July 29, 2015

This critique has been updated 7 times, most recently on April 22, 2018. Click here to jump to that update.

A PolitiFactoid.com Critique of...

Federal court says state can enforce ‘docs vs. glocks’ law

an Associated Press story published by many outlets on July 28, 2015
(click here for the story at The Washington Times)

This AP story is the latest in a long-running series of news stories about chapter 2011-112, Laws of Florida, which is entitled, "An act relating to the privacy of firearm owners." The law has received lots of attention nationwide because it's the first such law in any state, and gun haters fear that if the law stands, it will be replicated in other states that are controlled by Republicans.

As its name indicates, the law is designed to protect the privacy of the owners of firearms within the state of Florida, and it does so by creating legal requirements governing the circumstances under which licensed health care practitioners may ask their patients about gun ownership or possession and may record such information in a patient's medical record, among other provisions.

The state was sued over the law by certain health care practitioner groups on claims that the law violates 1st Amendment rights. The law has been in the news ever since it was first considered by the Florida Legislature, and the news media have consistently failed to give the law fair coverage. The AP kept up that tradition with its story yesterday about a federal appeals court ruling that lifted an injunction against enforcement of the law that had been imposed by a lower court.

See below for PolitiFactoid.com's critique of the AP story. The critique appears as dark blue, indented type, embedded in excerpts from the story. At the end of the critique, find a summary showing how drastically this law is both misunderstood in general and misrepresented by the news media.

Federal court says state can enforce ‘docs vs. glocks’ law

Florida can start enforcing a contentious law that restricts what doctors can say to patients about guns.

The measure was first adopted by the Florida Legislature four years ago, but had been caught in a lengthy court battle in which a federal judge in Miami had blocked the law from taking effect.

But the 11th U.S. Circuit Court of Appeals in Atlanta on Tuesday issued a new ruling that lifts the injunction that had blocked enforcement of the law.

The measure, signed into law in 2011 by Gov. Rick Scott, prohibited doctors from asking patients about their gun ownership or recording that information in medical records unless it was medically necessary.

A panel split 2-1 over the law with the majority of judges finding that the law is constitutional and doesn't violate First Amendment speech rights of doctors. It is the second time the appeals court has ruled on the measure and the decision is likely to be appealed.

"The act codifies the commonsense conclusion that good medical care does not require inquiry or record-keeping regarding firearms when unnecessary to a patient's care-especially not when that inquiry or record-keeping constitutes such a substantial intrusion upon patient privacy," said the opinion written by U.S. Circuit Judge Gerald Tjoflat.

Florida's Republican-controlled Legislature adopted the Firearm Owners' Privacy Act after an Ocala couple complained that a doctor had asked them about guns. The two say they refused to answer and the physician refused to see them again.

Marion Hammer, a National Rifle Association lobbyist in Florida and former president of the national organization, has previously defended the law as a way to "stop the political interrogation of gun owners and the children of gun owners when they seek medical care."

The 2011 law, which had become popularly known as "Docs vs. Glocks," was challenged by organizations representing 11,000 state health providers, including the Florida chapters of the American Academy of Pediatrics and the American Academy of Family Physicians.

Doctors who break the law could potentially be fined and lose their licenses.

In dissenting, U.S. Circuit Judge Charles Wilson said the law infringes upon free speech rights of doctors.

"Doctors' jobs are hard enough when the state does not enact laws that force them to think twice about asking questions and providing information that may save lives," Wilson wrote. "This law is instead designed to stop a perceived political agenda, and it is difficult to conceive of any law designed for that purpose that could withstand First Amendment scrutiny."

Howard Simon, executive director of the American Civil Liberties Union of Florida, called the new law "dangerous" and said it needs to be stopped.

"With the ongoing crisis of gun violence plaguing our country, it should not be a crime for public health professionals to ask parents questions about gun storage and offer common-sense advice about firearm safety in the home," Simon said in a statement. "Gagging these conversations not only advances no public policy goal, but could be destructive for our society."

