Columns

Florida, Appeal Flawed Decision Overturning 'Docs vs. Glocks' Law

By: Nancy Smith | Posted: July 7, 2012 3:55 AM
I Beg to Differ
Rick Scott should appeal U.S. District Judge Marcia Cooke's permanent injunction against Florida's Firearms Owners' Privacy Act.

If he doesn't, doctors will have a right to refuse to treat you if you own a gun.

They will have a right to grill you about your gun and enter your answers into their medical records, including where the firearm is stored.

They will have a right to press your children on whether you own a gun.

"Now we've got Obamacare, the government owns our health care," Molly Johanssen, a 58-year-old Tallahassee business owner, told Sunshine State News. "They can coerce the names and habits of gun owners out of doctors' medical records, that's what scares me most. Maybe it won't happen today or tomorrow, but the ability to do it is there."
 
Marcia Cooke

Marcia Cooke

The point is this: Without the governor's intervention, the law the Florida Legislature passed in 2011 to prevent doctors from "unnecessarily harassing a patient about firearm ownership" is as dead as a beaver hat.

Nicknamed "Docs vs. Glocks," the Firearms Owners' Privacy Act barred doctors from asking patients about guns in the home "unless the practitioner in good faith believes the information is relevant to the patient's medical care or safety."

It was passed after an Ocala couple complained that a doctor had asked them about guns, and when they declined to answer, refused to see them anymore.

And in spite of a bitter "campaign of intimidation" against it waged by physicians' groups, the Brady Campaign and others, Gov. Scott signed the bill into law in June 2011.

Marion Hammer

Marion Hammer

“They sent a letter that was a blatant threat," said Marion P. Hammer, past president of the National Rifle Association and now the NRA's chief lobbyist in Florida. "They attempted to intimidate and coerce the governor by telling him that they would sue him and other state officials if the bill became law. Now, that tells you the type of people you’re dealing with. ...”

Those who opposed the new law made good on their threats, too. Using three doctors, they sued the state. Enter, U.S. District Judge Marcia Cooke, who in September 2011 issued a temporary injunction against the law, claiming the “gag order” on doctors talking to their patients about guns is an infringement of free speech and the doctor-patient relationship.

About a week ago, on June 29, Cooke made the injunction permanent.

But many critics of the judge's decision -- not just the NRA, but attorneys who have followed the case -- claim the rationale behind it is seriously flawed.

Six times in a 25-page ruling, they point out, Cooke uses the phrase “truthful, nonmisleading" speech/information. She sums up her decision this way: "What is curious about this law -- and what makes it different from so many other laws involving practitioners’ speech -- is that it aims to restrict a practitioner’s ability to provide truthful, nonmisleading information to a patient ..."

Restrict a practitioner's ability to provide truthful, nonmisleading information to a patient?

The Act did no such thing, these observers insist. Read the bill as it was written, as it was taken into law: It "prohibits a doctor from asking or recording information about firearm ownership and prohibits a doctor from dropping a patient who refuses to talk about firearm ownership."

Lane Wright, press secretary for Scott, has said the governor is considering whether to appeal Cooke's decision.

Meanwhile, Rep. Jason Brodeur, R-Sanford, health-care consultant in private life who sponsored the bill, and General Counsel for the Florida Senate Craig Meyer, both have said they believe Cooke's decision will not go unchallenged. They say Scott will appeal.

That's the right thing to do.

For the estimated 8.5 million Floridians who own firearms, who fear the coming federal takeover of the American health-care system -- and let's be honest, many do -- Cooke's ruling has compromised their privacy rights and put them in danger of a day when government conceivably will be able to access medical records as a means of getting a list of gun owners.

Whether you or I believe that will happen is not the point.

The fact is, appealing Cooke's decision seemed less urgent before the U.S. Supreme Court upheld Obamacare. Now appeal becomes the necessary option -- not to incite fear but to prevent it.



Read Nancy Smith at nsmith@sunshinestatenews.com or at (850) 727-0859.



Comments (21)

joe
10:53AM JUL 30TH 2012
Ha, the NRA accusing doctors of a 'campaign of intimidation' and a 'blatant threat' WTF? hell the greedy psychopathic gun nuts at the NRA PERFECTED using intimidation and threats- literally- to get their way and now every politcian in 'Merka is cared to death of these criminals...nice to see the docs stand up to the bullies and the scumbag Scott!
William in Tampa
12:02PM JUL 9TH 2012
Medical information is the most personal and private thing that any individual has. Period. Until there are true MIND READERS, what goes on in your head is "yours, and yours alone".

BAD criminals will do what they will, regardless of LAWS - just as it is now. If they are a bit 'crazy', do you believe that they will be truthful about gun ownership?

To the best of my knowledge, a doctor (or medical facility) cannot "Swear you to tell the truth" - This is ABSURD!

And what about the 5th Amendment? This ruling is 100% counter to EVERY PERSONS' RIGHTS.

If there is ANY opportunity for YOU to help DUMP U.S. District Judge Marcia Cooke, PLEASE DO IT!
Frank
4:34PM JUL 9TH 2012
Don't go spouting off about topics you have clearly demonstrated you have no understanding or knowledge about - - like Constitutional rights, doctors and testifying, the intent of unconstitutional gun laws, actual laws, and rulings by federal Judges.

