Atlanta upheld the law 2-1. Tuesday’s hearing was a replay of sorts, only this time with 11 judges.

The Firearms Owners’ Privacy Act only applies to doctors in Florida. They risk disciplinary action if they ask or harass patients or the parents of patients about guns in their homes.

Though Florida is the only state with such a law, legal experts said others could adopt similar statutes if the Firearms Owners’ Privacy Act survives legal review. Twenty organizations from both sides of the issue filed briefs in the case, including the National Rifle Association, the Law Center to Prevent Gun Violence, the American Medical Association, the American Association of Suicidology, the American Bar Association and Moms Demand Action for Gun Sense.

“It would send a signal to other states to start creating similar laws,” University of Georgia law professor Sonja West said about the outcome should the federal appeals court uphold the law. “That could have consequences nationwide.”

Sponsors of the Florida law said limits on gun discussions inside exam rooms were needed to protect patients from harassment by doctors opposed to firearms.

One Florida legislator said during the 2011 debate his daughter’s pediatrician asked him to remove his gun from his home. Another lawmaker said a doctor refused to treat a constituent’s child because there were guns in the house. Yet another Florida legislator recounted a complaint from a constituent that his health care provider falsely told him that disclosing firearm ownership was a Medicaid requirement.

The law also says doctors may not include in patients’ files any information regarding guns they may have at home.

“The sole purpose of this was to chill speech,” said Douglas Hallward-Driemeier, one of the lawyers for the three doctors who filed the suit.

But how is a doctor to know where the line is, Judge Stanley Marcus asked.

“How do I know if my pestering has gone over the line …. and I have been exposed to disciplinary action?” Marcus said.

Hallward-Driemeier said it would force doctors to predict “how a patient will hear information” even if questions about guns are among several others about drinking or smoking habits or the use of birth control or seat belts.