Wollschlaeger v. Governor, State of Florida, Case No. 12-14009 (11th Cir. 2017) (en banc).<\/p>\n
On February 16, 2017, the U.S. Court of Appeals for the Eleventh Circuit struck down certain parts of Florida\u2019s Firearms Owners\u2019 Privacy Act (\u201cFOPA\u201d), which imposed content-based restrictions on the free speech of medical professionals such as limiting inquiries about the presence of guns in a patient\u2019s home. On the other hand, the court upheld the anti-discrimination provision that precludes discrimination against patients based solely upon the exercise of the constitutional right to own and possess firearms or ammunition.<\/p>\n
The Firearms Owners\u2019 Privacy Act, Chapter 2011-112, Laws of Florida, was enacted in 2011, creating section 790.338 and amending sections 381.026 and 456.072 of the Florida Statutes. One purpose of FOPA was to require health care practitioners and facilities to respect a patient\u2019s privacy concerning the exercise of the Second Amendment right to own or possess a firearm. <\/p>\n
For example, the Act prohibited doctors and healthcare facilities from \u201cmaking 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.\u201d \u00a7 790.338(2), Fla. Stat. (the record-keeping and inquiry provisions). The law made an exception, however, allowing such written or verbal inquiry where \u201ca health care practitioner or health care facility \u2026 in good faith believes that this information is relevant to the patient\u2019s medical care or safety, or the safety of others.\u201d \u00a7 790.338(2), (6), Fla. Stat. <\/p>\n
Another purpose of FOPA was to preclude medical professionals and facilities from discriminating against a patient \u201cbased solely upon the patient\u2019s exercise of the constitutional right to own and possess firearms or ammunition,\u201d or \u201cunnecessarily harassing a patient about firearm ownership during an examination.\u201d \u00a7 790.338(5), (6), Fla. Stat. (the anti-discrimination and anti-harassment provisions).<\/p>\n
FOPA provided for disciplinary sanctions against medical professionals and facilities violating the Act. \u00a7 790.338(8), Fla. Stat. Soon after FOPA was enacted, various doctors and medical organizations filed suit in federal court to challenge parts of the Act as unconstitutional.<\/p>\n
In June 2012, the federal district court in Wollschlaeger v. Farmer permanently enjoined enforcement of FOPA\u2019s record-keeping, inquiry, anti-discrimination, and anti-harassment provisions, holding that they were invalid under the First Amendment and were not the least-restrictive means to accomplish the State\u2019s objectives.<\/p>\n
The State of Florida appealed to the Eleventh Circuit, where the three-judge panel wrote three separate opinions upholding FOPA as constitutional in 2014 and 2015. However, the Eleventh Circuit voted to rehear the case en banc with 11 judges. They heard the en banc oral argument in June 2016.<\/p>\n
On February 16, 2017, in Wollschlaeger v. Governor, State of Florida, the Eleventh Circuit issued a 90-page en banc decision containing two separate majority opinions (one by Judge Jordan, and another by Judge Marcus, both striking down parts of FOPA), two concurring opinions, and a dissenting opinion. Some of the en banc judges joined in both of the majority opinions, although the first majority opinion was deemed the primary voice of the court. <\/p>\n
The court noted content-based regulations of speech are presumptively invalid, and some parts of FOPA regulated speech on the basis of content, restricting and providing disciplinary sanctions for speech by doctors and medical professionals on the subject of firearm ownership. <\/p>\n
The primary majority opinion struck down the record-keeping, inquiry, and anti-harassment provisions, holding them unconstitutional under the freedom of speech clause of the First Amendment and the concept of liberty under the due process clause of the Fourteenth Amendment which embraces the right of free speech. The court noted that \u201cthere is no actual conflict between the First Amendment rights of doctors and medical professionals and the Second Amendment rights of patients that justifies FOPA\u2019s speaker-focused and content-based restrictions on speech.\u201d (Id. at *29-30.) That majority opinion also held that, \u201ceven if there were some possible conflict\u201d between the First Amendment rights of doctors and the Second Amendment rights of patients, the record-keeping, inquiry, and anti-harassment provisions \u201cdo not advance the legislative goals in a permissible way.\u201d (Id. at *30.)<\/p>\n
