Benjamin, Aaronson, Edinger & Patanzo, P.A.

Docs v. Glocks NRA shoots to kill Doctor’s First Amendment rights

 There are many and various different lobbying groups, both on State and Federal levels. As powerful as any of these lobbying groups are the NRA, the National Rifle Association, and the AMA, the American Medical Association. They yield power in the halls of Congress and in the State Legislatures, second to none. Their power is no different in the State of Florida. In June of 2011, Governor Rick Scott passed a law nicknamed “Docs v. Glocks” which was strongly backed by the National Rifle Association. This law required doctors and other medical personnel including emergency staff and health care providers from asking about gun ownership unless, in good faith, they believed that the information was relevant to the patient’s medical care, safety or perhaps the safety of others. Further, the law prohibited them from entering the response in a database.

 This law apparently was the first such law in this country. The uniqueness of this law was that the law pitted both the NRA and the Florida Medical Association against each other. The law was only passed after these two powerful lobbying groups worked out a deal on the contents of the law. The original law would have allowed for jail time for doctors who did not follow the dictates. The original Bill, before the orchestrating between these two powerful lobbying groups took place, would have required up to a five year prison sentence and a five million dollar fine.

 Last month, Federal District Court Judge Marcia Cooke temporarily enjoined the enforcement of the law citing that it violated doctor’s First Amendment rights to speech. She specifically wrote that “the law directly targets protective expression by restricting it”. She further went on to state “a practitioner who counsels a patient on firearm safety, even when entirely irrelevant to medical care and safety, does not affect or interfere with the patient’s right to continue to own, possess or use firearms”.

 Judge Cooke’s analysis was quite correct. The law in a simple analysis creates a prior restraint on speech. It prevents doctors from asking a question. Therefore, it prevents doctors from speaking.

 As Judge Cooke noted, there are already Federal laws which prohibit certain information that a doctor receives from a patient from being disclosed or put into a database. There are public policy reasons for these provisions. If a patient believes what he or she says to a doctor is going to find itself in the public realm then a patient is less likely to be candid with that doctor. If the patient does not believe that their conversations are private, then there is a breakdown between the doctor/client relationship.

 This breakdown is different than a doctor not being allowed to ask a patient a question. Asking the patient a question might simply be part of the patient/doctor relationship. Some may argue that there is no reason why a doctor should ask a patient whether or not they have a gun in their home. In fact, some may argue that there is very little medical value in that question.

 Whether there is medical value or not is irrelevant. Quite candidly, the patient does not have to answer the doctor’s question or could even tell the doctor that he is overstepping his bounds. But nothing should prevent that doctor from talking to his patient as he sees fit which is the essence of the First Amendment and freedom of speech.

 On the political side, it is interesting to see how in the State of Florida and in other States that the NRA has such clout. Apparently, they have more clout than the medical lobbying groups and in this situation, even made the Florida Medical Association cave in and allow for a ridiculous, unconstitutional and offensive Bill to be passed. Luckily, there are Judges such as Judge Cooke who clearly see the First Amendment implications and are willing to stand by the rights of poor downtrodden doctors and protect their First Amendment freedoms.

Call Now Button