In-Depth Analysis You Won't Find Anywhere Else

What Does the Law Actually Say?
The AP could easily have separated the wheat from the chaff by simply summarizing exactly what the law says. Interpretations of the law by Judge Wilson and the ACLU's Simon, to the effect of the law preventing doctors from providing information about guns, are not supported by the text of the law, the bulk of which can be found within section 790.338, Florida Statutes. In a nutshell, here are the contents of that statute relating to practitioner behavior:

Conditional prohibitions:

• Practitioners are prohibited from intentionally entering information concerning firearm ownership into a patient's medical record if, and only if, such info is not relevant to the patient's medical care or safety or the safety of others (section 790.338(1), Fla. Stat.); and
• Practitioners are prohibited from making a written inquiry or asking questions concerning the ownership of a firearm or ammo or the presence of a firearm in a private home or domicile of a patient or the patient's family, unless the practitioner believes, in good faith, that such info is relevant to the patient's medical care or safety or the safety of others (section 790.338(2), Fla. Stat.).

Unconditional prohibitions:

• Practitioners are prohibited from discriminating against a patient based solely on the patient's exercise of the constitutional right to own a firearm or ammunition (section 790.338(5), Fla. Stat.); and
• The law provides that practitioners "should refrain from" unnecessarily harassing a patient about firearm ownership during an examination (section 790.338(6), Fla. Stat.).

Health care practitioners are required to:

• Respect a patient's right to privacy (section 790.338(2), Fla. Stat.); and
• Respect a patient's legal right to own or possess a firearm (section 790.338(6), Fla. Stat.).

Actions specifically allowed:

• An EMT or paramedic is allowed to make inquiry about possession or presence of a firearm if he or she believes, in good faith, that such information is necessary to treat a patient in a medical emergency or that possession or presence of a firearm would pose an imminent danger or threat to the patient or others (section 790.338(3), Fla. Stat.); and
• A patient is allowed to decline to answer or provide information regarding ownership of a firearm or presence of a firearm in the domicile of the patient or a family member (section 790.338(4), Fla. Stat.).^[1]

Consequences of violating the law:

• Violations of subsections (1) through (4) of section 790.338, Fla. Stat., constitute grounds for disciplinary action by the regulatory bodies for health care practitioners and hospitals (section 790.338(8), Fla. Stat.).

Talking About Guns Is Not Prohibited
As you can see, the law does not prohibit health care practitioners from "talking to patients about guns." Judge Wilson and the ACLU both indicate that it does, but it does not. The law prohibits practitioners from asking about gun ownership or gun possession and from recording information about gun ownership or possession in a patient's medical record, unless such information is relevant to the patient's medical care or safety or the safety of others. If a doctor wishes to provide information about gun safety to a patient, the law does nothing to prevent that.

Anyone who reads the law will find I'm correct. For example, if a doctor is concerned about gun safety and is finishing an exam with a patient, s/he could say something like, "Before we finish, I'd like to share with you this brochure about gun safety. If you have any concerns or questions about gun safety, please let me know." If the patient or the patient's parent or guardian is interested in learning more about gun safety in his or her home, then the door is open for the doctor to discuss gun safety further. If not, then the discussion is over, and the doctor has done nothing to violate any provision of the law.

Nothing – nothing – in the law prevents this sort of exchange from taking place or subjects a doctor to disciplinary action for making the offer. In this scenario, the doctor has successfully "talked to" the patient about guns without breaking any portion of the law.

The closest the law comes to restricting a practitioner from "talking to" a patient about guns is the law's restriction on "harassing" a patient about guns. There's no harassment in the scenario above. It's easy to offer a patient information about gun safety without harassment and without asking if there are guns in his or her home.

What Constitutes Grounds for Disciplinary Action?
There's one more thing about the law that's worth noting, in regard to actions by health care practitioners that might constitute grounds for disciplinary actions. The law contains two provisions about what constitutes such grounds:

• In section 790.338(8), Fla. Stat., the law says violations of subsections (1) through (4) of section 790.338, Fla. Stat., constitute grounds for disciplinary action under section 456.072, Fla. Stat.
• The latter statute contains a long, preexisting list of actions that constitute grounds for disciplinary action against a health care practitioner. The gun privacy law added an item to that list which says that "violating any of the provisions of section 790.338" constitutes grounds for disciplinary action. (See section 456.072(1)(nn), Fla. Stat.)