However, the court upheld the anti-discrimination provision, interpreting it as not facially implicating the spoken or written word. Thus, \u201cwe can uphold FOPA\u2019s anti-discrimination provision by construing it to apply to non-expressive conduct such as failing to return messages, charging more for the same services, declining reasonable appointment times, not providing test results on a timely basis, or delaying treatment because a patient (or a parent of a patient) owns firearms. When \u00a7 790.338(5) is limited in this way, there is no First Amendment problem.\u201d<\/p>\n
The first majority opinion concluded: \u201cThe record-keeping, inquiry, and anti-harassment provisions of FOPA violate the First Amendment, but the anti-discrimination provision, as construed, does not. The district court\u2019s judgment is affirmed in part and reversed in part, and the case is remanded so that the judgment and permanent injunction can be amended in accordance with this opinion.\u201d (Id. at *43.)<\/p>\n
The second majority opinion agreed that the record-keeping, inquiry, and anti-harassment provisions of Florida\u2019s Firearm Owners\u2019 Privacy Act \u201cplainly target core First Amendment speech. Because the State has failed to demonstrate that these provisions are narrowly drawn to directly and materially advance a substantial government interest, they cannot withstand heightened scrutiny.\u201d (Id. at *44.) <\/p>\n
The second majority opinion then went further to hold that the anti-harassment provision was invalid for an additional reason: that the ban on \u201cunnecessarily harassing\u201d behavior was unconstitutionally vague. The court asked, How would a physician know if he or she is \u201cunnecessarily harassing a patient about firearm ownership\u201d as stated in section 790.338(6)? Considering the basic principle of due process that a law is void for vagueness if its prohibitions are not clearly defined, the opinion pointed out, \u201cHow is a doctor to know when his advice has become \u2018unnecessarily\u2019 harassing,\u201d or \u201chow is a doctor to predict his patients\u2019 individual tolerances for hearing firearm-safety advice?\u201d (Id. at *49-50.) The opinion concluded that such ambiguity or vagueness is inconsistent with the First Amendment.<\/p>\n
The Eleventh Circuit\u2019s en banc decision in Wollschlaeger protects patients from discrimination based on gun ownership, while also protecting the rights of doctors to comply with the standard of care that encourages doctors to ask questions about firearms and other potential safety hazards. The en banc decision could mark the end of the case, or the State could seek review by the U.S. Supreme Court.<\/p>\n
This case illustrates some of the issues that appellate lawyers are adept at handling. Several attorneys at Bresky Law have argued cases before the U.S. Court of Appeals for the Eleventh Circuit, and one of those attorneys filed a brief in a First Amendment case in the U.S. Supreme Court. Bresky Law is available to handle or assist with state and federal appeals in South Florida, all of Florida, and beyond.<\/p>\n","protected":false},"excerpt":{"rendered":"
Wollschlaeger v. Governor, State of Florida, Case No. 12-14009 (11th Cir. 2017) (en banc). On February 16, 2017, the U.S. Court of Appeals for the Eleventh Circuit struck down certain parts of Florida\u2019s Firearms Owners\u2019 Privacy Act (\u201cFOPA\u201d), which imposed content-based restrictions on the free speech of medical professionals such as limiting inquiries about the…<\/p>\n","protected":false},"author":1,"featured_media":1992,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[1816,1830,1827],"tags":[],"class_list":["post-1991","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-criminal","category-general","category-u-s-court-of-appeals"],"acf":[],"_links":{"self":[{"href":"https:\/\/ssrga.com\/appellate\/wp-json\/wp\/v2\/posts\/1991","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/ssrga.com\/appellate\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/ssrga.com\/appellate\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/ssrga.com\/appellate\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/ssrga.com\/appellate\/wp-json\/wp\/v2\/comments?post=1991"}],"version-history":[{"count":0,"href":"https:\/\/ssrga.com\/appellate\/wp-json\/wp\/v2\/posts\/1991\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/ssrga.com\/appellate\/wp-json\/wp\/v2\/media\/1992"}],"wp:attachment":[{"href":"https:\/\/ssrga.com\/appellate\/wp-json\/wp\/v2\/media?parent=1991"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/ssrga.com\/appellate\/wp-json\/wp\/v2\/categories?post=1991"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/ssrga.com\/appellate\/wp-json\/wp\/v2\/tags?post=1991"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}