Your incompetencies in all these areas are now clearly out there for all to view.
Rich7553
1:33PM JUL 11TH 2012
Here's a thought Frank. Instead of simply berating the poster, how about sharing your brilliance on the topic and tell him where he's wrong.
Diane
10:19AM JUL 9TH 2012
This law was frivolous from the very beginning. Of course every parent needs to be informed of various dangers where their children are involved. You don't leave a child unattended in a locked vehicle, and especially do not when it is hot outside. You put fences around swimming pools and install safety devices to be sure your toddler cannot access the pool unintentionally. You use a car seat properly. AND you store your guns at home safely. All of these items and more are most certainly proper for a physician to ask a parent of children. If you think parents already knows these things, just read the papers daily. This is just a ploy from the NRA to stir up things without regard to the safety of the children involved.
Rich7553
1:49PM JUL 11TH 2012
Diane, first off, what is it about having a medical degree that qualifies a pediatrician to issue gun safety advice? I am a certified firearms instructor and range safety officer, yet I would not assume to offer medical advice to my students. And house fires kill four times as many children annually as do guns, yet pediatricians don't inquire as to whether one has operable smoke alarms, fire extinguishers, or practices family evacuation drills. Why is that?

Second, why do pediatricians need to ASK specifically about personal gun ownership? Nothing in the statute would preclude a doctor from simply providing their "firearms safety" information.

Finally, the pediatricians' case is based on a false pretense. They claim as many as 3,000 children die each year from firearms. However they fail to mention that their definition of "children" includes those over 18 and that the overwhelming majority of firearms deaths are homicides and suicides, both intentional acts. How exactly would firearms safety counseling to a parent stop an intentional act? Care to guess how many children ages 17 or under died nationwide in 2009 unintentionally due to firearms according to the CDC? Eighty-two. Hardly the number the pediatricians tout. Of the total firearms deaths in 2009 of ages 17 and under including intentional acts, the number doubles when one adds age 18. Do you think that gang/drug influence is a factor?

The fact is that the American Association of Pediatrics has a long-standing relationship with the gun control lobby, and this is just another way to stifle gun ownership in America. It is politically and ideologically motivated, and has little to do with "child" safety in the home.
joe
10:56AM JUL 30TH 2012
uh Rich it doesn't take a genius to warn people to keep the guns out of reach of their children, moron...take your head outta your butt and replace it with the end of your 'firearm', srsly it's morons like you that make this country the genetic cesspool it is
Frank
11:18PM JUL 11TH 2012
Yes, you must be right. A doctor who fears for the mental health of his patient, who may be demonstrating possible suicide tendencies, will never have a legitimate reason to ask about the patient's access to the means to kill himself, such as a gun.

Yes, doctors are obviously only concerned about pushing more gun control, NEVER the mental stability and suicide tendency of their adult or minor patient.

Incredible!
Rich7553
12:52AM JUL 12TH 2012
Oops, wrong paragraph.

"A health care practitioner licensed under chapter 456 or a health care facility licensed under chapter 395 shall respect a patient’s right to privacy and should refrain from making a written inquiry or asking questions concerning the ownership of a firearm or ammunition by the patient or by a family member of the patient, or the presence of a firearm in a private home or other domicile of the patient or a family member of the patient. Notwithstanding this provision, a health care practitioner or health care facility that in good faith believes that this information is relevant to the patient’s medical care or safety, or the safety of others, may make such a verbal or written inquiry."
Frank
7:05PM JUL 14TH 2012
I'm not the one who said "why do pediatricians need to ASK specifically about personal gun ownership".

I gave you my reasons for asking, never commenting on whether the Florida law didn't allow that. That idea simply formed in your own mind and paranoia.
Rich7553
12:51AM JUL 12TH 2012
Frank, did you even bother to read the statute?

"Any emergency medical technician or paramedic acting under the supervision of an emergency medical services medical director under chapter 401 may make an inquiry concerning the possession or presence of a firearm if he or she, in good faith, believes that information regarding the possession of a firearm by the patient or the presence of a firearm in the home or domicile of a patient or a patient’s family member is necessary to treat a patient during the course and scope of a medical emergency or that the presence or possession of a firearm would pose an imminent danger or threat to the patient or others."

But when a pediatrician interrogates a parent about guns in the home when she takes her daughter in for a routine physical or a flu shot, it smacks of pushing gun control.
Ben
7:55PM JUL 7TH 2012
The law never prohibited a doctor from dropping a patient who refuses to talk about firearm ownership. In fact, the law clearly stated that it did not change the existing law, which allows a doctor to drop a patient for any reason. (it's subsection 4.) The doctors also cannot coerce you to say or do anything. The decision left intact the portion of the law that allows a person to simply refuse to answer any questions about guns. If you don't answer, nothing gets on your medical file about whether or not you own a gun. It's pretty simple and puts all the power in the patient's hands.


As a general practice point, I highly suggest that in the future you read any laws and legal opinions before you write your editorials on them.