So, the law is inconsistent. One portion of the law says that violations of subsections (1) through (4) of section 790.338, Fla. Stat., could make a practitioner subject to being disciplined, while another says violations of any subsection of that statute could subject a practitioner to being disciplined. Which of these two provisions prevails over the other? We don't know. Because of the lawsuit, the state hasn't been enforcing the law. (You don't have to take my word for it. This inconsistency and several others were pointed out by staff of the Florida House of Representatives after the bill's final committee hearing on April 12, 2011. Click here and see the top of page 8.)

This question could eventually become important, assuming the law is ever enforced. If section 790.338(8), Fla. Stat., prevails over section 456.072(1)(nn), Fla. Stat., then the prohibition against harassment is merely a discouragement. Why would I call it a "discouragement?" Because under section 790.338(8), Fla. Stat., the law's restriction on harassment has no teeth. The discouragement against harassment resides in subsection (6) of the statute, and the statute specifies that violations of subsections (1) through (4) constitute grounds for disciplinary actions – violations of subsection (6) are not included.

So, under this statute, even if health care practitioners harass patients all they want about guns, the law has no teeth to do anything about it. If that turns out to be the case, harass away, gun-control docs, because you'll be free to harass with impunity!

The same is true for the law's provision related to discriminating against a patient over firearms, which resides in subsection (5), and respecting a patient's legal right to own or possess a firearm, which resides in subsection (6). Section 790.338(8), Fla. Stat., does nothing to practitioners who violate those provisions. So, if section 790.338(8) prevails, not only can anti-gun docs harass patients with impunity but they can also discriminate and disrespect with impunity!

Hmmm, I wonder why the AP and the rest of the mainstream media have failed to point out this inconsistency. This whole time, the headlines could have read, "Ambiguous new law might do nothing to punish doctors who discriminate or harass patients over guns." Would the ACLU be upset if state law allows patients to be discriminated against, disrespected, and harassed when they exercise their constitutionally-protected civil liberties? Doesn't the "CL" in ACLU stand for "civil liberties?"

Did the AP ever investigate this inconsistency and report on how the ACLU will respond if the law is found to allow this sort of discrimination and harassment? That's a rhetorical question, since we all know the AP has done no such thing, but a legitimate question is why not?

The Bottom Line
When you actually read the law or an accurate summary of the law, you realize that if gun information is relevant to a patient's medical care or safety or the safety of others, the law proactively nullifies its own restrictions on practitioner behavior that could otherwise lead to disciplinary actions. Why wouldn't the AP provide this information, or, at the very least, point out how careful the law is to err on the side of patient safety and the safety of others? Did the AP leave that out because the law seems much more reasonable and is much more defendable when those aspects have been revealed? If that's not the reason, then what is?

I saved this final note for the very end. Even if you don't believe what I've said about the law in this critique, perhaps you'll believe the left-leaning Politifact.com, which published a fact-check about the law more than four years ago, on June 6, 2011. In that article, Politifact.com rated former U.S. Senator Bob Graham's claim that the law prohibits doctors from talking to their patients about gun safety as "Mostly False." (Graham's claim was actually 100% false, not "mostly" false.)

You'd think an AP reporter might acknowledge that this particular question was settled long ago, and not by me, but by Politifact.com, which habitually goes out of its way to give the benefit of the doubt to left-wing schools of thought at every turn. However, you'd be silly to think that way because left-leaning reporters habitually just ignore such inconvenient truths that come into conflict with a left-wing agenda. So, nice job, AP. You managed to get through your entire story without ever mentioning that statements by both Judge Wilson and the ACLU are demonstrably false. Does anyone wonder why the AP did that?

Updates:

UPDATE #1: (Aug 20, 2015) Attorneys for the plaintiffs filed court documents on August 18, 2015, asking the full appellate court to hear the case and issue a ruling to supersede the three-judge panel that ruled in favor of the law on July 28. The plaintiffs also indicated they plan to petition the U.S. Supreme Court if the full Atlanta-based appellate court does not take up the case or does not rule in their favor. The plaintiffs further asked the court to reinstate the injunction prohibiting enforcement of the law and to keep such injunction in place even if the full appellate court does not take up the case.

