Elbert P. Tuttle U.S. Court of Appeals Building.
Elbert P. Tuttle U.S. Court of Appeals Building. (Photo: Rebecca Breyer/ALM)

The full U.S. Court of Appeals for the Eleventh Circuit ruled Thursday that a Florida law barring doctors from asking patients whether they have guns in their homes violates the First Amendment.

In a 90-page decision released Thursday in the case known as “Docs v. Glocks,” the court ruled in favor of the doctors who challenged the law, saying it interfered with their ability to offer guidance on safe gun storage, particularly for parents of young children. The decision includes two majority opinions written by Judges Adalberto Jordan and Stanley Marcus and a dissent from Judge Gerald Tjoflat.

“Despite its majestic brevity—or maybe because of it—the freedom of speech clause of the First Amendment sometimes proves difficult to apply,” Jordan wrote. “Yet certain First Amendment principles can be applied with reasonable consistency, and one of them is that, subject to limited exceptions … content-based regulations [of speech] are presumptively invalid.”

The court rejected the argument of Florida Attorney General Pam Bondi—echoed by the National Rifle Association and other gun rights groups—that broaching the topic of firearm safety violates the Second Amendment.

“The record here demonstrates that some patients do not object to questions and advice about firearms and firearm safety, and some even express gratitude for their doctors’ discussion of the topic,” Jordan wrote.

Marcus wrote that the law could not withstand scrutiny and that its provisions “plainly target core First Amendment speech.”

Judge Gerald Tjoflat disagreed. “I respectfully dissent from my colleagues’ judgment that the First Amendment requires us to declare Florida’s well-considered legislative judgment unconstitutional,” Tjoflat wrote.

The court held oral arguments en banc in June, deciding to do so after a series of split decisions by three-judge panels. The arguments fell in the wake of a shooting rampage at an Orlando nightclub by a Florida resident with a semi-automatic rifle and a handgun. The attack left 50 people dead and dozens more injured.

The case—framed as a clash between First Amendment free speech protections and the Second Amendment guarantee to keep and bear arms—has attracted 30 amicus briefs. On the side of physicians, advocates argue that the law would prevent life-saving safety advice from reaching parents and families and violate the First Amendment right to share and receive information. Meanwhile, gun rights proponents argue the law is needed to keep doctors from harassing patients, invading their privacy and undermining their right to bear arms.

The Florida Firearm Owners Privacy Act of 2011 forbids health care providers from asking whether a patient’s family has guns in the home or entering such information into medical records unless it is relevant to a specific present threat, such as suicide risk.

Dr. Bernd Wollschlaeger of Aventura Family Health Center in North Miami Beach sued the state to block enforcement of the law. He was joined by a list of other doctors and the state chapters of the American Academy of Pediatricians, the American Academy of Family Physicians and the American College of Physicians. Their legal team is led by Douglas Hallward-Driemeier of Ropes & Gray in Washington. He was one of the lawyers who presented oral arguments for legalizing same-sex marriage at the U.S. Supreme Court.

The case is Dr. Bernd Wollschlaeger v. Governor State of Florida, No. 12-14009-FF.

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