Also, I'm not sure if you or your readers realize this, but if your doctor is harassing you, you can just leave and never come back. I'm sure if your doctor tried to get you to take a medicine you didn't want to take or advised you to take a course of action (such as abortion) that you didn't agree with, that's exactly what you would do. You don't need a law to tell you how to conduct yourself.




Laws such as this one is why this country is becoming a nanny state. It's a waste of time and money, and goes against Republican and Libertarian values of small government. I don't understand how any conservative can stand behind a law that gets so involved in your personal business, assuming we as citizens aren't able to do something as basic as walk out of a doctor's office or refuse to answer a question.
Todd
3:21PM JUL 7TH 2012
Finally someone tells the other side of this story. The NRA is right on this issue. What's next. Big brother already knows too much about us.
Frank
6:32PM JUL 7TH 2012
Too bad then, that the American court system disagrees with you and the NRA 100%.

Since you obviously use the internet, it's not Big Brother you should worry about.....it's Big Business, who now knows where you live, what you search for, what you type, what you look at online, and for how long. That gets matched with Facebook info and all the other information you've ever entered online. All sitting there, in their cloud databases, ready for whenever they need it.
Rich7553
1:52PM JUL 11TH 2012
The ruling of a single court does not constitute the view of "the American court system".
Frank
6:50PM JUL 14TH 2012
It is the law unless overturned.
Frank
9:21AM JUL 7TH 2012
Yes, appeal and try to bring on them legislative created shooting deaths!

That's the real issue after all, isn't. Why would a doctor ever be asking about guns in the home - can you think of ANY reasons why a medical professional would ever be concerned about the easy availability of guns in the household?

You probably can't, can you Nancy, and that's the sad part.

It must not happen very often - it's never happened to me, nor to anyone in my extended family as far as I can ascertain.

But from the one or two cases I've heard about third or fourth hand, there's usually been a concern about the mental health of an adult or child in that family.

So, first of all, this appears to be a faux problem (where's been the harm in a doctor's asking?), and second, why are Republicans bound and determine to keep harping on a doctor's speech.

See, here, they don't want them to talk about something (i.e. guns in the home), while requiring them to talk about something else (i.e. the value of an unborn fetus).

Can't talk about guns killing, but must talk about abortion as a killing (as well as require medically unnecessary medical treatments).

In the medical profession, that would almost appear to be a form of DID, or Dissociative Identity Disorder, aka split personality. One of the keys is being recurrently controlled by at least two alternating discrete identity states while also suffering extensive memory lapses.

In politics and journalism, we just use a more simple diagnosis, like here - HYPOCRISY.
Rich7553
2:07PM JUL 11TH 2012
"Yes, appeal and try to bring on them legislative created shooting deaths!"

The overwhelming majority of shooting deaths are homicides and suicides. Are you asserting it is the legislature's fault that someone kills themselves or another?

"It must not happen very often - it's never happened to me, nor to anyone in my extended family as far as I can ascertain."

Logical fallacy. Your personal experience or lack thereof is not evidence of the existence or non-existence of an issue.

"But from the one or two cases I've heard about third or fourth hand, there's usually been a concern about the mental health of an adult or child in that family."

False argument. Firearms inquiries related to the mental health of a patient are exempted.

"So, first of all, this appears to be a faux problem (where's been the harm in a doctor's asking?), and second, why are Republicans bound and determine to keep harping on a doctor's speech."

First of all, the problem is real and documented. The harm in the doctor's asking is that patient's answers are recorded in either written or electronic form. This list constitutes a de facto registration of firearms owners and is a violation of §790.337 Florida Statutes. There is nothing in the statute that precludes a doctor from providing all the firearms safety information they wish. The objection is to the ASKING about individual firearms ownership. This is not a partisan issue.

"See, here, they don't want them to talk about something (i.e. guns in the home), while requiring them to talk about something else (i.e. the value of an unborn fetus)."

Given that an unborn fetus eventually hopefully becomes a child, is it not contradictory to protect those who have been born yet care less about those who have not?

"In the medical profession, that would almost appear to be a form of DID, or Dissociative Identity Disorder, aka split personality. One of the keys is being recurrently controlled by at least two alternating discrete identity states while also suffering extensive memory lapses."

I see, so supporting abortion while simultaneously saying one is concerned about children's health is not considered DID?

"In politics and journalism, we just use a more simple diagnosis, like here - HYPOCRISY."

There's a simpler term for your position - BULL****!
Frank
2:19AM JUL 15TH 2012
I'm sure your technical analysis will hold up legally - why don't you intervene with the court and file it just the way you said it.

Then we can begin a diagnostic investigation of your coprolalia and whether that's leading to Mad Hatter Disorder, with a status assessment review of your mental competency and judge whether you should be allowed near weapons of any type.
Danger Dan
9:01AM JUL 7TH 2012
Please do fight this. As a member of the ACLU, I can't thank you enough for how much Governor Scott and the Republican Legislature have helped our organization. Winning court judgements against your patently unconstitutional laws has been very lucrative.
Rich7553
2:08PM JUL 11TH 2012
How does the ACLU count the Amendments in the Bill of Rights?

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