UPDATE #2: (Sept 4, 2015) Florida's Attorney General Pam Bondi filed court documents this week to argue that the state should be allowed to enforce the law, despite the plaintiffs' intent to appeal to the U.S. Supreme Court if the 11th U.S. Circuit Court of Appeals does not strike down the law. In the meantime, the state is still not enforcing the law, pending a court decision on the plaintiffs' requests that were filed on August 18.

UPDATE #3: (March 30, 2016) The 11th U.S. Circuit Court of Appeals has granted the plaintiffs' request for the entire court to review the case. Oral arguments are scheduled for June 21, 2016, in Atlanta.

UPDATE #4: (July 28, 2016) Oral arguments were presented to the full 11th U.S. Circuit Court of Appeals on June 21. Two days later, the court asked the parties to file briefs on the question of the law's severability, i.e. whether separate provisions within the law may be upheld while others are struck down, or whether the law must be upheld or struck-down in its entirety. This week, the Florida attorney general filed a brief indicating that the law's provisions are severable while attorneys for the plaintiffs argued that the law must be kept intact and handled in an all-or-nothing manner.

Since the court made this request, my guess is that some number of the judges want to strike down at least one part of the law while upholding the rest. The part most likely to be struck-down would be the law's prohibition against health practitioners asking patients whether they own guns, under certain circumstances. That portion of the law is where the plaintiffs have planted their 1st Amendment flag. I can't see how the 1st Amendment has any bearing on the rest of the law. The plaintiffs hate all parts of the law, so they're probably arguing against severability because they think their 1st Amendment issue will take down the entire law if the law is considered as a whole in terms of its constitutionality. That's just my take on the matter. I could be wrong.

In terms of timing, there's no indication about when the court will rule. Stay tuned. (Sidebar: Today is exactly one year from the date that the three-judge panel in Atlanta ruled the law to be constitutional, and nearly five years and two months have now passed since the law was originally supposed to have taken effect.)

UPDATE #5: (Feb 17, 2017) Yesterday, the full 11th U.S. Circuit Court of Appeals issued its ruling and struck down certain portions of the law while upholding others. I expected the court to strike down the law's conditional prohibition against practitioners asking patients about gun ownership, and the court did that, based on its determination that that prohibition violated the 1st Amendment.

However, the court went further and also struck down the law's conditional prohibition against practitioners recording information about gun ownership in a patient's medical record and the law's efforts to prevent practitioners from unnecessarily harassing a patient about gun ownership during an examination. Those two provisions were also ruled to have violated the 1st Amendment.

The court left the rest of the law alone, which means those surviving provisions will be given effect. However, only two of the surviving portions have any theoretical effect, and one of those will have very little practical effect because a violation would be extremely difficult to prove or enforce.^[2]

Given all that, the ruling is a crushing defeat for the National Rifle Association and a huge victory for the plaintiffs and gun haters who opposed the law.

Today is only the first day after the ruling, but here's a quick survey of errors I've found in news coverage:

• In discussing the court ruling, Politico reported that the law "prohibited doctors from asking patients about gun ownership unless it was medically necessary." As pointed out in the critique above, the law says nothing about medical necessity. The law allows inquiries about gun ownership if the practitioner believes in good faith that such information is relevant to the patient's medical care or safety or the safety of others. That's a much more lenient threshold than medical necessity, and any news outlet indicating that the exception relies on medical necessity is just flat wrong and is misleading its readers in a way that impugns the law.
• The Miami Herald reported that the court's opinion "only applies to portions of the law that restricted doctors inquiring about firearms." That is not true. The court struck down the inquiry, record-keeping, and anti-harassment portions of the law, not just the inquiry provision. That is just sloppy reporting. It doesn't lean one way or another regarding media bias, but it does mislead readers with significantly erroneous information.
• I'm not sure about the vote count when the court decided on its ruling. According to The Miami Herald, the ruling was issued under an 8-to-3 vote of the judges. Meanwhile, Reuters reported that the vote was 10-to-1. When they don't agree with each other, which mainstream news outlet are we supposed to believe?

Lastly (and I hope this will be my final note about this issue), in my view, the major portions of this law were doomed from the get-go. It's very difficult to enact a law that places restrictions on what people can say (or, in this case, ask) without getting crosswise with the 1st Amendment. It's hard enough to do that even when you handle things in the right way, but whoever drafted this law seemed oblivious to that reality and seemed unaware of all the hurdles that must be overcome when you try to place any limitations on what people can say (or, in this case, ask).

I thought the law's limited prohibition against recording information about gun ownership in a patient's medical records might survive, but the court felt that even that restriction violated the 1st Amendment, despite the law's exception for medical relevance and safety.

To me, it seems state law should be able to regulate what a state-licensed professional includes in a medical record that is already subject to far-reaching regulations, but even those circumstances did not get around the court's esteem for the 1st Amendment. That illustrates just how highly U.S. courts regard the 1st Amendment. The 11th circuit court's opinion in this case even goes so far as describing the free-speech clause of the 1st Amendment as having "majestic brevity." It's very difficult to get around that.

But, it was never the purpose of this critique to defend the law or provide sympathy for it. I've heard from PolitiFACTOID readers who criticized me for doing that. The critique does not defend the law. In fact, the critique actually criticizes the law for being unclear and inconsistent. In any event, the critique was primarily designed to point out how poorly the AP represented the law and how the law was depicted by the AP in a very prejudicial and biased manner. I stand by that, and I always will.

Not sure what (if anything) will happen next with this case. The state of Florida could appeal to the SCOTUS, I suppose, but I don't think the Supremes would agree to hear the case. This doomed law is dead. Let it go.

UPDATE #6: (June 13, 2017) Yesterday, numerous news outlets reported that the state of Florida allowed its window for appealing the 11th Circuit Court's ruling to expire, which means the provisions of the law that were struck-down are now gone forever.

However, according to USA Today, at least one of Florida's state senators believes the issue could be revisited by the state legislature. If so, it will be interesting to see whether AP reporters can treat the new legislation with more fairness and objectivity than they did with the original law. It will also be interesting to see if the Florida legislature can craft a bill that properly addresses the 1st Amendment, which the original law failed miserably to do.

UPDATE #7: (April 22, 2018) Today I noticed the latest example of just how highly regarded the 1st Amendment is in the eyes of most courts. According to Dallas News, a 2015 state law in Texas was thrown out as unconstitutional last week by a Texas appellate court, due to the court believing the law violated the 1st Amendment.

What did the law do? Well, it criminalized the act of posting nude photos of a person on the Internet without the person's consent – behavior commonly known as "revenge porn." The court found that the law is too broad and infringes on free speech.

As I pointed out above, anyone drafting a new law to limit any type of communication based on that communication's content has to tread very, very carefully and navigate around a few hurdles established by SCOTUS case law, regardless of how well-intentioned the law is.

On another note, I cannot find news of any efforts by the Florida legislature to revisit the docs vs. glocks law this year, as one Florida senator was reportedly considering last summer. (See Update #6.) Given the high-profile shooting in Parkland, Florida, a couple of months ago, I'd consider it highly unlikely for any lawmaker to go anywhere near docs vs. glocks anytime soon.

Footnotes:

1. The law's declaration that patients can refuse to answer a health care practitioner's questions about gun ownership is quite unnecessary. Patients could already refuse to answer such questions anyway, with or without this law. (Click here to return to the critique.)
2. The surviving portion of the law that will have little, if any, practical effect is the prohibition against practitioners discriminating against a patient based solely on the patient's exercise of the constitutional right to own and possess firearms or ammunition. Assuming a practitioner chooses to discriminate in that way, it would be virtually impossible to prove unless the practitioner freely admits to such behavior, and why would he or she ever make such an admission, especially knowing it could lead to disciplinary action or a lawsuit? The other surviving portion that might have an actual effect is a prohibition against insurers issuing policies that discriminate against persons who lawfully own or store firearms or ammunition. This latter provision was not mentioned in the critique because it was not covered in the AP story, nor was it challenged in the lawsuit. (Click here to return to the critique.)

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